District 76, Retail, Wholesale & Dept Store Union

National Labor Relations Board - Board Decisions

Apr 18, 1960

127 N.L.R.B. 254 (N.L.R.B. 1960)

254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District 76, Retail , Wholesale and Department Store Union,
AFL-CIO and Chandler 's Philadelphia Shoe Store , Inc. Case
No. 4-CB-5P2. April 18, 1960
DECISION AND ORDER
On October 27, 1959, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not violated the Act as alleged in the complaint
and recommending that the complaint be dismissed, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the
General Counsel and the Employer filed exceptions to the Interme-
diate Report and briefs in support thereof.
The sole issue in this case is whether the Respondent violated
Section 8(b) (1) (A) of the Act by peacefully picketing the premises
of the Employer to compel the Employer to recognize it as the exclu-
sive bargaining representative of the Employer's employees at a time
when it did not represent a majority of such employees in an appro-
priate unit. The Trial Examiner recommended dismissal of the com-
plaint on the ground that the record failed to establish that an
objective of the picketing was to obtain recognition.
On March 28, 1960, the Supreme Court issued its decision in
N.L.R.B. v. Drivers, Chauffeurs and Helpers Local Union No. 639,
etc. (Curtis Bros., Inc),' in which the Court held that such peaceful
picketing by a union which does not represent a majority of the
employees to compel immediate recognition as the employees' exclusive
bargaining agent is not an unfair labor practice under Section
8(b) (1) (A) of the Act.
Accordingly, as the decision of the Supreme Court in the Curtis case
is controlling as to the allegations herein, we shall, in compliance
therewith, dismiss the complaint without passing on the Trial Exam-
iner's findings and conclusions.
[The Board dismissed the complaint.]
MEMBER FANNING, concurring :
I agree with my colleagues that the complaint in this case must be
dismissed because the Supreme Court, reversing the majority's posi-
tion in Curtis Bros. Inc., supra, has now determined conclusively that
peaceful picketing is not, and was not intended by Congress to be, a
violation of Section 8(b) (1) (A). My decision, however, is based not
only on the controlling opinion of the Supreme Court, but on my own
interpretation of the law which I have expressed in numerous deci-
sions during my 2 years as a Member of the Board.
1 362 U S. 274.
127 NLRB No. 45.
DISTRICT 76, RETAIL, WHOLESALE & DEPT. STORE UNION 255
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on March 13, 1959, by Chandler's Philadelphia Shoe Store,
Inc., hereinafter called the Company or Charging Party, the General Counsel of
the National Labor Relations Board, herein respectively called the General Counsel 1
and the Board, by the Regional Director for the Fourth Region (Philadelphia, Penn-
sylvania ), issued his complaint dated April 30, 1959, against District 76, Retail,
Wholesale and Department Store Union , AFL-CIO, hereinafter referred to as the
Respondent or the Union , alleging, in substance , that in furtherance of Respondent's
request and demands that the Company recognize it as the exclusive bargaining
representative of company employees at its Philadelphia , Pennsylvania , retail store
and that the Company bargain or contract with the Respondent as such representa-
tive, the Respondent has since on or about March 12, 1959 , established and main-
tained a picket line at or near the company store at 1312 Chestnut Street, Philadelphia,
Pennsylvania , in violation of Section 8(b)(1)(A ) and Section 2(6) and ( 7) of the
Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act . Copies
of the charge and the complaint with notice of hearing thereon were duly served
upon the Respondent and the Company.
The Respondent duly filed its answer wherein it admitted certain allegations of
the complaint but denied the commission of any unfair labor practices.
Pursuant to notice , a hearing was held on July 9 and 10, 1959, at Philadelphia,
Pennsylvania , before the duly designated Trial Examiner . Full opportunity to be
heard, to examine and cross -examine witnesses , and to introduce evidence bearing
upon the issues was afforded all parties . At the conclusion of the hearing the
parties were advised of their right to argue orally upon the record , which was waived,
and to file briefs and/or proposed findings and conclusions or both. Briefs have
been received from all parties on September 25, 1959.
Upon the entire record, and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Chandler's Philadelphia Shoe Store , Inc., is a corporation organized under the
laws of the Commonwealth of Pennsylvania , and is a wholly owned subsidiary of
Edison Brothers ' Stores, Inc , which will be hereafter included in the term Company
or Charging Party. The Company is engaged in the operation of a retail store at
1312 Chestnut Street, in Philadelphia , Pennsylvania , and during the preceding year
had gross sales in excess of $600,000.
Edison Brothers ' Stores, Inc., is a multistate enterprise engaging in the retail sale
of shoes with 410 retail stores located in 109 cities in 40 States of the United States.
The Company , at all times material herein , has been and is now engaged in
commerce within the meaning of Section 2(6)(7) of the Act.
II. THE RESPONDENT
District 76, Retail, Wholesale and Department Store Union , AFL-CIO , is a labor
organization admitting to membership employees of the Company.
In. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
The parties here are in full agreement as to the facts involved. They are in
equal disagreement as to the inferences to be drawn from these facts and the legal
consequences thereof.
Chandler's Philadelphia Shoe Store , Inc., a corporation wholly owned and oper-
ated by Edison Brothers ' Stores, Inc., opened its retail shoe store at 1312 Chestnut
Street, one of the main shopping centers in downtown Philadelphia , on March 12,
1958. The following day, March 13, the Union through George Brown, its
president , sent the following letter to Chandler's:
We want to take this opportunity of welcoming you to Philadelphia. We
hope your stay here will be a long and successful one.
'This term specifically includes the attorney appearing for the General Counsel at the
hearing.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However since we represent the organized workers in the retail shoe stores
in the Philadelphia area, we would like to meet with you as soon as possible to
discuss some mutual problems that we are faced with.
Would appreciate hearing from you by return mail.
At the time of this letter the Respondent did not have a single member among the
employees of the store, in fact, did not even attempt to solicit any such members
until some 2 or 3 weeks thereafter when the initial excitement of the opening had
ended.
The above letter was forwarded to the Company's headquarters in St. Louis,
Missouri, where it came to the attention of Roy Oscarson, vice president of Edison
Brothers' Stores, Inc., who replied thereto on March 18 as follows:
It was very kind of you to send your note of welcome upon the occasion of
the opening of our Chandler's store in Philadelphia. We appreciated your
letter very much.
For the time being our store seems to be adequately staffed.
On March 24, after receipt of Oscarson's answer, Brown tried vainly to reach
Oscarson by telephone in St Louis.
Not having succeeded in reaching Oscarson, the Union on the morning of
March 25 placed two pickets in front of the Chandler's store with signs reading
"Chandler's Shoe Store does not observe Philadelphia Shoe Union conditions."
Later that same day Brown received a telephone call from Oscarson who ex-
pressed surprise at the sudden picketing action by the Union. Brown answered that
he felt the Company had ignored him and that he wanted a conference. When
Brown agreed to withdraw the pickets, Oscarson agreed to meet with Brown in
Philadelphia the following day.
Brown for the Union and Oscarson for the Company met on March 26, 1958, at
the office of the Company attorneys in Philadelphia. At this meeting Brown readily
admitted that the Union did not represent a single member in the Chandler's store,
but declared that over the years the Union had been able to achieve a certain level
of wages, hours, and working conditions in the Philadelphia area and that Chandler's
standards were below those established in the area. Brown appealed to Oscarson
to establish conditions in his store in line with those established by the Union.
Oscarson answered that it was well-established company policy to provide conditions
equal to or better than the area conditions in which the Company operated stores.
He then explained in detail the Company's "long history of progressiveness" in the
fields of wages, promotional policies, medical insurance, sick leave, and pension'
policies in order to prove that the conditions at Chandler's were equal to or better
than the Union's standard to which Brown had referred. After several hours of
pencil sharpening and figuring, Brown agreed to submit copies of several union
agreements in the area and Oscarson agreed to consider them for the purpose of
determining whether the conditions at Chandler's in fact equaled or bettered those
established by the Union.
All the witnesses agreed that at this conference Brown requested neither recogni-
tion nor a contract from the Company.
On April 21, 1958, Company Attorney Lazarus was authorized by Oscarson to,
and in fact did, notify Brown that the Company had, as a result of the study of the
union contracts submitted previously by Brown, increased wages at its Philadelphia
store by $5 per week and reduced the hours from 44 to 40 per week. Brown
answered that he was surprised the Company had gone as far as it had and that,
as far as the Union was concerned, he was satisfied and would not trouble the
Company again until he had organized the Chandler's employees. Brown also
testified that he told Lazarus that he would give the Company advance notice if,
and when, the Union should thereafter decide to picket Chandler's again
This was the last contact between the parties during the year 1958.2 The pickets
which had been removed on March 25 did not return.
Within a few weeks of the opening of the store the Union did make some efforts
to interest some of the Chandler's employees in joining the Union by means of some
happenstance luncheon conversations between union members and employees of
Chandler's There was also one definitely arranged conversaton with an employee
of Chandler's. However, these efforts were both desultory and in vain.
2 As these events in the year 1958 occurred more than 6 months prior to the date of
the filing of the charge herein on March 13, 19 ..5 9, they may not be made the basis of a
finding of an unfair labor practice . Howevei , the evidence regarding these events was
admitted here as background to explain , if possible , the meaning of the events of 1959
which were the subject of the charge filed
DISTRICT 7 6, RETAIL, WHOLESALE & DEPT. STORE UNION 257
Suddenly early in March 1959, President Brown telephoned Attorney Lazarus to
inform him that the Respondent would once again within about a week's time place
pickets in front of Chandler's. Lazarus expressed surprise and asked for, and
received, permission to so notify Oscarson with the expressed idea of arranging
another meeting between the Company and the Respondent.
As a result of this telephone call, another meeting was arranged between the parties
and held on March 6, 1959. Oscarson and Brown were again the chief, if not the
only, spokesmen for their respective parties.
Oscarson opened this meeting by asking what it was that Brown wanted. Brown
answered this query with one word: "Nothing." Brown followed this with an
explanation of his thesis that the wages, hours, and working conditions at Chandler's
were not, in fact, equal to those which the Union had established in the area. This
was followed by a long comparison of the two different standards.3 During this
discussion Oscarson inquired if any of the unionized employers were forcing the
Union's action against Chandler's. Brown acknowledged that a few such employers
had mentioned Chandler's conditions but stated that the Union was an independent
organization and followed its own dictates. Oscarson stated that he would be
willing to talk to any such employers "if they were on [the Union's] back." This
offer Brown rejected. Brown stated that, as the Union now considered Chandler's
to be a nonunion store, it was the Union's duty to organize the employees and to
inform the public of Chandler's nonunion status. When Oscarson inquired why the
Union did not attempt to organize the employees through personal solicitation,
Brown answered that the Company's "conditions were so favorable that it was im-
possible to organize them [the employees] into the Union on a personal solicitation
basis " Brown emphasized the fact that because of these conditions the Union had
been unable to secure a single member among the employees of the Chandler's store.
When it was suggested that this disproved Brown's original thesis, Brown answered
that the trouble was that the conditions at Chandler's depended exclusively on
managerial largesse which could not be enforced by the employees as there was no
enforceable collective-bargaining agreement. At this point Oscarson offered Brown
anything at all up to a union agreement and the turning over of the Chandler's
employees to the Union. Brown said that he wanted neither of these although adding
that he "would not be adversed to having a union agreement" with Chandler's Then
Oscarson offered his "Oakland plan" which he stated had been used in Oakland,
California, where the Company gave a prominent third person a statement to the
effect that it was company policy that its hours, wages, and working conditions
were to equal or better the conditions in the area and authorizing such person to
require the Company to institute improvements if it were shown that company
conditions were in fact substandard As the meeting broke up, Brown stated that
he would take such a statement back to his union and discuss it.
A few days later, after such a statement had been delivered to the Union, Brown
notified Lazarus that the Union had rejected this statement because it had decided
that the statement "would not lead to organization." Brown informed Lazarus that
the picketing would commence the following day.
On March 12 Respondent placed two pickets in front of Chandler's store. These
two pickets have marched continuously since then until the time of the hearing in
front of the Chandler's store during store hours carrying signs inscribed with one
of the following messages:
CHANDLER'S SHOE STORE DOES
NOT OBSERVE UNION WORKING
CONDITIONS IN THE
PHILADELPHIA AREA.
RWDSU, AFL-CIO
THE EMPLOYEES OF CHANDLER'S ARE
NOT MEMBERS OF THE
PHILADELPHIA SHOE UNION, UWDSU,
AFL-CIO
A UNION CONTRACT IS A UNION
CONTRACT IS A UNION CONTRACT
RWDSU, AFL-CIO
a In August or September 1958, a number of the Union's Philadelphia contracts had
been reopened on wages under a midterm wage reopener clause The result of these
negotiations was not shown on this record.
560940-61-vol. 127-18
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
EMPLOYEES OF CHANDLER'S
JOIN OUR UNION
HAVE THE PROTECTION OF A
COLLECTIVE BARGAINING AGREEMENT CONTRACT
RWDSU, AFL-CIO
EMPLOYEES OF CHANDLER'S
JOIN OUR UNION
LOOK YOUR FELLOW UNION MEMBERS IN THE EYE
RWDSU, AFL-CIO
In addition to carrying the above signs these two pickets have continuously and
politely requested potential customers not to patronize Chandler's but to go to a
unionized store in the neighborhood. It is admitted that this picketing has been
peacefully conducted.
These pickets parade in front of the Chestnut Street entrance to the store which
is used by both the employees and the customers. The delivery entrance to the store
is located on the alley at the rear of the building. A comanager of the store testified
that in the several hundred times that he had opened this rear delivery door in order
to receive deliveries since the picketing began, he believed that he had noted a
picket by the delivery door on less than five occasions. His testimony on this
point was rather vague and uncertain. No picket has been posted at the rear delivery
door. It is clear from the physical facts that no picket parading in the front of
Chandler's store can see deliveries made at the delivery entrance except in those rare
instances where a picket may recognize a truck with deliveries for Chandler's which
has been misguided or misdirected onto Chestnut Street by mistake in the maze of
Philadelphia streets. On such occasions it is a long run for such a picket to get to
the rear delivery entrance by the time the delivery truck has arrived there. Under all
the circumstances the Trial Examiner believes that these two to five instances of a
picket at the delivery door must be regarded as isolated instances, as Board decisions
often refer to them, and disregarded here even as the briefs herein have.
B. Conclusions
Although there seems to be no case explicitly holding that organizational picket-
ing is legal under the Act, there have been sufficient cases implicitly recognizing the
legality of organizational picketing so that such picketing is generally recognized
as not illegal under the Act.4
On the other hand, the Board decision in the Curtis case 5 makes it clear that the
Board considers it to be a violation of Section 8 (b) (1) (A) of the Act for a minority
union to continue picketing for recognition after having lost a representation election.
In that case the holding of the representation election was used as evidence of the
demand for recognition.
Apparently recognizing this distinction between picketing for organizational pur-
poses and picketing for recognition, the General Counsel set forth at the opening of
his brief the factors which he says-and the briefs of the other parties appeared to
concur-he must prove in order to prove a violation of Section 8(b) (1) (A). The
brief set forth these elements as follows:
(a) Picketing by a minority union.
(b) A demand for recognition.
(c) And that at least one of the objectives of the picketing by the minority
union was the bringing of economic pressure upon the employer and/or em-
ployees in furtherance of the demand.
Actually, as the Respondent's brief concedes, the ony element enumerated by the
General Counsel which is in dispute is his point (b)-the demand for recognition
and/or bargaining. On this point alone is there any real dispute.
As for point (a), above, none of the parties dispute the fact that the Respondent
picketed Chandler's at a time when the Respondent did not represent a majority of
Chandler's employees. In fact at both the 1958 and the 1959 meetings President
Brown not only admitted, but emphasized the fact that the Union did not have a
A See page 81, Twenty-third Annual Report of the Board, reading:
In cases subsequent to the Curtis and Alloy decisions it was made clear that those
decisions envisaged only minority action for the purpose of exclusive recognition and
that no consideration was given to picketing for organizational purposes.
119 NLRB 232.
DISTRICT 76, RETAIL, WHOLESALE & DEPT. STORE UNION 259
single member among the Chandler's employees and, therefore, that the Union did
not purport to represent said employees.
As for the General Counsel's point (c), there can be no question but that accept-
ing the economic argument stressed by the Board in the Curtis case as this Trial
Examiner must, economic pressure was in fact brought to bear upon both the
Company and, more importantly, upon the Chandler's employees through the
Union's picketing of the Chandler's store.
This brings us to the crux of this case: the proof of the demand for recognition
and/or a contract.
In concluding their arguments that in these 1958 and 1959 meetings the Union
was actually demanding recognition and/or contract, the parties say:
(1) Charging Party: "It becomes obvious when the sequence of events are
chronicled that Brown was actually after recognition and that the Company was
forced, into the position of bargaining collectively with him as the price of avoiding
picketing."
(2) General Counsel: "In summary the demand for recognition took the form
of (a) an history of discussions (that resembled collective bargaining) of wages,
hours and working conditions, (b) picketing and (c) a refusal to accept employer
adjustments with regard to wages, hours and working conditions to meet union
standards, leaving only a union contract to satisfy him."
Of course at the very outset of their arguments the General Counsel and the
Charging Party were faced with the admitted, but inconvenient, facts that, as it is
put in the Charging Party's brief, "Brown, too, freely admitted that at no time did
he have a single member among the employees of the store" and that Brown "care-
fully avoided making any express demands for recognition." Despite these incon-
venient facts this argument runs that Brown's conduct "plainly showed his determi-
nation to compel the Company to bargain collectively, thus giving him de facto
recognition, as the price of avoiding picketing."
Thus both these parties recognized a very obvious defect in their proof; to wit,
there was no demand made for recognition or bargaining, orally at least, such as
unions desiring to bargain collectively customarily make.
These parties seek to hurdle this deficiency with the argument that Brown was a
very "sophisticated" labor leader who was obviously attempting to avoid the con-
duct proscribed by the Board in its well-advertised Curtis decision. In other words,
while Brown said one thing, his actions proved him to mean just the opposite.
Yet, while Brown proved to be a loquacious witness rarely at a loss for a few
hundred words in answering a question, neither brief points out a single example
of the type of "sophistication" they have referred to-nor even to a misstatement
of fact by Brown as a witness. Thus the record fails to prove Brown's sophistication
in the sense of the word as used in the briefs. The record does, however, prove
Brown's sophistication in the sense of his being knowledgeable in labor matters and
in Board decisions including the Curtis case. He was even sophisticated enough
to seek legal advice on the legal implications of that decision. In other words,
Brown was not going to violate the law intentionally or obviously if he could help it-
which only seems to show good commonsense from his point of view.
Both briefs refer, as proof of Brown's "subtle" request for recognition, to the fact
that, according to Oscarson and not denied by Brown, Brown "inferred" during the
1959 conference that he "would not be adversed to having a contract" with the
Company. But does this even constitute proof of a "subtle demand" for recognition
and/or a contract? After all as a sophisticated labor leader, Brown knew the
Company's status of having more than 400 out of its total of 410 stores unorgan-
ized and that to successfully organize Chandler's Philadelphia store would be quite
a feather in his cap. Also being cognizant of the Company's history in labor rela-
tions, Brown was sophisticated enough to recognize that the Philadelphia store
would have to be organized the hard way. Furthermore, a sophisticated labor leader
who is "averse" to the addition of new members to his union would be a strange
and out-of-place character indeed. To this unsophisticated Trial Examiner, at
least, an innocuous truism such as this remark can hardly be said to constitute proof
even of a subtle request for recognition.
Consequently, there appears to be nothing verbal in anything Brown had to say
to the Respondent to disprove his admitted disclaimers of attempting to represent
any employees of the Respondent or of seeking recognition and/or a contract
from the Company.
So now we turn our attention to those union actions which these parties claimed
contradict Brown's verbal disclaimers and indicate the Respondent's demand for
recognition and/or a contract-this history of discussions which are said to
"resemble annual collective bargaining."
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record proves that in March 1958 the Respondent sought a meeting with
the Company at the time this large nationwide retail organization opened its store
in the center of one of Philadelphia 's finest shopping centers. The request was made
after the store had opened with a full complement of employees . The General
Counsel and the Charging Party contend that even at this meeting Brown actually
was seeking recognition despite his own denial of that purpose during the meeting.
On the other hand Brown claims that the Respondent believed that the wages , hours,
and working conditions established by the Company for its employees in the Phila-
delphia store were below the area rates and consequently jeopardized the standards
for retail personnel which the Union had built up through years of collective
bargaining in Philadelphia . It is admitted by all parties that at this meeting Brown
requested the 'Company to try to meet these union standards so as not to jeopardize
the Union 's position in the area . As it was confirmed company policy to meet or
better such area standards for its employees , Oscarson agreed to further study the
area standards including a number of union contracts which Brown supplied.
Apparently the Company concluded that Brown was correct and that its own wages
and conditions were in fact substandard in the area because on April 21, 1958, the
Company unilaterally increased the wages and decreased hours of its Philadelphia
store employees . There is not one syllable of testimony regarding this meeting
to show that Brown made a single demand on behalf of any or all of the Company's
employees or did anything other than to seek to prevent his own union standards
from being jeopardized by the introduction of substandard conditions into the area
by a new employer.
The fact that many of the Union 's Philadelphia contracts were to be opened for
renegotiation of wages under a wage reopener clause in August -September 1958
and that such negotiations would have been jeopardized if the Company 's substandard
wages and conditions had remained would seem to confirm Brown's explanation
of this meeting.
So also does the fact that for nearly a year the Respondent left the Company
strictly alone while attempting , none too energetically to be sure , to interest the
Chandler's employees in joining the Union through personal solicitation. These
efforts proved uniformly unsuccessful.
The second conference in 1959 took place almost exactly 1 year after the first
one and, therefore , chronologically speaking can correctly be called one of the
"annual" conferences . However, it was the Company on this occasion which,
quickly sought the meeting in order to forestall Brown 's announced threat to place
pickets at Chandler's in order to inform the public that the store was nonunion and
to try to organize the employees 6
When Oscarson opened this meeting by asking Brown what he wanted , Brown'
for once answered succinctly : "Nothing." From that time on it was the Company
which initiated proposals , all aimed at forestalling the presence of pickets at the
store. Why did not the Union continue to use the personal solcitation method to
organize the employees? Because it had proved unsuccessful due to the Com-
pany's excellent wages and working conditions If that is so, why did Brown main-
tain that the Company conditions were substandard? Because the continuance of
those conditions depended upon the largesse of the Company 's managers and the
employees had no union or collective -bargaining contract by which to enforce their
continuation . It was at this point, after a long discussion as to whether or not the
company conditions were in fact substandard , that Oscarson offered Brown any-
thing he wanted short of a union contract and handing over the Company's em-
ployees to the Union in order to prevent picketing . When Brown was disinterested,
Oscarson offered what he called the "Oakland Plan," a name derived from the
fact that the Company had originated it as the means by which it secured the re-
moval of union pickets from its Oakland , California , store after some I1 months of-
continuous picketing there. This Oakland Plan provided that the Company would
give some acceptable and responsible third person a statement to the effect that
it was Company policy to maintain wages and conditions equal to or exceeding
those standard in the area and authorizing such third person to require the Com-
pany to make increases or betterments if it could be proved that the Company
conditions were in fact substandard . The meeting concluded when Brown agreed
that the Union would consider this suggestion . A few days later the Union re-
jected this Oakland Plan suggestion on the ground that "it would not lead to or-
ganization" and informed the Company that its pickets would appear the follow-
ing day. These pickets have remained there ever since.
"The Trial Examiner is sufficiently sophisticated to believe that Brown was not alto-
gether taken by surprise by the Company ' s prompt reaction to this threat of pickets but,
nonetheless , the initiative for the meeting came from the Company.
DISTRICT 76, RETAIL, WHOLESALE & DEPT. STORE UNION 261
Under these facts the General Counsel and the Charging Party contend that the
Union was actually engaged in collective bargaining with the Company, was actively
seeking at least de facto recognition thereby, and that, in the words of the General
Counsel's brief, "the item that [Brown] wanted and the only thing the employer
refused to give was a union contract."
The parties point to the picket sign reading "a union contract is a union contract
is a union contract" as confirmation that Brown's real motivation in placing the
pickets at Chandler's was to secure a contract. On the other hand this sign was the
poetic expression of the same argument Brown had made to Oscarson at the 1959
meeting when he pointed out that the Chandler's employees had no means by which
to enforce the continuation of Company's good conditions without an enforceable
agreement. As such it also amounted to just as cogent an argument to Chandler's
employees as to why it was necessary for them to organize.
But the evidence makes it quite clear that the Company sought the 1959 meeting
not in order to bargain collectively with a representative of its employees (which the
Respondent made it very clear repeatedly it did not even claim to be) over such
bargainable items as wages, hours, and working conditions of its employees but, on
the contrary, sought the meeting instead in an effort to discover some acceptable
formula (such as the Oakland Plan) to stop the union plan to picket the store and
thereby remove one method by which its employees might be organized. The Board
and the courts have always held that efforts by an employer to prevent a union from
trying to organize its employees constitutes an unfair labor practice Such is, there-
fore, not a bargainable issue or a proper subject of collective bargaining. Hence
it is a misnomer to refer Ito the 1959 meeting as an attempt at collective bargaining.
It is significant that within 2 days of the installation of the picket line at the
Chandler's store, the Union placed a similar picket line at another nonunion store
in the same neighborhood using the same exact picket signs (with the exception of
the name of the store) on both picket lines. The record indicates no prior attempt
to seek recognition or bargaining with this second employer either.
The Company itself in effect recognized the organizational nature of this picket
line a few days after picketing commenced when it posted a bulletin to its em-
ployees setting forth the numerous reasons why the Company considered the unioni-
zation of its employees both "unnecessary and undesirable."
On the other hand it is equally obvious from the Respondent's determination to
picket the Company in 1959 that the Respondent desired recognition and a contract
from the Company and desired it very much, judging solely from the length of time
it has maintained the pickets in front of Chandler's store in the year 1959. But recog-
nition and a signed contract are always the ultimate objectives of any union whenever
it starts an organizing campaign . Consequently even though those were the Re-
spondent's ultimate objectives, it does not follow therefrom that they were also the
immediate objectives.
If Brown was as sophisticated as the General Counsel and the Charging Party
assert and the Trial Examiner believes, with his knowledge of the history of the
Company's labor relations before him: 403 out of 410 stores remaining unorganized,
11 months of picketing by the Union in Oakland resulting in an Oakland Plan state-
ment together with the Company's prompt reactions to his own threatened picket
line, Brown and the Respondent both must have realized that the successful attain-
ment of these ultimate objectives would not be secured speedily or easily. Brown
was too sophisticated to think otherwise. Brown's sophistication alone militates
against the theory that he had any idea of being able to obtain recognition or bar-
gaining status from the Company without having touched all the bases exactly as
proscribed in the rules. And the first base which had to be touched was, therefore,
the organization of the employees.
Furthermore the theory advanced here that Brown was actually engaging in an-
nual bargaining on behalf of the employees of Chandler's would seem to presuppose
an altruism and an idealism on the part of Brown and Respondent such as is rarely
credited to labor organizations today. This is especially so because the beneficiaries
of Brown's alleged efforts were neither members of his union nor paying dues
thereto. It thus seems just as logical that Brown was, just as he claimed, attempting
to prevent the standards the Union had built in the area from being jeopardized-
and to organize the Chandler's employees if possible.
In support of his theory the General Counsel cites a few R cases where on some-
what similar evidence to that in this record, the Board has found that a "question
.concerning representation" existed justifying the holding of a representation elec-
tion. However, the cases also show that this Board has been quite strict and has
dismissed many complaints wherein it was alleged that an employer had refused to
bargain in violation of Section 8(a)(5) on the ground that the Union's request to
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain was either ambiguously phrased or referred to an inappropriate Unit .7 It
thus is apparent that the Board requires a considerably different type and degree of
proof in proving a "question concerning representation" than it does for a request
for recognition and to bargain. Under present Board law there appears little, if
any, question but that, if this were an 8(a ) (5) complaint, the Trial Examiner, being
bound by Board decisions, would have to dismiss the complaint here on the ground
that no proper request to bargain had been made.
In his discussion of these cases and of the Curtis case, General Counsel purports
to see no significance to the fact that in the instant matter Respondent had not been
involved in losing a prior representation election. The Trial Examiner cannot agree
because, if Respondent had lost such an election previously, then there would be a
firm basis for an inference that the demand which gave rise to the election was a
continuing demand and thus motivated the subsequent picketing. Also, without
such an election, no such inference as the Board relied upon in the Curtis case can
arise to assist the General Counsel over his difficulty here.
The Trial Examiner believes that enough has been said here to indicate that every
fact or combination of facts upon which either the General Counsel or the Charg-
ing Party rely in order to prove the Respondent's illegal motivation also indicates
just as strongly, or perhaps even more strongly, an innocent motivation on the part
of the Respondent. Consequently, on this record viewed as a whole, the Trial
Examiner must find that the General Counsel has failed to sustain his burden of
proof as to the Respondent's illegal motivation or objective. Therefore the Trial
Examiner will recommend that this complaint be dismissed.
Upon the basis of the foregoing findings and conclusions and the entire record
in the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. District 76, Retail, Wholesale and Department Store Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. The Charging Employer is engaged in commerce within the meaning of the
Act.
3. The Respondent Union has not engaged in unfair labor practices within the
meaning of Section 8 (b) (1) (A) of the Act.
[Recommendations omitted from publication.]
7Washington Coca-Cola Bottling Works, Inc ., 117 NLRB 1163, subsequently reversed
in 122 NLRB 7 as result of a court decision.
Wyatt Food Stores (Division of Kroger Company) and Retail
Clerks International Association , AFL-CIO, Local No. 1549.
Case No. 16-CA-1236. April 19, 1960
DECISION AND ORDER
On November 30, 1959, Trial Examiner John C. Fischer issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that the Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and a supporting
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 [Members Rodgers, Jenkins, and Fanning].
127 NLRB No. 37.