Food Giant Super Markets

National Labor Relations Board - Board Decisions

Jan 24, 1964

145 N.L.R.B. 1221 (N.L.R.B. 1964)

FOOD GIANT SUPER MARKETS, ETC. 1221
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT promulgate , maintain , or enforce any rule prohibiting our
employees during their working time from distributing union literature in
nonworking areas of the plant.
WE HAVE notified employees Joseph Lamb and John Wagner that the warn-
ings issued to them on December 6, 1962, have been canceled.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of the right to self-organization , to form labor
organizations , to join or assist any labor organization , to bargain collectively
through representatives of their own choosing , and to engage in other con-
certed activities for the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any or all such activities.
GENERAL ANILINE & FILM CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York , Telephone No.
TL 6-1782 , if they have any question concerning this notice or compliance with its
provisions.
Food Giant Super Markets; Mayfair Markets , d/b/a El Rancho
Markets ; Safeway Stores , Inc. and Retail Clerks International
Association , Local 727, AFL-CIO. Case No. 28-CA-975. Janu-
ary 24, 1964
DECISION AND ORDER
On October 8, 1963, Trial Examiner Wallace E. Royster issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondents filed exceptions to the Trial
Examiner's Decision, and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three -member panel [Chairman McCulloch and Members
Leedom and Brown].
The Boardhas reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision , the exceptions and brief , and the entire record in
145 NLRB No. 124.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.2
i As noted by the Trial Examiner, this case is indistinguishable from John Brown et al ,
d/b/a Brown Food Store, 137 NLRB 73, enforcement denied 319 F 2d 7 (CA. 10). See
also The Kroger Company, 145 NLRB 235 On January 6, 1964, the Supreme Court
granted the Board's petition for certiorari In Brown Food Store, supra (375 IT S 962)
With all due respect for the opinion of the Court of Appeals for the Tenth Cncuit, the
Board has determined to adhere to its decision In Brown Food Store, pending final resolu-
tion of the issue by the Supreme Court
'The Recommended Order is hereby amended by substituting for the first paragr iph
therein the following paragraph:
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 Respondents, their officers, agents, successors, and assigns, shall:
Moreover, there shall be added to each of the notices recommended by the Trial Examiner
the following paragraph
WE WILL NOT discourage our employees from supporting the Union and from engag-
ing in concerted activities for mutual aid and protection,by locking out our employees
while continuing operations.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter was tried before Trial Examiner Wallace E. Royster in Tucson,
Arizona , on September 9, 1963. The complaint of the General Counsel of the
National Labor Relations Board dated August 8, 1963,1 based upon a charge filed
July 8 , by Retail Clerks International Association , Local 727, AFL-CIO, herein
called the Union , alleges that Food Giant Super Markets , Mayfair Markets, d/b/a
El Rancho Markets , and Safeway Stores, Inc., herein called the Respondents, have
by means of discharge , layoff, and lockout of their employees engaged in unfair
labor practices within the meaning of Section 8(a)(1) and ( 3) of the National
Labor Relations Act, as amended , herein called the Act.
More specifically, it is complained that the Respondents , members of a multi-
employer bargaining association , locked out their employees and continued to
operate with temporary replacements because of the circumstance that the Union
had struck another employer-member of the bargaining association.
Briefs have been received and considered . The motion of all parties to correct
the record in two particulars is hereby granted.
Upon the entire record and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Each of the Respondents operates retail food markets in the Tucson, Arizona,
area, and each during the 12-month period preceding the issuance of the complaint
did a gross business in excess of $500,000. Each during the mentioned period
received shipments from points outside the State of Arizona in connection with its
operations in amounts exceeding $50,000. I find that the business of each Re-
spondent is in and affects commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization representing employees of the Respondents.
1 All dates are In 1963 unless stated otherwise.
FOOD GIANT SUPER MARKETS, ETC. 1223
M. THE UNFAIR LABOR PRACTICES
In October 1959, the Union entered into a collective-bargaining agreement with
a group of employers consisting of Goodman's Markets, Inc., Mayfair Markets,
d/b/a El Rancho Markets, and Safeway Stores, Inc. While this contract was
effective, Food Giant Super Markets joined the bargaining group. The contract
expired in October 1962, and negotiations looking toward a new agreement began.
In January 1963, the Union informed Goodman's and the Respondents that it was
authorized to engage in strike action. Pursuant to a petition filed with the
National Labor Relations Board by Employers Council, Inc, the bargaining rep-
resentative for Goodman's and the Respondents, an election was held resulting
in the certification of the Union as the bargaining representative of the employees
of Goodman's and the Respondents in a single unit This unit encompassed 24
retail food markets in the Tucson area. There are approximately 275 other retail
food markets in the same area whose employees are not so represented.
On May 3, the Union began a strike at Goodman's Markets and picketed the
eight stores operated by Goodman in the Tucson area. Less than 25 percent of
Goodman's employees struck and all of the Goodman's Markets have remained
open. Rulon Goodman, general manager of Goodman's Markets, testified that a
representative of the Union, about May 17, in the presence of representatives of
the Respondents, told Goodman that it would be possible to "make a deal" with
the Union leaving the Respondents "out of this picture." Goodman did not pursue
this opportunity. Sometime in June, Goodman met with representatives of the
Respondents and told them that he had to have some kind of support or he would
be forced to make his peace with the Union About a week later, at a meeting
of the same group, there was a discussion concerning what action to take. The
representative of Food Giant Super Markets said that he was not financially able
to close his stores; that in the event of a lockout, he must continue operations.
On June 26, the Respondents notified the Union by letter that if the strike against
Goodman's continued, it would be treated as a strike against all the employers in
the bargaining unit and that a lockout of employees would result. The Union was
further notified in this communication that the Respondents intended to continue
operations with whatever personnel they could obtain and that the lockout would
end as soon as the strike against Goodman's was terminated. On July 3, all em-
ployees of the Respondents were notified that since the strike at Goodman's con-
tinued, employees represented by the Union would not be permitted to work. On
the next business day, July 5, Respondents resumed operations with employees
other than those in the bargaining unit . The replacements for the locked-out em-
ployees were informed that their employment was temporary and that when the
strike was ended the locked-out employees would be recalled to work.
In a case 2 which I find to be indistinguishable from the one at hand, the Board
found that the right of employer-members of a bargaining unit to lock out their
employees, when one of their number is the target of strike action, cannot law-
fully be extended to the point where replacements, even if temporary, are used
to continue operations after the lockout. The Board reasoned that "If the struck
member operates through replacements no economic necessity exists for the other
members shutting down. If in these circumstances they resort to a lockout and
hire replacements, it may be reasonably inferred that they did so not to protect
the integrity of the employer unit, but for the purpose of inhibiting a lawful strike
In short, the lockout in these circumstances ceases to be `defensive' and becomes
`retaliatory.' '
Rulon Goodman testified that after the first few weeks of the strike, his gross
business receipts showed a rather uniform loss of 22 percent in comparison with
the same period in the previous year. There is no reason to doubt this testimony
and I accept it. So it appears clear that even though he was able to man and
operate his stores. Goodman was affected financially by the strike against his
markets. No doubt this tended to indicate to him that a separate agreement with
the Union might be sensible The strike against Goodman thus had a tendency to
disrupt the established bargaining unit. When Goodman asked the other employer-
members of the unit for aid, the only action suggested, so far as this record in-
dicates, was that all should lock out their employees and it was finally decided to
do just that and to continue operations. This development did not increase Good-
man's business and it did not appear ,that it was designed to do so. It did, however,
2 John Brown, et al. d /b/a Brown Food Store, et al, 137 NLRB 73, enforcement denied
319 F. 2d 7 (C.A. 10).
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessarily weaken the Union. For with increased unemployment among its
members, the ability of the Union to support the strike against Goodman's was
lessened. As the Board said in the Brown Food Store decision, this "may hardly
be viewed as equivalent to the defensive action of a shutdown to preserve the
solidarity of the [bargaining] unit. On the contrary, since the Respondents were
continuing to operate and since no reason appears why they could not have con-
tinued to have operated with their own employees during the strike, this constitutes
a temporary replacement of employees solely because they were engaging in pro-
tected concerted activity," that is, the strike against Goodman's.
The fact that the Tenth Circuit Court of Appeals has expressed disagreement with
the view that the Board took of the problem in Brown Food Store is a circumstance
which the Board no doubt will consider should this matter reach it on exceptions.
It is my obligation as a Trial Examiner to apply established Board precedent, and
I do so here. I find that the Respondents, by locking out their employees on July 3
and by continuing to operate with temporary replacements, interfered with, re-
strained, and coerced their employees in the exercise of their right to bargain col-
lectively and to strike in furtherance of economic demands, and violated Section
8(a)(1) of the Act by replacing them at a time when they were willing to work
and were not on strike. I find also that such conduct constituted unlawful dis-
crimination within the meaning of Section 8(a)(3) of the Act in that Respondents
thereby discouraged employees from supporting the Union and from engaging in
concerted activities for mutual aid and protection.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in con-
nection with their operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
it will be recommended that they cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that the Respondents have discriminatorily locked out their em-
ployees, it will be recommended that each Respondent offer to his locked- out em-
ployees immediate and full reinstatement to their former or substantially equivalent
positions, and make whole those of its employees who were the object of this dis-
,crimination for any loss of earnings since July 3 by payment to each of a sum of
money equal to that which each would have earned since that date to the date of
-offer of reinstatement. Loss of pay shall be computed on a quarterly basis in the
manner set forth in F. W. Woolworth Co., 90 NLRB 289, with a deduction for net
-earnings in other employment during that period. Backpay shall bear interest at
the rate of 6 percent per annum computed quarterly.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. By locking out employees the Respondents have discouraged employees from
supporting the Union and from engaging in concerted activities for mutual aid and
protection and have thereby engaged in unfair labor practices within the meaning
•of Section 8 (a) (3) of the Act.
3. By the lockout, the Respondents have interfered with, restrained, and. coerced
,employees in the exercise of rights guaranteed in Section 7 of the Act and have
-thereby engaged in unfair labor practices within the meaning of Section 8(a) (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
-the entire record in the case , I recommend that Food Giant Super Markets, May-
FOOD GIANT SUPER MARKETS, ETC. 1225
fair Markets, d/b/a El Rancho Markets, and Safeway Stores, Inc., all of Tucson,
Arizona, the officers, agents, successors and assigns of each, shall:
1. Cease and desist from:
(a) Discouraging employees from supporting the Union and from engaging in
concerted activities for mutual aid and protection by locking out employees while
continuing operations.
(b) In any like or similar manner interfering with, restraining, or coercing em-
ployees in the exercise of the right to self-organization, to form, join, or assist Retail
Clerks International Association, Loral 727, AFL-CIO, or any other labor organiza-
tion, to bargain collectively througt representatives of their own choosing, and to
engage in other concerted activity for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Each Respondent shall offer immediate and full reinstatement to those of
its employees who were locked out and make each employee whole for any loss of
earnings, following the lockout, in the manner set forth in the section of this decision
entitled "The Remedy."
(b) Make available to the Board or its agents, upon reasonable request, all pay-
roll records, social security payment records, attendance records and reports, and
all other such data convenient for a calculation of the amount of backpay due under
the terms of this Recommended Orde -.
(c) Each Respondent shall post at its establishments in Tucson, Arizona, copies of
the appropriate attached notice mark ed "Appendix." 3 Copies of said notices, to be
furnished by the Regional Director I or the Twenty-eighth Region, shall, after being
duly signed by authorized representatives, be posted immediately upon receipt thereof
and be maintained for 60 consecutiN e days thereafter in conspicuous places includ-
ing all places where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that such notices are not altered, defaced, or covered by any
other material.
(d) Each Respondent shall notify the Regional Director for the Twenty-eighth
Region, in writing, within 20 days from the date of this Decision and Recommended
Order what steps it has taken in compliance 4
It is further recommended that unless on or before 20 days from the date of
receipt of this Trial Examiner's Decision and Recommended Order the Respondents
notify the said Regional Director, in writing, that they will comply with the foregoing
recommendations, the National Labor Relations Board issue an order requiring
such Respondent to take that action
In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Cour' of Appeals, the words "A Decree of the United
States Court of Appeals, Enforcing , n Order" shall be substituted for the words "A
Decision and Order"
'In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read- "Notify said Regional Director, in writing, within 10'davs from
the date of this Order, what steps the Respondents have taken to comply herewith."
APPENDIX
NOTICE ro ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner 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:
WE WILL offer to those of our employees locked out on July 3, 1963, im-
mediate and full reinstatement , each to his former or substantially equivalent
position and make each whole for any pay lost by reason of the lockout.
WE WILL NOT by means of an unlawful lockout or in any like or similar
manner interfere with, restrair ,, or coerce our employees in the exercise of
their right to self -organization, to form labor organizations, to join or assist
Retail Clerks International Association , Local 727, AFL-CIO, or any other
labor organization, to bargain collectively through representatives of their own-,
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
FOOD GIANT SUPER MARKETS,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify such employees presently serving in the Armed Forces
of the United States of their right to reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Resident Office, 230
North First Avenue, 3421 Federal Building, Phoenix, Arizona, Telephone No.
261-3717, if they have any question concerning this notice or compliance with its
provisions.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner 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:
WE WILL offer to those of our employees locked out on July 3, 1963, im-
mediate and full reinstatement, each to his former or substantially equivalent
position and make each whole for any pay lost by reason of the lockout.
WE WILL NOT by means of an unlawful lockout or in any like or similar
manner interfere with, restrain, or coerce our employees in the exercise of
their right to self-organization, to form labor organizations, to bargain collec-
tively through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective 'bargaining or other mutual aid or
protection.
MAYFAIR MARKETS, D/B/A EL RANCHO MARKETS,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify such employees presently serving in the Armed Forces
of the United States of their right to reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act
of, 1948, as amended, after, discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Resident Office, 230
North First Avenue, 3421 Federal Building, Phoenix , Arizona, Telephone No.
261-3717, if they have any question concerning this notice or compliance with its
provisions.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner 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 c that: ^ '
WE WILL offer to those of our employees locked out on July 3, 1963, im-
mediate and full reinstatement, each to his former or substantially equivalent
position and make each whole for any pay lost by reason of the lockout.
WE WILL NOT by means of an unlawful lockout or in any like or similar
manner interfere with , restrain , or coerce our employees in the exercise of
their right to self-organization , to form labor organizations , to join or assist
Retail Clerks International Association, Local 727, AFL-CIO, or any other
labor organization, to bargain collectively through representatives of their own
MR. D'S NO. 2 , INC . 1227
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
SAFEWAY STORES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NoTE.-We will notify such employees presently serving in the Armed Forces
of the United States of their right to reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act
of 1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Resident Office, 230
North First Avenue, 3421 Federal Building, Phoenix, Arizona, Telephone No.
261-3717, if they have any question concerning this notice or compliance with its
provisions.
Mr. D's No. 2, Inc. and Teamsters Union Local 795, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and Meat Cutters Union
Local 340, affiliated with Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO. Cases Nos.
17-CA-2127 and 17-CA-2128. January 27, 1964
DECISION AND ORDER
On August 22, 1963, Trial Examiner James V. Constantine issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in a certain unfair labor practice, and
had not engaged in certain other unfair labor practices. He con-
sidered that the unfair labor practice found was an isolated incident
for which no remedial order was required, and therefore recommended
dismissal of the complaint, as set forth in the attached Intermediate
Report. Thereafter, the General Counsel filed exceptions to the In-
termediate Report and a supporting brief. The Respondent filed a
reply brief in support of the Trial Examiner's recommendations.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Leedom and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
riilings.are herebyaffirrned. The Board has'considered the`Interniedi-
-ate Report, the exceptions and briefs, and the entire record in these
-cases, and hereby adopts only those findings, conclusions , and recom-
mendations which are consistent with this Decision and Order.
The facts as to the Charging Unions' campaign to organize Respond-
ent's employees and to obtain recognition as their representative are
145 NLRB No. 121.