Galyan's Super Market, Inc.

National Labor Relations Board - Board Decisions

Nov 29, 1950

92 N.L.R.B. 298 (N.L.R.B. 1950)

In the Matter of GALYAN'S SUPER MARKET, INC., GALYAN'S NORTHSIDE
MARKET, INC. and GALYAN'S MARKETS EMPLOYEES' UNION and MEAT
CUTTERS AND PACKING HOUSE WORKERS, LOCAL No. 167, AFFILIATED
WITH AMALGAMATED MEAT CUTI RS AND BUTCHER WORKMEN OF
NORTH AMERICA, AFL
Case No. 35-CA-146.Decided November 29, 1950
DECISION AND ORDER
Upon a charge filed February 15, 1950, by the Meat Cutters and
Packing House Workers, Local No. 167, affiliated with Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL, here-
inafter called Meat Cutters, the General Counsel of the National
Labor Relations Board, hereinafter called the General Counsel, by
the Regional Director for the Ninth Region, issued a complaint dated
August 24, 1950, and an amendment to the complaint dated September
18,1950, against Galyan's Super Market, Inc., and Galyan's Northside
Market, Inc., hereinafter called the Respondents, alleging that the
Respondents had engaged in and were engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (a) (1),
(2), and (3), and Section 2 (6) and (7) of the Act. Copies of the
complaint, amendment to the complaint, the charge, and notice of
hearing were duly served upon the Respondents, Meat Cutters, and.
Galyan's Markets Employees' Union, hereinafter called the Em-
ployees' Union. The Employees' Union filed an answer, which was,
.however, withdrawn.
Thereafter, all the parties on October 9, 1950, entered into a stipu-
lation, which it was agreed should constitute the only evidence received
or considered by the Board. The stipulation provides (1) that the
parties have waived their right to a hearing before a Trial Examiner
and before the Board or a member thereof, to the preparation and
filing of an Intermediate Report and Recommended Order, and to
the making and issuance by the Board of proposed findings of fact
a.nd conclusions of law; (2) that the parties reserve the rig-lit to file
with the Board before October 29, 1950, appropriate motions and
92 NLRB No. 48.
298
GALYAN'S SUPER MARKET, INC. 299
briefs 1 and to request oral argument before the Board; (3) that the
charge, complaint, amendment to the complaint, notice of hearing,
the proof of service of said documents, the stipulation, and certain
exhibits attached to the stipulation, shall constitute the entire record
in this case and be filed with the Board in Washington, D. C.; and
(4) that none of the parties shall be prejudiced by failure to file an
answer. The stipulation is hereby accepted and made a part of the
record herein, and, in accordance with Section 203.51 of National
Labor Relations Board Rules and Regulations, the proceeding is
hereby transferred to, and continued before, the Board.
Upon the basis of the aforesaid stipulation and the entire record
in the case, the Board 2 makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Respondent Galyan's Super Market, Inc., is an Indiana corpora-
tion, which has as its sole place of business a retail store in Indian-
apolis, Indiana. Respondent Galyan's Northside Market, Inc., is an
Indiana corporation, which also has as its sole place of business a
retail store in Indianapolis, Indiana. Both Respondents are benefi-
cially owned by the same shareholders, are under the same manage-
ment, observe a common policy and practice with respect to labor
relations and employment matters, and have some transfer and inter-
change of employees. The Respondents, in the conduct of their
business at said retail stores, purchased during the year ending
August 31, 1950, foods, tobaccos, and allied items of the value of
$3,219,989, of which purchases 8 to 10 percent was shipped directly
from sellers outside the State of Indiana and 58 to 60 percent was
shipped to the Respondents from the stocks and warehouses of whole-
salers and jobbers within the State of Indiana, who had in turn re-
ceived them from points outside the State of Indiana. During the
same period, goods of a value of $3,361,640 were sold locally at retail.
There is no evidence as to the size of the separate operations of each
Respondent. However, in view of their common ownership, control,
and labor relations policy and practice, we shall treat them as a single
enterprise for purposes of determining whether to assert jurisdiction
in this case.3
1 The Respondents within the time allowed , filed a brief contending that the Board
should dismiss the instant proceeding on Jurisdictional grounds. The contentions set
forth in this motion are discussed below.
2 Pursuant to the provisions of Section 3 (b) of the Act , the National Labor Relations.
Board has delegated its powers in connection with this proceeding to a three -member
panel [ Members Houston , Reynolds , and Styles].
8 Gifford-Hill & Company, Inc., 90 NLRB 428.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, upon the entire record, that the Respondents are engaged
in commerce and in operations affecting commerce within the mean-
ing of the Act,4 and, in view of the fact that their annual volume of
indirect inflow is not less than $1,000,000, that it would effectuate the
policies of the Act to assert jurisdiction in this case .5
H. THE ORGANIZATIONS INVOLVED
Meat Cutters and Packing House Workers, Local No. 167, affiliated
with Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL, and Galyan's Markets Employees' Union are labor
organizations within the meaning of Section 2 (5) of the Act.
III. UNFAIR LABOR PRACTICES
A. Background
The Respondents admit, and we find, that, commencing on or about
October 21, 1949, and at various times thereafter, the Respondents, by
their officers and agents, engaged in the following activities :
(1) Questioned employees concerning their union affiliation, sym-
pathies, and activities.
(2) Solicited and encouraged their employees to join the Employ-
ees' Union and distributed or caused to be distributed to the employees
a petition enrolling members in the Employees' Union.
4In their motion to dismiss , the Respondents contend that they are not engaged in
activities affecting commerce , and are therefore not subject to the Act . We find no. merit
in this contention . N. L. R. B . v. Fainblatt, 306 U. S. 601 ; I. L. Brandeis & Sons' v.
N. L. R. B., 142 F . 2d 977 , cert . den. 323 U. S . 751 ; N. L. R. B. v . Townsend, 185 F. 2d 378
( C. A. 9, decided September 11, 1950).
1In their motion to dismiss , the Respondents contend , also, that assuming that they
are subject to the Act , inasmuch as the Board declined to exercise jurisdiction in Hook
Drugs, Inc., 90 NLRB 1841 , a case involving a larger annual volume of inflow than
the instant case, the assertion of jurisdiction herein would constitute a denial of due
process and equal protection under the Fifth Amendment . In N. L. R . B. V. Townsend,
supra, the court, in rejecting a similar contention by a retail automobile dealer, stated :
Providing the Board acts within its statutory and constitutional power, it is not
for the courts to say when that power should be exercised . Many factors such as
lack of funds or the imminence of a more drastic disruption of commerce in another
industry might dictate that in a particular case powers explicitly granted should not
be exercised . . . . ( citing cases)
Respondent also takes the position that the Board 's assumption of jurisdiction in
his case results in an unconstitutional unequal application of the law and, therefore,
is contrary to due process . To answer this it is only necessary to point out that
the Board has recently asserted jurisdiction over other dealers selling automobiles
at retail.
The Board has recently asserted jurisdiction over other retail enterprises (Dorn's House
of Miracles, Inc., 91 NLRB 632) including a retail grocery ( Minimax Stores , 91 NLRB
644),, on the same basis as in the instant case-namely , an annual indirect inflow
of at least $ 1,000 ;000. In Dorn's case , the Board announced that in the future such a
volume of indirect inflow alone would be treated as a sufficient basis for asserting juris-
diction, regardless of the nature of the enterprise.
. _GALYAN.' S SUPER MARKET , INC. 301.
(3) Initiated, sponsored, and formed the Employees' Union and
continuously thereafter assisted, dominated, and contributed to the
support thereof.
(4) Informed their employees, prior to May 11, 1950, that mem-'
bership in the Employees' Union was a required condition of em-
ployment.
(5) Prior to May 11, 1950, required of their employees and pros-
pective employees, as a condition of employment or continued employ-
ment, membership in the Employees' Union.
The Respondents admit, and we find, that on November 22, 1949,
Respondents and the Employees' Union entered into a collective bar-
gaining agreement for a term of 1 year. - Article I of this agreement
recognized the Employees' Union as the exclusive bargaining agent for
all "union members," and Article II thereof provided that the Re-
spondents would not enter into any conflicting agreement with its
employees. Article X of this agreement reads:
The Employer agrees to employ and keep in employment as
employees only such persons who are members in good standing
of the Union. All new employees shall, within thirty (30) days
after his or her employment, become a member of the Union.
Such members shall remain members in good standing as a con-
dition to the continuation of their employment. The employer
agrees that upon written notice from the Union, it will discharge
at the Union's request, any person who shall not be in good stand-
ing after fifteen (15) days written notice thereof.
On May 11, 1950, the agreement was amended (1) by revising Article
I to provide for recognition of the Employees' Union as the exclusive
bargaining agent for all employees, except supervisors, professional
employees, and guards, and (2) by substituting for Article X an
agreement by the Respondents not to discriminate with respect to
hire or tenure of employment, or any term or condition of employ-
ment, in order to encourage or discourage membership in any labor
organization.
The Employees' Union has not been authorized, pursuant to Sec-
tion 9 (e) of the Act, to enter into a union-security agreement.
B. Interference, restraint, and coercion
We find that the Respondents, by questioning employees concern-
ing their union affiliation, sympathies, and activities, violated Section
8 (a) (1) of the Act. IITe also find that the Respondents violated Sec-
tion 8 (a) (1) of the Act by entering into the contract of November
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
22, 1949, with the Employees' Union, because the contract contains
union-security provisions which are not sanctioned by Section 8 (a)
(3) of the Act .6
C. Domination and interferenceerence with the formation and administra-
tion of the Employee's Union, and contributing support thereto
We find that the Respondents, by initiating, forming, sponsoring,
soliciting employees to join, and contributing support to, the Employ-
ees' Union, and by executing and enforcing a collective bargaining
agreement with the Employees' Union containing unlawful union-
security provisions, dominated and interfered with the formation and
administration of the Employees' Union and contributed support
thereto in violation of Section 8 (a) (1) and (2) of the Act.7
D. Discrimination in hire and tenure of employment
We find that Respondents, by executing and enforcing the contract
with the Employees' Union requiring of their employees and pros-
pective employees, as a condition of employment or continued em-
ployment, membership in the Employees' Union, discriminated in
regard to hire and tenure of employment, thereby encouraging mem-
bership in the Employees' Union and discouraging membership in
Meat Cutters or any other labor organization, in violation of Section
8 (a) (3) and (1) of the Act."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of the Respondents set forth in Section III, above,
occurring in connection with their operations as 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.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair
labor practices, we shall order that they cease and desist therefrom
and take certain affirmative action which will effectuate the policies
of the Act.
We have found that the Respondents dominated and interfered with
the formation and administration of, and contributed support to, the
6 Julius Resnick, Inc., 86 NLRB 38.
7 Julius Resnick, Inc., supra; Salant & Salam t, Incorporated, 87 NLRB 215; Raybestos-
Manhattan, Inc., 80 NLRB 1208.
Federal Stores Division of Speigel , Inc., 91 NLRB 647.
GALYAN'S SUPER MARKET, INC. 303
Employee's Union, in violation of Section 8 (a) (2) and (1) of the
Act. Therefore, we shall order the Respondents to withdraw all
recognition from, and completely to disestablish, the Employees'
Union as the representative of any of their employees for the pur-
pose of dealing with them concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment 9 However, nothing in our Order shall be deemed to
require the Respondents to vary or abandon those wage, hour, or
other substantive features of its relations. with its employees, estab-
lished in their existing contract with the Employees' Union, or to
prejudice the assertion by the employees of any rights they may have
under such contract.
In view of the Respondents' acts of interference, restraint, and
coercion, their execution and enforcement of an illegal union-security
clause, and their unlawful domination and support of the Employees'
Union, there is danger that the commission of unfair labor practices
generally is to be anticipated from the Respondents' unlawful con-
duct in the past. We shall, therefore, order the Respondents not
only to cease and desist from the unfair labor practices found, but
also to cease and desist from in any manner interfering with, restrain-
ing, or coercing their employees in the exercise of the rights guar-
anteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following additional:
CONCLUSIONS OF LAW
1. Meat Cutters and Packing House Workers, Local No. 167, affili-
ated with the Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL, and Galyan's Employees Union are labor organ-
izations within the meaning of Section 2 (5) of the Act.
2. By questioning employees concerning their union affiliation, ac-
tivities, and sympathies, and by entering into a union-security contract
not sanctioned by Section 8 (a) (3) of the Act, the Respondents vio-
lated Section 8 (a) (1) of the Act.
3. By initiating, sponsoring, forming, soliciting employees to join,
and contributing support to, the Employees' Union, and by executing
and enforcing a collective bargaining agreement containing unlawful
union-security provisions, the Respondents dominated and interfered
with the formation and administration of, and contributed support
to, the Employees' Union, in violation of Section 8 (a) (2) and (1)
of the Act.
' See The Carpenter Steel Company, 76 NLRB 670.
304 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
4. By executing and enforcing a collective bargaining agreement
with the Employees' Union containing an unlawful union-security
clause, the Respondents discriminated in regard to hire and tenure
of employment , thereby encouraging membership in the Employees'
Union and discouraging membership in any other labor organization,
in violation of Section 8 (a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents , Galyan's Super Market
Inc., and Galyan's Northside Market, Inc., Indianapolis , Indiana,
their officers , agents, successors , and, assigns, shall :
1. Cease and desist from :
(a) Recognizing Galyan's Markets Employees ' Union , or any suc-
cessor thereto , and the representative of any of their employees at
their retail stores in Indianapolis , Indiana, for the purposes of deal-
ing with the Respondents concerning grievances , labor disputes , wages,
rates of pay, hours of employment;
(b) Performing, or giving effect to their contract of November
22, 1949, with Galyan's Markets Employees' Union, or any modifica-
tion, extension , supplement , or renewal thereof , or any other con-
tract, agreement, or understanding entered into with said organiza-
tion relating to grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment;
(c) Dominating or interfering with the formation or administra-
tion of, or contributing financial or other support to , Galyan's Markets
Employees ' Union, or any successor thereto, or any other labor
organization of their employees;
(d) Entering into, renewing , or enforcing any agreement with a
labor organization which requires their employees to join, or main-
tain their membership in, such labor organizations as a condition of
.employment,,unless such agreement has been authorized in accordance
with Section 8 (a) (3) of the Act;
(e) In any other manner interfering with, restraining , or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations , to join or assist Meat Cutters and Packing
House Workers, Local No. 167, affiliated with Amalgamated Meat Cut-
ters and Butcher Workmen of North America, AFL, or any other labor
organization, to bargain collectively through representatives of their
GALYAN'S SUPER MARKET, INC. 305
own choosing, to engage in concerted activities for the purpose of
collective bargaining, or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized by Section
8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from, and completely
disestablish, Galyan's Markets Employees' Union as the representa-
tive of any of the Respondents' employees for the purpose of dealing
with the Respondents concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment;
(b) Post at their stores in Indianapolis, Indiana, copies of the
notice attached hereto, marked Appendix A.10 Copies of said notice,
to be furnished by the Regional Director for the Ninth Region,. shall,
after being duly signed by the Respondents' representative, be posted
by the Respondents immediately l:pon receipt thereof, and maintained
by them for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any other
material;
(c) Notify the Regional Director for the Ninth Region in writing
within ten (10) days from the date of this Order what steps the
Respondents have taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
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, we hereby notify our employees that :
WE HEREBY withdraw all recognition from, and completely dis-
establish, GALYAN'S MARKETS EMPLOYEES' UNION as an organi-
zation purporting to represent any of our employees for the pur-
poses of dealing with uus concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
101n the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice, before the words, "A Decision and Order" the words,
"A Decree of the United States Court of Appeals Enforcing."
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment, and we will not recognize it or any successor thereto
for any of the above purposes.
WE WILL NOT enter into, renew, or enforce any agreement with
any labor organization which requires our employees to join, or
maintain their membership in, such labor organization as a con-
dition of employment, unless such agreement has been authorized
as provided by the National Labor Relations Act.
WE WILL cease performing, or giving effect, to our contract of
November 22, 1949, with GALYAN'S MARKETS EMPLOYEES' UNION
or any modification, extension, supplement, or renewal thereof, or
any other contract agreement, or understanding entered into with
said organization relating to labor disputes, wages, rates of pay,
'hours of employment, or other conditions of employment.
WE WILL NOT dominate, or interfere with the formation or
administration of, any labor organization or contribute financial
or other support to it.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist MEAT CUT-
TERS AND PACKING HOUSE WORKERS, LOCAL No. 167, affiliated with
AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH
AMERICA, AFL, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, to en-
gage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment as authorized in Section
8 (a) (3) of the Act.
GALYAN'S SUPER MARKET, INC.
GALYAN'S NORTHSIDE MARKET, INC.,
Employer.
By -------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.