Local 1357, Retail Clerks Int'l Association

National Labor Relations Board - Board Decisions

Dec 11, 1961

134 N.L.R.B. 1139 (N.L.R.B. 1961)

LOCAL 1357 , RETAIL CLERKS INT'L ASSOCIATION 1139
and thereby delaying the election heretofore directed. The Board
finds no merit in and, accordingly, shall deny the motions.
[The Board denied the motions filed by the Consolidated Edison
Company of New York, Inc., and by the Brotherhood of Consolidated
Edison Employees, Utility Workers Union of America, CIO.]'
3 The requests of the Employer and the Intervenor to argue their motions orally are
hereby denied as the briefs and affidavits filed in connection therewith fully set forth the
contentions of the parties.
Local 1357, Retail Clerks International Association , AFL-CIO
and Best Markets , Inc. and Amalgamated Food Employees
Union Local 196 of the Joint Council of Philadelphia and
Vicinity and the Amalgamated Meat Cutters and Butcher
Workers of North America, AFL-CIO. Cases Nos. 4-CP-30-1
and 4-CP-30-0. December 11, 1961
DECISION AND ORDER
On September 26, 1961, Trial Examiner Thomas F. Maher issued
his Intermediate Report herein, finding that the Respondent engaged
in certain unfair labor practices and recommending that it cease and
desist therefrom and take affirmative action, as set forth in the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report together with 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 Leedom, Fanning, and Brown].
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are affirmed. The Board has consid-
ered the Intermediate Report, the exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner as modified herein.
We agree with the Trial Examiner that Respondent's picketing of
former Best Markets stores violated Section 8(b) (7) (C) of the Act.
Before their acquisition by Food Fair in August 1960, the employees
of the Best Markets stores had been represented since 1937 by a labor
organization other than Respondent. Upon their acquisition by Food
Fair, nine of the stores, including the picketed stores, continued to
operate without any change in signs or interior and exterior design to
indicate Food Fair control and no significant interchange between
these stores and other Food Fair stores took place. Under all the cir-
cumstances, we find, as did the Trial Examiner, that the employees
of these Best Markets stores were not accretions to the existing unit
134 NLRB No. 111. -
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Food Fair stores represented by Respondent. For in such circum-
stances, including the history of bargaining on a separate basis, such
employees were entitled to choose between separate representation,
representation as part of the existing unit, or no representation. Ac-
cordingly, we reject the Respondent's accretion defense and find that
Respondent picketed for unlawful objectives as found i by the Trial
Examiner.
For reasons given in his Intermediate Report, the Trial Examiner
recommended that Food Fair be ordered to post at former Best
Markets stores the notice which Respondent is required to post. How-
ever, Food Fair is not a respondent in this case and, ' in accordance
with our usual practice, we shall merely provide for such posting by
Food Fair upon its willingness to so post. j
ORDER
The Board adopts the Recommendations of the Trial Examiner
with the modifications that :
Paragraph 2 (b) read : "Sign as aforesaid and mail sufficient copies
of said notice to the Regional Director for the Fourth Region for post-
ing, Food Fair Stores, Inc., being willing, at all former Best Markets
stores under the control of Food Fair Stores, Inc., at places where
notices to employees are customarily posted."
Paragraph 2 (c) read : "Notify the Regional Director for the Fourth
Region, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith." 1
1 In the notice attached to the Intermediate Report as Appendix, the words "Decision
and Order" are hereby substituted for the words "The Recommendations of a Trial;
Examiner ." In the event that this Order be 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
INTERMEDIATE REPORT i
STATEMENT OF THE CASE
Upon charges filed on May 25 and 26, 1961 , the Regional Director for the Fourth
Region on June 23, 1961 , issued a consolidated complaint against Local 1357, Re-
tail Clerks International Association , AFL-CIO, Respondent herein , alleging viola-
tions of Section 8(b) (7) (C) of the National Labor Relations Act, as amended
(29 U.S.C. 151, et seq. ), herein called the Act. In its duly filed answer , Respond-
ent, while admitting certain allegations in the complaint , denied the commission of
any unfair labor practice . Subsequent to the filing of the charges herein the Re-
gional Director, pursuant to Section 10(1) of the Act, instituted inithe United States
District Court for the Eastern District of Pennsylvania , injunction proceedings en-
titled Bennett F. Schauffler, Regional Director etc. v . Local 1357, Retail Clerks Inter-
national Association , AFL-CIO, Civil Action No. 29 ,730. Following hearing
thereon Judge Francis L. Van Dusen , United States district judge, on June 26, 1961,
issued his decision finding reasonable cause to believe violations of the amended Act
had been committed . He accordingly ordered certain temporary injunctive relief
pending final disposition of the matter before the Board.'
Pursuant to notice a hearing was held before me at Philadelphia , Pennsylvania,
on July 17 and 18, 1961. All parties were represented at the hearing and were
148 LRRM 2610 ( D.C. E. Pa.).
LOCAL 1357, RETAIL CLERKS INT'L ASSOCIATION 1141
afforded full opportunity to be heard , to introduce relevant evidence , to present
oral argument , and to file briefs with me. The parties waived oral argument and
in lieu thereof filed briefs with me on August 21, 1961.
Upon consideration of the entire record , including the briefs of the parties, and
upon my observation of the witnesses , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF BEST MARKETS, INC.
Best Markets, Inc., a wholly owned subsidiary of Food Fair Stores, Inc., herein
referred to as Food Fair, is a Pennsylvania corporation operating a chain of retail
food stores in the Philadelphia , Pennsylvania , area. In the operation of its business
Best Markets annually does a gross volume of business in excess of $500,000 and
anually receives goods and materials from outside the Commonwealth of Pennsyl-
vania valued at in excess of $50,000. It is admitted in the pleadings that Best
Markets, Inc., is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act and I so find.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent admits that it is a labor organization within the meaning of Section
2(5) of the Act. Upon the basis of evidence in the record that Amalgamated Food
Employees Union Local 196, hereinafter referred to as Amalgamated , represents
employees for the purposes of collective bargaining, I find that it too is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICE
A. Background
Food Fair Stores, Inc., has continuously recognized and bargained with the Re-
spondent Local since 1939 as the representative of "all employees except meat,
delicatessen , seafood employees , store managers and supervisors in all markets and
stores located in Philadelphia and the immediate vicinity."
Prior to August 1960, Best Markets was an independent chain of retail food stores.
It has had since 1937 a history of continuous negotiations and contracts with
Amalgamated, the representative of Best Markets employees and the Charging
Union herein. In August 1960, after considerable litigation, it was determined that
Food Fair, by stock aquisition, had achieved control of Best Markets.
B. The disposition of Best Markets stores
Subsequent to Food Fair 's acquisition of the Best Markets stores six of them were
closed; six were converted to Food Fair markets, being clearly designated as such
by sign , interior arrangement , and decorations ; and as of the date of the hearing, the
remaining nine continued to be operated by Food Fair without having had their
sign and interior changed to indicate Food Fair control. In all other respects, how-
ever, the control was manifest. Thus these Best Markets stores were included under
the general Food Fair supervision as were other Food Fair stores, by the same indi-
vidual supervisors and officers, their merchandising policy was reviewed by Food
Fair, their advertising was handled jointly with Food Fair, personnel problems were
handled by the Food Fair personnel manager, who hires and fires employees for all
stores, Food Fair brands were sold in Best Markets stores and Food Fair employees,
including former Best Markets employees , made deliveries to all stores . In addition,
some Best Markets supervisors are now employed at Food Fair, certain higher super-
visors are responsible for both Food Fair and Best Markets stores, treating these
latter stores as part of Food Fair, departmentally and administratively, and finally,
the payroll and personnel records of Best Markets stores are handled and maintained
in the same manner as are Food Fair payroll and personnel records. Upon the fore-
going, I find that Food Fair Stores , Inc., and Best Markets, Inc., constitute a single
employer.2
C. The status of labor relations following the acquisition of
Best Markets by Food Fair
Upon the acquisition of Best Markets ' 21 stores , the closing of 6 of them, and
the conversion of 6 more to Food Fair stores, Respondent negotiated with Food Fair
2 Food Fair Stores, Inc., 120 NLRB 497
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"the question of turning the people in the Best Markets stores over under the contract
of the Retail Clerks." This "turning over" was actually accomplished as to the em-
ployees in the six former Best Markets stores "converted" to Food Fair stores. But
as of December 1960 Food Fair continued to recognize the Amalgamated as the
representative of the employees in the remaining nine Best Markets stores . There is
nothing in the record to indicate , however, that the employees in the other six stores
ever acquiesced in Food Fair's recognition of Respondent as their representative.
At a meeting with Food Fair representatives in December 1960 Respondent re-
quested that its contract with Food Fair be extended to apply to the appropriate em-
ployees in the remaining nine stores . Resisting this request Food Fair continued
to recognize the Amalgamated as representative of these employees . Thereafter
in late April or early May 1961 Respondent threatened to strike unless Food Fair
incorporated .the employees of these nine former Best Markets stores into the existing
Food Fair bargaining unit under its existing contract , checking off dues of these em-
ployees and remitting them to Respondent.
Upon Food Fair 's rejection of Respondent's demand for recognition of these em-
ployees and its refusal to check off their dues Respondent, beginning on May 5, 1961,
picketed eight of the nine former Best Markets stores, which picketing continued
until enjoined by court injunction on June 27 (supra). The signs carried by the
pickets contained the following legend:
BEST MARKETS
FOOD FAIR
UNFAIR TO
RETAIL CLERKS
UNION
LOCAL NO 1357
AFL-CIO
Respondent has never been certified as the representative of any of the employees
in either the nine former Best Markets stores in question nor in the six former
Best Markets stores previously converted to Food Fair stores. With respect to
the maneuvers of Respondent and Food Fair which succeeded in "turning over"
to Respondent the Amalgamated adherents employed in the six stores and which
precipitated a demand for the "turn over" of those in the nine other stores, the
following colloquy in the record between Julius S. Schwartz, Food Fair's director
of industrial and public relations, counsel for Respondent, and myself is significant:
Q. [By Mr. SELIGER.] That is the first meeting [with representatives of
the Retail Clerks] you attended after the Court had ruled?
A. I think the first meeting was the meeting when the sttaement was made
that once the thing was settled we would be glad to discuss the matter.
TRIAL EXAMINER : What matter is this?
The WITNESS: The question of turning the people in the Best Markets
stores over under the contract of the Retail Clerks.
TRIAL EXAMINER: Represented by the Retail Clerks?
The WITNESS : That's right.
TRIAL EXAMINER : Turning them over to whom?
The WITNESS: To the Retail Clerks.
TRIAL EXAMINER: Who were they represented by previously?
The WITNESS: They were represented by the Amalgamated Meat Cutters
Local 196.
* * * * * * *
TRIAL EXAMINER: You stated that at the meetings you discussed turning "these
people" over to Retail Clerks . I think .those were your words , "these people."
You mean employees?
The WITNESS: "Employees"; that is the term we used.
TRIAL EXAMINER: Did you have any indication from the employees whose
turning over you were discussing whether they wanted to be turned over from
one union to the other?
The WITNESS: I had no indication whatever.
There has been no petition filed by any of the parties pursuant to Section 9(c)
of the Act.
LOCAL 1357, RETAIL CLERKS INT'L ASSOCIATION 1143
D. Analysis and Conclusions
1. Employee representation
The crass disregard of basic employee rights displayed by Respondent's and Food
Fair's negotiations for the purpose of "turning over" to Respondent employees al-
ready represented by the Amalgamated, is not, in itself an issue in this case, nor,
in the absence of appropriate charges, may it be considered to be a violation of the
Act. Such action of these parties provides, however, ample evidence insofar as
allegations herein are concerned, that Respondent represented no employee of the
former Best Markets stores, including those in the six converted to Food Fair
stores who were cavalierly "turned over" to Respondent. And it further establishes
that none of these employees, effectively represented as they were by the Amalga-
mated, were to be afforded any opportunity to choose or reject the organization de-
manding their representation in the nine picketed stores, having already forced it
upon them in the six other stores.
2. Respondent's defense
As justification for its claim Respondent relies upon a principle to be found in
the Board's representation cases known as `aaccretion" whereby the addition to an
existing bargaining unit of certain other employees constitutes, under certain con-
ditions and circumstances, an inclusion of those employees in the bargaining unit
for further representation purposes. Considerations of this sort arise, however,
only in the context of establishing the representative status of the labor organiza-
tion claiming the added employees; in other words determining whether there is a
question concerning representation. But as Section 9(c) of the Act contemplates the
filing of a representation petition as prerequisite for the determination of a question
concerning representation, and as no petition has been filed with respect to these
employees, any view as to their inclusion or exclusion from the bargaining unit as
part of a normal accretion would be purely academic. Accordingly I reject so
much of Respondent's defense of its action as would seek to convert this proceed-
ing into a representation proceeding calculated to resolve a complicated bargaining
unit issue in its favor.
But apart from my conclusion that the appropriateness of the bargaining unit
is not before me at this time, a review of applicable Board cases suggests that a
group of employees already represented in a 25-year history of prior bargaining
is not appropriately the subject of accreation to an existing bargaining unit.3
3. The nature of the picketing
The purpose of Respondent's picketing of the eight stores in question is not dis-
puted. It was to force and require Food Fair to recognize Respondent as the repre-
sentative of the employees of these stores, and to extract union dues from their
wages for remittance to Respondent.
Apart from its reliance upon the "accretion" theory which I have already re-
jected, Respondent makes no other claim to the allegiance of these employees,
and I find none. Nevertheless, by the demands it put upon Food Fair in the April
and May meetings, as enforced by its picketing between May 7 and June 27, Re-
spondent also sought, thereby, to require the employees to accept it as their bar-
gaining representative. This, of course, is implicit in Respondent's demand of
Food Fair that dues for these employees be deducted from their wages and remitted,
as was already done with the "turned over" employees in the six stores previously
converted to Food Fair stores.
As the purpose of the picketing is thus manifest from Respondent's own state-
ments and actions, it remains only to evaluate such picketing in the terms of the
statute. Section 8(b)(7)(C) prohibits picketing for the object of forcing an em-
ployer to recognize or bargain with the Union, of forcing or requiring employees
to accept or select a union as their bargaining representative when no petition has
been filed within a reasonable period not to exceed 30 days.4 Accordingly, in the
3 Barrett Division, Allied Chemical h Dye Corporation, 120 NLRB 1026, 1028 ; Buy Low
Supermarket, Inc, 131 NLRB 23.
4 Section 8(b) (7) (C) provides in pertinent part as follows:
(b) It shall be an unfair labor practice for a labor organization or its agents-
( R t ! t ! •
(7) To picket or cause to be picketed, or threaten to picket or cause to be
picketed any employer where an object thereof is forcing or requiring an em-
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absence of a petition required to be filed pursuant to Section 9(c) of the Act
and upon consideration of the conceded purposes for which Respondent picketed
the eight Best Markets stores in question, namely, the forcing of Food Fair to recog-
nize it and the forcing of employees to select it, as more fully described above, I
conclude and find that Respondent has violated Section 8(b) (7) (C) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Best Markets, Inc., and Food Fair Stores, Inc.,
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
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in activities which violate Section
8(b) (7) (C) of the Act, I shall recommend that it cease and desist therefrom
and that it take certain affirmative action which I find necessary to remedy and to
remove the effects of the unfair labor practice and to effectuate the policies of the Act.
This affirmative action will, as is customary, require the posting of notices. In
the usual situation the posting of such notices by an offending labor organization
at an employer's premises is accomplished only upon the employer's willingness to
permit it. In this case, however, I shall require notices be posted at all of the former
Best Markets stores now under the control of Food Fair, including the six stores
previously converted, without reference to Food Fair's willingness in the matter.
Food Fair's expressed disregard for the rights of the employees in forcing them into
the Respondent organization without their consent persuades me that all former Best
Markets employees should be fully appraised of the rights guaranteed them in the
selection of their bargaining representative. I believe that the posting of the notices
herein at Respondent's premises would best accomplish such a result.
Upon the basis of the foregoing, and upon the entire record in this case, I
make the following:
CONCLUSIONS OF LAW
1. Food Fair Stores, Inc., and its wholily owned subsidiary, Best Markets, Inc.,
constitute a single employer within the meaning of Sections 2(2) and 8(b) (7) of
the Act.
2. Amalgamated Food Employees Union Local 196 of the Joint Council of
Philadelphia and Vicinity and the Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, is a labor organization within the meaning of
Sections 2(5) and 8(b)(7) of the Act and is the selected collective-bargaining repre-
sentative of employees of the former Best Markets stores.
3. Local 1357, Retail Clerks International Association, AFL-CIO, is a labor
organization within the meaning of Sections 2(5) and 8(b)(7) of the Act and has
never been selected by any employee or group of employees of the former Best
Markets stores as collective-bargaining representative.
4. By picketing Best Markets, Inc, stores for more than a reasonable time after
May 5, 1961, with the objects of forcing or requiring Food Fair Stores, Inc., to
recognize and bargain with it as the collective-bargaining representative of the em-
ployees of Best Markets stores and of forcing or requiring the employees of Best
Markets stores to accept or select it as their collective-bargaining representative,
without a petition being filed under Section 9(c) of the Act, Respondent has engaged
in and is engaging in an unfair labor practice proscribed by Section 8(b) (7) (C)
of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, I recom-
mend that Respondent, its officers, representatives, agents, successors, and assigns,
shall:
ployer to recognize or bargain with a labor organization as the representative of
his employees or forcing or requiring the employees of the employer to accept
or select such labor organization as their collective bargaining representative,
unless such labor organization Is currently certified as the representative of
such employees ;
s s s r * e s
(C) where such picketing has been conducted without a petition under
section 9(c) being filed within a reasonable period of time not to exceed
30 days from the commencement of such picketing .
WHITE OAK ACRES, INC. 1145
1. Cease and desist from picketing or causing to be picketed or threatening to
picket or causing to be picketed Best Markets, Inc., and Food Fair Stores, Inc.,
except under conditions permitted by Section 8(b)(7) of the Act, where an object
thereof is forcing or requiring such employer to recognize or bargain with it
as the representative of their employees , or forcing or requiring the employees of
such employer to accept or select it as their collective-bargaining representative.
2. Take the following affirmative action:
(a) Post at its offices, copies of the notice attached hereto marked "Appendix."
Copies of said notice, to be furnished by the Regional Director for the Fourth
Region , shall, after being duly signed by representatives of the Respondent, be
posted by the Respondent immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter , in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered , defaced, or covered by
any other material.
(b) Sign as aforesaid and mail sufficient copies of said notice to the Regional
Director for the Fourth Region for posting at all former Best Markets stores under
the control of Food Fair Stores, Inc., at places where notices to employees are
customarily posted.
(c) Notify the Regional Director for the Fourth Region, in writing, within 20
days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps have been taken in compliance therewith.
It is further recommended that unless on or before 20 days from the date of the
receipt of this report the Respondent notifies the Regional Director for the Fourth
Region that it will comply with the foregoing recommendations , the National
Labor Relations Board issue an order requiring the Respondent to take the action
aforesaid.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 1357, RETAIL CLERKS INTERNATIONAL ASSO-
CIATION, AFL-CIO, AND OF AMALGAMATED FOOD EMPLOYEES UNION LOCAL 196
OF THE JOINT COUNCIL OF PHILADELPHIA AND VICINITY AND THE AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKERS OF NORTH AMERICA, AFL-CIO AND TO
ALL EMPLOYEES OF FORMER BEST MARKETS , INC., STORES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT picket or cause to be picketed or threaten to picket or cause
to be picketed Best Markets, Inc., and Food Fair Stores , .Inc., except under
conditions permitted by Section 8(b)(7) of the Act, where an object thereof
is forcing or requiring such employer to recognize or bargain with us, or either
of us, as the representative of its employees or forcing or requiring the employees
of such employer to accept or select us, or either of us, as their collective-
bargaining representative.
LOCAL 1357, RETAIL CLERKS INTERNATIONAL
ASSOCIATION, 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.
White Oak Acres, Inc. and Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO. Case No.
11-CA-1773. December 11, 1961
DECISION AND ORDER
On September 26, 1961, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
134 NLRB No. 118.