Local 345, Retail Store Employees Union, Etc.

National Labor Relations Board - Board Decisions

Jan 21, 1964

145 N.L.R.B. 1168 (N.L.R.B. 1964)

1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tractor, to cease doing business with Brownfield. Such an objective
is violative of Section 8(b) (4) (i) and (ii) (B), and I would issue an
appropriate order. Because my colleagues have failed to do this, I
must dissent.
Local 345, Retail Store Employees Union , Retail Clerks Inter-
national Association , AFL-CIO and Gem of Syracuse, Inc.
Case No. 3-CP-55. January 21, 1964
DECISION AND ORDER
Unfair labor practice charges were filed on behalf of Gem of Syra-
cuse , Inc., also referred to as Gem, on June 12, 1963, against the
Respondent, Local 345, Retail Store Employees Union, Retail Clerks
International Association, AFL-CIO. Thereafter, on July 15, 1963,
the General Counsel of the National Labor Relations Board, by the
Regional Director for the Third Region, issued a complaint and notice
of hearing, alleging that the Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning of Section 8(b) (7) (C) and Section 2(6) and (7) of the Act.
On September 24, 1963, all parties to this proceeding filed a stipu-
lation of facts and a motion to transfer this proceeding directly to
the Board for issuance of a Decision and Order after the filing of
briefs and without further hearing. The stipulation states in sub-
stance that the parties waive their rights to a hearing before a Trial
Examiner and to the issuance of an Intermediate Report, and that
the charge, complaint, answer, and the transcript compiled and ex-
hibits received in evidence at a hearing before the U.S. District Court,
Northern District of New York, in the case of Merle D. Vincent, Jr.,
Regional Director for the Third Region of the National Labor Rela-
tions Board v. Local 345, Retail Store Employees Union, Retail Clerks
International Association, AFL-CIO, Civil Case No. 9595, should
constitute the entire record in the case. On September 30, 1963, the
Board approved the stipulation, ordered transferral of the proceed-
ings to the Board, and granted permission to the parties to file briefs.
Briefs have, accordingly, been filed by the Respondent and Gem.
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 [Members Leedom, Fanning, and
Brown].
Upon the basis of the aforesaid stipulation and the entire record in
the case, and having considered the briefs of the parties, the Board
makes the following :
145 NLRB No. 118.
LOCAL 345, RETAIL STORE EMPLOYEES UNION, ETC. 1169
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Gem of Syracuse, Inc., is engaged in the operation and manage-
ment of an exclusive membership retail department store at Syracuse,
New York. Various departments in the Syracuse store are operated
and maintained by 16 independent licensees pursuant to license agree-
ments with Gem. By virtue of the license agreements, Gem exercises
substantial control over the terms and conditions of employment of
the licensees' employees. During the past 9 months, Gem and the 16
licensees, in the course of business operations, received gross revenues
at an annual rate exceeding $500,000 in gross value, and collectively
received, from outside the State of New York, goods at an annual
rate valued in excess of $50,000.
In addition, Gem of Syracuse, Inc., is a wholly owned subsidiary
of Gem International, Inc., a corporate business with principal offices
in St. Louis, Missouri. As said corporations have common officers,
directors, and operators, who formulate a common labor policy for
the aforementioned companies, they constitute a single integrated
business enterprise. During the past 12 months, in the course of
business operations, Gem International, Inc., sold and distributed
products, the gross value of which exceeded $500,000. In the same
period, it shipped and transported products valued in excess of $50,000
to States other than where said shipments originated.
The parties concede, and we find, that at all times material herein,
Gem of Syracuse, Inc., was engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. TIIE LABOR ORGANIZATION INVOLVED
The Respondent, Local 345, retail Store Fnnployees, Retail Clerks
International Association, AFL-CIO, is, and, at all times material
herein, has been, a labor organization within the meaning of Section
2 (5) of the Act.
IH. THE UNFAIR LABOR PRACTICES
A. The facts
In October 1962 the Respondent began organizing employees at the
newly opened Gem store in Syracuse. Shortly after the store opened,
Gem sought the assistance of certain labor organizations in the Syra-
cuse area in soliciting member-customers from among union members.
Labor officials agreed to assist Gem in this regard on assurances that
Gem would cooperate, within lawful limits, in any attempt to organize
734-070-64-vol . 145-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Syracuse store. In November 1962, before the picketing began,
Respondent's business representative, James Colombo, had a conversa-
tion with Leland Blanding, Gem's director of member relations, re-
garding the organization of Gem's employees by the Respondent.
Colombo told Blanding that picket signs were ready for use in Syra-
cuse as well as in Harrisburg and Rochester but that if Blanding co-
operated and permitted the Respondent to carry on its organizational
activities within the store,' there would be no need for picketing.
Blanding answered that he was not in a position to authorize them to
enter the store. In another conversation with Blanding, some 3 weeks
later, Colombo informed Blanding that picketing had begun at the
Gem location in Harrisburg and that Blanding "certainly wouldn't
want this to happen in Syracuse, and if there was more cooperation
here it would not happen in Syracuse."
On November 16, 1962, the Respondent informed Gem that several
department managers were engaging in unfair labor practices, and
that if such practices continued, it would take necessary steps within
its legal rights. No unfair labor practice charges were filed by Re-
spondent at that time. On December 7, the Respondent made a formal
demand for recognition. Gem declined to recognize the Respondent,
suggesting that it seek a Board-conducted election. On December 19,
the Respondent filed a petition with the Regional Director for the
Third Region, but on January 15, 1963, at the representation hearing,
the Respondent requested withdrawal of the petition. The Regional
Director granted this request on January 21. On January 24, the Re-
spondent began picketing, and on the following day filed unfair labor
practice charges alleging that Gem had violated Section 8(a) (1) and
(3) of the Act .2 No other charges have been filed by the Respondent
in connection with this organizational campaign.
The picketing was conducted, for the most part, by two pickets sta-
tioned at the 80-foot entrance normally used by the consuming public,
employees, and suppliers entering upon Gem's property. They car-
ried identical signs which read : "GEM OF SYRACUSE, INC., UN-
FAIR. PLEASE DO NOT PATRONIZE. RETAIL STORE
EMPLOYEES UNION, LOCAL 345, AFL-CIO."
During the picketing Respondent distributed various leaflets to
Gem's employees, to the consuming public, and to members of labor
organizations in the Syracuse area. The one handed to Gem's em-
' The Respondent suggested that for a period of at least 6 consecutive hours, the Re-
spondent be permitted to set up a table or desk in the store with a sign reading
"EMPLOYEES CHECK HERE , RETAIL CLERKS, LOCAL UNION 345 "
2 The Regional Director on March 16 , 1963 , dismissed the 8 ( a) (3) allegations and the
Respondent appealed this determination to the General Counsel . Subsequently, on
March 26 the Regional Director and Gem executed a settlement agreement with respect to
the 8 ( a) (1) charges , requiring the posting of notices . Respondent did not assent to the
settlement . On April 22 the General Counsel sustained dismissal of the 8 ( a) (3) charges
and denied Respondent ' s appeal. On April 25 Gem posted the notices pursuant to the
settlement agreement.
LOCAL 345 , RETAIL STORE EMPLOYEES UNION, ETC. 1171
ployees undertook to "explain why there are picket lines in front of
the store," and stated in significant part, "Since Gem opened its doors,
the Retail Store Employees Union, Local 345, AFL-CIO, has been
talking to and working with employees in an effort to provide a. con-
tract for employees in Gem. This contract would provide higher
wages, better fringe benefits and improved working conditions." And
while making reference to the alleged unfair labor practices on the
part of Gem, it stated that Respondent was "urging all union mem-
bers and the public at large not to patronize until this dispute was re-
solved, and until Gem recognizes the fact that the employees want a
union, and should have one." The leaflet included a reminder to the
employees that "the picket line is out there, acting in your behalf."
In May 1963, in the course of the picketing, Alvin Wolf, a truck-
driver employed by one of Gem 's suppliers , attempted to make a
delivery at the Syracuse store. On seeing the picket line he inquired
of a picket as to the reason for the picketing. The picket informed
him that "the clerks in the store were being picketed" and "we are
trying to get them in the union." Wolf drove off without making his
delivery.
Picketing continued until July 19, 1963, when, following the filing
of 8(b) (7) charges , and pursuant to a proceeding under Section 10(1)
of the Act, the picketing was enjoined by the District Court for the
Northern District of New York. The Respondent did not at any
time during the picketing demand that Gem reinstate the employees
alleged to have been unlawfully discharged nor did it otherwise com-
municate directly with Gem for the purpose of obtaining agreement on
a satisfactory resolution of the alleged unfair labor practices.
B. Discussion
The complaint alleges that Respondent, which is not currently cer-
tified as the representative of Gem's employees , violated Section 8 (b)
(7) (C) of the Act by picketing Gem's premises in order to force and
require Gem to recognize and bargain with Respondent , and in order
to force and require the employees of Gem to accept and select Re-
spondent as their bargaining agent, without filing a valid petition
under Section 9 (c) within a reasonable period of time.
The Respondent, while admitting that the picketing was not of the
informational type protected under the second proviso to Section 8 (b)
(7) (C), contends that it was merely engaged in legitimate protest
picketing . It maintains that ( 1) it abandoned its organizational in-
terests in Gem's employees when it withdrew its representation peti-
tion; ( 2) that subsequent picketing was solely for the purpose of ad-
vising the public of Gem 's unfair labor practices ; and (3 ) that there
is no evidence in the record that the picketing had the recognitional or
organizational object proscribed by Section 8 (b) (7).
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In determining whether picketing has recognition or bargaining as
an objective, the Board scrutinizes all evidence in the case, including
events which precede as well as those which accompany picketing.3
In the instant case it is clear that Respondent embarked upon a cam-
paign to organize Gem's Syracuse store in October 1962. Respondent
sought to enlist the cooperation of Gem and in so doing, Colombo, Re-
spondent's business representative, on several occasions threatened the
use of a. picket line in order to secure its expressed objectives. More-
over, Colombo backed the threat by indicating that Respondent was
already picketing the Gem store at Harrisburg.
It is true, of course, that Respondent withdrew its representation
petition because of its belief that Gem had engaged in unfair labor
practices. However, such withdrawal does not necessarily signify a
complete abandonment of its object to organize Gem's employees and
to secure recognition as bargaining agent. That the Respondent main-
tained a continuing interest in representing Gem's employees is made
clear by the unmistakable language contained in the leaflet distributed
to Gem's employees during the picketing, as confirmed by the picket's
declaration of the purpose of the picket line, i.e., "to get them into the
union." The leaflet's reference to the benefits to be obtained through
a union contract and the disadvantages that may be suffered by unor-
ganized employees, the statement that the picket line is being main-
tained for the benefit of Gem's employees, the further statement that
the Respondent would not withdraw its pickets "until Gem recognizes
the fact that its employees want a union and should have one," and
the record as a whole, strongly support the conclusion that the Re-
spondent maintained its picket line for an object proscribed by Sec-
tion 8(b) (7). Conceivably, the Respondent may have picketed in
protest of alleged unfair labor practices but we are persuaded that it
had an additional object proscribed by Section 8(b) (7). In order to
find that picketing falls within the proscription of that section, the
Act merely requires that an object, rather than the sole object, be to
force an employer to recognize or bargain with the picketing union as
the representative of its employees when said union is not the currently
certified bargaining agent 4
Accordingly, and as we conclude that an object of Respondent's
picketing on and after January 214, 1963, was to force Gem to recognize
or bargain with Respondent as the representative of its employees, and
since it is undisputed that the picketing continued for a period exceed-
ing 30 days, without the filing of a representation petition, we find
the picketing unlawful under Section 8(b) (7) (C) of the Act.
3 See American Federation of Grain Millers, Local Union No 16, AFL-CIO (Bartlett
and Company, Grain), 141 NLRB 974, and cases cited at footnote 5
4lnternational Hod Carriers' Building and Common Laborers' Union of America, Local
8/0, AFL-CIO (Charles A Blonne, d/b/a C A Blinne Construction Company), 135 NLRB
1153, and Waiters d Bartenders Local 500 etc (Mission Valley Inn), 140 NLRB 433.
LOCAL 345, RETAIL STORE EMPLOYEES UNION, ETC. 1173
I4. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMFRCE
The activities of the Respondent set forth above, occurring in con-
nection with the operations of Gem as set forth 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 dis-
putes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom and
take certain affirmative action that we find necessary to effectuate
the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the en-
tire record in the case, we adopt the following :
CONCLUSION OF LAW
1. Gem of Syracuse, Inc., is engaged in commerce within the mean-
ing of Section 2 (6) and (7) of the Act.
2. The Respondent is a labor organization within the meaning of
Section 2 (5) of the Act.
3. By picketing or causing to be picketed Gem of Syracuse, Inc.,
with an object of forcing or requiring Gem of Syracuse, Inc., to rec-
ognize or bargain with Respondent as the representative of Gem's
employees, although Respondent is not currently certified as the rep-
resentative of such employees, without a petition under Section 9(c)
having been filed within 30 days after the commencement of such
picketing, Respondent has engaged in unfair labor practices within
the meaning of Section 8(b) (7) (C) of the Act.
4. 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 this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board orders that the Respondent, Local 345, Retail Sore
Employees Union, Retail Clerks International Association, AFL-
CIO, its officers, agents, representatives, and assigns, shall:
1. Cease and desist from picketing, or causing to be picketed, or
threatening to picket, or causing to be picketed, Gem of Syracuse, Inc.,
Where an object thereof is to force or require Gem to recognize or
bargain with the Respondent as the representative of Gem's em-
ployees, or to force or require the employees of Gem to accept or
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
select the Respondent as their collective-bargaining representative, in
violation of Section 8 ('b) (7) (C) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in the Respondent's business offices
and meeting halls, in Syracuse, New York, and at all other places
where notices to its members are customarily posted, copies of the
attached notice marked "Appendix." 5 Copies of said notice, to be
furnished by the Regional Director for the Third Region, shall, after
being duly signed by official representatives of the Respondent, be
posted by Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter. Reasonable steps
shall be taken by Respondent to insure that said notices are not altered,
defaced, or coveredby any other material.
(b) Mail to the Regional Director for the Third Region signed
copies of the aforementioned notice for posting by Gem of Syracuse,
Inc., the latter willing, in places where notices to employees are cus-
tomarily posted. Copies of said notice, to be furnished by the afore-
said Regional Director, shall, after being signed by the Respondent
as indicated, be returned forthwith to the Regional Director for dis-
position by him.
(c) Notify the aforesaid Regional Director, in writing, within 10
days from the date of this Decision and Order, what steps have been
taken to comply herewith.
5 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "A Decision and Order" the words
"A Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 345, RETAIL STORE EMPLOYEES
UNION, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO,
AND TO THE EMPLOYEES OF GEM OF SYRACUSE, INC., EMPLOYED
AT 5814 BRIDGE STREET, SYRACUSE, NEW YORK
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT, under conditions prohibited by Section 8 (b) (7)
(C) of the Act, picket, or cause to be picketed, or threaten to
picket, or cause to be picketed, Gem of Syracuse, Inc., Syracuse,
New York, where an object thereof is to force or require the afore-
said Company to recognize or bargain with us as the representa-
ROWE FURNITURE CORPORATION 1175
tive of its employees, or to force or require the employees of the
aforesaid Company to accept or select us as their collective-
bargaining representative.
LOCAL 345, RETAIL STORE EMPLOYEES UNION,
RETAIL CLERKS INTERNATIONAL ASSOCIA-
TION, AFL-CIO,
Labor Organization.
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 con-
cerning this notice or compliance with its provisions.
Rowe Furniture Corporation and Upholsterers ' International
Union of North America, AFL-CIO. Case No. 5-C,A-2378.
January 21, 1964
DECISION AND ORDER
On September 27, 1963, Trial Examiner Jerry B. Stone issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the 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 Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the Respondent's exceptions and brief, and the en-
tire record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
145 NLRB No. 116.