McClintock Market, Inc.

National Labor Relations Board - Board Decisions

Aug 22, 1979

244 N.L.R.B. 555 (N.L.R.B. 1979)

McCLINTOCK MARKET. INC.
McClintock Market, Inc. Employer-Petitioner and
Retail Food Store Employees Local 322. Case 17-
RM-634
August 22. 1979
DECISION ON REVIEW AND DIRECTION OF
ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On May 4, 1979, the Regional Director for Region
17 issued a Decision and Order in this case in which
he found that the Union had effectively disclaimed its
interest in representing the Employer's employees,
and, accordingly, that the Union's current picketing
does not evince a present demand for recognition.
Concluding that there was no question concerning
representation, the Regional Director dismissed the
Employer's election petition. Thereafter, the Em-
ployer, in accordance with Section 102.67 of the Na-
tional Labor Relations Board Rules and Regulations,
Series 8, as amended, filed a request for review of the
Regional Director's decision. On May 31, 1979, the
National Labor Relations Board granted the request
for review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
For the following reasons we find, contrary to the
Regional Director, that the Union's course of conduct
is tantamount to a present demand for recognition,
and we shall reinstate the petition.
I. The Employer has operated a single retail food
store in Neosho, Missouri, for a number of years and
since November 1978 has been at its present loca-
tion.' The store employs approximately 35 people.
On March 9, 1979, three union pickets appeared at
the Employer's store. They displayed signs which
read:
STOP
DON'T SHOP
THIS STORE DOES NOT
HAVE A CONTRACT WITH
RETAIL STORE EMPLOYEES
UNION 322 AFL-CIO
I With the exception of a 1965 election among the Employer's employees.
which the Retail Clerks Union lost. there is no history of union activity at the
Employer's store prior to the Union's current picketing.
Two pickets reappeared the following day, March 10.
Thereafter, two persons picketed the store on March
16, 17, 29, 30; and on April 5, 6, 12, 13, 19, and 20.2
On April 10, Tom McClintock, the sole owner of
the store, telephoned Jack Gray. a union representa-
tive, to inquire about the picketing. Gray suggested
that they meet to discuss the situation. During their
conversation McClintock inquired, "what would it
take to remove the pickets." Gray replied that the
Union would remove the pickets once the Employer
signed a contract. McClintock then stated that "we
would like to have an election." Gray responded that
the Union was not interested in an election. Gray and
McClintock agree to meet on April 12.
McClintock and one of his sons met with Gray and
another union representative on April 12. McClintock
again inquired about the purpose of the picketing.
Gray replied, "we are informing the public that your
employees are not paid standard wages that the union
clerks get in this area." McClintock then asked Gray
what had to be done to stop the picketing. Gray re-
sponded that the Union wanted McClintock "to sign
a contract with the Clerks Union 322." McClintock
inquired whether the Union was "willing to have an
election." Gray answered that the Union was not in-
terested in an election and requested that McClintock
send his employees to the Union's office for the pur-
pose of signing authorization cards. Once half of the
store's employees signed cards, Gray continued, he
would present them to McClintock, and he could
then sign a contract. The discussion continued for a
short while, touching upon such matters as the com-
position of the bargaining unit and the payment of
union dues. Since this meeting there has been no di-
rect communication between the parties.
On April 18 the Employer filed the instant petition.
The next day union representative Gray informed the
Hearing Officer, who had telephoned to schedule the
representation hearing, that the Union was not inter-
ested in representing the Employer's employees and
did not intend to attend the hearing. On April 20 the
Hearing Officer sent Gray a letter confirming the tele-
phone conversation.
The representation hearing was held on April 25.
The Union did not attend. Finding no union conduct
since April 19 inconsistent with its disclaimer and re-
lying primarily on the Board's recent decision in
John's Valley Foods,3 the Regional Director dismissed
the petition. Given the particular circumstances of
this case we disagree with the Regional Director's
2 The Employer alleges in its request for review that the picketing has
continued at least until May 9. the date that the request for review was
mailed.
3237 NLRB 425 (1978).
244 NLRB No. 85
555
D[E(ISIONS 01: NATIONAL IABOR RELATIONS BOARD
conclusion that the Union's object is not immediate
recognition.
Prior to the Hearing Officer's April 19 telephone
conversation with Union Representative Cray there
can be no doubt that the Union was seekirg immedi-
ate recognition. Strong evidence of the Union's recog-
nitional object. at least prior to the April 19 telephone
renunciation, are the April 10 and 12 union demands
that the Employer sign a contract. That the Union
may also have intended to inform the public of the
Employer's alleged substandard wages and working
conditions does not negate the recognitional objective
of the Union's activity. Consistent with this view is
the Regional Director's implicit finding that the
Union's conduct prior to April 19 was of a proscrip-
tive nature. Moreover, it is significant that there is no
evidence that the Union has ever investigated the
Employer's wage scale or employment conditions.
This consideration undermines the notion that the
Union harbors a legitimate area standards objective.4
Nonetheless, the Regional Director found that the
April 19 disclaimer, reinforced by the Union's failure
to appear at the hearing, 5 effectively withdrew the
Union's demand for recognition.
While the Board has long recognized that a claim
for immediate recognition is not irrevocable, it has
also emphasized that a withdrawal of claim is not
effectuated by a simple expedient of its declaration.6
Thus, when a disclaimer has followed a present de-
mand for recognition by several days and picketing
continues without interruption following the dis-
claimer, the Board has refused to credit the dis-
claimer.7 However, when a union follows a disclaimer
with the cessation of picketing for a significant period
of time and engages in no other conduct inconsistent
with its disavowal of representative interest, the
Board has been more inclined to conclude that the
union has abandoned its present recognitional objec-
tive. This was the situation in John's Valley Foods,
supra. There the union, whose picketing had been en-
joined by a Federal district court, resumed picketing
4 United Brotherhood ofCarpenters and Joiners oJ America. Local vNo. 1245,
A 11. (10 (Aew Mexico Properties, Inc.). 229 N LRB 236. 240 (19771.
5 To support this proposition the Regional Director relies on Josephine
Furniturre (ompan, Inc., 172 NLRB 404 (1968). There an employer ques-
tioned the continuing majority status of a union which had earlier been
voluntarily recognized. The Board construed the union's failure to appear at
a hearing. in conjutnction with its failure to act to effectuate its representative
status since its recognition. as either abandonment of its representative status
or a disclaimer. We therefore view that case as inapposite. Under the circum-
stances of this case we attach no significance to the Union's failure to partici-
pate in the hearing.
I Kenneth Wong. Ileno Limi, Harrv Lim, rook Lim, and Robert Lim. (Co,-
partnerv dl/b/a Capitol Market No. 1, etc. 145 NLRB 1430 (1964).
Id; Allen & O'ltara Investments. Inc. d/b/l Holidav Inn of Providence-
Downtomn. 179 NI.RB 337 (1969).
approximately I month after the court's order, using
placards and distributing leaflets disclaiming any rec-
ognitional object and containing verbatim language
suggested by the district court. Because the union's
conduct conformed with the court's decree, there had
been a substantial hiatus following the injunction.
and there had been no communication between the
parties regarding the union's postinjunctive picketing
the Board was unable to conclude that the union's
activity was tantamount to a present demand for rec-
ognition.
Here, by contrast, there has been no hiatus. The
disclaimer followed by only a few days a union de-
mand that the Fmployer enter into a contract. Fur-
ther, there is no evidence that the Union has distrib-
uted leaflets advising the public of the purpose of the
picketing or that the Union has ever investigated the
Employer's wage scale and working conditions. Nor
has the Union ever unequivocally conveyed to the
Employer that it is not interested in immediate recog-
nition.8 In conclusion, we are persuaded that the
Union's objective is immediate recognition. To con-
clude otherwise we would have to find the Union's
naked declaration a valid disclaimer. Instead, the
Union's demands for a contract to remove the pick-
ets, in the context of continued picketing and the ab-
sence of other evidence that the Union has truthfully
renounced its immediate recognitional objective.
leads us to conclude that the disclaimer does not re-
move the claim for recognition, and that a question
concerning representation exists among the Employ-
er's employees.
2. The labor organization involved is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. We find that the following employees of the Em-
ployer constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(c)(1) of the Act:
All full and part-time employees of the Em-
ployer employed at its Neosho, Missouri, retail
food store excluding meat department and office
clerical employees, the store manager, guards,
professional employees and all other supervisors
as defined in the Act.9
I(tf. Moarino'v Complete Hone Furilshing.s. 145 NLRB 604 (1963).
'This unit description is essentially as described in the petition and in
accord with the position taken by the Employer at the hearing. The Union
has expressed no opinion regarding the composition o the appropriate unit
556
McCI.INTOCK MARKET. IN(. 557
[Direction of Election and Excelsior footnote NLRB 1250 l977: Alen& Ollara lnir'ernn , 11i sipra (lnilen ilth
the Employer's positon. the ,wner's son Mark is excluded as h;l ing inter-
omitted from publication.] ests allied with management Charles McClintock, another son. i, excluded
on the hasis that he possesses acknowledged supervisory authorilt. Further.
the owner's wife. Mary. is excluded from the unit, and the Emplocer agreed
The exclusion of the meat department and office clerical employees is consis- that Marada McClintick, Charles' wife. should he excluded a aIn office
tent with Board precedent. C & E Srore. Inc. C & F SiXpenra/et Dlsrion. 229 clerical emploee