Miratti's, Inc.

National Labor Relations Board - Board Decisions

Aug 2, 1961

132 N.L.R.B. 699 (N.L.R.B. 1961)

MIRATTI'S, INC. 699
CONCLUSIONS OF LAW
1. Edna and Gregory are, each of them , Employers engaged in commerce within
the meaning of iSection 2(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. The Respondent has not engaged in the unfair labor practices alleged in the
complaint herein.
[Recommendations omitted from publication.]
any person engaged in commerce or in an industry affecting commerce, where in
either case an object thereof is:
(A) forcing or requiring any employer or self-employed person to join any
labor or employer organization or to enter into any agreement which is
prohibited by section 8(e) ;
(B) forcing or requiring any person to cease using , selling, handling,
transporting, or otherwise dealing in the products of any other producer,
processor , or manufacturer , or to cease doing business with any other person,
or forcing or requiring any other employer to recognize or bargain with a
labor organization as the representative of his employees unless such labor
organization has been certified as the representative of such employees under
the provisions of section 9: . . .
Section 8 (e) of the Act provides , in pertinent part that:
(e) It shall be an unfair labor practice for any labor organization and any em-
ployer to enter into any contract or agreement , express or implied , whereby such
employer ceases or refrains or agrees to cease or refrain from handling , using, selling,
transporting or otherwise dealing in any of the products of any other employer, or
to cease doing business with any other person, and any contract or agreement entered
into heretofore or hereafter containing such an agreement shall be to such extent
unenforcible and void : . . .
Miratti's, Inc., Petitioner and Retail Clerks International Asso-
ciation , Local 899, affiliated with the Retail Clerks Inter-
national Association , AFL-CIO.' Case No. 21-RM-665. August
2, 1961
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Louis A. Gordon, hearing
officer . The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. Retail Clerks International Association, Local 899, affiliated with
the Retail Clerks International Association, AFL-CIO, is a labor
organization within the meaning of the Act.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act, for the' following
reasons:
The Union was the contractual representative of the Employer's
i
'The name of the Union appears as amended at the hearing.
132 NLRB No. 48.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees from 1953 until April 1956, when the agreement between
the Union and Employer expired. Between April 1956 and October
1959, Betty Johnson, then secretary-treasurer of the Union, had about
12 conversations with Thomas Flynn, the Employer's labor relations
representative, regarding a new contract. Most of these conversations
took place early in this 31/2-year period. In January 1960, a new
secretary-treasurer of the Union was named and, for about 7 months
following the aforementioned 31/2-year period, the Union did not have
any dealings with the Employer. This interlude was followed by an
unsuccessful organizing campaign among the Employers' employees.
Between May and July there were conversations between union and
employer representatives, but the testimony is in conflict as to the num-
ber of conversations held and as to what was said during this period.
For example, the Employer testified that the Union made demands for
recognition in May. However, Harry Warren, who succeeded Johnson
as secretary-treasurer, testified that no such demands were made.
Warren testified that he only inquired of Flynn during contract nego-
tiations involving other employers as to the manner in which the
Union's contract with the Employer was terminated and, on May 25,
talked to the Employer about the discharge of an employee McGuire
who, Warren claimed, was terminated because of his role in the
Union's unsuccessful organizing campaign.
At a meeting of the Santa Barbara Central Labor Council held on
May 25, McGuire's discharge was discussed and Warren then learned
that representatives of other unions were "amazed and appalled" to
learn that the Employer did not have a contract with the Union; mem-
bers of these other unions had been patronizing the Employer in the
belief that the Employer had a union contract. Even after the expira-
tion of the Employer's contract with the Union, for a period of time
not disclosed by the record, signs continued to hang in the Employer's
stores to the effect that the Employer had a contract with the Union .2
On July 25, Warren reported to the Employer the feelings expressed
at the Central Labor Council meeting and told him that the Union was
obligated to advertise the facts to the public. He also told the Em-
ployer that he didn't want it to have any "il isconceived" ideas that he
was asking for a contract or claiming to represent the employees "in
any shape, way or form," and that the Union's only interest was to
advertise the fact that the Employer did not have a contract with the
Union. On August 8, the Union began picketing the Employer with
picket signs reading :
2 At the June 14 meeting mentioned in the dissent, Flynn and Miratti proposed an elec-
tion to determine the Union 's majority status . Thereafter , Miratti himself testified,
Warren asked whether cards "that he had or would have" would be sufficient . This testi-
mony does not show a request for recognition as of June 14 It appears therefrom that
Warren merely asked whether, if the Union obtained sufficient authorization cards, they
would be accepted by the Employer as proof of majority status.
MIRATTI'S, INC. 701
THIS PICKET IS HERE TO
INFORM THE GENERAL PUBLIC
THAT
MIRATTI'S DOES NOT HAVE
A CONTRACT
WITH RETAIL CLERK'S INTL. ASSN.
At the hearing in this case, the Union again disclaimed any interest
in representing the Employer's employees.
Even assuming on these facts that a question concerning represen-
tation existed prior to July 25, the Union clearly and unequivocally
disclaimed interest in the Employer's employees on that date. The
dissent asserts that this was a self-serving declaration which does not
override the intent of the Union which they discern in the Union's
prior conduct and subsequent picketing. However, in any inquiry
into the effectiveness of a disclaimer of prior action, it is the Union's
contemporaneous and subsequent conduct which ought to receive par-
ticular attention. In this case, the Union, once having disclaimed
in unmistakable terms, engaged in no action inconsistent therewith.
Its picketing is accounted for by uncontradicted testimony which
shows that it had no recognitional objective 3 At the hearing, the
Union repeated its disclaimer.
If the Union's disclaimers are not effective ones, we fail to see how
any union which has requested recognition can make an effective dis-
claimer, particularly if it thereafter pickets for any reason. We be-
lieve that effective disclaimers are possible and, further, that they
should be recognized and accepted when they occur. We find that the
Union's disclaimer in this case was an effective one. In view thereof,
we find that no question concerning representation exists at this time,
and shall dismiss the petition.
[The Board dismissed the petition.]
MEMBERS RODGERS and LEEDOM, dissenting :
The majority concludes, in effect, that even assuming a question
concerning representation existed prior to July 25, 1960, Union Rep-
resentative Warren's statements on that date to Miratti show that the
Union no longer sought to represent the Employer's employees. We
do not believe that the clear import of the Union's actions can be so
conveniently changed by a simple self-serving statement.
3 The Normandin Bros Company case. 131 NLRB 1225, cited by the dissent is wholly
distinguishable on its facts For example , as found by the Board , the union in that case
"limited its picketing to the service employee , back entrance of the plant on a side street
and left unpatrolled the public or customer entrance located on a main thoroughfare"
Because this case is distinguishable from Normandin , in that the Union's disclaimer was
not equivocal , nor was its subsequent conduct inconsistent, therewith , Member Fanning
finds it unnecessary to dismiss the petition with prejudice to the Union ' s right to file a
petition within 12 months , a course of action he deemed most desirable in Normandin.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
What we have before us is a situation in which the Union has
sought for a period of some 3 years to regain both recognition and a
contract. Further, shortly after it learned on May 25, 1960, that other
unions in the Central Labor Council were "amazed" it had no con-
tract with Miratti, the Union sought on June 14, recognition on the
basis of a card cross-check,4 even though it had abandoned as unsuc-
cessful an organizing drive in May among Miratti's employees. Con-
sequently, it seems evident to us that the picketing beginning August 8
announcing on the signs that Miratti had no union contract was
clearly a continuation of the Union's persistent efforts over several
years to gain a contract and reestablish itself as the employee's rep-
resentative. Under these circumstances, it is wholly unrealistic to
accept the Union's self-serving statement of July 25, 1960, disclaim-
ing any recognitional objective as overriding the clear intent of its
actions as finally given expression in its picketing.' Accordingly, we
would find that the Union's picketing is for a contract and, thus,
tantamount to a present demand for recognitions It is, therefore,
inconsistent, in our view, with the disclaimer and we would, in con-
sequence, direct an election.
* Warren testified he mentioned a card cross -check solely to get the Employer ' s reaction
to the idea , a disclaimer of recognitional intent we find unbelievable.
5 See Normandin Bros. Company , 131 NLRB 1225.
6 See, for example , Watwer Grocer Company, 111 NLRB 936.
A. E. Schultz Fuel Co ., Inc., and Midwest Bulk, Inc . and General
Drivers and Dairy Employees Local Union 563, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America . Case No. 13-CA-3655. August 4, 1961
DECISION AND ORDER
On February 17, 1961, Trial Examiner Eugene E. Dixon issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. He also found that the Respondents had
not engaged in certain other alleged unfair labor practices. There-
after, the Respondents and the General Counsel filed exceptions to the
Intermediate Report, and the General Counsel filed 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
Rodgers and Fanning].
132 NLRB No. 53.