Red Robin Stores, Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1954

108 N.L.R.B. 1318 (N.L.R.B. 1954)

1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In this way the company made it clear that it was not attempting to discourage Union member-
ship by granting a wage raise shortly before an NLRB election. (Gray Envelope Mfg. Co. Inc.
11 LRRM 145; 45 NLRB 657) Page 46: 721 Bureau of National Affairs.
George J Poulin
District Lodge Organizer
Dist 26 L A. of M.
PETRIE'S, AN OPERATING DIVISION OF RED ROBIN STORES,
INC., Petitioner and RETAIL CLERKS' INTERNATIONAL
ASSOCIATION, AND ITS LOCALS 128, 633, and 954, AFL.
Case No. 8-RM-106. June 14, 1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Edward A.
Grupp, 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 withinthe meaning
of the Act.
2. The labor organization involved claims to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
The Employer seeks a determination of the bargaining repre-
sentative at its Toledo, Ohio, ladies' ready to wear store. On
March 11, 1954, the Union, without having previously contacted
the Employer, established a picket line before the Employer's
store. The pickets, varying in number from 2 to 12, carried
placards reading--"This Store Does Not Employ Union Labor
Or Pay According to Union Standards," and "Do Not Patronize
This Store--Unfair to Organized Labor." i On March 17, the
Employer, filed a petition for an election, and a hearing was
held on March 30. In the meantime, the picketing continued.
The Union asserted that it had no interest in organizing or
representing the employees , but explained the picketing was
intended to exert pressure on the Employer to increase wage
scales and better the terms of employment for its nonunion
employees to conform with those prevailing for union employees
in other stores . The Union further stated that it would remove
the pickets if the Employer instituted the Union's standards.
i The placards bore the legend "Retail Clerks Council #6, A. F. of L." The record shows
that this Council is comprised of the three locals named in the petition, and is authorized
to represent them. There is no contention that the picketing is not being conducted on behalf
of the locals.
108 NLRB No. 188.
PETRIE'S 1319
At the hearing, the Union moved to dismiss the Employer's
petition on the ground that it had not requested recognition as
bargaining representative of the employees, and therefore no
question concerning representation exists. The Employer con-
tends that the Union's picketing constitutes a continuing demand
for recognition. The hearing officer referred the Union's
motion to the Board.
As we view the facts of this case, the Union is attempting to
secure by means of picketing what is normally obtained at the
bargaining table. This case must therefore be distinguished
from those cases in which a union merely engages in organiza-
tional picketing. The conditions which the Unionhere stipulates
for the removal of the pickets are inherently demands which
are resolved through collective-bargaining negotiations be-
tween the Employer and the bargaining representative of his
employees. The fact that the Union states that it will remove
the pickets if the Employer accedes to its demands indicates
persuasively that it is in reality attempting to force the Em-
ployer to bargain with it without regard to its majority status.
Accordingly, we must equate the Union's activity to a demand
for recognition. In these circumstances, we findthata question
concerning representation exists, and shall direct an election
among the employees in the unit hereinafter found appropriate.
4. The appropriate unit:
The Employer requests a unit of all employees at its Toledo,
Ohio, store, with the statutory exclusions. The Union objects to
the inclusion of two porters, an elevator operator, and a
presser, on the ground that these types of employees are out-
side its jurisdiction. However, jurisdictional limitation on
membership is not a valid reason for excluding employees from
a bargaining unit.2 In the past, the Board has recognized that
a functional integration and mutuality of interest exists between
these employees and other employees in retail establishments. 9
These employees have the same hours and ultimate super-
vision as the other employees, and approximately the same
wages as the others. There is an absence of any bargaining
history, and no other union seeks to represent them. We shall
include them in the unit.4
We find that all full-time and regular part-time employees
at the Employer's Toledo, Ohio, store, including salesclerks,
cashiers, porters, stockroom employees, window trimmers,
pressers, and elevator operators, but excluding all other em-
ployees, guards, and supervisors as defined in the Act, con-
stitute a unit appropriate for the purpose of collective bar-
gaining within the meaning of the Act.
[Text of Direction of Election omitted from publication.]
ZSilverwood's, 92 NLRB 1114, at page 1118.
3J. C. Penney Company, 86 NLRB 920, at page 921.
4 With the exception of the unit placement of the employees discussed in this paragraph,
the unit accords with agreement of the parties.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Member Peteron, disenting:
I cannot agree with my colleagues that there is any incon-
sistency here between the clear and unequivocal disclaimer
of the Union and the continuance of picketing . The majority
in effect admit that if the picketing were merely organizational
the Union would not be forced to an election . However, they
equate the picketing to a demand for recognition because they
view the Union ' s conduct as an attempt "to force the Em-
ployer to bargain." The difficulty that I find in such analogy
lies in the fact that the Union at no time requested recognition
or bargaining or otherwise claimed to represent a majority
of the Employer ' s employees . The fact that the Union was of
the opinion that the Employer was unfair in not paying its
employees according to union standards in the area, and by
picketing sought to publicize its view in this regard, is not
in my opinion tantamount to a demand for bargaining rights.
The very most that might be inferred from the placards
carried by the Union ' s pickets is that the Union might be
desirous of organizing the employees ' of the Employer. As
stated above , however, this the majority concedes would not
be inconsistent with a valid disclaimer of representative
status . Accordingly , I would dismiss the petition. S
Chairman Farmer took no part in the consideration of the
above Decision and Direction of Election.
'See Hubach and Parkinson Motors, et al., 88 NLRB 1202; Hamilton's Ltd., 93 NLRB 1076
Smith's Hardware Company, 93 NLRB 1009.
CALIFORNIA FISH CANNERS ASSOCIATION, INC. AND ITS
CONSTITUENT COMPANIES, STAR-KIST FOODS, INC.,
VAN CAMP SEA FOOD COMPANY, INC., PAN PACIFIC
FISHERIES , AND OTHERS and LOCAL UNION 11, INTER-
NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AMERICAN FEDERATION OF LABOR, Petitioner. Case No.
21-RC-3299. June 14, 1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Max Steinfeld,
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 Employers ' are engaged in commerce within the
meaning of the Act.
IThe Employers' names appear in the caption as amended at the hearing and in conformance
to the record.
108 NLRB No. 195.