Retail Clerks International Association, AFL-CIO, Etc.

National Labor Relations Board - Board Decisions

Jun 27, 1960

127 N.L.R.B. 1522 (N.L.R.B. 1960)

1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Company 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 burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
it will be recommended that they cease and desist therefrom, and take certain
affirmative action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Package Machinery Company, Springfield, Massachusetts, is engaged in com-
merce within the meaning of the Act.
2. Local 220, International Union of Electrical, Radio and Machine Workers of
America, is a labor organization within the meaning of Secton 2(5) of the Act.
3. Local 220, International Union of Electrical, Radio and Machine Workers of
America, is, and at all times material has been, the exclusive representative of the
Company's employees in the appropriate unit described in section III, for the
purposes of collective bargaining within the meaning of Section 9(a) of the Act.
4. By refusing to bargain collectively in good faith with the Company, the Re-
spondents have engaged in and are engaging in unfair labor practices within the
meaning of Section 8(b) (3) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning
of Section 2(6) and (7) of the Act
6. The Respondents have not engaged in unfair labor practices in violation of
Section 8(b) (1) (A) of the Act.
[Recommendations omitted from publication.]
Retail Clerks International Association , AFL-CIO, and Retail
Clerks Union, Local 770, AFL-CIO and Food Employers
Council, Inc.
Retail Clerks International Association , AFL-CIO, and Retail
Clerks Union , Local 770, AFL-CIO and United States Hard-
ware & Paper Co., and Wesco Merchandise Co. Cases Nos.
21-CC-280 and 21-00-287. June 27, 1960
DECISION AND ORDER
On August 20, 1958, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent Local 770 had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also
found that Respondent International had not engaged in any unfair
labor practices and recommended that the complaint be dismissed
with respect to it. Thereafter, Respondent Local 770, the General
Counsel, and the Charging Parties, United States IIardware & Paper
127 NLRB No. 171.
RETAIL CLERKS INT'L ASSOCIATION, AFL-CIO, ETC. 1523
Co. and Wesco Merchandise Co., filed exceptions to the Intermediate
Report and supporting briefs.'
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. Respondents' request for oral argu-
ment is denied because the record, exceptions, and briefs adequately
present the issues and positions of the parties. The Board has con-
sidered the Intermediate Report, the exceptions and briefs, and the
entire record in the case,' and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner except as modified herein.
Food Employers Council, Inc., referred to herein as Council, is an
employer association which negotiates and administers collective-
bargaining agreements on behalf of its employer members in southern
California, most of whom are operators of retail food markets. Local
770 represents the market employees and has bargained with the
Council for many years. The bargaining agreement with which we
are concerned was for the 3-year period through 1958. There has
been a longstanding controversy between the Council and Local 770
as to the rights of the markets to utilize the services of employees of
wholesale distributors who handle nonfood, or speciality food, items,
in placing their products in market selling areas. The Charging
Parties, United States Hardware and Wesco, are distributors of non-
food items, who are commonly referred to as rack-jobbers. Their
employees who do shelving and display work in the market areas are
referred to herein as driver-salesmen.
The facts leading up to the work stoppages at Boy's Markets and
Hughes Market on October 30 and 31, 1957, are accurately set out in
the Intermediate Report. They were caused by representatives of
Local 770 inducing market employees to cease working until items
handled by United States Hardware were removed from the shelves
or otherwise made unavailable for sale. Thereafter, Local 770 officials
also spoke to employees of distributors other than United States Hard-
ware or WWTesco and attempted to induce them not to place their em-
ployers' products in the selling areas of the markets.
1 The General Counsel and the Charging Parties generally support the Trial Examiner's
findings and conclusions , but they have excepted to his failure to broaden the scope of
his recommended order so as to protect suppliers other than United States Hardware.
The Charging Parties also excepted to the Trial Examiner's dismissal of the complaint
as to Respondent International
'After Issuance of the Intermediate Report, Local 770 filed a motion with the Board
to reopen the proceedings for submission of a judgment of the U S District Court for
the Southern District of California which ordered arbitration of a dispute over the inter-
pretation of the agreement betneen Local 770 and Food Employers Council , Inc, and to,
stay these proceeding s until the arbitrator ' s award has been issued Since that time,
however , the Board has held that the agreement did not unambiguously assign certain,
work to Local 770, and has also noted that the order directing arbitration has been
suspended Retail Clerks International Association et at (Food Employers Council.
Inc ), 125 NLRB 984 As the factual situation upon which the motion was based is no,
longer applicable , we deny the motion.
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. We agree with the Trial Examiner that Local 770 violated
Section 8 (b) (4) (A) through the inducement of The Boy's Markets,
Inc., and Hughes Market, Inc., employees to engage in a work stop-
page in order to bring pressure on members of the Council to cease
handling products which were to be placed on the food market shelves
by driver- salesmen who were not members of the Clerks. We thereby
find that the action taken by Local 770 was not merely an incidental
and excusable byproduct of a primary dispute between Local 770 and
the Council over the violation of the 1956 agreement which allegedly
assigned all shelving work to members of Local 770's unit. It is true
that Local 770 and the Council disagreed on the proper interpre-
tation of the work assignment and recognition clauses of their contract,
and that the work stoppages of the market employees at their em-
ployers' premises was in support of Local 770's contentions.' It is
just as true, however, that the dispute between the Clerks and the
Council was over the right of the markets to permit employees of
other employers to complete their deliveries in the selling areas. By
engaging in work stoppages to enforce the agreement, Local 770 was
attempting to ban from the market premises all driver-salesmen whom
it did not represent. Its object, in effect, was to interfere with the
practice of the markets of buying from the distributors on a delivered
basis. Whether Local 770 was engaged in a controversy with the
distributors which was as active or as real as its controversy with the
markets is immaterial. The distributors were performing a service,
in connection with their products, which Local 770 considered ob-
jectionable and which it hampered. This is a type of secondary
boycott, referred to as a product or service boycott, which the Board
uniformly proscribes .4
Other subsidiary contentions of Local 770 must also be rejected.
It argues that it was entitled to take the action it did in order to
force the markets to comply with the work assignment provisions of
the Clerks-Council agreement. The Board has already held, in the
related Section 10(k) proceeding, Retail Clerks International Asso-
ciation, supra, that these clauses did not unambiguously assign the
disputed shelving work to members in the Clerks' unit. Moreover,
in this proceeding, it is irrelevant whether they were or were not
ambiguous since an attempt to enforce a contractual provision can-
not excuse the inducement of employees for objects prohibited by
8 See Retail Clerks International Association, supra, for a fuller statement of the dis-
agreement over the meaning of the Clerks -Council agreement
4Bricblayers , etc, International Union of America , AFL-CIO, et at (Selby - l3attersby h
Company), 125 NLRB 1179 ; Local 636 of the United Association of Journeymen, etc.,
AFL-CIO, at at. (Detroit Edison Company , et at ), 123 NLRB 225 ; Local 294, Inter-
national Brotherhood of Teamsters etc. (Bonded Fretghtways, Inc ), 121 NLRP. 924,
enfd. 273 F 2d 696 (CA. 2); Local 98, Sheet Metal Worleis etc (York Corporation),
121 NLRB 676 ; and Washington-Oregon Shingle Weavers District Council et at (John P.
Martin, et al, d/b/a Sownd Swingle Co ), 101 NLRB 1159, enfd 211 F 2d 149 (CA. 9).
RETAIL CLERKS INT'L ASSOCIATION, AFL-CIO, ETC. 1525
Section 8(b) (4) (A) or (B).1 Local 770 also urges that the rack-
jobbers and the markets are allied through their mutual concern over
the efforts of Local 770 to enforce its contractual rights, and that,
consequently, there are no neutrals in this dispute. Despite a mu-
tuality of interests arising from their business relationship, and the
fact that employees of the rack-jobbers and other distributors may
perform display or shelving work on the market premises, it is undis-
puted that the markets and their suppliers are separate entities, and
that no employer or group of employers was attempting to assist
another by performing struck work for it. We find no merit in this
defense.'
2. The Trial Examiner also found a violation of Section
8 (b) (4) (A) in the inducement of employees of the distributors with
the object of forcing them to cease doing business with the markets.
We do not base our conclusion that Section 8(b) (4) (A) has been
violated on this finding, since the complaint did not allege this type
of inducement as an element of the violation. As amended at the
hearing, the complaint only alleged that the Respondents ordered,
directed, etc., their members employed by the markets and other
employers to engage in work stoppages with the object of forcing
Council members and other employers to cease handling the products
of United States Hardware, Wesco, and other suppliers and to cease
doing business with such suppliers. There is no allegation as to the
inducement of employees who were not Clerks' members nor that it
was an object of the Respondents to induce the suppliers to cease
doing business with the markets. Testimony was admitted at the
hearing with respect to the inducement of employees of suppliers
(who were not members of the Respondents), but the General Counsel
adduced such evidence to establish that the inducement of these
employees, in the presence of market employees, constituted an indi-
rect inducement of the latter. However, we see no need to rely on
such evidence since the direct inducement of market employees was
proven. We shall, therefore, limit our order so as to reach only the
inducement of food market employees which had as an object requir-
ing their employers to cease doing business with the suppliers.'
3. We affirm the Trial Examiner's finding, based on his credibility
resolution of the conflicting testimony of DeSilva, secretary-treasurer
aLocal 294, International Brotherhood of Teamsters etc. (Bonded Freightways, Inc ),
supra ; Local 929 , United Brotherhood of Carpenters etc (The Mengel Company , et al ),
120 NLRB 1756 ; Springfield Building and Construction Trades Council , et al (Leo Spear
Construction Co ), 120 NLRB 600. enfd 262 F 2d 494 (CA 1) , Bangor Building Trades
Council (J R. Cianchette), 123 NLRB 484, enfd 278 F 2d 287 (CA t).
'Dallas General Drivers etc ( Associated Wholesale Grocery of Dallas , Inc.), 118 NLRB
1251 , 1255 , enfd 264 F . 2d 642 (CA. 5).
7 Member Jenkins would, however, like the Trial Examiner, find that the inducement
of employees of the suppliers, having been litigated and proved, constitutes an additional
violation of Section 8(b) (4) (A)
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Local 770, and Abrams, president of United States Hardware, that
DeSilva demanded recognition from Abrams in their telephone con-
versation of October 31, as the price for calling off the work stoppages
which were affecting the business relationship of United States Hard-
ware and the markets. However, his recommended order for remedy-
ing the violation of Section 8(b) (4) (B), as well as his order for the
Section 8(b) (4) (A) violation, are both, in our opinion, too limited.
They apply only to inducements for the object of forcing or requiring
United States Hardware to bargain with Local 770 and to force the
markets and other employers to cease doing business with United
States Hardware. In excluding rack-jobbers and distributors other
than United States Hardware from his proposed remedial order, the
Trial Examiner has too narrowly construed the significance of the
course of action undertaken by Local 770. The object of its disaffec-
tion was the employment of driver-salesmen on the market premises
who were not members of the Clerks. Local 770 had no particular
disagreement with United States Hardware which placed this com-
pany in a different category from all the other rack-jobbers or dis-
tributors. The long course of negotiations between Local 770, the
Council, and a number of rack-jobbers, including United States Hard-
ware, as well as the article in its news organ "The Voice of Local 770"
in April 1957, plainly indicate the increasing concern of the Re-
spondent that its jurisdiction was being invaded and weakened by
the continued use of driver-salesmen employed by the suppliers for
shelving work. And although the demand of DeSilva for recognition
on October 31 was directed only to United States Hardware, the
antecedent dealings with other rack-jobbers satisfy us that Local 770
had not relinquished its oft-stated goal that all work performed in the
markets, from wall to wall and from floor to ceiling, should be per-
formed by employees whom it represented. These considerations
indicate that the remedial order must be as inclusive as the threatened
offense, and we shall therefore broaden the Trial Examiner's recom-
mended order so as to include other suppliers in addition to United
States Hardware.
4. The Charging Parties, United States Hardware and Wesco, have
excepted to the Trial Examiner's refusal to find that the Respondent
International is also responsible for the violations of Section
8(b) (4) (A) and (B). They contend that the International and
Local 770 were engaged in a joint venture, that DeSilva acted as the
agent of the International, and that the absence of specific approval
of the agent's methods is not a defense. The Board has already found,
in the related Section 10(k) proceeding, that the International was
not liable for the alleged violations of Section 8(b) (4) (D). There
RETAIL CLERKS INT'L ASSOCIATION, AFL-CIO, ETC. 1527
is one additional fact in this proceeding which the Board has not
previously considered. This relates to a meeting between United
States Hardware and two other rack-jobbers with officials of the In-
ternational concerning the efforts of the San Diego Clerks' local to
keep driver-salesmen from servicing the markets. At this meeting,
held about a year before the October 1957 stoppages, officials of the
International suggested that the rack-jobbers discuss the matter
further with DeSilva, who acted generally as spokesman for all Clerks'
locals in the Los Angeles area. We do not believe that this additional
fact is sufficient to establish that DeSilva was authorized to act for
the International during the events under consideration here. As
there is insufficient evidence to establish either participation in, or
ratification of, the actions taken in October 1957 by Local It 70 in its
efforts to enforce its own demands, we find no responsibility on the
part of the International and shall dismiss the complaint as to it.
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 hereby orders that Retail Clerks Union Local 770,
AFL-CIO, its officers, representatives, agents, successors, and assigns,
shall :
1. Cease and desist from engaging in, or inducing or encouraging
the employees of The Boy's Markets, Inc., Hughes Market, Inc., or
other food market employers which are members of Food Employers
Council, Inc., or any other employer, to engage in, a strike or con-
certed refusal in the course of their employment, to use, handle or work
on any goods, articles, materials, or commodities, or to perform any
services for their employers, where an object thereof is to force or
require such employers to cease doing business with United States
Hardware & Paper Co., Wesco Merchandise Co., or any other dis-
tributors, suppliers, and rack-jobbers whose employees perform serv-
ices on the premises of the food markets; or to force or require such
distributors, suppliers, and rack-jobbers to recognize or bargain with
any labor organization as the representative of their employees unless
such labor organization has been certified as the representative of
such employees under the provisions of Section 9 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its business offices copies of the notice attached hereto
marked "Appendix." 8 Copies of said notice, to be furnished by the
8In the event that this Order is 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."
1528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director for the Twenty-first Region, shall, after being
duly signed by an authorized representative of Respondent Retail
Clerks Union, Local 770, AFL-CIO, be posted by said Respondent
immediately upon receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that the
said notices are not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Twenty-first Region
signed copies of the notice attached hereto marked "Appendix," for
posting by The Boy's Markets, Inc., and Hughes Market, Inc., said
companies willing, at all locations where notices to employees are
customarily posted.
(c) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint against Respondent Retail
Clerks International Association, AFL-CIO, be, and it hereby is,
dismissed.
MEMBERS RODGERS and FANNING took no part in the consideration
of the above Decision and Order.
APPENDIX
NOTICE TO ALL MEMBERS OF RETAIL CLERKS UNION , LOCAL 770,
AFL-CIO
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 our members that :
WE WILL NOT engage in or induce or encourage the employees
of The Boy's Markets, Inc., Hughes Market, Inc., or other food
markets which are members of Food Employers Council, Inc.,
or of any other employer, to engage in a strike or concerted
refusal in the course of their employment, to use, handle, or work
on any goods, articles, materials, or commodities, or to perform
any services for their employers, where an object thereof is
to force or require such employers to cease doing business with
United States Hardware & Paper Co., Wesco Merchandise Co.,
or any other distributors, suppliers, and rack-jobbers whose em-
ployees perform services on the premises of the food markets; or
to force or require such distributors, suppliers, and rack-jobbers
to recognize or bargain with any labor organization as the rep-
RETAIL CLERKS INT'L ASSOCIATION, AFL-CIO, ETC. 1529
resentative of their employees unless such labor organization has
been certified as the representative of such employees under the
provisions of Section 9 of the Act.
RETAIL CLERKS UNION, LOCAL 770, 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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Food Employers Council, Inc., herein called the
Council , United States Hardware & Paper Co., herein called Hardware , and Wesco
Merchandise Co., here called Wesco, the General Counsel of the National Labor
Relations Board issued his complaint , dated April 15, 1958, alleging that Retail
Clerks Union, Local 770, AFL-CIO, herein called the Local, and Retail Clerks
International Association , AFL-CIO, herein called the International , had engaged
in and were engaging in unfair labor practices affecting commerce within the meaning
of Section 8(b)(4)(A ) and (B ) and Section 2(6) and ( 7) of the National Labor
Relations Act, as amended , 61 Stat. 136 , here called the Act.
In respect to unfair labor practices , the complaint , as amended , alleges that the
Local and the International ordered, directed , instructed , and appealed to their
members employed at The Boy's Markets, Inc., herein called Boy's, Hughes Market,
Inc., herein called Hughes , other members of Council , and other employers to engage
in strikes , work stoppages , and refusals to perform services for their respective
employers , with an object to force and require Hughes, Boy 's, other members of
Council, and other employers to cease using , selling, handling, transporting, or
otherwise dealing in the products of Hardware , Wesco, and other suppliers, and
to force or require Hardware and Wesco to bargain with the Local and the Inter-
national, or one of them , as the collective -bargaining representative of certain
Hardware and Wesco employees.
Answering jointly, the Local and the International deny the commission of unfair
labor practices and assert that a contract between the Local on the one hand and the
Council on the other entitles members of the Local to perform all work generally
performed by market clerks on the premises of the employer members of the
Council.
Pursuant to notice , a hearing was held before the duly designated Trial Examiner
in Los Angeles , California , from June 16 through 26, 1958. All parties were repre-
sented by counsel and were permitted to examine and cross -examine witnesses
and to introduce evidence pertinent to the issues . A brief from counsel for the Local
and the International has been received and considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Council is a nonprofit corporation composed of employer-members engaged in
the retail food market business in Southern California which, since about 1941, has
bargained collectively for its members and has negotiated master collective -bargaining
contracts with the Local and the International Members of the Council annually
purchase and receive goods and products valued in excess of $2,000,000 from points
and places located outside the State of California. Hughes and Boy's are members
of the Council.
Hardware is a California corporation with its principal place of business in Los
Angeles, California, and is engaged in displaying merchandise and selling to its
customers , including members of the Council, housewares, hardware, health and
beauty aids, drugs and sundries, toys , paper products , stationery , and other mer-
chandise. Hardware annually receives goods and materials directly from points
outside the State of California valued in excess of $1,000,000.
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wesco is a California corporation with its principal place of business in Los
Angeles, California, and is engaged in displaying, merchandising, and selling to its
customers, among them retail stores owned by members of Council, housewares,
hardware, drugs and sundries, toys, stationery, and other merchandise. Wesco
annually receives goods and materials directly from points outside the State of
California valued in excess of $1,000,000.
I find that Council, its members, Hardware, and Wesco, are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Local and the International are labor organizations within the meaning of
Section 2(5) of the Act. Neither has been certified under the provisions of Section 9
of the Act as the collective-bargaining representative of employees of Hardware or
Wesco. The Local is party to a collective-bargaining agreement with Council
covering market clerks in the employ of Council members.
III. THE UNFAIR LABOR PRACTICES
A. The setting
For a number of years some of the members of Council have had arrangements
with Wesco or Hardware whereby one of the latter delivered nonfood items, such
as hardware, beauty aids, drugs, and the like, to the market of the Council member,
get up the merchandise in an assigned bin or shelf area, kept the merchandise clean
and properly displayed, and maintained a sufficient stock. This merchandise was
purchased by market customers in the same fashion as any other item in the store
and paid for at check stands operated by members of the Local. On October 10,
1956, Sam Abrams, president of Hardware, accompanied by his counsel, Carl Gould,
met with Sol Lippman, general counsel for the International, and John Philpott, a
regional director of the International. Abrams told these International repre-
sentatives that he had encountered some labor difficulties in the San Diego area in
that market clerks had prevented Hardware employees from performing these
services in retail markets in that area. Abrams asserted that store managers in and
around San Diego had been threatened by some local of the International that the
market employees would be called out on strike if employees of Hardware were to
continue to stock, service, and display merchandise in the markets. According to
Abrams' credited and uncontradicted testimony, Lippman commented that the
International was encountering similar problems in other areas, and that it was
the position of the International that all work performed in a market had to be done
by an employee represented by some local of the International. Philpott suggested
that Abrams discuss the matter with Joseph DeSilva, secretary of the Local. In
November, Abrams and Howard Zimmerman, president of Wesco, met with
DeSilva and Philpott. A discussion took place concerning the possibility of the
Local becoming the bargaining representative of Hardware and Wesco employees
who worked in the markets in stocking, shelving, dusting, and displaying items sold
by Hardware and Wesco. At the time of the meeting all such employees of Hard-
ware and Wesco were represented by the International Brotherhood of Teamsters.
According to Zimmerman, DeSilva said that all work within the four walls of the
markets must be done by employees represented by the Local, and asked that
Zimmerman sign a contract with the Local covering such operations at once. DeSilva
said, Zimmerman testified, that he was willing to permit a delay of 6 months to give
Wesco, Hardware, and others time to change their method of operation so that all
deliveries would be made to the receiving dock and left there to be put into stock,
shelved, displayed, arranged, or in any other fashion prepared for the hand of the
ultimate purchaser, by employees of Wesco or Hardware, which he designated as
traveling clerks and who would become members of the Local and thus be covered
by a contract between Wesco or Hardware and the Local. Abrams or Zimmerman
asked how they might get the Teamsters union to relinquish jurisdiction of such
employees. The possibility of gaining a release from the Teamsters was discussed
but not decided. Other meetings followed within the next few months and at one
time contract forms were sent by the Local to Wesco and Hardware for signature.'
In early May, Abrams, Zimmerman, and Attorney Gould met with DeSilva and
with two representatives of the Teamsters. During the meeting the Teamsters repre-
1 DeSilva acted in this respect for a number of locals of the International The con-
tracts submitted to Hardware and Wesco for signature had already been executed by other
such locals in the southern California area.
RETAIL CLERKS INT'L ASSOCIATION, AFL-CIO, ETC. 1531
sentatives were informed that Hardware and Wesco were contemplating signing a
collective-bargaining agreement with the Local and other locals of the International
covering those of their employees who performed service work in the markets.
The Teamsters representatives declined to release such employees from the coverage
of their contracts with Hardware and Wesco . Zimmerman testified that on this
occasion , or an earlier one, DeSilva said that he was a very patient man , but that
his patience had about run its course and that he might get nasty. No other
meetings between DeSilva and Hardware or Wesco took place.
B. The work stoppages; other inducement and encouragement
Henry Sachs , a business agent of Local 770, about noon on October 31, 1957,
came to Boy 's market in Pasadena and spoke to some of the clerks , all of whom were
members of the Local, telling them to cease work. They followed this instruction
and no clerks worked in the market for about 21/z hours . Lamar French , manager
of the market , testified credibly and without contradiction that on this occasion
Sachs told him that all cosmetic and drug items supplied by Hardware must be
removed from the racks on the selling floor and put in the back room . French
protested that he would not do so without instruction from some superior and
reached Al Goldstein , general manager of Boy's, by telephone . Sachs spoke to
Goldstein and told him , according to Goldstein 's credited and uncontradicted testi-
mony, that if all the drugs were not taken off the shelf and put in the back room
the clerks would remain on strike. Goldstein then went to the market and learned
from Sachs that the clerks would not come back to work until his direction had been
followed and that upon returning to work the clerks would remove the merchandise
from the back room and put it where it had been on the shelves. While at the
Pasadena store, Goldstein received a telephone call from Lee Barbone, president
of the Local, saying that such merchandise in Boy's San Gabriel store would have
to be removed or the clerks would cease work. Goldstein told Barbone that the
offending merchandise in the San Gabriel store would be removed , but that as
the clerks were already on strike in Pasadena he would take more time to decide what
to do there . Barbone then threatened to bring about a strike of the clerks in San
Gabriel unless Goldstein capitulated in regard to the demand at the Pasadena
store. Later in the day the Hardware merchandise was removed from the selling
floor in the Pasadena store and the clerks then returned to work. Thereafter the
clerk employees of Boy's restocked the shelves with the same merchandise.
On October 30, 1957, two business agents of the Local, Henry McGovern and
Jack Boodnick , came to Hughes market in Hollywood. At about 4 o'clock in the
afternoon of that day Boodnick told the clerks that they could work no longer and
all of them assembled at a point away from their work stations . Approximately
25 were affected by Boodnick 's instruction and remained away from their jobs
until shortly after 6 p.m . Ralph Schockman , the manager of this Hughes market,
testified credibly and without contradiction that on this occasion Boodnick told
him that all hardware and drug items must be removed from the shelves and placed
in the back room of the store because "it was stocked by unauthorized personnel."
Schockman telephoned to the main office of the market and placed Roy Lillywhite,
Hughes general manager, in communication with Boodnick . Lillywhite testified
credibly and without contradiction that Boodnick explained that the clerks were
not working because Hughes was in violation of his contract with the Local and
until Hughes agreed to take the Hardware merchandise off the shelves the clerks
would not return . Lillywhite said that he would not comply with Boodnick's
demand. Earlier in that day , according to Lillywhite , another agent of the Local,
Weathers , telephoned him to say that Hughes was in violation of section C of the
collective-bargaining contract with the Local and that all hardware and drug
merchandise would have to be taken from the shelves at Hughes Granada Hills
store or the clerks there would not work. All of the merchandise referred to was
that obtained from and serviced by Hardware . Joseph Hughes, president of Hughes,
testified that, hearing of the work stoppage , he went to the Hollywood market at
about 5:30 on October 30. Seeing that the clerks were not at work, he telephoned
the office of the Local and spoke to Lois McKinstry , assistant to Joseph DeSilva,
who told him that Hughes was in violation of his contract with the Local ; that he
was required to remove the Hardware merchandise from the shelves to the back
room. Hughes suggested that the dispute might be settled by covering the mer-
chandise with paper so as to take it effectively off sale. McKinstry a little later
in the day told Hughes that such an arrangement was satisfactory . Hughes then
ordered the Hardware merchandise to be covered , and the clerks returned to work.
A little later Gus DeSilva , a business agent of the Local, telephoned Hughes and
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked him to make the same arrangement for covering such merchandise in the
remaining four stores of the chain to avoid work stoppages at the other locations.
Hughes complied with this suggestion. Hughes asked what was required in order
that the merchandise be left open for sale. Gus DeSilva replied that members of
the Local must take the merchandise off the shelves or gondolas, and, having done
so, then replace it. When this was done the merchandise might be sold. Hughes
had his employees in all stores do precisely that.
On November 5, 1957, according to the credited and uncontradicted testimony of
Joseph Hughes, he encountered Business Agents Boodnick and Madray in the Holly-
wood store and noticed that they were talking to the clerk employees. Hughes
asked the two business agents if they were endeavoring to stop beverage drivers
and such persons as had in the past stocked the shelves with the products that they
sold, and Boodnick answered that that was the Local's purpose; that the Local took
the position that the stocking of shelves was within their jurisdiction and that all
who were not members of Local 770 should leave merchandise in the back room.
In Hughes' presence Boodnick talked to a beverage salesman and told him that in
the future he would have to leave his merchandise in the back room. A few minutes
later Boodnick asked a toy salesman, who was stocking a toy rack, if he had any
authority from the Local to do that work. The salesman displayed a letter bearing
the signature of Joseph DeSilva which brought an end to the questioning.
Leonard Levine, a sales driver for Blake Distributor Company whose job con-
sists of delivering and stocking or shelving toast, gum, zwieback, popcorn, and such
items to markets, testified that on April 8, 1958, in Hughes market in Granada
Hills, Business Agent Weathers told him, in the presence of a Hughes employee,
that he could not place the merchandise on the shelves on the selling floor. On two
other occasions, according to Levine's credited and undenied testimony, Weathers
told him not to deliver the merchandise to the selling racks or shelves on the floor.
Jerry McClanahan, an employee of Pepsi Cola Bottling Company, testified that
the routine of his job was to deliver merchandise, stock it, rotate it, dust it, and
generally to keep it in an attractive and salable condition. On December 10, 1957,
according to McClanahan's credited and undenied testimony, he encountered Busi-
ness Agent Boodnick in a Better Foods market on Western Avenue in Los Angeles.
As McClanahan was starting to stock his display of merchandise, Boodnick said for
him to take the merchandise to the back room. McClanahan did so, but asked for
an explanation. Boodnick said that there should be more clerks employed in the
store and that if McClanahan did not stock the shelves the market owner would have
to hire more clerks to do so. According to McClanahan, three clerk employees of
the market were standing nearby listening.
James McMillan, a sales representative of Bell Brand Foods, testified that Business
Agent Madray stopped him from servicing a potato chip rack at a Boy's market,
saying, "Your regular driver is in this territory and as long as the regular driver is
here you cannot serve this market." A little later Madray stopped McMillan at
Hughes market in Hollywood. In McMillan's hearing, Madray told a clerk em-
ployee of Hughes, "Now this is one of the fellows that I am telling you that cannot
work in your market." McMillan asked Madray why he could not work there,
saying that his job depended upon his doing so. Madray answered that he had best
join the Local, saying, "You're going to have to later on."
Lyle McKinney, a salesman for Nehi Beverage Company, testified that on
December 11, 1957, at Ralph's market in Encino one of the clerks employed in that
market told him not to service the merchandise he was selling, because "Mr. De-
Silva doesn't want you to."
The official magazine of the Local, "The Voice of 770," in its issue for April
1957, contains the following below the byline of Lois McKinstry:
Under the contract, our work in the stores may not be performed by persons
outside of the bargaining unit. This very basic provision in the contract was
put there to protect our work.
This means that persons working for outside companies cannot come into
a store and do your work, for this would violate our contract.
The only exception to this rule are persons whose company is under contract
with one of the Retail Clerks Unions in Southern California, and the persons
are Retail Clerk members.
If you see a person doing clerks' work-stocking shelves, pricing, display-
ing-ask to see his AUTHORIZATION LETTER. If he does not have a
current authorization letter ( a dues receipt is not sufficient by itself ) he must
not do clerks' work.
Persons whose company headquarters are in Local 770's area will have such
a letter, stating that they are permitted to do this work. The letter is issued
RETAIL CLERKS INT'L ASSOCIATION, AFL-CIO, ETC. 1533
to them quarterly. By asking to see it, politely but firmly to be sure, you will
be helping your Union to protect YOUR job.
The Representatives of the following Companies, currently under contract
with Local 770, should receive the greatest cooperation, for these are our
brothers. However, this list is only a guide and is subject to change. The only
really effective way to check is to ask for the authorization letter.
Neither Hardware nor Wesco appear on the approved list.
On October 31, 1957, aware of the work stoppages at Hughes and Boy's markets,
Abrams telephoned DeSilva and asked how he could continue servicing the markets
without interference from DeSilva's agents. DeSilva explained that during the con-
tract negotiations he had arranged for other locals of the International to agree to
contract with Hardware and Wesco, that these negotiations had come to nothing,
and that he was embarrassed as a result. DeSilva, according to Abrams, characterized
the failure to sign the contracts with the locals of the International as a "double
cross." Abrams insisted that he had negotiated in good faith with DeSilva and was
perfectly willing to sign a contract if the Teamsters would release thier claim to
represent the employees affected. Still, according to Abrams, DeSilva said that the
business agents would continue to act as they were unless Hardware and Wesco
signed contracts with the International's locals.
DeSilva admitted that he received a telephone call from Abrams on or about this
date but testified that he told Abrams that the problem lay between the Local and
the market operators. DeSilva said that he wanted no dealings with Abrams because
he felt that the latter had doublecrossed him. DeSilva explained in his testimony
that he had acceded to Hardware and Wesco's request to sit down and negotiate a
contract and when he thought he had reached an agreement with them they had
refused to sign. "I felt this was a big double cross, felt very upset."
C. The contentions of the parties
The contract effective January 1, 1956, through December 31, 1958, between the
Local and the Council provides in part:
B. WORK PERFORMED.
All work performed on the premises in the nature of work generally per-
formed by retail clerks shall only be performed by employees in the bargaining
unit as herein defined.
C. SUB-CONTRACTING OR ASSIGNMENT OF WORK
1. The Employers shall not sub-contract any work ordinarily performed by
retail clerks in the stores or markets of the Employers, and, further, any future
work created by the Employer within the Employer's stores or markets which
would ordinarily be performed by retail clerks, shall be performed only by
members of the bargaining unit as herein set forth, except that such work may
be sub-contracted to an employer who is signatory to an Agreement with the
Union.
2. The Employer agrees not to assign or contract with any other union or
person for work which is presently being performed by members of the bar-
gaining unit represented by the Union.
3. Any other work which is presently under specific contracts with the
Teamsters, Culinary Workers, and Building Service Employees Unions shall
not be affected by this Agreement, except as to any change which may result
from an agreement of the unions involved and the signatory Union and upon
presentation to the Employer of bona fide proof thereof.
The Local asserts that the work stoppages resulted solely from the failure of the
employers, notably Boy's and Hughes, to give effect to paragraph B of the agreement.
It is clear that some employees of Wesco and Hardware do work in the markets of
Council members which is "in the nature of work generally performed by retail
clerks." The Local argues that the restriction set forth in paragraph B is not an
unlawful one; that it is entitled to force its observance, if necessary, by strike action.
Any disruption of business relations between the Council members and such em-
ployers as Wesco or Hardware would be, the argument runs, incidental to a primary
dispute and not within the remedial reach of Section 8(b)(4)(A).
The General Counsel and counsel for the Charging Parties have a different view.
First they deny that there has been any contract violation by the Council members
and deny that the Local's contract reserves to Local members all work in the markets
which might be described as clerk's work. They point out that the contract makes
provision for subcontracting if certain conditions are met.
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel asserts that the contract no matter what its provisions does
not and cannot constitute a defense to the conduct complained of. Noting that
private agreements cannot be given effect to frustrate or stultify a statutory policy,
he sees a violation of Section 8(b) (4) in that the work stoppages were designed to
force the Council members to have an aspect of the service provided by Wesco and
Hardware performed by employees affiliated with the Local and by no others.
Necessarily, he points out, Council members in order to satisfy the purpose of the
Local would either cease doing business entirely with Wesco and Hardware, or, while
continuing to purchase merchandise from them, have market employees handle the
goods after arrival on the receiving dock, or find another supplier under contract
with the Local and thus acceptable to the Local. Forcing upon the Council members
any of these alternatives, it is urged, amounts to forcing or requiring Council members
to cease doing business entirely or partially with Wesco and Hardware.
Both Board and Court decisions stand for authority that the conduct described
is an unfair labor practice under Section 8(b)(4) of the Act, it is said, and I am
referred to them for guidance.
Perhaps most closely in point of the cases cited to me is N.L.R.B. v. Denver
Building and Construction Trades Council, et al. (Gould & Preisner), 341 U.S. 675.
Upon a finding that the employees of a general contractor pursuant to instruction
from their union left their work because their employer had brought a subcontiactor
with nonunion employees to the jobsite to perform electrical work, the Court said:
In the background of the instant case there was a long-standing labor dispute
between the Council [respondent] and Gould & Preisner [subcontractor] due
to the latter's practice of employing nonunion workmen on construction jobs
in Denver. The respondent labor organizations contend that they engaged in
a primary dispute with Doose & Lintner [general contractor] alone, and that
they sought simply to force Doose & Lintner to make the project an all-union
job. If there had been no contract between Doose & Lintner and Gould &
Preisner there might be substance in their contention that the dispute involved
no boycott. If, for example, Doose & Lintner had been doing all the electrical
work on this project through its own nonunion employees, it could have replaced
them with union men and thus disposed of the dispute. However, the existence
of the Gould & Preisner subcontract presented a materially different situation.
The nonunion employees were employees of Gould & Preisner. The only way
that respondents could attain their purpose was to force Gould & Preisner itself
off the job. This, in turn, could be done only through Doose & Lmtner's
termination of Gould & Preisner's subcontract. The result is that the Council's
strike, in order to attain its ultimate purpose, must have included among its
objects that of forcing Doose & Lintner to terminate that subcontract. On that
point the Board adopted the following finding:
That an object, if not the only object, of what transpired with respect
to * * * Doose & Lintner was to force or require them to cease doing
business with Gould & Preisner seems scarcely open to question, in view
of all of the facts. And it is clear at least as to Doose & Lintner, that that
purpose was achieved.
We accept this crucial finding. It was an object of the strike to force the con-
tractor to terminate Gould & Preisner's subcontract.
Counsel for the Local and the International suggest that cases in the construction
industry involve considerations peculiar to themselves and that principles laid down
there should not readily be extended to situations involving retail markets. If there
is merit in this suggestion, it is not apparent to me here. The sweep of the Court's
holding in the decision just discussed is accentuated by the dissent. There the union
was trying to restrict employment on the project to union members and to keep
nonunion men off the job. In the case here for decision the Local was trying to
restrict employment in the markets to its members. The same principle is involved
and the law has the same application.
D. Conclusions
It is obvious that representatives of the Local by causing the work stoppages at
Boy's and Hughes were doing more than signaling a protest against a real or fancied
contract violation by Boy's or Hughes. Manifestly an object of the work stoppage
was to force Boy's and Hughes to cease doing business with Hardware. Wesco seems
not to have been involved. I agree with the contention of the General Counsel that
the contract between the Local and the Council does not immunize this conduct from
the sanctions of Section 8(b)(4) of the Act. Private agreements in general must
RETAIL CLERKS INT'L ASSOCIATION, AFL-CIO, ETC . 1535
give way to a statutory command. Furthermore, although the point was not litigated
1 suggest that an employer may not in all circumstances lawfully contract to limit
the field of subcontracting to those subcontractors who have a bargaining relation with
any specified union.2
The direction by Business Agent Boodnick to a beverage company driver on
November 5, 1957, in Hughes Hollywood market, that the driver leave his mer-
chandise in the back room; such directions to Leonard Levine an employee of
Blake Distributing Company on April 8, 1958, and on two other occasions; Bood-
nick's action in directing Jerry McClanahan to cease delivering to the Pepsi Cola
rack on the selling floor of Better Foods Markets; Business Agent Madray's action
in preventing James McMillan, an employee of Bell Brand Foods, from making
a delivery to the selling floor of Hughes market in Hollywood; and the direction
from a clerk in Ralph's market, Encino, to Lyle McKinney, a salesman for Nehi
Beverage Company, to the effect that McKinney was not permitted to service the
merchandise he had delivered, all constitute inducement and encouragement to
employees to refuse in the course of their employment to perform services for their
employers. The object of the inducement is plain enough. The Local objected
to any employee of any employer doing any work in the selling areas of the market
which was such work as market clerks might customarily do unless such employer
was under contract with the Local. By inducing such employees to leave their
deliveries in the back room and to refrain from servicing the merchandise on the
selling floor the Local necessarily sought to curtail the service offered by the supplier
to the market operator and to that extent to force the supplier to cease doing
business with the market operator.
Except as to McKinney, the actions described above were taken by persons con-
ceded to be agents of the Local. I find that the Local is answerable also for the
clerk who spoke to McKinney. He was acting in accord with a policy expressed
in "The Voice of 770" which encouraged Local members to prevent nonmembers
from doing clerk's work.
The action of Business Agent Madray in stopping McMillan from serving a
potato chip rack, with the remark, "Your regular driver is in this territory and
as long as the regular driver is here you cannot serve this market," although
outrageously officious, does not surely relate to a forbidden objective.
Upon the basis of the considerations set forth above, I find that the work stoppages
of October 30 and 31 at Boy's and Hughes markets had an object to force or require
Boy's and Hughes to cease doing business with Hardware and that by engaging in
these work stoppages for that object the Local violated Section 8(b) (4) (A) of
the Act.
The inducement and encouragement of employees of suppliers other than Hard-
ware or Wesco to refuse to perform services for their several employers on the
selling floors of Hughes, Better Foods, Boy's, and Ralph's markets had as an object
forcing or requiring the several employers to cease doing business with Hughes,
Better Foods, Boy's, and Ralph's markets on the same basis as in the past and
to curtail the service offered by the suppliers to those markets. By this conduct
the Local violated Section 8(b) (4) (A) of the Act.
I have found that the Local for a period of several months in 1956 and 1957
was in negotiations with Wesco and Hardware looking toward the execution of a
collective-bargaining agreement with those two employers covering employees who
performed work on the selling floors of markets in the southern California area
described as retail clerk's work. I consider it to be irrelevant under the complaint
here sought to be sustained that the employers may well have been the moving
parties in initiating negotiations. It is the fact that they were held and no contract
resulted. I find that Joseph DeSilva was expressing disappointment over his failure
to bring these employees within the coverage of a contract when he characterized
Abrams' conduct in the matter as a "double cross." I think it highly likely in the
circumstances surrounding this conversation that DeSilva would have told Abrams
that a solution of the difficulty would be reached if Abrams would sign a contract
with the Local. This is the essence of Abrams' testimony and I credit it.
Considering the claim of the Local and the International that all work within
the four walls of the markets is "clerk's work"; that it might be performed only by
employees whose employers were under contract with the Local; and that DeSilva
told Abrams he could be relieved of the pressure generated by the work stoppages
by signing a contract with the Local, it becomes manifest that a further object of
the work stoppages of October 30 and 31 at Boy's and Hughes markets was to force
2 See Austin Company, 101 NLRB 1257.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or require Hardware to recognize and bargain with the Local as the representative
of such employees of Hardware as performed work in those markets customarily
performed by retail clerks. By engaging in the work stoppages for that further
object the Local violated Section 8(b) (4) (B) of the Act.
The complaint alleges that the Local while accomplishing the violations of the
Act found was also an agent of the International. Thus it is urged that the Inter-
national participated in the unfair labor practices. It is true that a representative
of the International referred Abrams to the Local for a solution of his problems
and that he told Abrams of the International's claim to all work in the markets
including work done by Abrams' employees. I do not consider however that
the record establishes by any preponderance of the evidence that the International
designated the Local as its agent. Rather, it would seem, Abrams was referred to
the Local to see whether an arrangement could be reached without any clear
indication by the International that it would insist upon any particular form of
solution. Of course there is no evidence that any one from the International induced
or encouraged employees to stop work. No doubt the International was in entire
sympathy with the Local's efforts to restrict employment in the markets to its
members but this does not form a basis for a finding of violation.3
Although it is evident that the Local objected to the work performed in the
markets by employees of Wesco just as it did to the work of Hardware, the work
stoppages at Boy's and Hughes had no direct relation to Wesco and I do not find
that these strikes had any forbidden object in respect to Wesco.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Local set forth in section III, above, occurring in connection
with the operations of Council members and Hardware 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 burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Local has engaged in activities which violate Section
8(b)(4)(A) and (B) of the Act, it will be recommended that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
Having found no violation on the part of the International, it will be recommended
that the complaint as to it be dismissed.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
I By inducing and encouraging the employees of Boy's and Hughes concertedly
to refuse to perform services in the course of their employment, with an object of
forcing Boy's and Hughes and other members of the Council to cease doing business
with Hardware, the Local has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (b) (4) (A) of the Act.
2. By such inducement and encouragement, with an object of forcing Hardware
to recognize or bargain with the Local as the representative of certain of Hardware's
employees, the Local has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b) (4) (B) of the Act.
3. By inducing and encouraging employees of suppliers other than Hardware and
Wesco to refuse to perform services in the course of their employment, with an
object of forcing these other suppliers to modify, lessen, or cease their business
relationship with Council members, the Local has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(b)(4) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5 The evidence does not establish that the International has engaged in any
unfair labor practices.
[Recommendations omitted from publication.]
3 See International Brotherhood of Electrical Workers, AFL-CIO, etc. (Franklin Electric
Construction Company, et al.), 121 NLRB 143.