Retail Clerks Intl. Assn. Local 322

National Labor Relations Board - Board Decisions

Sep 22, 1976

226 N.L.R.B. 80 (N.L.R.B. 1976)

80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Clerks International Association , and Retail
Store Employees Local 322, and Jack Gray and
Glen Conyers , their agents and Roswil , Inc., d/b/a
Ramey Supermarkets. Case 17-CB-1336
September 22, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On October 1, 1975, Administrative Law-Judge
Sidney J. Barban issued the attached Decision in this
proceeding.' Thereafter, the General Counsel filed
limited exceptions and a supporting brief, and Re-
spondent Union filed a brief in opposition to the
General Counsel's exceptions?
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
i After issuance of the Administrative Law Judge 's Decision , the Compa-
ny (Charging Party) and the Union ( Respondent) jointly filed with the Ad-
ministrative Law Judge a motion to withdraw charges and complaint for the
reason that they had entered into an agreement to settle all issues between
them. The Administrative Law Judge notified the parties that the issuance
of his October 1, 1975, Decision terminated his jurisdiction in the matter
and that he was forwarding the motion to the Board. The General Counsel
filed a response to the joint motion to withdraw charges and complaint in
which he vigorously opposed dismissal of those portions of the complaint
which the Administrative Law Judge found to be meritorious . The Board is
of the opinion that the agreement does not fully remedy the unfair labor
practices that the Respondent Union has been found to, have committed, to
which no exceptions have been filed, and that a meritorious complaint
should not be dismissed without the acquiescence of the General Counsel.
Accordingly, the joint motion of the Company and Respondent Union is
denied.
2 The exceptions and briefs related only to the Administrative Law
Judge's ruling that the Union did not violate Sec . 8(b)(2) of the Act by
seeking the discharge , under the umon-security clause , of Schudy , a finan-
cial core member , for his failure to pay a reinstatement fee required of all
members who became 3 months delinquent in dues payments.
3 On September 26, 1975, the Administrative Law Judge granted the
Company's motion to withdraw charges alleging a violation of Sec 8(b)(3)
in the Union's refusal to execute a collective-bargaining agreement relating
to the Aurora and Cassville, Missouri, bargaining unit , and dismissed that
portion of the complaint . The order recited that the General Counsel had
not opposed granting the motion . On October 2, apparently before receiving
a copy of the Administrative Law Judge's October 1 Decision dismissing on
the merits similar allegations with respect to the Republic and Seymour
bargaining units, the General Counsel filed a motion for reconsideration of
the September 26 order on the ground that he had, in fact , opposed the
motion.
The record clearly shows that the General Counsel had, in fact, opposed
the motion . Since the Administrative Law Judge did not consider the Gen-
eral Counsel's opposition , we agree that the dismissed portion of the com-
plaint relating to the Aurora and Cassville bargaining unit should be rein-
stated. Although the Administrative Law Judge did not consider the merits
of the 8(b)(3) allegations relating to the Aurora and Cassville bargaining
unit , he dismissed on the merits the identical 8(b)(3) allegations with respect
to the Seymour and Republic bargaining units , based on the identical factu-
al situations and documents The General Counsel filed no exceptions to
this ruling and, in his response to the joint motion to withdraw charges and
complaint , acknowledged that no issue on this question with respect to any
of the three units remains alive Accordingly , we reinstate the allegations
with respect to the Aurora and Cassville unit dismissed procedurally by the
Administrative Law Judge and dismiss them on the merits for the same
reasons the Seymour and Republic allegations were dismissed
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
related to the alleged 8(b)(2) violation and, in the
absence of any other exceptions, has decided to af-
firm in their entirety the rulings, findings, and con-
clusions set forth in the Administrative Law Judge's
Decision and to adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent Union, Retail Clerks In-
ternational Association, and Retail Store Employees
Local 322, Springfield, Missouri, its officers, agents,
and representatives, including Jack Gray and Glen
Conyers, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This mat-
ter was heard at Springfield , Missouri , on June 23 , 24, and
25, 1975, upon a complaint issued on April 18, 1975, as
amended, based on a charge filed on August 21, 1974, and
amended on April 9 , 1975, by the above-named Charging
Party (herein called Ramey or the Company). The com-
plaint alleges that the above-named Respondents' (1) vio-
lated Section 8(b)(3) of the Act by insisting on the exclu-
sion of the Company 's agent and attorney , Donald W.
Jones, from collective -bargaining negotiations ; (2) violated
Section 8(b)(3) and Section 8(d) of the Act by failing and
refusing to execute each of the three collective -bargaining
contracts provided by the Company, thereby repudiating
the oral accord and agreement between the Company and
the Union on the terms and conditions of employment of
employees in the three described bargaining units covered
by the contracts; (3) violated Section 8(b)(1)(A) of the Act
by instituting charges and disciplinary proceedings against
and attempting to fine 10 named employees for crossing a
picket line and working at Ramey's Republic , Missouri,
store; and (4) violated Section 8(b)(1)(A) and (2) of the Act
by attempting to cause the Company to discharge James
Michael Schudy because Schudy refused payment of strike
assessments and reinstatement fees to the Union.
Respondents' answer denies the commission of the al-
leged unfair labor practices, but admits allegations of the
complaint sufficient to justify the assertion of jurisdiction
i Retail Store Employees Local 322 will be referred to herein separately as
the Union, and Retail Clerks International as the International.
226 NLRB No. 20
RETAIL CLERKS INTL. ASSN., LOCAL 322 81
under current standards of the Board (Ramey, in the
course of its retail grocery store operations in Missouri, has
an annual gross volume of sales in excess of $500,000, and
annually purchases goods and services valued in excess of
$50,000 directly from outside the State of Missouri), and to
support findings that the Union and the International are
each labor organizations within the meaning of the Act.
Upon the entire record in this case,2 from observation of
the witnesses, and after due consideration of the briefs filed
by the General Counsel, the Company, and the Respon-
dents, I make the following:
FINDINGS AND CONCLUSIONS
1. THE ISSUES
The major issues in this proceeding are:
1. Whether the Respondents refused to execute certain
collective-bargaining contracts in violation of the Act. The
Union refused to execute three separate bargaining con-
tracts which General Counsel contends had been agreed
upon by the Union and the Company for three separate
bargaining units, consisting-of certain employees working
in (1) Ramey's Republic, Missouri, store, (2) Ramey's
Seymour, Missouri, store, and (3) Ramey's Cassville and
Aurora, Missouri, stores. The Union denies that it agreed
to these bargaining contracts, and further denies that sepa-
rate bargaining units exist for Republic, for Seymour, and
for Cassville-Aurora, but asserts that employees working in
these stores "are covered by one collective bargaining
agreement, which includes also employees of the [Compa-
ny's] stores in Springfield, Missouri."
2. Whether the Respondents insisted on the exclusion of
the Company's counsel, Donald Jones, as 'a bargaining rep-
resentative for the Company during bargaining negotia-
tions.
3. Whether the Respondents violated the Act by insti-
tuting charges and disciplinary proceedings against and
"attempting to fine" 10 named employees who had sent in
their resignations from membership in the Union and the
International before crossing a picket line established at
Ramey's Republic store and working behind the picket
line. Respondents contend that under the constitution and
bylaws of the International and the Union these resigna-
tions were ineffective.
4. Whether the Respondent violated the Act by seeking
to have the Company discriminate in regard to the employ-
ment of James Michael Schudy.
5. Whether, or the extent to which, the International,
Respondent Jack Gray, or the Respondent Glen Conyers
are individually responsible for the unfair labor practices
2 Subsequent to the close of the hearing in this matter, the Company filed
a motion to withdraw a portion of its charges in this matter, which has been
marked ALJ Exh. 1, my notice to the parties to show cause has been
marked ALJ Each. 2; Respondents' opposition to the motion is marked ALJ
Exh. 3; my letter to the parties, dated August 29, 1975, suggesting severance
of the issues in this case is marked ALJ Exh 4, General Counsel's opposi-
tion to severance of the issues is marked ALJ Exh. 5; and the Company's
response is marked ALJ Exh. 6, all of which exhibits have been included in
the formal file of this matter for the convenience of the Board. My ruling on
the motion has been separately issued.
alleged in the complaint to have been committed by all
Respondents . This is an issue not discussed in any of the
briefs of the parties.
II. ALLEGED UNLAWFUL REFUSALS TO BARGAIN
A. Preliminary
In early 1973, Ramey executed a collective-bargaining
contract (herein referred to as the Springfield agreement)
with the Union, stated therein to be chartered by the Inter-
national, in which Ramey recognized the Union as the rep-
resentative of "a unit consisting of all the employees in the
Employer's present and future retail establishments located
within a radius of forty (40) miles of Springfield , Missouri,"
with the exclusion of one store manager and one assistant
store manager in each store, and "employees whose work is
exclusively and wholly performed within a single and sepa-
rate meat department, employees whose work is exclusively
and wholly performed within a single and separate bakery
department, general office employees, main warehouse em-
ployees, truck drivers, night watchmen, janitors, and all
other supervisors as defined in the Act." This contract was
for a term from May 1, 1973, through May 4, 1975, with
provision for reopening effective May 1, 1.974, for "the sole
purpose of negotiating a second year hourly wage in-
crease."
Shortly thereafter, Ramey negotiated and executed an-
other collective-bargaining agreement, for a term from July
1, 1973, through September 30, 1975, in which the Compa-
ny recognized the Union for "a unit consisting of all the
employees in the Employer's present and future retail es-
tablishments located within a radius of twenty (20) miles of
Aurora, Cassville, and Seymour, Missouri," with the exclu-
sion of "one bookkeeper in the Aurora, Missouri store,"
and the various designations excluded from the Springfield
agreement set forth above (herein called the Aurora agree-
ment). This agreement could be reopened, effective Sep-
tember 30, 1974, "for the purpose of negotiating a second
year increase for all economic areas of the collective bar-
gaining agreement...." It is of significance to note that,
as a result of the negotiations for this agreement, employee
wages and benefits were somewhat lower in the Aurora
agreement than in the Springfield agreement.
In late July 1973, Ramey purchased a store in Republic,
Missouri, which was within 40 miles of Springfield and
within 20 miles of Aurora. A dispute arose as to which
contract covered the Republic store, the Union contending
for the Springfield agreement, and the Company arguing
for the Aurora agreement . The matter was submitted to
arbitration. On April 1, 1974, the arbitrator decided that,
inasmuch as "both the Springfield and Aurora contracts
apply to the Republic store Employees," to the extent that
the two contracts containeddifferent provisions "with re-
spect to wages, rates of pay, hours and other conditions of
employment," the Union and Ramey were required to bar-
gain with respect to these subjects.
This arbitration decision (notwithstanding that it offered
a rather sensible solution to the problem) seems not to have
satisfied either side, and apparently was the genesis of the
problems in this case. In May 1974 (all dates hereinafter
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are in 1974, unless otherwise noted), the Union called a
meeting of the Republic employees at which they voted
seven to three to go on strike. On June 6, the Union called
a strike against the Ramey Republic store.
During the period material to this case, the parties filed
charges with the Board and suits in the United States dis-
trict court. At least one of these matters has been argued in
the United States circuit court of appeals. The record indi-
catesthat the Union's principal representative, Jack Gray,
did not have a high regard for Ramey and its attorney,
Donald W. Jones.3
B. The 1974 Negotiations
By letter dated April 8, Gray-sent Ramey the Union's
wage= proposals "concerning the opening of the collective
bargaining agreement for your employees working within
the stores in Springfield, Missouri, and Republic, Missou-
ri." Ramey met on several occasions with the Union con-
cerning its proposals. Apparently there was considerable
controversy, concerning the Union's position that no agree-
ment would-be reached with the Company unless the Re-
public employees were included in the Springfield unit and
covered by the Springfield agreement.' It also appears that
x charge was filed with the Board alleging that this consti-
tuted a refusal to bargain. In any event, by telegram dated
May 2, Gray advised the Company, "as we have stated
repeatedly to you in negotiations, ... the Springfield ne-
gotiations are separate and apart from any, other negotia-
tions we might have with your company. The- strike vote
taken concerning your company by this local union was
among Springfield store employees only and Republic,
Mo., was not a party to the strike vote nor was it an issue."
It is further indicated that in these negotiations Ramey was
disputing attempts by the Union to interject issues- other
than wages into the negotiations, which under the contract
was the "sole purpose" for which the Springfield agreement
might be'reopened. During this period, the Union was also
meeting separately with two of Ramey's competitors in
Springfield (Milgrams and Consumers Markets), and there
was clearly some concern, as frequently occurs in these
situations, that-the Union was favoring the other employers
over Ramey. -
1. The May 2 meeting
The Union scheduled a membership meeting for the eve-
ning of May 2 for the purpose of approving whatever had
been agreed upon by the three companies, pursuant to the
reopener in their Springfield contracts, or deciding whether
to strike. That afternoon representatives of_ all three com-
panies met with representatives of the Union, in what was
manifestly a last ditch effort to avoid'a work stoppage. In
addition to a single representative from Milgrams, Robert
Gregory, and one from Consumers, David Glass, in atten-
3 To illustrate:,In answering Jones' letter requesting that the Union sign
certain bargaining agreements , Gray, after stating his reasons for refusing,
was impelled to unnecessarily tell Jones, "Unless it is'your intent to need-
lessly bill your client for sending me this letter, please discontinue this prac-
tice." -
dance, Ramey was represented by Richard Taylor, its pres-
ident, who had participated in the previous negotiations
with the Union, and Donald Jones, Ramey's attorney.
Gray, Business Representative Glen Conyers, and a com-
mittee of Ramey employees represented- the Union. Ac-
cording to the testimony of Jones, at the outset of the meet-
ing,' Gray pointed=over to Jones and stated, "If that man
opens his mouth you can all go." Jones asserted that there-
after he did not participate out of concern that this might
terminate the negotiations.'-Shortly thereafter, Gray made
known his desire that the negotiations break down into a
smaller committee, one from each of the companies and
Gray and Conyers. Taylor advised Gray of his desire to
retain Jones as part of the smaller committee to assist him.
Gray stated his disapproval of this, and shortly thereafter
Jones left the negotiating session. Taylor supports Jones'
testimony.
Gray denied that he told Jones not to open his mouth.
However, at the earlier arbitration hearing, his testimony
was "I don't know as I made that exact statement or not. I
could, I don't know. I wouldn't say I said that exactly."
Respondent called Glass and employees Orville-Frederick,
Charles Campbell, and Stan Yocum to support Gray's tes-
timony with respect to this meeting. Glass' testimony was
inconclusive. I was not impressed with the employees' testi-
mony. Gray's somewhat uncertain testimony was further to
the effect that one of the employer representatives called
for the smaller committee, but Gray recalled that he
strongly requested that the employers select one single
spokesman. The breakdown into`the smaller group and the'
selection of the spokesman occurred simultaneously, and I
am satisfied,' as Jones testified, that it was Gray who called
for the smaller committee. It is significant to note, howev-
er, that-the effect of this maneuver was only to dispense
with the employee committee, and with Jones.
'On the basis of my observation of Jones and Taylor and
on consideration of the entire record, and the factors ar-
gued in Respondent's brief, I credit the testimony of Jones
and Taylor as to these events as set forth above.
The'companies and the Union did arrive at a settlement
of the issues during the negotiations on May 2 which was
accepted by the membership of the Union. Sometime later
in May, Gray brought documents entitled "Supplement
Agreement Per Wage Reopener Effective May 1, 1974," to
a meeting^in Glass" office attended by Taylor, Glass, and
Gregory. Some changes were agreed and made to this doc-
ument, and each signed a copy of the document for his
Company: The document signed by Taylor and Gray pro-
vides, first, that section 1, article 2, entitled "Bargaining
Unit," of the Springfield agreement is to be amended to
include certain counties in southwest Missouri (among
them, of significance to this case , Greene and Webster
Counties), in southeast Kansas, and in northeast Oklaho-
ma; next, for certain changes in working conditions, classi-
fications, and wages; and lastly for an extension of the
termination date of the Springfield agreement to midnight,
,June 1, 1975. Gray and Taylor also agreed-and attached to
the Springfield agreement a letter of agreement, providing,
4 Through typographical error, Jones' testimony at one point refers to this
as May 21
RETAIL CLERKS INTL. ASSN., LOCAL 322
"The reaching of the Springfield agreement on May 2,
1974, and-the subsequent signing of the agreement on May
24, 1974, does not change the effect of the arbitrators [sic]
award regarding the Ramey 's Republic store."
It seems evident, and I find that Ramey and the Union
did not intend by their agreement on the Springfield re-
opener to include the Republic or the Aurora, Cassville,
and Seymour stores under-the Springfield agreement. Thus,
though Republic is in Greene County, according to the
official highway map for the State of Missouri, issued in
1973, and therefore within the literal terms of the agree-
ment 'on the reopener, the Union had disavowed an intent
to bargain for Republic in these-negotiations. Moreover,
very shortly thereafter, the Union went on strike against
the Republic store, assertedly for the purpose of bringing
that store under the terms and conditions of the Springfield
agreement . Similarly, though Seymour is in Webster Coun-
ty, and also literally within the Springfield agreement on
the reopener, Cassville and Aurora are not and, as dis-
cussed infra, the Union shortly thereafter reopened the Au-
rora agreement and entered into new memoranda of agree-
ment covering Aurora, Cassville, and Seymour, which is
inconsistent with Seymour, or Cassville and Aurora, being
blanketed under the Springfield agreement by reason of
the reopener agreement.
2. The Republic strike settlement
Early in 1974, the employees of the Ramey Republic
store indicated, through a petition prepared and circulated
by the Union, that they wanted to be covered by the
Springfield agreement and receive the higher rates of pay
in that agreement. As previously noted, after taking a strike
vote, the Union began a strike against the Ramey Republic
store on June 6.
On June 15, Taylor and Joe Yates, another official of
Ramey, met with Gray and settled the Republic strike on
the basis of a two-page handwritten memorandum brought
to the meeting by Gray, by which the Union and Ramey
agreed as follows: "(1) The current collective bargaining
agreement for the employees of Rameys Super Markets in
Springfield, Mo. will also apply to the Republic, Mo. store
with the' following changes: (2) The work restriction as set
forth in Article 2, Sec. 4 shall not apply to one store man-
ager & one assistant manager in Republic, Mo. (3) Article
2, Sec. 1, shall be ammended [sic ] to provide for one man-
ager, & one assistant manager excluded from the bargain-
ing unit in the store in Republic,- Mo.5 (4) All strikeing [sic]
employees will be returned to their normal job assignments
with no loss of seniority or any other contract benefits. (6)
Ammend [sic] Article 12, Sec. 4, to provide for a courtesy
clerk classification for the Republic, Mo. store only. The
limitations for a courtesy clerk shall be those set forth in
the collective bargaining agreement currently in effect be-
tween the Ramey Co. & Local 322 for the employees work-
ing in Neosho, Mo. only." (7) [wage rates set forth for Pro.
Manager, Head Clerk, Stockers-Checkers, and Courtesy
5 It is noted , however , that the Springfield agreement in evidence already
excludes one manager and one assistant manager Query as to the purpose
of this clause?
83
Clerks. Rates for all but the last began June 16 , 1974, and
increased on 9/9/74 and 1/1/75. A note at the side states,
"Republic wages only."] At the bottom was : "Agreement
to expire Aug. 1, 1975."
. Upon the execution of this memorandum, Gray called
Republic and directed that the picket line be removed, and
the strike was ended.
3. The Aurora agreement reopener
At the meeting on June 15, between Taylor, Yates, and
Gray, with the Republic agreement settled , Taylor suggest-
ed that the Union and Ramey settle the wage issues which
were subject to reopening later in the year under the Auro-
ra agreement for Aurora, Cassville, and Seymour. Gray
assented to this. A wage agreement was reached applicable
to Aurora and Cassville , and a separate wage agreement
was agreed for Seymour. Taylor insisted that the bargain-
ing agreements for the various stores have different expira-
tion dates. As Taylor credibly testified, "After a lengthy
discussion on this, in talking to Mr. Gray, and we had a
strike going on, he agreed to separate expiration dates for
each of these contracts." At this point, two additional cop-
ies of the first page of the Republic settlement memoran-
dum as set forth above were run off on a duplicating ma-
chine. The wages for Aurora and Cassville were attached
to one such copy, with a notation of September 30, 1975, as
the expiration date. On the cover page, "Cassville & Auro-
ra" were substituted for "Republic." The wages for Sey-
mour were attached to the second such copy of the Repub-
lic memorandum with a notation of June 1, 1976 as the
expiration date. "Seymour" was substituted for "Republic"
on the cover page. These documents were signed by Taylor
and Gray.
Taylor's testimony is to the effect that each of these doc-
uments was intended to be a separate contract, and that
the reference to the Springfield agreement , was intended to
incorporate the applicable terms of the Springfield agree-
ment into each of the separate contracts for each of these
localities.. Gray's testimony, on the other, hand, is to the
effect that, notwithstanding the different wage rates and
different termination dates, the intention was to place all of
these localities under the Springfield agreement itself.6 I
credit Taylor. From my observation of the two witnesses
and from my study of their testimony, I am convinced that
Taylor is the more reliable of the two witnesses. In addi-
tion, the record as a whole tends to support Taylor's posi-
tion rather than Gray's. If the parties had decided to place
all of these localities under the Springfield agreement, it-
self, one would expect more explicit and -less ambiguous
language to that effect in the,memorandum,7 and certainly
there would have been no need for three separate docu-
ments, since the first page of the Republic memorandum
6 Gray's testimony was that , in response to Taylor's desire to'discuss
Cassville, Aurora, and Seymour , "There was some discussion about that we
are not going to get into more separate contracts with you, we-will just
attach letters to the Springfield agreement We are not going to have anoth-
er arbitration like we had on Republic " Gray asserts that Taylor agreed
with this
7 It is a familiar principle that ambiguities in such writings are to be
construed most strongly against the party preparing the writing See Willi-
ston, On Contracts, 3d ed § 621 (1961)
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could have been easily altered to cover all the localities an'
one document, and the wage rates for all attached to the
one document. The execution of a separate document for
each locality, made simultaneously, is a strong indication
that separate contracts were intended. The agreement on
different expiration dates, moreover, furnishes significant
support to Taylor's assertion that he wanted separate con-
tracts expiring at different times, so that Ramey would not
have to negotiate contracts for all the localities at the same
time. Indeed, Gray agreed in his testimony that when the
Springfield agreement expired before the term applicable
to Cassville, Aurora, or Seymour that expiration, did not
affect the latter agreements, and any amendment of the
Springfield agreement before the end of the term applica-
ble to Cassville, Aurora, or Seymour would not be applica-
ble to them- Moreover, as discussed infra, Gray thereafter
drew for Ramey separate complete contracts for Seymour,
and for Cassville and Aurora, which set forth bargaining
units limited to those localities only.
There is additionally a dispute as to whether the parties
also discussed at this meeting Ramey's desire that a certain
penalty provision appearing in the grievance and arbitra-
tion article of the Springfield agreement should be elimi-
nated from the agreements negotiated at the June 15 meet-
ing. This will be considered hereinafter. When Gray stated
a desire to dispose of the pending litigation since the con-
tracts had been agreed on, the parties agreed that this
should be resolved by their attorneys, at a later date.
4. The June 28 meeting
a. The memoranda of agreement
On June 28, Taylor and Jones met with Gray and his
attorney, Benjamin Francka, at the latter's office. At the
outset of this meeting, the Union distributed to Ramey for
signature three separately typed documents, each of two
pages, entitled "Memorandum of Agreement." One of
these was for the Ramey stores in Cassville and Aurora,
one for Ramey's store in Seymour, and one for the Ramey
store in Republic. Each of these provided that "This Mem-
orandum of Agreement is to be attached to and become a
part of the current collective-bargaining agreement be-
tween Roswil, Incorporated, d/b/a Ramey Supermarkets
and Retail Store Employees Union Local 322 of South-
west, Missouri, in Springfield, Missouri." It was provided
that the bargaining agreement in effect for Cassville, and
Aurora and Seymour should expire September 1, 1974 (in-
stead of September 30, 1975, which was its stated term).
Each of these documents also provided for ' the different
terms contained in the handwritten documents signed on
June-15. Taylor refused to execute these documents, assert-
ing that they differed from the terms of the agreements
made on June 15.
Inasmuch as the Union now contends (in opposing exe-
cution of complete contracts for these localities) that the
June 15 memoranda are complete, and no further written
agreements are necessary, it seems significant that on June
28 the Union thought it necessary to secure execution of
these revised memoranda. It is clear that the purpose here
was to obtain Ramey's explicit consent to blanket Aurora-
Cassville, Seymour, and Republic under the Springfield
agreement, which it had failed to do in the June 15 hand-
written memoranda, as found above.8
b. The meeting
Taylor, Jones, Gray, and Francka testified as to the
events of the meeting of June 28. There is some dispute as
to whether the meeting was for the purpose of disposing of
all pending litigation, since the Republic strike had been
settled, or whether the parties were to execute at the meet-
ing separate complete agreements for each of the localities
covered by the June 15 memoranda. Quite likely each side
viewed the meeting from a different. point of reference,
guided by their different interests. At the meeting, Jones
stated his position that there were three bargaining units
involved: Republic, Seymour, and Aurora-Cassville, and
insisted that there should be three contracts prepared, each
of which should be complete in itself, without letters or
addenda, which apparently had been attached to the previ-
ous agreements. Jones testified that Francka indicated
agreement that there were, indeed, three bargaining units
(in addition to Springfield) and, in particular, that the arbi-
trator had carved out a separate unit for Republic. Jones
further testified that at the close of the meeting Gray had
agreed to compile and submit to Ramey a separate com-
plete contract for each of the localities, in addition to
Springfield. Francka does not seem to strongly challenge
Jones' contention that there was general agreement be-
tween them that there were separate bargaining units for
Republic, for Seymour, and for Aurora-Cassville,9 but as-
serts that the Union consistently said that it would not
agree to separate contracts for each of these localities, that
they were all covered by the Springfield agreement with the
various differences previously agreed to. Francka stated
that in his opinion all could be covered by one contract
though he did not consider this a good procedure. The
Union assertedly also took the position that there was, no
need for any further preparation of agreements, on the
ground that the, handwritten memoranda signed June 15
were sufficient.
In support of his contention that Gray had agreed to
furnish Ramey separate bargaining contracts for each of
the, claimed bargaining units, Jones had reference to a
handwritten document which he prepared during the
course of the June 28 meeting so stating, which paper he
asserts he read to Francka and Gray during the meeting,
and to which, he states, they agreed. Francka and Gray
testified to, lack of recollection that Jones prepared, such a
document, or that he showed or read it to them. Nonethe-
less, Francka states that, as far as he recalls, Gray did re-
8 In coming to this conclusion I have noted and discredited Gray's testi-
mony that he could not recall when these later typed memoranda were
prepared, or when he circulated or gave copses to Jones or Taylor, or that he
did not think he ever asked Taylor to sign those memoranda, but that the
purpose in preparing them was solely for the information of the union mem-
bers affected.
9 Francka states that he said this should be determined by the Board,
"that maybe there were separate bargaining units," but they could be cov-
ered by one contract. He asserts that it was his position that the arbitrator
..may or may not have [carved out a separate unit at Republic]."
RETAIL CLERKS INTL. ASSN., LOCAL 322
fuse during the meeting to go along with this handwritten
memo of Jones. Moreover, Gray concedes that by the close
of the meeting he had committed himself to send separate
complete bargaining contracts to the Company, but insists
that this was not for signature, but for the convenience of
Ramey in the event there was a future dispute or arbitra-
tion involving one or another of the stores in the separate
locations.
As part of the discussion of the disposition of all pending
litigation, during this meeting, Jones had sought to have
the Union agree not to discipline the union members who
worked at Republic during the strike. The Union refused,
stating this was an internal union matter. The parties did
not execute an agreement disposing of the pending litiga-
tion.
To the extent that there is a conflict between the testimo-
ny of Respondent's witnesses and those of the General
Counsel with respect to this meeting, I credit the latter.
Respondent's contention that it was willing to prepare and
submit separate complete contracts for the separate units
(to contain the separate conditions agreed for each of those
units) because that would assist in administration of the
working conditions at each unit, while at the same time
vigorously asserting that these separate documents cannot
be considered separate collective-bargaining contracts, is
an evident contradiction in terms.
5. The contracts
Within a few days following June 28, Gray sent Taylor
three copies each of two contract forms, one for Seymour
and one for Cassville and Aurora. The cover page of each
was as follows:
AGREEMENT
Between
RETAIL STORE EMPLOYEES UNION LOCAL
NO. 322
and
ROSWIL, INC., d/b/a
RAMEY SUPERMARKETS
THIS AGREEMENT, entered into this
by and between ROSWIL, INC., d/b/a RAMEY SU-
PERMARKETS, hereinafter referred to as the "Em-
ployer", and the RETAIL STORE EMPLOYEES
UNION LOCAL NO. 322, chartered by the RETAIL
CLERKS INTERNATIONAL ASSOCIATION,
AFL-CIO, hereinafter referred to as the `Union', and
any renewal or extension thereof shall be binding
upon the parties hereto, their heirs, executors, admin-
istrators, successors, and assigns.
Each of these contracts described the bargaining unit
covered in the following terms (the sole difference being
the names of the locality involved):
Section 1. The Employer hereby recognizes the Union
as the sole and exclusive bargaining agency for a unit
consisting of all employees in the Employer's present
and future retail establishments located within the city
limits of Seymour, Missouri,10 with respect to wages,
85
rates of pay, hours and other conditions of employ-
ment, excluding [the same exclusions appearing in the
Springfield agreement above].
Each of these documents contains the different terms
and conditions and expiration dates agreed upon by the
Union and the Company on June 15.
Since the Union had not submitted a separate contract
for Republic, the Company reproduced one of the con-
tracts submitted by the Union, changed the conditions and
termination date to conform to the June 15 agreement, and
substituted the words "Republic, Missouri," in the recog-
nition clause . An error made in the effective and termi-
nation dates was shortly thereafter corrected by the Com-
pany.
The Company also typed in on the cover page of the
respective contracts, the following: "covering store in Re-
public, Missouri," "For Store in Seymour, Missouri," and
"For Stores in Cassville and Aurora, Missouri."
In addition, the Company made certain other changes in
these documents: first, the Company removed a page from
each of these contracts which provided a certain penalty
clause relating to the grievance' and arbitration provisions
of the contract. Taylor testified that on June 15 Gray
agreed to the elimination of this clause, insisting, however,
that Ramey's attorney, Jones, not be advised. Gray denied
that he agreed to the elimination of this provision. I credit
Taylor." Secondly, the Company added a lengthy clause
(sec. 3) in each contract to the effect that this present con-
tract was the only contract between the parties 'covering
the unit therein described, and superseded any conflicting
provisions of any earlier agreement. There is no contention
that the Union had explicitly agreed to the language con-
tained in section 3 and inserted in the contract at this
place. It is noted, however, that the Union itself had previ-
ously, in its memorandum of June 28, proposed that the
prior agreement covering Seymour, Cassville, and Aurora
expire on September 1, 1974 (the effective date of the con-
tracts here considered). Gray denied that he had agreed to
the insertion of the language typed in by the Company.
Lastly, the Company modified an interpretive bulletin at-
tached to the contracts (apparently previously attached to
the Springfield agreement), which set' forth what store
managers and supervisors can and cannot do, by' inserting
the following before a list of functions not to be per-
formed: "(This applies only to store operational personnel
from Company' s main office and does not apply to Store
Manager or Assistant Store Manager in Republic, Missouri
[Cassville and Aurora, Missouri] [Seymour, Missouri])."
Gray was first evasive and then uncertain as to whether
this insertion changed the agreement between the Union
and the Company, referring to the fact that the agreement
between them was spelled out in the memorandum of June
10 The second contract substituted "Cassville, Missouri and Aurora, Mis-
souri" for "Seymour, Missouri."
11 In this connection I have considered the rather odd condition to this
agreement imposed by Gray. I do not believe that Taylor would have fabri-
cated this, and I thus infer that Gray had some particular reason for desir-
ing this to be withheld from'Jones until later. It appears that Taylor did not
tell Jones about this until the end of July. It is also noted that this penalty
provision does not appear in the previous contract covering Aurora, Cass-
ville, and Seymour.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
15. I find that this language clearly carried out the agree-
ment of the parties on this issue.
By letter dated July 30, Taylor returned to Gray two
signed copies of each of these contracts, with the request
that the Union execute one copy each of the contracts and
return them to the Company. Gray refused to do-so, and
returned these documents to the Company unsigned. By
letter dated August 17, Jones, on behalf of the Company,
wrote Gray correcting the effective and termination dates
in the Republic contract tendered the Union, and again
requested that the Union sign the contracts. By letter dated
August 20, Gray replied:
I am in receipt of your letter dated August 17, 1974,
regarding the drafted agreements for Seymour, Cass-
ville, and Aurora, Mo.
As I have discussed with both you and Mr. Taylor, the
memorandum of agreement which was executed by
Mr. Taylor as president of Roswil, Inc., d/b/a Ramey
Supermarkets, is sufficient.
At the time of negotiations, the towns of Seymour,
Cassville, Aurora, and Republic would all be covered
under the Springfield agreement , with a few excep-
tions set forth in the memorandum of agreement,
which has been signed by Mr. Taylor several weeks
ago.
Unless it is just your intent to needlessly bill your
client for sending me this letter, please discontinue this
practice.
The Union has since refused to execute these documents
as requested by the Company.
C. Conclusions and Analysis
1. The appropriate units
The official-highway map of Missouri (1973) shows the
following locations for the localities involved in this mat-
ter: Springfield is located in Greene County in southwest
Missouri. Republic is also in Greene County , some -8 road
miles southwest of Springfield. Aurora is almost due south
of Republic and a little to the west, approximately 30 road
miles from Aurora in Barry County. Seymour is about 27
miles due east of Springfield in Webster County. The indi-
cation in the record is that Ramey operates only one store
in Republic and one store in Seymour. (Cf. G.C. Exhs: 28
and 29 with G.C. Exh. 27.) Each of these stores is presump-
tively a separate appropriate unit. See The Grand Union
Company, 176 NLRB 230 (1969). The evidence in this case
does not rebut that presumption. The parties have agreed
upon significantly different working conditions for each of
these localities and, further, that the contracts covering
these different working conditions shall expire at different
times. The parties have also agreed for distinct and differ-
ent working conditions for Ramey employees working in
Cassville and Aurora, and that the contract covering those
employees shall expire at a different time from the con-
tracts covering the other Ramey employees. On the basis of
the above and the record as a whole, I find each of the
following to constitute an appropriate unit for the purpose
of collective bargaining within the meaning of Section 9(b)
of the Act:
1. All employees employed by Ramey in its estab-
lishment located within the city limits of Seymour, Missou-
ri, with the exclusions set forth below.
2. All employees employed by Ramey in its estab-
lishment located within the city limits of Republic, Missou-
n, with the exclusions set forth below.
3. All employees employed by Ramey in its estab-
lishments located within the city limits of Cassville, Mis-
soun, and Aurora, Missouri, with the exclusions set forth
below.
Excluded from each of these appropriate units are: one
store manager in each store and one assistant store manag-
er in each store, employees whose work is exclusively and
wholly performed within a single and separate meat de-
partment, employees whose work is exclusively and wholly
performed within a single and separate bakery department,
general office employees, - main warehouse employees,
truckdnvers, night watchmen,-janitors, and all other super-
visoryemployeesas defined in the Act.
In accordance with Respondents' answer, and the entire
record in this case, I find that the Union has been at all
times material to this proceeding the exclusive representa-
tive, within the meaning of Section 9(a) of the Act, of all
the employees within each of the appropriate units found
above. Although the complaint alleges that all of the Re-
spondents constitute the exclusive bargaining agent, I find
no evidence to support the contention that the Internation-
al, Gray, and Conyers have been designated, recognized, or
act as joint representative with the Union.
2. The contracts
The Union and the Company, on June 15, signed three
separate memoranda of agreement, each of which applied
to separate localities (Cassville-Aurora, Seymour, and Re-
public) in which the Company operated its business. These
memoranda, essentially drafted by the Union, because of
their ambiguity, have been the cause of disagreement and
discord between the signatories ever since. The Union,
thereafter, prepared, two complete `collective-bargaining
contracts setting forth the terms applicable to Cassville-
Aurora and to Seymour and submitted them to the Com-
pany. The Company, using these contracts as a model, pre-
pared a bargaining agreement for the third locality in-
volved, Republic, inserted certain additional language in
each of the three bargaining contracts (which the General
Counsel asserts were "either agreed . . . or are inconse-
quential"), and the Company signed the contracts and sub-
mitted them to the Union for execution. The Union has
refused to sign them. General Counsel contends that this
violates the Act.
It has long been settled, and the Union does not dispute
that where an employer and the bargaining representative
of the employees are in agreement on the terms of a bar-
gaining agreement covering the terms and conditions of the
employees' employment, it is required that upon the re-
quest of one party to the agreement the other must sign a
written contract embodying the terms of their agreement.
RETAIL CLERKS INTL. ASSN., LOCAL 322
See Section 9(d) of the Act. This critical act in the collec-
tive-bargaining process serves to memorialize the agree-
ment, prevent disagreement and discord over the terms
agreed to, and thus stabilizes the industrial relations of the
employer, achieving the purposes of the Act. See H. J.
Heinz Company v. N.L.R.B., 311 U.S. 514 (1941). The
Union, however, claims that the original memoranda of
agreement are sufficient and no other agreements need be
signed, and, in any event, it was not required to sign the
contracts transmitted by the Company -because they con-
tained language to which the Union had not previously
agreed.
The first of these contentions-that the Union is excused
from executing complete fully integrated bargaining agree-
ments because it had previously signed memoranda of
agreement-seems to me quite unsound. By its terms, a
memorandum is incomplete. By present notation and refer-
ence to other material, it serves the parties' immediate pur-
pose, as a means to terminate the dispute between them
until a more permanent record of their agreement can be
prepared. The record here shows that in prior negotiations
the Union and the Company had regularly thus settled
their negotiations and thereafter regularly executed com-
pleted collective-bargaining contracts. Experience with
memoranda of agreement shows that, because they are in-
complete and sometimes not too clear, they tend to become
a source of disagreement and discord unless soon translat-
ed into more complete and precise documents. Such was
the case here. The memoranda signed by the parties were
incomplete and ambiguous, and did not serve' to stabilize
working conditions. The bargaining agreements which the
Union itself prepared and which it refused to sign, as well
as the third agreement based on the contracts drawn by the
Union, are more complete and precise and thus less likely
to result in disagreements with respect to interpretations of
their terms.
In a somewhat analogous case, Summit Tooling Company
and Ace Tool Engineering Co., Inc., 195 NLRB 479 (1972),
where the parties explicitly indicated their intention to en-
ter into a complete bargaining contract following their exe-
cution of a memorandum of understanding, the employer
nevertheless refused to sign the bargaining agreement be-
cause, inter aha, the union there had taken the position
"that the Memorandum of Agreement was perfectly legal
and effective." The Administrative Law Judge, whose deci-
sion was accepted by the Board, stated, "Patently this is no
defense. Section 8(d) of the Act explicitly requires `the exe-
cution of a written contract incorporating any agreement
reached if requested by either party."' (195 NLRB at 488.)
See also Sears, Roebuck & Co., Inc. 139 NLRB 471, 478
(1962). Cf. Oregon Coast Operators Association, et al., 113
NLRB 1338 (1955), where the Board held that an employer
violated the Act by refusing to 'bargain in good faith con-
cerning the incorporation into a single instrument terms
agreed and contained in various side agreements, but fur-
ther stated that "[a]lthough the incorporation in a single
instrument of all terms reached in collective bargaining
would, ordinarily, appear mutually desirable, 'convenient,
and salutary for both parties in administering their con-
tract, we cannot hold that under the applicable statutory
provisions a request by either party for such incorporation,
87
in all situations, makes it mandatory for the other to com-
ply." (113 NLRB at 1348.)
In the present case I cannot consider whether the
Union's actions constituted bad-faith bargaining because
this was neither alleged nor litigated. However, under the
circumstances it is appropriate, as previously noted, that
the Union be required to execute separate documents in-
corporating all of the terms previously agreed to in the sepa-
rate memoranda of agreement. First of all, this conforms to
the parties' normal, and thus expected practice. Further,
the agreements which the Union refused to sign are in the
form prepared by the Union itself.12 And, finally, the form
of documents prepared by the Union better expresses the
understanding of the parties, tending to avoid dis-
agreement and discord, and thus stabilizing labor relations.
The Union's second objection to signing the contracts
submitted by the Company-that the Company had insert-
ed language not previously agreed to--has more substance.
Neither party is required to sign a bargaining agreement
containing terms not previously agreed. See, e .g., Rudnick
Land & Cattle Co. and its Divisions-Piute Packing Co., and
Rudnick Truck Lines 159 NLRB 477 (1966). As previously
found, the Company inserted in the contract forms pre-
pared by the Union, and the form prepared by the Compa-
ny, a clause in each contract providing that the present
contract was the only contract between the parties covering
the unit described therein and suspended any conflicting
provisions of any earlier agreement. The Union had not, so
far as the record shows, previously agreed to the precise
language proposed. General Counsel argues that the matter
is inconsequential. From the viewpoint of an objective
viewer, who is not a party to the agreement, I am inclined
to agree with him. However, the Company considered the
matter of some consequence because it inserted the clause
in the agreement. I cannot deny the Union's right to say
the matter is of consequence to it, and to reject the provi-
sion, which is what the Union did. For this reason, I must
recommend the dismissal of the complaint insofar as it al-
leges that Respondents violated Sections 8(b)(3) and 8(d)
of the Act by refusing to execute the contracts submitted
by the Company for the appropriate units in Republic and
Seymour. is
3. The exclusion of Jones
At the outset of the May 2 bargaining session, Gray,
president and business representative of the Union, ad-
vised the Company and other employers participating in
that meeting that if the Company's representative and at-
torney at that meeting, Donald Jones, spoke at the meet-
ing, all of the employers might as well leave. Thereafter,
Gray insisted on narrowing the bargaining committees so
as to physically exclude Jones from active participation
with the Company. The negotiations being at a critical
point, the Company acceded. The Union, by this conduct,
12
The one agreement prepared by the Company follows the form pre-
pared by the Union and incorporates the terms of the applicable memoran-
dum of agreement The Union does not contend otherwise
13I have previously granted the Company's request for permission to
withdraw its charge with respect to the Respondents' failure to execute a
bargaining contract covering the appropriate unit at Cassville and Aurora,
and have dismissed those allegations of the complaint.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused to bargain with a designated representative of the
Company in collective-bargaining negotiations in violation
of Section 8(b)(3) of the Act. See Brotherhood of Teamsters
and Auto Truck Drivers Local No. 70 of Alameda County,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Kockos Bros., Inc.; Wis-
inger Trucking Service, Inc.), 183 NLRB 1330 (1970). Since
Gray is an agent of the Union and clearly engaged in the
prohibited conduct, he also violated Section 8(b)(3) of the
Act.14 Inasmuch as there is no evidence that Glen Conyers
or the International engaged in this conduct or were re-
sponsible for it, it will be recommended that the allegations
of the complaint asserting that they violated the Act by this
conduct be dismissed.
III. UNION DISCIPLINE OF REPUBLIC EMPLOYEES
A. The Facts
As previously noted, Ramey acquired an existing store
located in Republic in 1973, after the Company had en-
tered into bargaining agreements with the Union for its
stores in Springfield and in Aurora, Cassville, and Sey-
mour. Each of these contracts contained legal union-secur-
ity clauses, and the Union and the Company asserted that
one of these two executed contracts applied to the Repub-
lic store, although they disagreed as to which one. The em-
ployees in the Republic store were told that they had to
join the Union and did so.15 During the period in which
there was a dispute as to which of the two contracts should
be applied to Republic, the Union prepared and the 12
employees in the Republic store signed a petition stating
that they wanted to be included in the Springfield agree-
ment, "and deserve the rate of pay as set forth in" that
agreement.
Dissatisfied with the progress of its efforts to have the
Republic employees included in the Springfield agreement,
in late May, the Union posted notices in the Republic store
that a strike vote meeting would be held in Springfield,
some 9 miles away. There is some contention that the
Union's action in scheduling this vote prevented some em-
ployees from attending, but 10 of the 12 employees did
come and voted 7 to 3 to authorize a strike.
Shortly thereafter, by letter dated May 30 to Gray, the
president of the Union, nine of the Republic employees 16
submitted their resignation from the Union and Interna-
tional, adding that "we want it to be specifically under-
stood that we shall continue to pay initiation fees when due
and all periodic dues uniformly required of all members."
14 The effect of this violation is not diminished by the fact that Gray
thereafter on June 28 met with Jones and Taylor, without objection, in the
office of the Union's lawyer in an attempt to secure some concessions in the
interest of the Union.
15 This finding is based on the letter signed by 9 of the 12 employees in
the Republic bargaining unit (G.C Exh. 10), which was received in evidence
without objection The statement is supported by the existence of the union-
security contracts and the record as a whole In the circumstances, hearsay
is sufficient to support the finding See Continental Oil Co v. United States,
184 F 2d 802 (1950).
16 John F. Swinney, James Michael Schudy, David R Stocker, David
Clark, Randall D Allen, Robert Boyer, Sondra Soutee, DyAnna Short, and
Lyndle Dorrell.
Union President Gray responded to the nine employees,
by letter dated June 4, enclosing the portion of the consti-
tution of the International relating to resignation of mem-
bers, and advising: "As you know, the Local By-laws, in
conjunction, with the International Constitution, provides
for up to $100.00 per day assessment for a member who
would work behind a picket line established by this organi-
zation. It is the full intention of this local to commence
strike action on Thursday, June 6, 1974... .
The relevant portion of the International constitution
enclosed provides: "Any active member who is otherwise
entitled to resign his membership while remaining em-
ployed within the jurisdiction of the International Associa-
tion must give 60 days notice by registered mail to the
Local Union in which he is a member before his resigna-
tion may become effective." 17
The nine employees involved thereupon sent another let-
ter, dated June 5, to Gray and to the president of the Inter-
national, stating in pertinent part:
Each of the undersigned employees of Ramey's Super-
market, Republic, Missouri, were told when Ramey's
bought the store that we had to join the union to keep
our jobs. Based on that understanding, we signed
whatever was presented to us to protect our jobs.
We have found out recently, however, that we are not
required by law to be formal members of the Union to
keep our jobs, but that we are required to only pay the
uniformly required dues and fees that your members
pay. For that reason, and for the other reasons stated
in a letter which we sent to Mr. Gray recently, we have
all elected to resign any formal membership status in
your organizations, but have indicated our desire and
intent to continue making any dues or initiation fee
payments required to protect our job status.
Mr. Gray has now threatened to not permit us to re-
sign and has threatened to cause us be fined $100.00
per day if we work during a strike which Mr. Gray
wants to force on us at our store. We are of the opin-
ion that a strike is unnecessary and is against our best
interests , and we must continue working at this time to
earn a living... .
On June 6, Gray had a copy of a letter from the Union's
attorney hand-delivered to each of the nine employees who
had signed the letters of resignation. The letter quoted
from section 5 of the international constitution the provi-
sions relating to resignation from the Union and the Inter-
national, and gave the opinion that any resignation would
not be effective for 60 days, and that employees seeking to
resign would continue to be members for that period and
subject to union discipline.
On June 10, a 10th employee at Ramey's Republic store
(Blake Simmons) sent in his resignation from the Union,
adopting the previous letters.
On several occasions the 10 employees who had submit-
ted their resignations were summoned to appear before the
executive board of the Union in Joplin, Missouri, approxi-
mately 58 miles from Republic, first "in anticipation of
17 A similar provision appears in the Union's bylaws (sec. 6). Copies of
the bylaws had previously been given to the Republic employees.
RETAIL CLERKS INTL. ASSN., LOCAL 322
charges being formally presented," to explain their reasons
for working behind the picket line at the Republic store,
and later to appear before the executive board acting -as a
trial board to answer charges filed against them by Busi-
ness Representative Glen Conyers "for failure to honor an
authorized picket line." A protest lodged by an attorney
for the 10 employees against the hearings being held in
Joplin rather than a more convenient place was denied by
Gray. On advice of counsel, the 10 employees did not at-
tend the trials before the union trial board. Each was found
guilty of the charges against them and fined in the amount
of $25 for each day worked or the gross amount of earn-
ings for each day, whichever is greater, for the duration of
the strike. The employees were.notified of this and request-
ed,to inform the Union of the days each actually worked
during the strike.
The action of the Union in fining the 10 employees was
appealed to the International Union. On March 5, 1975,
the president of the International advised the 10 employees
that the actions of the Union had been reversed because
the employees had not been properly served with the
charges against them prior to their trial. On March 11,
1975, Gray, for the Union, appealed the decision of the
international president to the international executive
board. So far as appears, this appeal is still pending.
B. Analysis and Conclusions
It is not a violation of the Act for a union to threaten to
discipline a full member of the union for crossing an au-
thorized picket line and working behind such pickets, or to
summon or try a member, or assess court-collectible rea-
sonable fines against a member for such conduct, where
the member has violated a proper union rule. See N.L.R.B.
v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967). However,
where the member of the union has first resigned from the
union, "its power over him ends," even though the union
may have no provision in its constitution or bylaws for
voluntary resignation of members, and the union violates
Section 8(b)(1)(A) of the-Act by seeking to discipline such
ex-member. See N.L.R.B. v. Granite State Joint Board, Tex-
tile Workers Union of America, Local 1029, AFL-CIO [In-
ternational Paper Box Machine Co.], 409 U.S. 213 (1972). In
Granite State Board, the Supreme Court stated, quoting
from its prior opinion in Scofield, et al. v. N.L.R.B., 394
U.S. 423, 429 (1969):
... §8(b)(1) leaves a union free to enforce a properly
adopted rule which reflects a legitimate union interest,
impairs no policy Congress has imbedded in the labor
laws, and is reasonably enforced against union mem-
bers who are free to leave the union and escape the rule.
[409 U.S. at 216 (1972).]'[Emphasis supplied.]
In Granite-State Board, the Court further noted that it
was not faced with the problem "of construing a union's
constitution or bylaws defining or limiting the circum-
stances under which a member may resign from the union.
We have, therefore, only to apply the law which normally
is reflected in our free institutions-the right of an individ-
ual to ;oin or to resign from associations, as he sees fit
`subject of course to any financial obligations due and ow-
89
ing' the group with which he was associated." (409 U.S. at
216), and finally cautioned that "[w]e do not now decide to
what extent the contractual relationship between union
and member may curtail the freedom to resign." (409 U.S.
at 217). See also Booster Lodge No. 405, International Asso-
ciation of Machinists & Aerospace Workers, AFL-CIO v.
N.L.R.B., 412 U.S. 84 (1973); Local Lodge No. 1994, Inter-
national Association of Machinists and Aerospace Workers,
AFL-CIO (OX Tool Company, Inc.), 215 NLRB 651
(1974).
In the Booster Lodge case, the union there fined mem-
bers who resigned before crossing the union picket line.
Although there also the union's constitution contained no
provision for resignation, the union contended that a
constitutional ban on strikebreaking binding members not
to work behind the union picket line nevertheless applied
to these members for the duration of the existing strike.
The Court held that employees had a right to resign in the
circumstances, and that, in the absence of a showing that
members were informed that the union rule against strike-
breaking applied even after resignation from the union, the
union violated the Act by fining the resigned members.
The Court refused to imply that the strikebreaking rule
applied to resigned members.
In O.K. Tool, the union involved provided that a mem-
ber was not relieved of his obligation to refrain from strike-
breaking by resigning "during the period of the strike .. .
or within 14 days preceding its establishment." The Board
there held:
Balancing an individual's right under Section 7 to re-
frain from concerted activity following resignation
from a union against that of a union to maintain soli-
darity during a strike, we conclude that the latter must
give way. Conformity may be none too high a price
for the benefits of union membership. But the choice,
at least in the absence of 'reasonable restrictions on
resignation, is the individual's to make, not the
union's. Should he choose to resign and to forgo the
benefits of union membership, the union may not
nonetheless seek to exact conformity without regard to
the individual's Section 7 rights.
In both Booster Lodge and OX Tool, the Court and the
Board left open the question of whether a union "might
lawfully have placed reasonable restrictions on the circum-
stances in which a member could resign." See 215 NLRB
651; 412 U.S. at 88. We are thus here faced with the situa-
tion which the Board and the courts have previously de-
clined to pass upon. The Union contends that the union
rule providing that 60 days' notice must be given to the
Union of an intent to resign is reasonable and proper in all
the circumstances of this case. It seems manifest on all'the
facts that the purpose of the rule, as in the other cases
noted, is to prevent members from working during a strike
by preventing them from resigning. The Union argues that
"the 60-day withdrawal period permits the union to act
with some certainty while at the same time giving the mem-
ber a reasonable, if not immediate, manner in which to
withdraw from the union." However, by the same token, if
need for certainty in strike situations would serve to justify
a union rule restricting resignation from membership, the
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board would have undoubtedly upheld the union rule in
O.K. Tool, which required action only 14 days prior to a
strike for a valid resignation. The Board there, balancing
the employees' rights under Act against the Union's needs,
held employee resignations during the strike valid and,
therefore, the restriction on the right to resign invalid. It
would seem clear that a like result must follow here.
In two other similar cases the Board arrived at a like
result. In Local 205, Lithographers and' Photoengravers In-
ternational Union, AFL-CIO (The General Gravure Service
Co., Inc.), 186 NLRB 454 (1970), the union rule permitted
an employee to resign only if he were in good standing and
no longer employed in an industry within the union's juris-
diction. In International Union, United Automobile, Aero-
space and Agricultural Implement Workers, UAW, and its
Local No. 647 (General Electric Company), 197 NLRB 608
(1972), the union rule limited resignation of members to a
10-day period at the end of the union's fiscal year, which
resignations would then only become effective 60 days
thereafter. In the General Electric case, the Board held as to
these provisions (197 NLRB at 609):
In our view, the 10-day escape period and the 60-day
waiting period contained in Respondent's constitution
is not significantly different from the provisions we
considered in Boeing and General Gravure. Here, as in
those cases, the provision imposes such narrow re-
strictions as to amount, in effect, to a denial to mem-
bers of a voluntary method of severing their relation-
ship with the Union. In short, the present provision
- does not make it possible for a member to avail him-
self of the "strategy" of leaving the Union as recog-
nized by the Board in Boeing [footnote omitted] and
envisioned by the Supreme Court in Scofield.
However, it seems to me that a more clear-cut and defi-
nite rule is required. We are here dealing with a specific
and fundamental right of employees under the Act-the
right to refrain from concerted -activity, to be determined at
their choice, not the union's. See O. K. Tool, supra. The
employees should not be required to exercise this right at
their peril, without guidance from the Board which has the
responsibility of administering and interpreting the Act.
Moreover, the circumstances of this case suggest a proper
rule which will carry out the intent of Congress and the
purposes of the Act.
It has long been clear that Congress intended in enacting
the Taft-Hartley amendments that employees should not
be required to undertake or maintain any obligation to the
labor organization beyond the obligation to "tender the
periodic dues and' initiation fees uniformly required as ,a
condition of acquiring or retaining membership," unless
the employee voluntarily assumed other obligations. See
N.L.R.B. v. General' Motors Corporation, '373 U.S. 734
(1963). In the present case, as has been found, both the
Union and the Company considered that the employees
were covered by a I union-shop contract, and the employees
were informed that they had to join the Union and did so.
There is no evidence that the employees were advised that
they had the option not to join if they would tender the
dues and fees required. Under the circumstances, it must
be held that the employees joined under compulsion. How-
ever, the record does show that when the employees ten-
dered their resignations, they did advise the Union that
they were willing to continue paying such legal dues and
fees as might be required. In my opinion, where it is not
shown that the employees were clearly advised of their op-
tion not to join a labor organization before assuming mem-
bership in that union, the most that should be required of
the employees as a condition precedent to resignation from
membership is a commitment to continue paying the peri-
odic dues and fees which may uniformly be required of
members under the Act. In that way, the employee is guar-
anteed his rights under the Act, while at the same time
continuing financial support to the bargaining representa-
tive which must represent him.
For the reasons stated, and on the record as a whole, I
find that the Union, by instituting charges and disciplinary
proceedings against and fining John F. Swinney, James
Michael Schudy, David R. Stocker, David Clark, Randall
D. Allen, Robert Boyer, Sondra Soutee, DyAnna Short,
Lyndle Dorrell, and Blake Simmons, because of protected
activities engaged in by those employees after they had
resigned from membership in the Union, violated Section
8(b)(l)(A) of the Act.
Although the complaint alleges that the International
Union, Conyers, and Gray also violated the Act by this
activity, General Counsel does not treat with their respon-
sibility for such conduct in his brief. It is readily apparent
that the International has neither authorized nor ratified
the action of the Union in charging and disciplining these
employees for working behind the picket line. In fact, to
this point, the president of the International has reversed
the Union's action, even though the International' s execu-
tive board is presently considering the Union's appeal from
the international president's order. Although the legal situ-
ation might be different should the International place its
imprimatur on the Union's action, in the circumstances of
this case I cannot find that the International is responsible
for the Union's action in this matter. However, Business
Representative Conyers and Gray (who is also president of
the,Union) played essential roles as agents of the Union in
charging, trying, and fining the employees involved, and
thus themselves violated Section 8(b)(1)(A) of the Act.
IV. THE ATTEMPT TO HAVE JAMES MICHAEL SCHUDY DISCHARGED
A. The Facts
Schudy was one of the nine employees at Ramey's Re-
public store who, on May 30, sent their written resignations
from membership to the Union, and who thereafter
worked during the Republic` strike. Thereafter, the Union's
president, Gray, having learned that Schudy had applied
for membership in -a local musicians' union , on June 18,
wrote a representative of that union advising that during
the Republic strike,Schudy had worked "behind the picket
line for ten days, forcing .great hardship on fellow mem-
bers. His activities during the strike are not those engaged
in by a good trade unionist and his application into any
union should be questioned."
Schudy, notwithstanding his commitment, made when
he resigned from the Union,'to pay the periodic dues and
RETAIL CLERKS INTL. ASSN., LOCAL 322
fees regularly required of members, became delinquent in
his dues for certain months thereafter.
The union bylaws (sec. 10) provide that dues are payable
on the first of the month for which they are due, and if
paid by mail, the payment must be postmarked on the first
of the month. If not paid on or before the first of the
month, the dues for that month are increased $1. It is fur-
ther provided that "Any member two calendar months in
arrears for dues or other financial obligations to the Local
Union shall stand suspended if same are not paid on or
before the first day of the third month;" that "The rein-
statement fee shall be the regular initiation fee . . . plus
any moneys owed to the Local Umon at the time of sus-
pension," and that "No partial payments can be accepted."
There seems no question but that Schudy became delin-
quent in payment of the amounts due as dues for July and
August. Schudy drew a check in the amount of $24, in
favor of the Union, dated September 1, which was received
by the Union in an envelop postmarked September 6.
Gray, on behalf of the Union, returned this check to Schu-
dy on'September 14, advised that he had been suspended,
and that "before dues can be accepted, you would have to
join and pay your reinitiation fee of $50.00, plus your back
dues of $27.00, a $5.00 strike assessment 18 plus a pending
liability for working behind a picket line in Republic, Mis-
souri." The letter further informed Schudy that his liability
for working behind the picket line was $316.80, and that
Gray was requesting advice from "the Divisional Office"
as to whether Schudy had to repay this amount before he
could rejoin. Nevertheless, the letter concluded, ". . . un-
less these liabilities are met within five days, your employer
will be notified-and you will not be able to continue em-
ployment at the Ramey store until you once again become
a member in good standing in this Local Union."
On September' 18, Ramey was notified by letter from
Gray that Schudy had been suspended from the Union as
of September 1, "and cannot return to work until his rein-
statement fee of $82.00 is paid at the local office." It ap-
pears that the Company nevertheless did not terminate
Schudy.
On September 26, Gray wrote Schudy, informing him,
inter alia, "you were suspended from the Local Union on
September 1, 1974, for non-payment of dues during the
months of July, August, and September. Consequently,
your rejoining fee would be your past dues, plus the $5.00
strike assessment , plus' the initiation fee of $50.00, which
would be a total sum of $82.00." The letter advised, "Your
employer has been notified that you are no longer to work
until this obligation has been taken care of." Schudy has,
in fact, since paid the $82 requested by the Union. He has
not paid the fine assessed for working during the Republic
strike.
B. Analysis and Conclusions
The General Counsel contends that the Union violated
Section 8(b)(2) of the Act by attempting to have Schudy
18 This strike assessment was not connected with the strike at Republic It
is also noted that the amount of back dues stated includes $3 for late pay-
ment for 3 months.
91
discharged because of his failure to pay the $ 5 strike assess-
ment and the $50 reinstatement fee demanded by the
Union.19
The law seems clear that even if Schudy were a member
of the Umon, working under a valid union-security con-
tract, the Union would not be justified in seeking his dis-
charge or termination from employment because he had
failed to pay a strike assessment, and therefore violated
Section 8(b)(2) and (1)(A) of the Act by attempting to have
Ramey terminate Schudy in substantial part because he
did not pay such assessment . See N.L.R.B. v. Food Fair
Stores, Inc., 307 F.2d 3 (C.A.-3, 1963). I further find that
inasmuch as Gray acted as the agent of the Union in seek-
mg to have Schudy discharged, in these circumstances, he
also violated Section 8(b)(2) and (1)(A) by this action.
The legal situation with respect to the reinitiation fee is
not so clear. It is well established that where a valid union-
security contract exists the bargaining representative can
insist , on threat of loss of employment, that an employee
who has lost membership in the union pay a reinstatement
fee uniformly required "as a condition to employees ac-
quiring or regaining membership." See Metal Workers' Al-
liance, Incorporated (TRW Metals Division, TRW, Inc.), 172
NLRB 815, 816 (1968). However, the Board does not seem
to have passed upon the obligation of such, an employee
who does not wish to acquire or regain membership in a
union, but merely to comply with his financial obligations
under a union-security agreement . In such instance, the
additional payment is not an incident of acquiring mem-
bership, and the benefits of membership, but, in this case,
an additional penalty for late payment of dues. Neverthe-
less, the $50 fee which the Union here demanded of Schu-
dy is one which it seems to uniformly require of employees
who are 3 months' delinquent in dues payments. To excuse
Schudy from paying the fee would only discriminate in his
favor because he does not choose to become a member of
the Union. Under the circumstances, I find that the Union
did not violate Section 8(b)(2) of the Act by seeking, in
part, to have Schudy discharged because he had not paid
the required reinitiation fee, and I shall recommend that
this portion of the complaint be dismissed. In any event, it
appears that Schudy has paid, and the Union has accepted,
this fee.
CONCLUSIONS OF LAW
1. Retail Store Employees Local 322, chartered by Re-
tail Clerks International Association, herein Respondent
Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act, and Jack Gray and Glen Conyers are
agents of Respondent Union within the meaning of Sec-
tions 2(13) and 8(b) of the Act.
2. Roswil, Inc., d/b/a Ramey Supermarkets, herein Ra-
mey, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
19 Although the complaint alleges that all the Respondents violated the
Act by this conduct, General Counsel in his brief limits this to "the Local
Union," and it will be so considered herein Therefore, it will be recom-
mended that the complaint be dismissed insofar as it alleges that the Inter-
national or Conyers violated the Act by attempting to have Schudy dis-
charged. I shall treat with Gray's responsibility hereinafter.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The following each constitute units appropriate for
collective bargaining within the meaning of Section 9(b) of
the Act:
(a) All employees employed by Ramey in its estab-
lishment located within the city limits of Seymour, Missou-
ri, with the exclusions set forth below.
(b) All employees employed by Ramey in its estab-
lishment located within the city limits of Republic, Missou-
ri, with the exclusions set forth-below.
(c) All employees employed by Ramey in its estab-
lishments located within the city limits of Cassville and
Aurora, Missouri, with the exclusions set forth below.
The exclusions are: one store manager in each store and
one assistant store manager in each store, employees whose
work is exclusively and wholly performed within a single
and separate meat department , employees whose work is
exclusively and wholly performed within a single and sepa-
rate bakery department, general office employees, main
warehouse employees , truckdrivers , night watchmen, jani-
tors, and all other supervisory employees as defined in the
Act.
4. At all times material , the Respondent Union has been
and continues to be the exclusive representative for the
purpose of collective bargaining of all of the employees in
each of the units set forth above by virtue of Section 9(a) of
the Act.
5. Respondent Union and Jack Gray, its agent , each, by
refusing to bargain in good faith with Donald W. Jones,
Ramey's designated representative and agent , as found
hereinabove , engaged in unfair labor practices in violation
of Section 8(b)(3) of the Act.
6. Respondent Union and Jack Gray and Glen Conyers,
agents of Respondent Union, each, by instituting charges
and disciplinary proceedings and fining John F. Swinney,
James Michael Schudy , David R . Stocker, David ,Clark,
Randall D . Allen, Robert Boyer , Sondra Soutee , DyAnna
Short, Lyndle Dorrell , and Blake Simmons, because said
employees crossed Respondent Union' s picket line and
worked for Ramey, after resigning from membership in
Respondent Union, engaged in unfair labor practices in
violation of Section 8(b)(1)(A) of the Act.
7. Respondent Union and Jack Gray , its agent, each by
threatening James Michael Schudy with discharge if he did
not pay a strike assessment to Respondent Union engaged
in unfair labor practices in violation of Section 8(b)(1)(At),
and by attempting to cause Ramey to discharge Schudy for
the reason aforesaid , 'engaged in unfair labor practices in
violation of Section 8(b)(1)(A) and (2).
8. Except as found hereinabove , Respondent Union,
Jack Gray, Glen Conyers , and Retail Clerks International
Association have not engaged in unfair labor practices al-
leged in the complaint.
9. The aforesaid unfair labor practices , and each of
them, affect commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
It having been found that the Respondent Union, and its
agents, Jack Gray and Glen Conyers, have engaged in cer-
tain unfair labor practices in violation of the Act, it will be
recommended that Respondent Union and its said agents
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the purposes of the Act. Be-
cause of the significant involvement of Jack Gray in the
unfair labor practices committed by Respondent Union, it
will be recommended that he be ordered to sign the notice
to be posted by the Respondent Union, as its representa-
tive. See, e.g., Teamsters Local 695 and its Agents James
Marketti, Humberto Garcia, (Wisconsin Supply Corporation),
204 NLRB 866 (1973)_}
Upon the basis of the record in this matter, and the
above findings of fact and conclusions of law, I issue the
following recommended:
ORDER 20
Respondent Union, Retail Store Employees Local 322,
chartered by Retail Clerks International Association, its
officers, agents, and representatives, including Jack Gray
and Glen Conyers, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with Donald W.
Jones as the agent and representative of Ramey with re-
spect to the terms and conditions of employment of em-
ployees of Ramey in a bargaining unit represented by Re-
spondent Union.
(b) Instituting charges, conducting disciplinary, proceed-
ings, or imposing or collecting fines against the 10 employ-
ees named in paragraph 6 of the Conclusions of Law here-
inabove, or others similarly situated, because such
employees have crossed a picket line of Respondent
Union, or have worked behind such picket line, subsequent
to their resignation from the Union.
(c) Threatening to cause any employee to be discharged
or otherwise discriminated against, or attempting to cause
Ramey to discharge or otherwise discriminate against any
employee, because such employee fails or refuses to pay
strike or other assessments to the Respondent Union.
(d) In any like or related manner restraining or coercing
any employee in the exercise of rights guaranteed by the
Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a), Upon request, bargain, collectively in good faith with
the designated representatives and agents of Ramey, in-
cluding Donald W. Jones, with respect to the terms and
conditions of employment of employees of Ramey in an
appropriate unit represented by Respondent Union for the
purpose of collective bargaining.
(b) Rescind the fines imposed upon the 10 employees
named in paragraph 6 of the Conclusions of Law herein-
20 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
RETAIL CLERKS INTL. ASSN ., LOCAL 322
above, desist from any attempt to collect such fines, ex-
punge from the records of Respondent Union reference to
the charges, disciplinary proceedings and penalties im-
posed upon the 10 employees because they crossed Re-
spondent Union's picket line and worked for Ramey in
June 1974, and notify each of the 10 employees, in writing,
within 10 days after the date of this Order, of Respondent
Union's actions carrying out the terms of this Order.
(c) Reimburse James Michael Schudy for the strike as-
sessment which he paid in response to Respondent Union's
demand.
(d) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix." 21 Copies of
said notice, on forms provided by the Regional Director
for Region 17, after being duly signed by Respondent
Union's representative, Jack Gray, shall be posted by Re-
spondent Union immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be tak-
en by Respondent Union to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Furnish the Regional Director for Region 17 signed
copies of the aforesaid notice for posting by Ramey, if will-
ing, at places where it customarily posts notices to its em-
ployees.
(f) Notify the Regional Director for Region 17, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent Union has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it here-
by is, dismissed insofar as it alleges unfair labor practices
not found herein.
21 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United Stated Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
93
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT institute or conduct disciplinary pro-
ceedings against members or others, or impose fines
upon them because they have crossed a union picket
line, or worked behind a picket line, after they have
resigned from membership in our union.
WE WILL NOT threaten to have any member or others
discharged or otherwise harmed in employment be-
cause they refuse to pay a strike assessment or any
other assessment to the Union.
WE WILL NOT attempt to cause Ramey Supermarkets
to discharge or otherwise discriminate against any em-
ployee because the employee does not pay a strike
assessment or any other assessment to the Union.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of their rights un-
der the National Labor Relations Act.
WE WILL, upon request, bargain collectively in good
faith with the designated representatives and agents of
Ramey Supermarkets, including Donald W. Jones, for
the terms and conditions of employment of the Ramey
employees that we represent.
WE WILL rescind the fines imposed upon John F.
Swinney, James Michael Schudy, David R. Stocker,
David Clark, Randall D. Allen, Robert Boyer, Sondra
Soutee, DyAnna Short, Lyndle Darrell and Blake Sim-
mons because they crossed the picket line of the
Union and worked in June 1974, after they had re-
signed from membership in the Union, and expunge
from the union records any reference to the discipli-
nary proceedings against them for crossing the picket
line and working at, that time.
WE WILL reimburse James Michael Schudy for the
strike assessment which he paid in response to the
union's demand.
RETAIL CLERKS INTERNATIONAL ASSOCIATION, AND
RETAIL STORE EMPLOYEES LOCAL 322