Retail Clerks Int'l Association, AFL-CIO, Etc.

National Labor Relations Board - Board Decisions

Jan 17, 1964

145 N.L.R.B. 1091 (N.L.R.B. 1964)

RETAIL CLERKS INT'L ASSOCIATION, AFL-CIO, ETC. 1091
WE WILL make whole Frank Mays and Charles H. Raye for any loss of pay
suffered because of the discrimination against them.
All our employees are free to become, remain , or refrain from becoming or re-
maining members of the above -named or any other union , except to the extent
that such right may be affected by an agreement requiring union membership as a
condition of employment as permitted by Section 8(a)(3) of the National Labor
Relations Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
CONTINENTAL MOTORS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-If any of the above-named employees should be currently serving in the
Armed Forces of the United States, we will notify him of his right to full reinstate-
ment after discharge from the Armed Forces , upon application in accordance with
the Selective Service Act and the Universal Military Training and Service Act of 1948.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Anyone having questions concerning this notice or compliance with its provisions
may communicate directly with the Board's Regional Office, Fifth Floor, Squibb
Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500.
Retail Clerks International Association , AFL-CIO, Retail Clerks
District Council No. 20, AFL-CIO, Local 635, Home Furnish-
ings Employees Union , R.C.I.A., AFL-CIO and J. W. Mays,
Inc. Case No. 2-CP-212. January 17, 1964
DECISION AND ORDER
On October 10, 1963, Trial Examiner Joseph I. Nachman issued
his Decision in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, Respondents and the General Coun-
sel filed exceptions to the Decision and supporting briefs and the
Charging Party filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision
and the entire record in this proceeding, including the exceptions and
briefs, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
145 NLRB No. 110.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.'
1 The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
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 Respondents , Retail Clerks International Association , AFL-CIO, Retail Clerks
District Council No. 20, AFL-CIO, Local 635 , Home Furnishings Employees Union,
R.C I.A., AFL-CIO, their respective officers , agents, representatives , successors, and
assigns, shall:
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The complaint herein heard by Trial Examiner Joseph I . Nachman at New York,
New York, on August 14, 1963,1 involves allegations that Retail Clerks Interna-
tional Association , AFL-CIO (herein called International ), Retail Clerks District
Council No. 20, AFL-CIO (herein called District Council), and Local 635, Home
Furnishings Employees Union, R.C.I.A., AFL-CIO (herein called Local 635, and
collectively with International and District Council called Respondents ), violated
Section 8(b) (7) (C) of the National Labor Relations Act (herein called the Act) .2
All parties were represented at the hearing by counsel , were afforded full oppor-
tunity to present evidence , to examine and cross-examine witnesses , and to argue
orally on the record. The General Counsel presented oral argument , which, to-
gether with the briefs filed by Respondents and the Charging Party, as noted above,
have been fully considered.
Upon the entire record , and from my observation of witnesses , I make the
following:
FINDINGS OF FACT 3
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
1. The distribution of literature and the subsequent picketing
J. W. Mays, Inc. (herein called Mays ), operates several retail stores in the
Brooklyn , New York, afea. The store involved in this proceeding occupies an entire
block bounded by Fulton Street on the north , Livingston Street on the south, Bond
Street on the west , and Hanover Place on the east. There is a customer entrance
from each of the streets into the building . There is an additional entrance on Bond
Street (hereafter called employee entrance ), which is located about 10 feet north
of the customer entrance , and about 50 feet south of Fulton Street , through which
Mays' nonsupervisory employees must, at all times, enter and leave the building .4
On or about February 5, Respondent District 20 and certain of its constituent
locals, including Respondent Local 635, began a campaign to organize Mays' em-
ployees. Initially the campaign took the form of distributing literature at the
employee entrance, together with authorization cards which the employees were
1 At the request of counsel for the Charging Party, the date for filing briefs was extended
several times. Briefs were ultimately received from the Charging Party on September 24,
and from the Respondents on September 25. Consideration of the case has been delayed
for that reason.
2 The charge was filed April 24 and served April 25; complaint issued May 27. All
dates mentioned herein are in 1963.
3 No issue of commerce or labor organization is presented. The complaint alleges and
the answer admits the facts necessary to support both elements . It was stipulated that
none of the Respondents , either individually or collectively , has been certified as the repre-
sentative of Mays ' employees, and that at no time material had any petition under Sec-
tion 9 ( c) of the Act been filed I find accordingly.
* Supervisory personnel must use the Hanover Place entrance when reporting for duty,
and the Fulton Street entrance when they leave for the day. At other times they may
enter and leave the building at any point they desire , and at such times they may and
trequently do use the employee entrance
RETAIL CLERKS INT'L ASSOCIATION, AFL-CIO, ETC. 1093
requested to sign .5 About February 20, Mays discharged a number of employees,
and on or about February 26, Local 635 filed a charge with the Board alleging such
discharges to have been discriminatorily motivated , and began picketing Mays'
premises . 6 The distribution of literature at the employee entrance also continued?
In picketing Mays' premises a number of different legends were used ; four or more
of the signs being used at a time. As the case turns, in my opinion , on the language
on the picket signs, I set forth each sign in full , except for the name of the Union.
They are as follows:
Mays Employees Mays Employees
Your Right to Join There is nothing to fear
Retail Clerk's But fear itself
Union AFL-CIO Join Join
Is protected by Join Retail Clerks
Federal Law
You are free men and
Women exercise your rights
Mays Employees
We were Fired
Trying to Help you
Don't let us down
Don't feel sorry for us
Join Retail Clerks Union
Join Join Join- Now
Shopping Public
Mays
Puts profit above
Human Dignity
They violate the Law
To keep their employees
Living in Fear
They fired us for
Joining the Retail Clerks
Mays Employees
Mays ignores its
Employees guaranteed
Democratic rights to be
Represented by Retail Clerks
Come out of the dark ages
Into the 20th century where
Human dignity prevails
Join , Join, Join the AFL-CIO
Mays is 100% non-union
Is using Union busting tactics
To keep its employees from
Joining Retail Clerks Union .8
c The format of the literature so distributed changed from time to time , apparently each
week. This literature is purchased from International by its locals and is used as the
locals see fit. The authorization cards distributed with the literature also varied in that
some authorized Local 635 to act as bargaining agent, and bore the return address of
that local , while others designated the International "or its chartered Local" as such
agent, and bore a return address to the International at its New York City office, which is
the same as the address for Local 635. This, and the fact that the literature was ob-
tained from International , are factors , among others , relied upon by the General Counsel
and the Charging Party to show the responsibility of International for the picketing here-
after referred to.
O The charge so filed by Local 635 and which was thereafter amended , was assigned
Case No. 2-CA-9142. In due course a complaint issued thereon, a hearing was held
before Trial Examiner Sherman, but his decision in that case has not yet issued [147
NLRB No. 104].
7 Although the record is not clear on the point, the picketing and handbilling is appar-
ently continuing at present because there are references in the evidence to picketing after
April 18. The General Counsel's complaint , however, is limited to the period from "on or
about February 27, 1963 , until on or about April 18, 1963 . .. . " Accordingly, the find-
ings herein are confined to the period alleged in the complaint.
8 D'Angelo, business agent of Respondent Local 635 , who drafted the picket signs and
was in charge of the picketing, admitted the accuracy of all the above signs except the last
one that I have set forth, and with respect to that sign he said he was "not sure."
Marie Gambino , who is in charge of Mays' force of women store detectives, testified that
she saw the last quoted sign in use in the picketing of Mays during the relevant period.
I credit her statement because I regard it as not having been denied by D'Angelo.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D'Angelo admitted that such picketing was conducted each business day during store
hours, namely from 9:30 a.m . to 6:15 p .m., extending to 9:30 p .m. on Mondays and
Thursdays.9
2. Responsibility for the picketing
Respondents Local 635 and District Council admit that they authorized, con-
ducted, and are fully responsible for the picketing of Mays. The General Counsel
and the Charging Party contend that International is also responsible for such picket-
ing. This, International denies. The facts bearing on that issue , to the extent that
they have not been referred to above, are as follows: International maintains an
office in the New York City area. This office is in charge of Earl McDavid, a fifth
vice president of International , and who also has the title of director of organization
in the Metropolitan New York division , and as such supervises a staff of International
representatives assigned to his division . These International representatives make
written reports each week to McDavid concerning their activity during the preced-
ing week. McDavid 's office is in the same suite where District 20, Local 635, and
other locals chartered by International , occupy space . McDavid has been kept
informed of the organizational activities at Mays , virtually from the inception of
such activities . He discussed that subject from time to time with D'Angelo and
representatives of the other unions engaged in the organizational campaign at Mays.
In late February or early March , at D'Angelo 's request for assistance , McDavid
assigned two men ( Tuohey and Zaretsky ), from his staff of International representa-
tives, to assist in the campaign against Mays . The only instructions Tuohey and
Zaretsky received from McDavid was to work with the locals involved. D'Angelo
admits that the two International representatives gave out circulars at Mays, and
from time to time watched the picket line "to see that the boys picketed." On
March 28, at the request of Local 1601 , 10 McDavid recommended to International
President Sufferage that International subsidize the campaign against Mays by paying
one-half of the expense of the picketing , up to $250 a week. By letter dated April 4,
the International approved McDavid's recommendation . McDavid admitted that
he received weekly reports from Tuohey and Zaretsky during the relevant period; 11
and that he took no steps to bring about any changes in the picket signs.
3. Conclusionary findings
I find and conclude that the picketing involved here , which began on or about
February 26, and so far as the complaint in this case is concerned , terminated on
April 18, was violative of Section 8(b)(7)(C ). The only element necessary to
establish a violation in this case ,12 is that an object of the picketing was organizational.
The language on the picket signs leaves no doubt with respect to that question.
Respondents contend that the only purpose of the picketing was to protest Mays'
alleged discriminatory discharge of some of its employees , and to appeal to the public
not to patronize Mays because of its alleged unfair labor practices . However, of
the eight picket signs used , five are addressed specifically to Mays' employees (not to
the public ), and urge them to join Retail Clerks. They make no mention of alleged
unfair labor practices by Mays, nor do they appeal to the public in any way. Of
the three remaining signs, only one can be regarded as a strictly limited appeal to
the shopping public; the other two containing some organizational overtones. The
picketing with signs above set forth , having been admittedly conducted at the cus-
6 There is a conflict in the evidence as whether any picketing took place at the employee
entrance . D'Angelo testified picketing was strictly confined to the customer entrances,
and that the activity at the employee entrance was always limited to the distribution of
literature and authorization cards Witnesses Kromash and Gambino , supervisory em-
ployees of Mays, both testified that the persons distributing literature at the employee
entrance were wearing picket signs while so engaged , and that one of the persons who
did so was D'Angelo. In my view if the case , the legends on the picket signs makes it
unnecessary to resolve this conflict.
io Local 1601 is not a party to this proceeding . It is a member of District Council, and
is one of the locals participating the campaign against Mays
11 Such reports were not offered in evidence by Respondents . It is reasonable to assume
from this , absent contrary evidence , that Tuohey and Zaretsky reported to McDavid con-
cerning their activities in connection with the campaign against Mays , and concerning
the general conduct of the organizational campaign against that employer.
12 That Respondents are labor organizations ; the fact of the picketing for more than
30 days ; the absence of a certification ; and that no petition was filed during the material
period, are stipulated facts
RETAIL CLERKS INT'L ASSOCIATION, AFL-CIO, ETC. 1095
tomer entrance on Bond Street, only 10 feet away from the employee entrance,
and admittedly at times when the employees were reporting to and leaving the store,
must necessarily have been directed to and observed by Mays' employees. Accord-
ingly, on the foregoing facts, and in view of the admitted organizational objective
prior to the picketing, I find and conclude that an object of the picketing in this
case was to force or require the employees of Mays to accept or select Respondents,
or one of them, as their collective-bargaining representative, and hence was violative
of Section 8(b)(7)(C). That there may have been one or more additional objects
of the picketing, is immaterial. The violation is complete if an object was, as I have
found it to have been, organizational.
I further find and conclude that Respondent International is responsible, along
with Respondents Local 635 and District 20, for the aforementioned picketing. The
assignment of two International representatives to this project, who participated in
the picketing and according to D'Angelo saw that the pickets performed their duties,
plus the advancement of funds to pay the pickets after receiving McDavid's report
on the situation, constitutes participation by International in the picketing to a
sufficient extent to make the latter liable for the picketing, either as agent of, or as
joint principal with Respondents Local 635 and District Council. Fruit & Vegetable
Packers & Warehousemen, Locai 760, et al. (Three Fruits Labor Relations Com-
mittee, Inc.), 132 NLRB 1172, 1178.
Respondents also contend that their conduct as found above, was no more than
a "plea" to Mays' employees to join the Union, and did not amount to a "forcing or
requiring" said employees to take any course of action. This contention is without
merit. The objective of Respondents' picketing from on or about February 26 to on
or about April 18, could have been satisfied only in one of two ways; the employees
joining the Union in order to get relief from the picketing, or Mays, for the same
reason, insisting that its employees become members of the Union. Either way the
statutory element of "forcing or requiring," is clearly satisfied.13
Upon the basis of the foregoing findings of fact, I make the following:
B. Conclusions of law
1. Mays is an employer within the meaning of Sections 2(2) and 8 (b)(7) of the
Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Respondents are labor organizations within the meaning of Section 2(5) of
the Act.
3. At no time material have Respondents , or any of them , been certified as the
collective -bargaining representative of the employees of Mays.
4. By picketing Mays for more than 30 days without filing a petition for an
election , with an object of forcing or requiring the employees of Mays to accept
or select Respondents , or one of them, as their collective-bargaining representative,
Respondents have engaged in unfair labor practices within the meaning of Section
8(b)(7)(C) of the Act.
"Respondents raise additional defenses which are plainly without merit and require no
extended discussion. They contend (1) If Section 8(b) (7) (C) is construed as proscribing
Respondents' conduct, it is void as an abridgment of the first amendment to the Consti-
tion; (2) that Respondents' conduct was motivated by and resulted from Mays' dis-
criminatory discharge of employees, and that Mays should not be permitted to benefit
from its unlawful conduct; and (3) that Respondents' conduct having ceased, the matter
is moot, and no relief should be granted. As to (1) the Board assumes the constitution-
ality of the statute under which it operates, until the contrary is authoritatively deter-
mined. Quest-Shon Mark Brassiere Co, Inc, 80 NLRB 1149; Milk Drivers and Dairy
Employees Union, Local No. 546, International Brotherhood of Teamsters. etc. (Minnesota
Milk Company), 133 NLRB 1314. As to (2) the adage that two wrongs never make a
right, applies in full force. International Hod Carriers' Building and Common Laborers'
Union of America, Local 840, AFL-CIO (C. A. Blinne Construction Company), 135 NLRB
1153, 1167-1168. See also Plumbers Union of Nassau County, Local 457, United Associa-
tion of Journeymen and Apprentices of the Plumbing and Pipeftting Industry of the
United States and Canada, AFL-CIO (Bomat Plumbing and Heating), 131 NLRB 1243,
1246, where the Board held that one unfair labor practice does not excuse another, or
permit "resort to unfair labor practices in justification or excuse." As to (3) decisions
of the Board are very clear that discontinuance of unfair labor practices does not dis-
sipate their effect, nor does it obviate the need for a remedial order. See Chefs, Cooks,
Pastry Cooks and Assistants, Local 89, Hotel and Restaurant Employees Union, AFL-CIO;
et al. (Stork Restaurant, Inc.), 130 NLRB 543, 546; United Mine Workers of America
and District 30, etc. (Blue Diamond Coal Company), 143 NLRB 795.
1096 DECISIONS OF NATIONAL LABOR" RELATIONS BOARD
5. Respondents' aforesaid unfair labor practices 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 , and affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE REMEDY
Having found that Respondents engaged in certain unfair labor practices in viola-
tion of Section 8(b)(7)(C) of the Act, I shall recommend that they be required
to cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case, pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that the Respondents, Retail Clerks
International Association, AFL-CIO, Retail Clerks District Council No. 20, AFL-
CIO, and Local 635, Home Furnishings Employees Union, R.C.I.A., AFL-CIO,
their respective officers, agents, representatives, successors , and assigns , shall:
1. Cease and desist from picketing or causing J. W. Mays, Inc., to be picketed,
where an object thereof is forcing or requiring the employees of J.W. Mays, Inc.,
to accept or select any uncertified labor organization as their collective-bargaining
representative, in violation of Section 8(b)(7)(C) of the Act.
2. Take the following affirmative action which I find necessary to effectuate the
policies of the Act:
(a) Post at their respective business offices and meeting halls, if any, within the
city of New York, New York, copies of the attached notice marked "Appendix." 14
Copies of said notice, to be furnished by the Regional Director for the Second Region,
shall, after being duly signed by an authorized representative of said Respondent,
be posted by each Respondent immediately upon their receipt, and be maintained by
each Respondent for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are customarily posted. Reasonable
steps shall be taken by each Respondent to insure that the notices posted by it are
not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Second Region of the Board signed
copies of the aforementioned notice for posting by J. W. Mays, Inc., the latter being
willing, in conspicuous places, including all places where notices to its employees
are customarily posted. Copies of said notice, to be furnished by the aforesaid
Regional Director, shall, after being signed by each Respondent, as indicated, be
forthwith returnable to said Regional Director for disposition by him.
(c) Notify the Regional Director for the Second Region, in writing, within 20
days from the date of this Decision and Recommended Order, what steps they have
taken to comply herewith.15
1s In the event that this Recommended Order shall be adopted by the Board the words
"A Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order"
151n the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps they have taken to comply herewith."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF J. W. MAYS, INC.
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT picket or cause J. W. Mays, Inc., to be picketed, where an
object thereof is forcing or requiring the employees of J. W. Mays, Inc., to
accept or select any uncertified labor organization as their collective-bargaining
LOCAL 283, UNITED AUTOMOBILE, AIRCRAFT, ETC. 1097
representative , in violation of Section 8(b)(7)(C) of the National Labor
Relations Act, as amended.
RETAIL CLERKS INTERNATIONAL
ASSOCIATION, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
RETAIL CLERKS DISTRICT COUNCIL
No. 20, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
LOCAL 635, HOME FURNISHINGS EMPLOYEES
UNION, R.C.I.A., AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Fifth
Floor , Squibb Building , 745 Fifth Avenue , New York, New York, Telephone No.
751-5500, if they have any questions concerning this notice or compliance with its
provisions.
Local 283, United Automobile , Aircraft and Agricultural Imple-
ment Workers of America , UAW-AFL-CIO [Wisconsin Motor
Corporation ] and Russell Scofield , Lawrence Hansen, Emil
Stefanec, George Kozbiel . Cases Nos. 13-CB-1059-1, 13-CB-
1059-2, 13-CB-1059-3, and 13-CB-1059-4. January 17, 1964
DECISION AND ORDER
On June 7, 1962, Trial Examiner A. Norman Somers issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed, as
set forth in the attached Intermediate Report. Thereafter, the Gen-
eral Counsel and the Charging Parties filed exceptions to the Interme-
diate Report and briefs in support of their exceptions.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions.
The facts in this case are fully set forth in the Intermediate Report
and will only briefly be touched upon here.
The Respondent Union, whose membership is restricted to employees
of the Company, has been the bargaining representative of the Com-
pany's employees since 1937. Its present contract, like earlier ones,
145 NLRB No. 109.