Retail Clerks Store Employees Union Local 1407

National Labor Relations Board - Board Decisions

Dec 9, 1974

215 N.L.R.B. 410 (N.L.R.B. 1974)

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Clerks Store Employees Union Local 1407, as
chartered by Retail Clerks International Associa-
tion, AFL-CIO and J. M. Batter Co ., Inc., d/b/a
Jaison 's. Case 6-CP-269
December 9, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
Upon, charges. duly filed on April 30, 1974, as
amended on June 4, 1974, by J. M. Balter Co., Inc.,
d/b/a Jaison's, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 6, issued a complaint and notice of hearing
dated June 14, 1974, against Respondent Retail Clerks
Store Employees Union Local 1407. The complaint
alleges that the Respondent Union has engaged in and
is engaging in unfair labor practices within the meaning
of Section 8(b)(7)(C) and Section 2(6) and (7) of the
Act.
On July 17, 1974, the parties to this proceeding en-
tered into a stipulation of facts, in which they agreed
that the stipulation of facts and certain other docu-
ments, copies of which were attached thereto and made
a part thereof, constitute the entire record in this pro-
ceeding. The parties also waived a hearing before an
Administrative Law Judge, and the issuance of an Ad-
ministrative Law Judge's decision. On July 25, 1974,
the Board issued an order approving stipulation and
transferring proceeding to the Board for findings of
fact, conclusions of law, and the issuance of an appro-
priate Decision and Order.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
FINDINGS OF FACT
I JURISDICTION
J. M. Balter Co., Inc., d/b/a Jaison's, the Charging
Party herein, is a Pennsylvania corporation engaged in
the retail merchandising industry. It maintains various
retail stores in Allegheny County, Pennsylvania. More
particularly, Jaison's operates retail stores located in
Braddock, Monroeville, McKeesport, and Pleasant
Hills, Pennsylvania. During the proceding 12-month
period, Jaison's has sold and distributed products, the
gross value of which exceeded $500,000, and has pur-
chased goods and materials valued in excess of $50,000
from points directly outside the Commonwealth of
Pennsylvania for use within the said Commonwealth.
Accordingly, we find that Jaison 's is, and at all times
material herein has been, an employer engaged in com-
merce and operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act, and that it
will effectuate the purposes of the Act to assert jurisdic-
tion herein.
11 THE LABOR ORGANIZATION INVOLVED
Respondent Union is , and at all times material
herein has been , a labor organization within the mean-
ing of Section 2(2) of the Act.
III THE UNFAIR LABOR PRACTICE
A. Facts
The complaint herein alleges that the Respondent
Union has, since April 22, 1974, picketed Jaison's
several retail stores in furtherance of its demand for
recognition as the collective-bargaining representative
of Jaison's employees; that such picketing has con-
tinued for more than 30 days without a petition for an
election having been filed under Section 9(c) of the Act;
that the Respondent Union is not currently certified as
the bargaining representative of Jaison's employees;
and therefore that by the aforesaid conduct the Re-
spondent Union has violated Section 8(b)(7)(C) of the
Act.
On August 13, 1973, the Respondent Union filed a
petition seeking to represent employees of Jaison's
Pleasant Hills, Pennsylvania, store, otherwise known as
the Southland store. Contemporaneously, a charge was
filed against Jaison's alleging violations of Section
8(a)(1), (3), and (5) of the Act, involving employees at
the Southland store. Accordingly, processing of the
aforementioned petition was held in abeyance.
On October 29, 1973, the aforesaid charge was
amended to delete the allegation that Jaison's violated
Section 8(a)(5) of the Act, and the Respondent Union
signed a "Request to Proceed" with the representation
case.'
Notwithstanding the fact that only a unit comprising
Jaison's Southland store employees was sought in its
petition, the Respondent Union, on November 15,
1973, executed a stipulation for certification upon con-
sent election covering employees at all four of Jaison's
stores. Accordingly, the Respondent Union was given
time to submit additional authorization cards evidenc-
ing employees' showing of interest in the broadened
unit. The Respondent Union failed to submit such ad-
ditional cards and, on November 27, 1973, requested
' As more fully set forth hereinafter, the Board, on June 24, 1974, issued
its Decision and Order (212 NLRB 1) finding that Jaison's violated Sec.
8(a)(1) and (3) of the Act
215 NLRB No 77
RETAIL CLERKS STORE EMPLOYEES UNION LOCAL 1407
that it be allowed to withdraw its petition. The Re-
gional Director approved this request.
On November 30, 1973, 3 days later, the Respondent
Union again filed a petition seeking to represent Jai-
son's Southland store employees. On April 15, 1974,
the Regional Director issued a Decision and Order
dismissing the aforementioned petition. In his decision,
the Regional Director held, inter alia, that the pre-
sumption that a single-store unit is appropriate has in
this case been effectively rebutted and, therefore, that
a unit confined to Jaison's Southland store, as sought
by the Respondent Union's new petition, would be
inappropriate. Accordingly, as the Union made no al-
ternative unit request, the Regional Director granted
Jaison's motion to dismiss the petition. The Respond-
ent Union did not file a request for review of the afore-
mentioned decision.
Meanwhile, on February 22, 1974, an Administra-
tive Law Judge issued his Decision in the complaint
case against Jaison's, heretofore mentioned. In his
Decision, which we subsequently adopted,' the Ad-
ministrative Law Judge found that Jaison's had unlaw-
fully discharged a known union adherent who was the
principal participant in the Union 's organizing cam-
paign; had unlawfully interrogated and threatened em-
ployees; had suggested that employees might have en-
joyed greater benefits were it not for the Union; and
had given employees the impression that they were
under survillance. Furhter, on February 25, 1974, the
Respondent Union again filed a charge, alleging that
Jaison's had unlawfully refused to bargain with the
Union as the representative of employees "in an appro-
priate unit" at the Southland store.
Commencing on April 22, 1974, while the refusal-to-
bargain charge against Jaison's was still pending before
the Regional Director, and continuing to June 17,
1974, the Respondent Union picketed Jaison's South-
land store during that store's regular business hours.
During the picketing, individuals acting on behalf of
the Respondent Union made verbal appeals to the con-
suming public not to do business with Jaison's because
of certain alleged unfair labor practices committed by
the latter and because of its refusal to recognize and
bargain with the Respondent Union. Contemporane-
ously, these individuals distributed handbills to mem-
bers of the consuming public, variously seeking their
support and asserting that Jaison's has violated the
rights of employees because the latter wished to im-
prove their status through collective bargaining. One
such handbill was a copy of the recommended Order of
the Administrative Law Judge in the aforementioned
unfair labor practice case, which was ultimately
adopted by the Board on June 24, 1974.
2 212 NLRB 1.
411
In addition to the foregoing picketing which oc-
curred at the Southland store during a period substan-
tially in excess of 30 days, the Respondent Union also
picketed, in identical fashion, Jaison's stores located in
McKeesport, Braddock, and Monroeville, Pennsyl-
vania. Such picketing, however, was exceedingly brief,
occurring at McKeesport for a 2-hour period on May
21, at Braddock for 2 hours on May 23, and at Monroe-
ville for 3 hours on the 24th.
Approximately I week after picketing began at the
Southland store, the Regional Director, by letter dated
April 30, 1974, informed the Respondent Union that he
would not issue a complaint based on the 8(a)(5) allega-
tions contained in the Union's charge, which was filed
on February 25, "inasmuch as the single-store unit for
which you seek recognition constitutes an inappropri-
ate unit."
The Respondent Union appealed the decision of the
Regional Director. In its May 16 letter to the General
Counsel, the Union alluded to the unfair labor practices
found by the Administrative Law Judge to have been
committed by Jaison's at each of its four locations, as
aforementioned, and asserted that, by engaging in such
conduct, organizational efforts have been made "im-
possible." The Union further stated:
The Regional Director ruled that a one-store unit
is inappropriate in this case and that only a four-
store unit would be appropriate. It is the position
of the [Union] that the Employer should be re-
quired to bargain with the union at all four of its
locations because of the destructive effect the em-
ployer's conduct has had on organizational efforts.
The [Union] does not, therefore seek recogni-
tion in a single store unit as suggested by the Re-
gional Director in his dismissal letter.
On May 31, 1974, the General Counsel denied the
Union's appeal, stating, inter alia:
Insofar as your appeal suggests that the unit
sought herein encompassed all four of the Com-
pany's stores rather than only its Southland store,
and notwithstanding certain 8(a)(1) conduct on
the part of the Company affecting all four stores,
it could not be said that a bargaining order was
thereby warranted inasmuch as no evidence was
adduced nor was it even contended that a timely
bargaining demand had been made or majority
status claimed concerning employees in any unit
of Company employees other than those in the
Southland store unit which the Regional Director
found inappropriate.
The Respondent Union concedes that an object of its
picketing at all the stores in question was to force or
require Jaison's to recognize or bargain with the Union
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the representative of Jaison's employees to force or
require those employees to accept or select it as their
collective-bargaining representative at those stores,
notwithstanding that the Union lacks certification as
the representative of Jaison's employees.
B. Contentions of the Parties
Based on the above facts, the General Counsel con-
tends that the Respondent Union violated Section
8(b)(7)(C) of the Act not only by picketing the South-
land store, which the Union concedes, but also by its
brief picketing at Jaison's three remaining stores. In
this respect, the General Counsel argues that the pick-
eting at the three remaining locations is no less violative
of the Act simply because such picketing was of short
duration and would not itself have run afoul of the
30-day provision contained in Section 8(b)(7)(C) of the
Act. Accordingly, the General Counsel argues that an
appropriate remedy in this case would be to enjoin
further picketing at all of the aforementioned locations.
As previously stated, the Respondent Union con-
cedes that it violated Section 8(b)(7)(C) of the Act by
its picketing at the Southland store. However, it main-
tains that an order requiring a cessation of picketing
should be limited to that store alone. In support of its
position, the Union argues that employees at each of
the Employer's stores are entitled to a 30-day period of
exposure to the Union's "message ," conveyed by the
picketing, and further, that in this case it lacked the
manpower to undertake simultaneous picketing at all
four of Jaison's stores . Accordingly, the Union con-
tends that the Board should not prohibit picketing at
Jaison's Braddock, Monroeville, and McKeesport
stores until such time as it has had an opportunity to
engage in organizational picketing for a period not to
exceed 30 days at each of those locations.
C. Conclusions
We hold, in agreement with the General Counsel,
that the Respondent Union violated Section 8 (b)(7)(C)
of the Act, not only by its picketing at the Southland
store , which the Respondent Union concedes , but also
by its picketing at the three remaining locations.
The Union , however, would have us restrict our find-
ings of unlawful conduct to the single location at which
picketing occurred for a period in excess of 30 days. We
find its arguments unpersuasive . It does not suggest
that separate questions concerning representation are
raised by the picketing at each of the locations. Indeed,
the Respondent Union admits that the picketing at all
four stores was for a single recognitional object encom-
passing all locations . The Union argues simply that the
Act assures employees at each of the aforementioned
locations the opportunity to receive the Union's "mes-
sage" for a period of 30 days. The fault in this argument
lies in the Union's failure to distinguish between the
basic right of Jaison's employees to be apprised of the
advantages of collective bargaining, which Section
8(b)(7)(C) does not limit, and the right of the Union to
engage in picketing for the purpose of forcing or requir-
ing Jaison's to recognize or bargain with it, or of forcing
or requiring Jaison's employees to accept or select it as
their collective-bargaining representative, which that
section of the Act does limit, in clear terms, to a period
not to exceed 30 days' duration. In sum, that section
does not grant a right but limits one. We do not ignore
this limitation simply because a single question con-
cerning representation ranges over a number of geo-
graphical locations.' To do so here, as the Union sug-
gests, would not only do violence to the clear language
of that section, which establishes 30 days as an "outside
limitation" on the time deemed reasonable for the kind
of picketing dealt with therein,' but would also sub-
vert the legislative purpose in enacting Section
8(b)(7)(C); namely, to encourage prompt resort to the
Board's election machinery, rather than protracted
picketing, as the method for resolving questions con-
cerning representation.'
Accordingly, we find that the Respondent Union not
only violated Section 8(b)(7)(C) by picketing Jaison's
Southland store, as admitted, but also, by engaging in
identical or similar picketing for the same object at
Jaison's Braddock, Monroeville, and McKeesport
stores.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
The activities of the Respondent Union set forth in
section III, above, occurring in connection with Jai-
son's operations described in section I, above, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow thereof.
V. THE REMEDY
It having been found that the Respondent Union has
engaged in certain unfair labor practices, we shall order
that the Respondent Union cease and desist therefrom
and take certain affirmative action deemed necessary to
effectuate the policies of the Act.
3 Los Angeles Building and Construction Trades Council, AFL-CIO
(Church's Fried Chicken, Inc., et al.), 183 NLRB 1032, 1038 (1970).
4 District 65, Retail, Wholesale & Department Store Union, AFL-CIO
(Eastern Camera & Photo Corp.), 141 NLRB 991, 999-1000 (1963).
5 Dayton Typographical Union No. 57 v. N.L.R.B., 326 F.2d 634,
636-637 (C.A.D.C., 1963).
RETAIL CLERKS STORE EMPLOYEES UNION LOCAL 1407 413
CONCLUSIONS OF LAW
1. J. M. Baiter Co., Inc., d/b/a Jaison's, is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Retail Clerks Store Employees Union Local 1407,
as chartered by Retail Clerks International Associa-
tion, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By picketing Jaison's Southland store from April
22 to June 17, 1974, its McKeesport store on May 21,
its Braddock store on May 23, and its Monroeville store
on May 24, 1974, with an object of forcing or requiring
Jaison's to recognize and bargain collectively with the
Respondent Union as the representative of its em-
ployees and with an object of forcing or requiring the
employees of Jaison's to accept or select the Respond-
ent Union as their collective-bargaining representative,
although the Respondent Union has not been certified
as the representative of any such employees and has
not, within 30 days after the commencement of such
picketing, filed a petition under Section 9(c) of the Act,
the Respondent Union has committed unfair labor
practices within the meaning of Section 8(b)(7)(C) of
the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
agreement with it, or to force or require Jaison's em-
ployees to accept or select the Respondent Union as
their collective-bargaining representative in circum-
stances prohibited by Section 8(b)(7)(C) of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix."6
Copies of said notice, on forms provided by the Re-
gional Director for Region 6, after being duly signed
by an authorized representative, shall be posted by
it immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where no-
tices to members are customarily posted. Reason-
able steps shall be taken by the Respondent Union
to insure that said notices are not altered, defaced,
or covered by any other material.
(b) The Respondent Union shall transmit to the Re-
gional Director for Region 6 signed copies of the said
notice for posting by Jaison's, said company being will-
ing, in places where notices to its employees are cus-
tomarily posted.
(c) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps the Respondent Union has taken to comply
herewith.
APPENDIX
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent , Retail
Clerks Store Employees Union Local 1407, as chart-
ered by Retail Clerks International Association,
AFL-CIO, Pittsburgh, Pennsylvania , its officers,
agents , and representatives , shall:
1. Cease and desist from picketing or causing to be
picketed or threatening to picket J. M. Balter Co., Inc.,
d/b/a Jaison 's, at its Southland, McKeesport, Brad-
dock , or Monroeville stores, where an object thereof is
to force or require the said Company to enter into an
6 In the event that this 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 States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, under any conditions prohibited
under Section 8(b)(7)(C) of the National Labor
Relations Act, picket, cause to be picketed, or
threaten to picket Jaison's Southland, McKees-
port, Braddock, or Monroeville stores, where an
object thereof is to force or require said Company
to enter into a labor agreement with us, or to force
or require Jaison's employees to accept or select us
as their collective-bargaining representative.
RETAIL CLERKS STORE EMPLOYEES
UNION LOCAL 1407, AS
CHARTERED BY RETAIL CLERKS
INTERNATIONAL ASSOCIATION,
AFL-CIO