Retail Clerks Union Local 1364

National Labor Relations Board - Board Decisions

Mar 2, 1979

240 N.L.R.B. 1127 (N.L.R.B. 1979)

RETAIL CLERKS UNION LOCAL 1364 1127
Retail Clerks Union Local 1364. Retail Clerks Inter-
national Association, AFL-CIO; Retail Clerks
Union Local 17, Retail Clerks International Associ-
ation, AFL-CIO and Food Employers Council, Inc.
Case 20-CB-4477
March 2. 1979
DECISION AND ORDER
On June 27, 1978, Administrative Law Judge Ber-
nard J. Seff issued the attached Decision in this pro-
ceeding. Thereafter, Respondent Local 1364 and Re-
spondent Local 17 each filed exceptions and a
supporting brief, and the General Counsel and the
Charging Party each filed an answering brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings. findings. and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
The Administrative l.aw Judge. on the facts set
forth in substantial detail in his Decision. concluded
that Respondent Locals 1364 and 17 of the Retail
Clerks violated Section 8(b)(1)(A) of the Act by fin-
ing members in contravention of an amnesty agree-
ment with the Food Employers Council. The issues
are whether Locals 1364 and 17 entered into and are
bound by the amnesty provision and whether fining
their members, contrary to the amnesty provision. vi-
olates the Act. For the reasons set forth by the Ad-
ministrative Law Judge. as amplified below, we find
that Respondent Locals did violate Section
8(b)(I)(A) of the Act.
From April 9 to April 22, 1977. Local 115 of the
Butchers, which was negotiating for a new collective-
bargaining agreement. struck various emplover-
members of the Food Employers Council. The Val-
ley Clerks Joint Council and the Retail Clerks locals
involved herein sanctioned the strike, meaning that
clerks members in the struck stores were expected to
honor Butchers picket lines. As a result, at least 500
600 members of Locals 1364 and 17 remained off the
job.2 A few months after the end of the strike. .ocals
1364 and 17 brought charges against a number of
their members for crossing the picket lines and as-
sessed fines ranging from $40 to $990 against 39
members. In contrast only about 100 Butchers mem-
I he Administratise Law Judges tatemcnl that the lo.ls' .iti lle llia
,iilated Sec 8bh(h3 of the Act was in error. is hat lleillon hJd been
amended out of the complaint On Jul 7. 1978. the Adlnlitrall I. ,
Judge issued an rrwoit deleting all reference I1 Sec 8ib(
t
Neilher the
recot mmended Order nor notice I. io e .t.[ fected
I he Clerks collective-hargeaining agreement co nc linr ed l e cept llIl l
the n-strike prosision IIo pernillt menhers Ito honll ffiiIlI, IsaICIIIl. ti
pickei liles such ais inll ed hcrein.
240 NLRB No. 132
hers were on strike and, so far as the record shows,
no Butchers members crossed picket lines.
On April 20. 1977. the Butchers and the Food Em-
ployers Council met with Federal mediators to settle
the Butchers strike, which had been joined by the
Retail Clerks. Leonard L.ovd, president of Clerks Lo-
cal 17. and Robert Koenig. president of Local 1364.
were present. Attorney Robert Cowell. at the request
of Koenig. also attended. Cowell, whose firm repre-
sents the Retail Clerks International Association.
AFI ('IO. in northern California. testified that he
attended as a "biased mediator." John Bacon, vice
president of the Food Employers Council, testified
that (owell acted as chief negotiator for the Unions.
Whatever his status at this bargaining session. Cowell
did not inform the others present of it or of any limi-
tation under which he was acting. Although out-
standing bargaining issues were narrowed or defined,
no settlement was reached at that meeting.
On April 22. 1977. Cowell and Bacon were at a
Retail lerks trust fund meeting when Jack Loveall.
a vice president of the Retail Clerks International
Association. asked them to go with him to a Butchers
meeting some 20 miles away to try to settle the strike.
Once at the meeting. Bacon and Cowell became ac-
tively involved in the negotiations and eventually ef-
fectuated an agreement acceptable to the Butchers
and the Food Employers Council. One item of the
settlement was a two-wav amnesty agreement: i.e.,
an agreement that neither the employers nor the
linions would bring disciplinar action against em-
ploees for an, strike-related conduct. Bacon pro-
posed the amnesty provision because, as he told Co-
well, he wanted to avoid a repeat of the substantial
liti onatior which arose from a similar strike in 1973 3
and because one employer wanted to discipline some
Retail Clerks members for what he believed to be
picket line misconduct. The settlement agreement.
which consisted of five brief items noted on a sheet
of ellow legal paper, was written by Bacon, with
clarifications not involving amnesty added by Co-
well. This handwritten settlement agreement was
signed b representatives of the Butchers and the
Foods Employers Council. by Cowell as "Attv Retail
Clerks," and by ILovd and Loveall without notation.
Although Koenig did not sign, he told only Cowell of
his refusal. As a result of this settlement agreement.
the strike ended. 100 Butchers and over 500 Retail
Clerks members returned to work, and the Butchers
signed a bargaining agreement with the Food Em-
plovers Council.
Obviously the Retail Clerks is not bound b the
l)iiri L 19'3 trike hI l Butchliers a i nimher of lerks. fromnt l a.ls
ilthlc l li tlhoseac ins oIl.ed herein. croiedl offilclall sanctioned picket lines
I hel , ere lter fined h tlie (Ilerk local i hed. ( Cell's las firm repre-
setlltei tC ( lks 1 the I tllII li lIIllll
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Butchers bargaining agreement. However, as ex-
plained below, we find that the Retail Clerks is
bound to the amnesty provision as a separate or an-
cillary agreement, on the basis of Cowell's actions, as
well as those of Loyd and Loveall. the intent of the
provision, the Clerks interest in the provision, and
the Food Employers Council's compliance with, and
Clerks benefits from, the provision. There is no indi-
cation in the record that the Butchers would benefit
from the amnesty accord, as no member of the
Butchers crossed the picket lines and none was ac-
cused of picket line misconduct. The record does,
however, show that the amnesty provision was in-
tended to apply to the Retail Clerks. Retail Clerks
members were the only employees who crossed pick-
et lines and the only employees accused of picket line
misconduct. Bacon, with the Retail Clerks in mind,
proposed the provision to avoid a recurrence of the
1973 problems. He testified that the only people in-
volved with amnesty were the Retail Clerks. W. Rob-
ert Vallon of the Good Employers Council testified
that no Butchers crossed the picket lines and that
Loveall had told him amnesty applied to the Retail
Clerks, and Cowell testified that amnesty did not
mean a thing to the Butchers.
Pursuant to the amnesty provision, no employer-
member of the Food Employer C'ouncil took any ac-
tion against any employee with regard to the
employee's strike-related activity. In fact, Bacon ad-
vised employers that they could not lawfully do so.
In addition, the Retail Clerks Locals were vitally in-
terested in settling the strike. Once the strike was
sanctioned, the Retail Clerks had over five times as
many members out of work in support of the strike
as did the Butchers. The Retail Clerks was also con-
cerned that the strike might spread. involving an
even greater number of its members. Whether the
strike could have been settled without the amnesty
provision is conjectural and not before us. 'The facts
are that amnesty was an integral part of the settle-
ment agreement, and that the agreement settled the
strike permitting over 500 Retail Clerks members to
return to work. Thus, the Retail Clerks not only ben-
efited from the amnesty itself but also from the part
it played in settling the strike.
It was in the above context that the settlement
agreement, of which two-way amnesty was an inte-
gral part, was signed by Loveall and Loyd without
restriction and by Cowell as Atty Retail Clerks."
Cowell, whose law firm was known by everyone in-
volved to have represented over several years various
levels of the Retail Clerks organization, including the
Locals herein involved, was a principal negotiator in
securing the settlement agreement. At the April 20
meeting, although both Loyd and Koenig were pres-
ent, Cowell acted as spokesman for the Unions, and
at the April 22 session Cowell and Bacon were the
primary negotiators. Despite his open, active role in
the negotiations and his close association with the
Retail Clerks. Cowell never told anyone that he was
acting merely as a "biased mediator" or in any other
limited capacity. Thus. as found by the Administra-
tive law Judge, Cowell had apparent, if not actual.
authority to bind the Retail Clerks Locals to the am-
nesty provision. Although the amnesty provision was
reached through collective-bargaining between the
Butchers and the Employer in which the Retail
Clerks played a pivotal role, the provision cannot be
considered a separate collective-bargaining agree-
ment in the normal meaning of the term. Neverthe-
less, it was an accord reached by the parties through
the collective-bargaining process, and significantly,
the enployer-members of the Association relied on it
in refraining from disciplining members of the Retail
Clerks. In these circumstances, we find that the Re-
tail Clerks locals are bound by the amnesty provision
which was negotiated on their behalf by Cowell.
There is no contention in this case that the strike
or the picketing had an unlawful object. Instead, the
record shows that the picketing was lawful, that the
Retail Clerks lawfully sanctioned the strike, and that
the Retail Clerks was the primary disputant in the
strike. Thus, the issue is whether a union, as a matter
of law, violates the Act by taking disciplinary action,
contrary to a mutually agreed-upon amnesty provi-
sion, against its members who crossed a lawful picket
line. In a concurrent case. Stationary Engineers, Local
.9. International LUnion of Operating Engineers, A FL-
(10 (he San Jo.se Ioslilal and Health Center, Inc.),
240 NI.RB 1122 (1978). the Board decided that such
disciplinary action is not protected by the proviso to
Section 8(h)( I )(A) of the Act but restrains and coerc-
es employees in the exercise of their Section 7 rights.
Under the proviso to Section 8(b)(1)(A), unions
are permitted wide latitude to impose internal sanc-
tions, including fines, on their members. N.L.R.B. v.
Allis-Chalmers Mantujlcturing Co. et al.. 388 U.S. 175
(1967). This latitude is, however, limited. " [Section ]
8(b)( ) leaves a union free to enforce a properly
adopted rule which reflects a legitimate union inter-
est, impairs no policy Congress has imbedded in the
labor laws, and is reasonably enforced against union
members who are free to leave the union and escape
the rule." Scofic'lt v. .L. R.B., 394 U.S. 423, 430
(1969). In the instant case, Respondent locals' ac-
tions in contravention of a mutual amnesty agree-
ment which was the product of collective bargaining
in which Respondent locals actively participated
runs counter to the basic policy of the Act to encour-
age the peaceful settlement of labor disputes through
RETAIL. CI.ERKS UNION LOCAL 1364 1129
the practice and procedure of collective bargaining.
Accordingly, for the reasons fully set forth in T1I
San Jose Hospital and Health Center. .vupra. we find
that Respondent locals disregard for, and violation
of, their collectively bargained-for amnesty agree-
ment impairs congressional policy embedded in the
labor laws and that, under the principles of Scofield,
its disciplining of members is not protected b the
proviso to Section 8(b( I)(A). We therefore find that
Respondent locals have violated Section 8(b)(I)(A)
of the Act and shall adopt the Administrative Law
Judge's recommended Order.
ORDER
Pursuant to Section 10(c) of the National L.abor
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 Respondents. Retail Clerks Union
Local 1364, RetLil Clerks International Association.
AFL CIO, and Retail Clerks Union Local 17. Retail
Clerks International Association. AFL CIO. San
Francisco, California, their officers. agents, and rep-
resentatives, shall take the action set forth in the said
recommended Order, except that the attached notice
is substituted for that of the Administrative Law
Judge.
APPENDIX
Noltl( . To MItRI RS
Post It) HY ORDI)R () I lL
NAII()NAI. LABOR REI.AIIONS BARD
An Agency of the United States Government
WF WILL Nol impose fines against our mem-
bers for crossing picket lines of the Unions
where such imposition contravenes the terms of
a strike settlement agreement reached with the
Food Employers Council.
Wit wll l No in any like or related manner
restrain or coerce our members in the exercise of
rights guaranteed by Section 7 of the Act.
Wi. wli rescind the fines assessed upon the
individuals who crossed the said picket lines.
WE wiil inform each individual who was
fined by written communication of such rescis-
sion.
RI :.In C IRKS UN Lo( Al 1364. R I -\11
CIF-RKS IN tIRNAIIONxi ASS(i)(XI ION. AFL
CIO
Rl.IAII CI.ERKS UI()N Lo(Ai 17. Rl.l i
Ci.FRKS IN RNA IONAi Assoti, IoI(N. AFI.
CIO
DECISION
SrAIFMFNr f01 Hit CASE
B RARD J Sl. Administrative l.aw Judge: The charge
in the instant case was filed on August 6. 1977.' b Food
Employers Council, Inc., hereinafter referred to as the
council. against Retail Clerks Union Locals 1364 and 17.
the Respondents in the instant case. The issues in the case
are as follows: (I) Whether Respondents Locals 17 and
1364 of the Retail Clerks Union entered into a binding
agreement on April 22 to refrain from fining those of their
members who had crossed the picket line of Butchers
Union Local 115: and whether the subsequent institution
of charges and the imposition of fines by Respondents con-
stituted a violation of Section 8(b)( I )(A) of the Act. A
hearing was held before me in San Francisco, California,
on March 14. 1978. The General Counsel, both Respon-
dent Unions, and the council all filed post-hearing briefs
which have been duly considered.
Upon the entire record in this case, including my obser-
vation of the witnesses and their demeanor, I make the
following:
FININ(iS OF FA(CT
I lit BH SINSS OF 1 HE (()I N( 11
The Council operates an office and place of business in
Walnut Creek, California. and is a voluntary association of
employers engaged, inter alia, in the retail sale of food. The
council exists for the purpose of representing its employer
members, including Albertson's, Inc., hereinafter called
Albertson's. and l.ucky Stores. Inc.. hereinafter called
Luck,y. in multiemployer collective bargaining and in ad-
ministering collective-bargaining agreements with various
labor organizations, including Respondents.
Local 17 has been the representative for the purposes of
collective bargaining of a majority of the employees de-
scribed below and is now the exclusive representative of all
the said employees for the purposes of collective bargain-
ing. Similarly. Respondent Local 1364 has been the repre-
sentative for the purpose of collective bargaining of a ma-
jority of employees in the unit described below and is the
exclusive representative of all the said employees for the
purposes of collective bargaining.
The Council's employer-members, in the course and
conduct of their business operations in the State of Califor-
nia, derived gross revenues in excess of $500,000.
During the past fiscal year the Council's employer-mem-
bers purchased and received goods valued in excess of
$10,000 at their respective California locations directly
from suppliers located outside the State of California. I
find that the council and each of its employer-members
including Lucky and Albertson's have constituted em-
ployers engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
I All dale .currted ill 1977 unless olher'0,e ctated
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II It I AB()R OR(ANIZAlIONS INVOI.VI)
Respondent Unions each are, and at all times material
herein have been, labor organizations within the meaning
of Section 2(5) of the Act.
III rH t Al I (il-)D NAIR I ABOR PRA( I (ES
A. Introduclion
All employees working in the retail food stores of the
employer-members of the council, including Lucky, within
the geographical jurisdiction of Respondent Local 1364
covering Shasta. Tehama, Siskiyou. Trinity, and Modoc
Counties, except meat department employees, guards and
supervisors as defined in the Act, constitute a unit appro-
priate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
All employees working in the retail food stores of the
employer-members of the Council, including Albertson's,
within the geographical jurisdiction of Respondent Local
17. coverning Butte, Glenn, Plumas, Colusa, Sierra, Yuba,
Sutter, Lassen, and Nevada Counties, except meat depart-
ment employees, guards and supervisors as defined in the
Act, constitute a unit appropriate for purposes of collective
bargaining within the meaning of the Act.
B. The Facts
In April, Local 115 of the Butchers Union commenced
an economic strike against various members of the Food
Employers Council. encompassing a number of grocery
stores located in and around Chico and Redding. Califor-
nia. The strike lasted for 2 weeks from about April 9 to
April 22. Approximately 100 butcher members were on
strike at the particular grocery' stores involved, and as far
as the record shows, all of them remained on strike
throughout its duration, none of them crossing the picket
line before April 22. At the stores involved in the strike
there were approximately 550 to 600 employees who were
members of the Retail Clerks Union, either Local 17 (at the
stores in and around C('hico) or Local 1364 (at the Redding
stores). The Valley Clerks Joint Council took formal action
by which they sanctioned the butchers' strike and sanc-
tioned or approved the Retail Clerks honoring of the picket
line. The executive boards of Local 1364 and Local 17 like-
wise sanctioned the strike. As a consequence of the above.
most of the 600 Retail Clerk members honored the Butch-
ers' picket line, but approximately 40 of them crossed the
picket line for one or more days between April 9 and 22.
On April 20 a meeting was held at the offices of the
Federal Mediation and Conciliation Service in San Fran-
cisco in an attempt to resolve the labor dispute. Two Fed-
eral mediators participated in the session. In addition to
representatives of the council and the Butchers Union, At-
torney Robert Cowell attended the meeting and actively'
participated in the negotiations, as did the presidents of
Locals 17 and 1364, Leonard Loyd and Robert Koenig.
respectively. The record indicates that Cowell, who has
long represented the Retail Clerks International Union and
various Retail Clerks local unions including, at various
times, both of the Respondents, was asked to attend the
meeting by Robert Koenig, president of Local 1364. Bob
Vallon. a negotiator for the council, testified that he asked
('owell why he was attending the meeting, and Cowell re-
sponded that the Retail Clerks had b far more people
involved than the Butchers and that they wanted to get this
thing settled so they could get their people back to work.
The efforts made by the parties on April 20 were unsuc-
cessful.
On April 22, Cowell and John Bacon, vice president of
Food Employers Council. were among those attending a
meeting in Sacramento involving the Retail Clerks em-
plover health and welfare trust fund. Jack Loveall, a vice
president of the Retail Clerks International Association,
approached Cowell and Bacon and notified them that a
meeting of Butchers union representatives was then in
progress about 20 miles away at the Rancho Murietta. and
asked them to go to Murietta to attempt to settle the labor
dispute. Thereafter. Loveall. Cowell, and Bacon drove out
to Rancho Murietta. Loyd and Koenig, who had been at
the trust fund meeting, joined them at Rancho Murietta
later in the afternoon. After negotiating for several hours
with Bacon representing the Food Employers Council and
Cowell acting as spokesman on behalf of all the unions
involved, ultimately ('owell and Bacon were able to reach a
tentative strike settlement agreement.
One of the cardinal subjects discussed between Bacon
and Cowell was "two-w;ay amnesty." Bacon brought up the
subject of anmesty and told Cowell that an essential part of
the settlement had to be amnesty for both the employees
and the companies because Bacon did not want to have a
repeat of the 1973 situation. 2
Subsequently an officer of the Butchers Union took the
proposed settlement agreement around to be signed by var-
ious individuals. Cowell signed the document with the ac-
companing words, "Atty, Retail Clerks." The document
was also signed by Loyd, Loveall, Eric Matzen of the
Butchers Union, [.autermilch. and Bacon. Before Bacon
signed the document, he telephoned Bob Vallon, who had
been handling the negotiations prior to April 22. Bacon
told Vallon about the amnesty clause, and Vallon indicated
that one of the provisions of the settlement agreement, the
duration of the contract, might not be favored by
Albertson's representative. Pat Murphy. However, in view
of the amnesty clause, the overall settlement terms were
acceptable.
Following the signing of the settlement agreement, the
meeting disbanded and a contract ratification vote was
taken by the butchers members, who accepted the terms.
Consequently, the strike ended and the employees butch-
ers and Retail Clerks alike--immediately returned to work.
Vallon telephoned the employer-members on April 22 and
notified them of the settlement agreement and its terms.
He testified that, in his phone conversation with Pat Mur-
I 1973 the Buichicr,, thiiii had struck a lunlhcr ,f the Ftod [in:pleo er
({ llIL 11 ll I C Ichr-StOl . ( Clitlil no t he RetI;il ( lerks ni1erlh rls rossed the
HuItchlcIC picket lille nid ne1 C fined h their respectiIe Retil ('lerks locals
I hceit te i uct iII , IitIgato, c n ensed ts I result tof thoee Ties I ith ('io ell.s
I. w fIiinI in ol ed in represenltilng Ihc Retail ('lerk local.s in that hilgation
I li i I ic l Ie siatioln tlailt l wa efCrred Io h Blcon hl h erl he t od ('oell on
April 22 t.it ic did omit ,int i this Mltuatiin toi he repeatced
RETAIL CLERKS UNION LOCAL 1364 1131
phy, Murphy inquired about the possibility of taking ac-
tion against certain of the striking Retail Clerk members
who had allegedly engaged in acts of picket line violence.
Vallon replied that, under the amnesty agreement, no ac-
tion could be taken against any' strikers.
Approximately 2 months after the April 22 agreement
was reached, Locals 17 and 1364 instituted proceedings
against those members who had crossed the picket line.
notwithstanding the strike settlement agreement. Intraun-
ion hearings were held and the fines were assessed against
39 members, ranging in amounts from $40 to $990 and
totaling over $17,000. According to the testimony of Bacon
and Vallon, they, first learned of the fines from a represen-
tative of one of their employer-members after the union
proceedings had been instituted, and they had no inkling
prior to that time that Locals 17 and 1364 did not intend to
abide by the terms of the strike settlement agreement nego-
tiated on April 22.
Vallon testified without contradiction that he spoke to
International Vice President Jack Loveall at a trust fund
meeting in August or September about the fines, and Lov-
eall assured Vallon it was his understanding that the am-
nesty agreement was supposed to apply to the Retail Clerks
as well as the Butchers but he described the situation as
really a political problem for the Local presidents.
The General Counsel in his brief argues that the April 22
strike settlement agreement constituted a binding agree-
ment on the part of Respondents to refrain from fining
their members who had crossed the picket line. According
to the testimony in the record, it is abundantly clear that
Cowell acted as principal spokesman for both of the Retail
Clerks Local Unions and took part in the negotiations as
their principal spokesman. Cowell said, on the record, that
no one asked him during the course of the negotiations
whether he had authority to make a binding agreement for
the Unions. However, he did not announce to the confer-
ees that he had no such authority and, in any event, it
appears to be highly unlikely as a reasonable matter that
Cowell took such an active part in the negotiations, signed
the agreement with his name, title, attorney Retail Clerks,
and now claims that he had no authority to bind the
Unions. This contention smacks of bad faith, if after exten-
sive negotiations an agreement which has ostensibly been
reached by the parties to the negotiations can later be repu-
diated by the statement that the person who acted for the
unions had no authority. Furthermore, it seems clear that it
is a manifestation of bad faith for the Unions not to have
raised this point until months after the strike ended and the
terms of the agreement had otherwise been put into effect.
General Counsel argues that Attorney Cowell had actual
or apparent authority to represent and bind both Local 17
and Local 1364: additionally or in the alternative, Respon-
dents are separately bound by the April 22 agreement. Lo-
cal 1364 by the actual or apparent authority of Cowell, and
Local 17 by the actual or apparent authority of Leonard
Loyd. From all of the above, it is clear that the Respon-
dents are bound by the agreement of April 22.
The General Counsel makes the further point that it is
obvious that Cowell possessed actual authority, either ex-
pressed or implied, to negotiate a strike settlement agree-
ment affecting both Respondent Locals on April 22. Co-
well had been summoned to Rancho Murietta b Loveall.
an official of the Retail Clerks International Union, and
asked to attempt to settle the dispute. Only two Retail
Clerks Locals, Local 17 and 1364, were directly involved in
the dispute by virtue of the fact that they sanctioned their
members honoring the picket line and throughout the dis-
cussions between Cowell and Bacon on April 22 no distinc-
tion was drawn between Local 17 and Local 1364. The
settlement discussions on April 22 were conducted on a
group basis, with Bacon acting as spokesman for the mul-
tiemployer group and negotiating with Cowell on behalf of
the various unions involved. It should be emphasized that
Cowell. an experienced labor attorney and negotiator who
has represented both Respondents as well as the Interna-
tional Union at vanous times, signed the agreement as
"Attv, Retail Clerks." Under all these circumstances the
contention that Cowell was not authorized to negotiate a
settlement agreement on behalf of both Respondents is un-
tenable.
Cowell asserted during the course of the hearing that he
was acting as a mere "biased mediator." Cowell partici-
pated in negotiations on April 20 at the Federal Mediation
and onciliation Service. in the presence of two Federal
mediators and it strains credulity that he was merely an-
other mediator. The Retail Clerks Union had a direct in-
volvement in the labor dispute with some 600 of its mem-
bers then out of work and the strike settlement agreement
purported to obligate Local 17 and 1364. To contend so
long after the execution and implementation of the agree-
ment that Cowell was merely mediating the dispute be-
tween the Butchers Union and the Charging Party is incon-
ceivable.
Discussion
It is the contention of Cowell that he had no authority to
bind the Union. He was admittedly the chief spokesman
for both Unions and actively participated in the negotia-
tions which culminated in the settlement agreement. Ad-
mitted by Retail Clerks Local 1364, it is argued that Cowell
considered his role to be that of a biased mediator since he
was merely trying to aid the union cause. In point of fact,
the meeting at which Cowell played such an important role
was in the office of the Federal Mediation and Concilia-
tion Service where the Federal office was represented by
two mediators. It is inconceivable that Cowell occupied the
position argued in the brief on his behalf. Furthermore.
when negotiations were completed. various parties signed
the settlement agreement terminating the strike, and Co-
well signed with the following words, "Atty. Retail Clerks."
It strains credulity to believe that Cowell was not operating
as the authorized agent of the labor unions. This is so be-
cause not only was he the chief spokesman for the labor
unions, and not only did he sign his name Attorney. Retail
Clerks, but it was also known to all the parties present that
the members of Cowell's law firm. David. Cowell, and
Bowe. have been identified as attorneys representing the
Retail Clerks Union for approximately 20 years. Thus.
whatever his real authority may have been, he had appar-
ent authority to negotiate the agreement that was finally
consummated. "Apparent authority results when the prin-
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cipal does something or permits the agent to do something
which reasonably leads another to believe that the agent
had the authority he purported to have." Hawaiian Para-
dise Park Corporation v. Friendly Broadcasting Co.. Inc., 414
F.2d 750, 756 (9th Cir. 1969). This agreement included a
two-way amnesty provision which called for no reprisals to
be taken against either employees by the Unions and no
action by the Employer against the employees. It so hap-
pened that approximately 40 employees who were mem-
bers of the Retail Clerks Union did not honor the picket
line and worked during the course of the strike.
Sometime after the conclusion of the negotiations, it
came to the attention of the Charging Party that the Retail
Clerks had imposed fines and other discipline against those
employees who walked through the picket line.
The complaint states in allegation IX that Local 1364
instituted and proceeded with fines and other disciplinary
actions against employee members employed by employer-
members of the Council who had crossed picket lines dur-
ing the strike.
Concluding Findings and Analysis
While the Board has not squarely decided the issue
whether fines imposed by Union in derogation of an "am-
nesty" agreement violates Section 8(b)( 1), this question was
considered by trial examiner William J. Brown in Interna-
tional Union, United A utomohile, A erospace and Agricultural
Implement Workers, UA W, and its Local No. 647 (General
Electric Company), 197 NLRB 608 (1972), where fines had
been imposed despite the existence of a no-reprisal agree-
ment.
The Trial Examiner, citing National Grinding Wheel. not-
ed [at 611]:
[T]he Strike settlement agreement contained a provi-
sion that the Union would not discriminate against
employees on the basis of participation or nonpartici-
pation in the strike. The strike settlement agreement
was itself the fruit of collective bargaining and as such
of the highest dignity under the Act whose fundamen-
tal policy is to encourage the practice and procedure
of collective bargaining. By the imposition of the fines
. . .the Respondent Union has sought to undercut the
process and practice of collective bargaining and has
engaged in the unfair labor practices alleged.
The Board, however, did not reach this question in mak-
ing its determination and therefore there is no statement in
the record which indicates whether or not fines were un-
lawful as a result of the no-reprisal agreement having
found that the fines were unlawful on another ground.
General Counsel argues in his brief that the fact that the
amnesty agreement was part of a strike-settlement agree-
ment rather than a comprehensive collective-bargaining
agreement in no way diminishes the importance or applica-
bility of the Board's basic policy concerning adherence to
collective-bargaining contracts. The strike-settlement
agreement herein was the product of collective bargaining
and, in fact, contained an agreement as to the terms of the
Butchers renewal contract with the Charging Party. More-
over, the policy favoring adherence to strike-settlement
agreements is arguably great, if not greater, than the policy
relating to ordinary collective-bargaining agreements, for a
strike-settlement agreement by its very nature constitutes
the basis for resolving a strike, and to permit such agree-
ments to be flouted by the subsequent imposition of fines
can only have a deleterious effect on the promotion of in-
dustrial stability, labor peace, and finality in the resolution
of labor disputes which are among the very fundamental
principles on which the Act is premised. The General
Counsel concludes his statement with the remark that, in
these circumstances, the conclusion is inescapable that Re-
spondents' right to fine their members was overridden by
basic congressional policies imbedded in the Act, and that
discipline, therefore, was impermissible.
On the basis of this reasoning, the General Counsel con-
cludes that the violation of the strike-settlement agreement
by Local 1364 and Local 17 was violative of Section
8(b)( 1 )(A) of the Act, and I so find.
Accordingly, I conclude that Respondents, by fining and
otherwise disciplining the individuals named, supra, have
engaged in unfair labor practices within the meaning of
Section 8(b)( )(A) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 3
The Respondents Retail Clerks Union Local 1364, Re-
tail Clerks International Association, AFL CIO; Retail
Clerks Union Local 17, Retail Clerks International Associ-
ation, AFL CIO, San Francisco, California. their officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Imposing fines against the individual Charging Par-
ties or others similarly situated on the basis of their cross-
ing established picket lines of the Unions where such impo-
sition contravenes the terms of a collective-bargaining
settlement agreement with the Food Employers Council.
(b) In any like or related manner restraining or coercing
members in the exercise of rights guaranteed by Section 7
of the Act.
2. Take the following affirmative action which appears
necessary and appropriate to effectuate the policies of the
Act:
(a) Rescind the fines assessed upon the individuals
named in the instant Decision and inform each individual
by written communication of such rescission.
(b) Post at the Retail Clerks Union Local No. 1364,
Redding, California, and Retail Clerks Local 17. Chico.
California, copies of the attached notice marked "Appen-
dix." 4 Copies of said notice, on forms provided by the
In I he cent ni exceprions are filed a pro ldcd b Sec 102.46 of he
Rule .ilid Regulations of the Nitional L.aboir Relanions Board. the findings.
conclusions . and rccommended Order herein shall. as provided in Sec.
1112.48 f he Rules and Regultions. he adopted bh; he Board and becnime
its indiligs. conclusions. and Order. and all objections herelto shall he
deemed ;ai\ed flr all purposes
II1 lhe eeni hal this Order is enforced h .I Judgment of a United
States (oulrt of Appeals. the words in the notice reading "Piosed h Order
of lihe Nonil al I.labor Rel;tions Board' shall read "Posted Pursuant iti a
RETAIL CLERKS UNION LOCAL 1364 1133
Regional Director for Region 20, after being duly signed
by Respondent, shall be posted by Respondents immedi-
ately upon receipt thereof, and be maintained by them for
a period of 60 consecutive days thereafter, including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by Respondents to insure
Judgment of the nited Sate (our of ppcal, nfrcine in ()rder f the
Natllonal L.ahbor Relation, B.oard
that said notices are not altered, defaced, or covered by
any other material.
(c) Deliver to the Board's Regional Director for Region
20 copies of the aforesaid notice for posting by the Compa-
ny on its premises here involved, and if the Company so
desires, to post on bulletin boards customarily used for
notices to employees in the units here involved.
(d) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply with the terms hereof.