Retail Clerks Union, Local 770, AFL-CIO, Etc.

National Labor Relations Board - Board Decisions

Dec 9, 1963

145 N.L.R.B. 307 (N.L.R.B. 1963)

RETAIL CLERKS UNION, LOCAL 770, AFL-CIO, ETC. 307
7. By discriminating in regard to the hire and tenure of employment of Evelyn
Burrows, Cameron Cotton, Esther Dudley, Leon Lyon , Lester Sleight , David Wenner,
and Kenneth Wensel , the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (3) and ( 1) of the Act.
8. The Respondent has not violated Section 8 (a) (3) and ( 1) of the Act as alleged
in the complaint with respect to Donald Ellis , Rodney Kromer, and Kenneth Rouns-
ville, or in any other manner not specifically found herein.
[Recommended Order omitted from publication.]
Retail Clerks Union, Local 770, AFL-CIO, and Retail Clerks
International Association , AFL-CIO and Food Employers
Council, Inc.
Retail Clerks Union, Local 770, AFL-CIO, and Retail Clerks
International Association , AFL-CIO and United States Hard-
ware & Paper Co. and Wesco Merchandise Co. Cases Nos.
21-CC-280 and 21-CC-287. December 9, 1963
SUPPLEMENTAL DECISION AND ORDER
On June 27, 1960, the Board issued its Decision and Order in the
above-entitled case' in which it found that Retail Clerks Union,
Local 770, AFL-CIO, referred to herein as Retail Clerks or Local
770, had violated Section 8(b) (4) (A) and (B) of the Act in effect
before the 1959 amendments 2
Thereafter, Local 770 petitioned the United States Court of Appeals
for the District of Columbia to review and set aside the Board's Order,
and the Board filed a cross-petition seeking enforcement of its Order.
On July 6, 1961, the court affirmed, as modified in part, the Board's
finding as to a violation of Section 8(b) (4) (B), set aside the find-
ing as to a violation of Section 8 (b) (4) (A), and remanded the case
"for further findings and conclusions with a view to clarification of
the Board's disposition of the matter." 3 On August 23, 1961, the
court denied a petition for rehearing filed by U.S. Hardware and
Wesco, Charging Parties.
Thereafter at the Board's request, the parties filed briefs relating
to the issues presented by the court's remand. The Board also held
oral argument at which all parties appeared and participated.
The Board has considered the entire record in the case, including
the oral argument and briefs on remand, and finds as follows :
1127 NLRB 1522.
a The language of Section 8(b) (4) (A) which is pertinent in this proceeding now appears
as part of Section 8 ( b) (4) (B).
s Retasl Clerks Union Local 770, Retail Clerks International As.soctation, AFL-CIO
( United States Hardware and Paper Company, et al.) v. N.L R.B., 296 F. 2d 368 (C.A.D.C.).
145 NLRB No. 33.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The facts involved in the case are set forth in the opinions of the
Board and the court; they need not be repeated at length here.' The
court in directing the remand asked the Board (1) to clarify its rea-
sons for finding that an object of the strikes was to force the market
owners to cease doing business with the "rack-jobbers," and (2) to
explain more clearly the impact of the subcontracting clause on the
matter. The court, however, did determine that the cease-handling-
products clause in Section 8(b) (4) (A) did not apply to the business
of the Charging Parties because they were jobbers and not producers,
processors, or manufacturers; as to jobbers, the court said, only the
cease-doing-business clause would apply. The court also decided that
the cease-and-desist order was too broad and that it should be modified
to correspond to the violations actually found to have been committed.
The Board did not seek Supreme Court review of the remand, but
accepted it. Without necessarily acquiescing in all views expressed
by the court, particularly those pertaining to the interpretation of
the cease-handling-products clause in Section 8(b) (4) (A), the Board
accepts them as the law of this case.' In that spirit we decide the
case on remand.
a. Object of the st7~ikes
A strike may have a number of objects.' Some may be ultimate,'
others alternative,8 conditional,9 or immediate.1° However denomi-
nated-ultimate, alternative, conditional, or immediate-if the object
is proscribed by statute, a strike to achieve it is unlawful." In the
same case there may be both lawful and unlawful objectives. For
example, the ultimate objective of a strike may be, not to bring about
a cessation of business between the primary and secondary employers,
but in fact to increase it, so as to increase the employment oppor-
tunities of the union-represented employees. The immediate objec-
4 For a further and more detailed analysis of the background of the present dispute see
Retail Clerks International Association , AFL-CIO, etc., Local 770, AFL-CIO (Food Em-
ployers Council, Inc.), 125 NLRB 984, the jurisdictional dispute decision involving the
same parties.
5H. N. Thayer Company , 115 NLRB 1591, 1595.
OInternational Longshoremen's Association , AFL-CIO; et at (The Board of Harbor
Commissioners ), 137 NLRB 1178, 1184.
1 N.L.R.B. v. United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-CIO, Local No. 12 ( Phoenix
Urban Corp. and Boston Gas Co .), 320 F. 2d 250 (C.A. 1), enfg. 137 NLRB 1299.
8 Local No. 5, United Assn . of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada, AFL-CIO (Venneri Co) v N L R B.,
321 F. 2d 366 (C A.D C.), enfg as modified 137 NLRB 828; N.L R B v Bangor Building
Trades Council ( Davison Const . Co.), 278 F. 2d 287 (C A. 1 ), enfg. as modified 123
NLRB 484.
9 Local 47, International Brotherhood of Teamsters , etc (Texas Industries, inc ), 112
NLRB 923, 925, enfd . 234 F. 2d 296 (C.A. 5).
10 N.L R.B. v United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-CIO, Local No. 12, supra;
United Steelworkers of America , AFL-CIO ( Tennessee Coal & Iron Division of the United
States Steel Corporation ), 127 NLRB 823, enfd. as modified 294 F. 2d 256 (C.A.D.C.).
11 See cases cited in footnotes 7, 8, 9, and 10 , supra.
RETAIL CLERKS UNION, LOCAL 7 7 0, AFL-CIO, ETC. 309
five, however, may be to cause a cessation of business between the
two employers, as a means of exerting pressure to achieve the ultimate
object.12 If the strike has such an immediate objective, it is unlawful."
For, as the Supreme Court has noted, Section 8(b) (4) forbids certain
conduct which has "an" object that is proscribed, even though the
same conduct may have other objects whch are not proscribed.14
Further, it is immaterial that the striking union seeks to achieve a
partial rather than a complete cessation of business with any other
person.t5
In the light of these principles we analyze the facts of this case.
The markets had contracted with "rack-jobbers" for the purchase of
certain nonfood or specialty items, the "rack-jobbers" to furnish not
only the merchandise, but also certain services in connection with its
display. Thus, employees of the "rack-jobbers" not only delivered
the merchandise to the stores, but they also arranged it on the store
shelves, and rotated, replenished, and cleaned the displays. After
experiencing difficulties at the hands of market clerks who, in some
areas, prevented the employees of "rack-jobbers" from performing
their services in the stores, representatives of the "rack-jobbers" met
on a number of occasions with representatives of both Respondents in
an effort to resolve the difficulties. The union representatives took
the firm position at these meetings that all work in the stores involv-
ing stocking, shelving, dusting, and displaying items sold by the "rack-
jobbers" would have to be done by employees represented by the Re-
tail Clerks. The union representatives asked that the "rack-jobbers"
sign collective-bargaining contracts covering employees of the "rack-
jobbers" doing such work. As these employees were represented by
the Teamsters, which declined to relinquish jurisdiction of them, the
employers refused.
-Local No 5, United Assn. of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada , AFL-CIO v. N L.R.B., supra ; Bernard
L Alpert v. Local 1066 , Intonational Longshoremen 's Assn. et at , 166 F Supp. 22
(D C mass) (Aldrich, D J.).
13 N L R B v. United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, AFL-CIO, Local No. 12, supra;
Local No. 5, United Assn of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the United States and Canada , AFL-CIO v. N L.R B , supra ; Inter-
national Longshoremen 's Association, AFL-CIO; et al. (The Boaid of Harbor Com-
missioners ), supra
11 "It Is not necessary to find that the sole object of the strike was that of forcing the
contractor to terminate the subcontractor's contract " N 7, R B v. Denver Building and
Construction Trades Council, et al (Gould & Preisner ), 341 U S 675, 689.
15Local 8, International Brotherhood of Electrical Workers, AFL-CIO (New York Tele-
phone Company ), 140 NLRB 729; Bernard L . Alpert v. Local 1066 , ILA, et al., supra;
N.L.RB. v. Local 294, International Brotherhood of Teamsters, etc. (Bonded Freight-
ways ), 273 F. 2d 696 (C.A. 2) ; Retail Fruit & Vegetable Clerks Union , Local 1017, et al.
(Retail Grocers Association of San Francisco ) ( Crystal Palace ) v. N L R B , 249 F. 2d
591, 595 (C.A. 9) ; Highway Truck Drivers and Helpers , Local 107, International Brother-
hood of Teamsters, etc., Independent (E A. Gallagher & Sons ), 131 NLRB 925, 931, enfd.
302 F 2d 897 (C.A.D.C) -
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Retail Clerks wanted to represent employees doing the in-store
displays of merchandise sold by the "rack-jobbers." Unable to per-
suade the "rack-jobbers" to sign collective- bargaining contracts cover-
ing employees performing display and stock work inside the stores,
the Retail Clerks induced its members working for the markets to
cease work unless the "rack-jobber" merchandise was removed from
sale or the work of the "rack-jobber" employees was redone by the
store clerks whom it already represented. In view of the ultimatum
of the Retail Clerks, the stores were faced with the following alterna-
Iives : (1) stop selling the merchandise furnished by the "rack-jobbers"
which would mean a complete cessation of business with them; (2)
un-do and then re-do the work performed by the employees of the
"rack-jobbers" in the stores-this might be, as it was, a temporary
expedient, but since it involved increased costs would likely result in
a more radical change in method of operation; (3) change the terms
of purchase so that the "rack-jobbers" would stop selling in-store
services as well as merchandise, the in-store work being thereafter per-
formed by the store's own employees; or (4) impose pressure on the
"rack-jobbers" to recognize and bargain with the Retail Clerks. The
first and third of these alternatives would immediately result in a
complete or partial cessation of business between the stores and the
"rack-jobbers"; the second alternative would probably also end in a
cessation of business or at least in a material change in the method of
doing business with the "rack-jobbers." 16 Of course, the Respondents
did not present the market operators with a statement setting forth
the above as objects of the work stoppages which they had induced.
But one or another of these alternatives was the only practical or
realistic way by which the market operators could have terminated
the strikes. Respondents were no doubt just as aware as the market
operators of these alternatives and may reasonably be held to have
intended that one or another would result.
The court in its opinion stated that from the factual viewpoint, it
would appear unrealistic "at least as a first impression" that the Retail
Clerks sought to force the market operators to cease doing business
with the "rack-jobbers," because the striking clerks wanted to handle
the latter's merchandise. It is no doubt true that the retail Clerks
wanted the display work for its members. But unable to persuade
the "rack-jobbers" to such action, the Retail Clerks resorted to the
pressure tactic of a strike. By striking the markets, it sought im-
mediately to bring about a stoppage of business as previously con-
ducted between the markets and the "rack-jobbers." To end the
strike, the "rack-jobbers" could sign a bargaining agreement with the
Retail Clerks or the markets could cease partially or entirely doing
16 The Board found, and the court agreed , that the strike for the fourth objective was
violative of Section 8(b) (4) (B).
RETAIL CLERKS UNION, LOCAL 770, AFL-CIO, ETC. 311
business with the "rack-jobbers." Such a stoppage of business with
the "rack-jobbers" would have forced the markets to make other ar-
rangements more satisfactory to the Retail Clerks for the purchase
or racking of merchandise of the type previously received from the
"rack-jobbers." The cessation of business, partial or total, between
"rack-jobbers" and markets was thus not a hope or expectation or the
side effect of legitimate strike action, but the very way by which the
Retail Clerks expected to achieve its ultimate and preferred objec-
tive of more work for its members.
Accordingly, we find that "an object" of the strike action induced
by the Retail Clerks was to force or require the market operators par-
tially or completely to cease doing business with the "rack-jobbers."
b. The subcontracting clause
The court said in Retail Clerks Union Local 770, Retail Clerks
International Association, AFL-CIO (United States Hardware and
Paper Company, et al.) v. N.L.R.B., 296 F. 2d 368, 373 (C.A.D.C) :
The question here, then, is whether the employees had a right to
enforce their work rights when they had a bargaining agreement
respecting the terms and conditions of the work, absent a specific
provision respecting subcontracting It seems clear to us they
did have such a right. . . . We think employees, even absent a
specific anti-subcontracting provision, could enforce their right to
the work contemplated by a bargaining agreement. The difficulty
with the Union's position is not with its rights under a simple
work protection clause. Its trouble is . . . that it does not have
such a simple provision; it has a potent "except" clause in its
contract . . . . While the Board is reconsidering upon remand
the "cease doing business" point, it should also make clear its
conclusions, and the reasons therefor, in respect to the effect of
this subcontracting clause on the matter.
The court said in its decision that sections B and C of article I
must be read together and that as so read the "except" clause in section
C indicates clearly that the employers may subcontract work to an-
other employer if the latter has a collective-bargaining agreement with
the Retail Clerks. Since the court's decision the Board has considered
the legality of this subcontracting clause in another case involving
the same Respondent (among others) but a different employer. The
Board held in that case that the subcontracting clause goes beyond
protecting work of the employees in the unit since it permits sub-
contracting only to employers having bargaining contracts with the
Retail Clerks and is therefore unlawful under Section 8(e) of the
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act as amended in 1959.14 Although in this case there is no question
of the legality of the subcontracting clauses, since the Act prior to
the 1959 amendments did not contain the equivalent of present Sec-
tion 8 (e), the analysis of the subcontracting clause made by the Board
in the Frito case is equally applicable here. Sections B and C of
article I are not intended to preserve for employees in the bargaining
unit the work they are presently doing. Rather its purpose is to pro-
tect the Union's jurisdictional claims." Thus, if the "rack-jobbers"
had recognized the Retail Clerks as the representative of employees
handling the displays, there would have been full compliance with
the clauses, although the clerks working in the markets would not
thereby have had more work. Moreover, as applied to the present
dispute, the Retail Clerks was not trying to retain for its members
work which they were then performing. The clerks have never per-
formed the specific work of the "rack-jobbers" display employees.
The latter had not reduced the work formerly performed by the
clerks by one iota. The Retail Clerks was thus trying to add to,
and not preserve, the existing work of its members. As applied,
no-subcontracting clauses such as here involved are not traditional
work preservation clauses.19 They are not therefore the kind of
clauses the enforcement of which-as the court saw it-would con-
stitute primary activity outside the reach of Section 8 (b) (4)."
Accordingly, we find that by inducing employees of the Boy's and
Hughes markets to engage in a work stoppage with an immediate
object of causing the markets to cease doing business with the "rack-
jobbers," Local 770 violated Section 8(b) (4) (A) of the Act.
ORDER
In accordance with the court's decision, section 1(a) of the Order
is deleted and the following substituted :
17Retail Clerks Union, Local 770; et at ( The Frito Company, Western Division), 138
NLRB 244, 247
'8Butehers ' Union Local 563, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO (Huntington Meat Packing Company, d / b/a Oxford Meat Co ),
134 NLRB 136
10Local 282, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America ( Precon Trucking Corp, et at ), 139 NLRB 1077.
"Respondents contend that the purpose of article I, C, 1, is to assure that anyone who
performs bargaining unit work must enjoy terms and conditions which do not undermine
the standards of bargaining unit employees . Neither the language of the subcontracting
article nor the evidence supports this construction . At no time did Respondents indicate
that their dispute with the "rack-jobbers" could be settled by the latter meeting the terms
and conditions of employment which the store clerks enjoyed ; in fact, there is no evidence
that working conditions for "rack-jobber" employees were inferior to those for store
clerks or that the former were undermining those of the latter. Local 770 was explicit
in its demands , it wanted either that the display work be given to the store clerks whom
it then represented , or that the "rack-jobbers" sign a bargaining agreement recognizing
Local 770 as the representative of the display employees. Local 770 was concerned with
the rights of representation , and only incidentally, if at all, with working conditions of
employees.
RETAIL CLERKS UNION, LOCAL 7 7 0, AFL-CIO, ETC. 313
1. Cease and desist from :
(a) Engaging in, or inducing or encouraging the employees of
Boy's Market, Hughes Market, or other food market employers who
are members of Food Employers Council, Inc., to engage in, a strike
or concerted refusal in the course of their employment to use, handle,
or work on any goods , articles , materials , or commodities, or to perform
any services for their employers , where an object thereof is to force
or require such employers to cease doing business with United States
Hardware & Paper,Co., Wesco Merchandise Co., or any other distribu-
tors, suppliers, and "rack-jobbers " whose employees perform services
on the premises of the food markets; or to force or require United
States Hardware & Paper Co. to recognize or bargain with Retail
Clerks Union, Local 770, AFL-CIO, as the representative of its em-
ployees unless such labor organization has been certified as the repre-
sentative of such employees under the provisions of Section 9 of the
Act.
MEMBER BROWN, concurring :
I concur with my colleagues in holding that the disputed subcon-
tract provision is not a work protection clause valid under the Act and
I also agree that the Respondent 's strike had a cease-doing-business
object within Section 8(b) (4) (A).
MEMBERS FANNING and JENKINS took no part in the consideration
of the above Supplemental Decision and Order.
ORDER
On December 9, 1963, the Board issued a Supplemental Decision
and Order ,' in the above-entitled proceeding , in which , pursuant to
the remand of the Court of Appeals for the District of Columbia
Circuit, 296 F. 2d 368, it clarified and explicated certain findings made
in its original Decision and Order.2
On January 7, 1964, attorneys for Respondent Retail Clerks Union,
Local 770, AFL-CIO, and for Retail Clerks International Associa-
tion, AFL-CIO, which is no longer a Respondent in this proceeding,
filed a motion to modify Supplemental Decision . By letter dated
January 13, the Respondent was advised that its motion to modify
had been rejected because it had been untimely submitted under Sec-
tion 102.48 of the Board 's Rules and Regulations . On January 14,
Respondent resubmitted its motion to modify , together with a motion
to permit its filing.
Thereafter, the Charging Parties , United States Hardware & Paper
Co. and Wesco Merchandise Co., in Case No. 21-CC-287 , and Food
1145 NLRB 307
2127 NLRB 1522.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employers Council, Inc., in Case No. 21-CC-280, filed memorandums
in opposition to the Respondent's motion to modify. Food Employers
Council, Inc., also filed opposition to Respondent's motion to permit
filing of its motion to modify. On February 13, telegraphic state-
ments in the nature of ana icus curiae presentations and in support of
the Respondent Union's motion were filed by Retail Clerks Locals
324114281 and 1442, with requests for leave to file; 'and on February 14,
Retail Clerks Local 1167 joined in the requests. On February 25, the
Charging Party, Food Employers Council, Inc., filed a supplemental
memorandum in opposition to the motion to modify.
The Board, by delegation to a panel, has decided to accept Re-
spondent's motion to modify, despite its untimeliness, because it finds
merit in the substance of the motion, and therefore recognizes that the
court must be apprised of the basis upon which it has decided the
questions posed in the court's remand.
In its remand, the court requested the Board to make clear its con-
clusions and the reasons therefor, in respect to the effect of the sub-
contracting clause contained in article IC3 of the Clerks-Council
Agreement for the period 1958-61 on the right of the Respondent to
protect its claimed work jurisdiction. In its discussion of the subcon-
tracting clause, the Board first said that sections B and C of article I
are not intended to preserve for employees in the bargaining unit the
work they are presently doing, but that its purpose was rather to
protect the Union's jurisdictional claims. However, the Board there-
upon went beyond what was strictly necessary for the purposes of the
court's remand and included certain language which it now recognizes
to be dicta, and which, in order to remove possible misunderstanding
as to its meaning, it agrees should be deleted from its Supplemental
Decision and Order.' Accordingly,
IT IS HEREBY ORDERED that the motion of Respondent Retail Clerks
Union, Local 770, AFL-CIO, to modify the Supplemental Decision
pursuant to the remand of the court be, and it hereby is, granted.
IT IS FURTHER ORDERED that the Supplemental Decision and Order
of December 9, 1963, be, and it hereby is, modified by deleting the
following language on page 312, including footnotes 19 and 20:
Moreover , as applied to the present dispute, the Retail Clerks
was not trying to retain for its members work which they were
then performing. The clerks have never performed the specific
work of the "rack-jobbers" display employees. The latter had
3In Member Leedom's opinion , no sufficient reason has been shown why the language in
issue should be deleted . Accordingly , be would deny the motion and dissents from the
Board's contrary action.
ARENA LOUNGE, INC. 315
not reduced the work formerly performed by the clerks by one
iota. The Retail Clerks was thus trying to add to, and not pre-
serve, the existing work of its members. As applied, no-
subcontracting clauses such as here involved are not traditional
work preservation clauses.19 They are not therefore the kind of
clauses the enforcement of which-as the court saw it-would
constitute primary activity outside the reach of Section 8 (b) (4) 20
IT IS FURTHER ORDERED that the Supplemental Decision and Order,
as printed, shall appear as hereby modified.
Arena Lounge, Inc. and Chicago Federation of Musicians, Local
No. 10, Barney Richards, H. Leo Nye, Erv Trsko , Arch Petti-
grew and R. D. Mashan. Case No. A0-67. December 9, 1963
ADVISORY OPINION
This is a petition filed by Arena Lounge, Inc., herein called the
Employer, for an Advisory Opinion in conformity with Section 102.98
and 102.99 of the Board's Rules and Regulations, Series 8, as amended.
Thereafter, by letter dated November 15, 1963, the Chicago Federa-
tion of Musicians, Local No. 10, herein called the Union, set forth its
statement of position in which it requests a full hearing into the Em-
ployer's business to determine whether the Employer's operations meet
the Board's retail or nonretail jurisdictional standards. The Union's
request for a hearing in this proceeding is hereby denied as the Board's
Advisory Opinion procedures do not provide for or contemplate such
a hearing.'
In pertinent part, the petition and statement of position allege as
follows :
1. There is pending a Bill in Equity for Injunction in the Circuit
Court of Cook County, Illinois, Cause No. 63 C 21388, filed by the
Employer against the Union and Barney Richards, H. Leo Nye, Erv
Trsko, Arch Pettigrew, and R. D. Mashan, herein called Individuals.
In this court action the Employer seeks to restrain the Union and the
Individuals "from interfering with the contractual obligation of its
[Union's] members and from interfering with and refusing to furnish
entertainment as is properly contracted for." The dispute, giving rise
to the injunction proceeding, is based upon the Employer's discharge
of Arch Pettigrew. In its answer to the Employer's Bill in Equity
the Union generally denies the allegations therein and contends that
' ,See Board ' s Rules and Regulations , Series 8, as amended, Section 102 .98-102.104 and
Statements of Procedures , Section 101 . 39-101.41.
145 NLRB No. 32.