Retail Clerks Union, Local 770, Etc.

National Labor Relations Board - Board Decisions

Aug 24, 1962

138 N.L.R.B. 244 (N.L.R.B. 1962)

244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Clerks Union , Local 770; Retail Clerks Union , Local 899;
Retail Clerks Union, Local 1167 ; Retail Clerks Union, Local
1428; and Retail Clerks Union , Local 1442 and The Frito Com-
pany, Western Division and Alpha Beta Food Markets, Inc.;
Food Giant Markets, Inc.; Market Basket ; Mayfair Markets;
Ralph Grocery Company ; Safeway Stores , Inc.; Thriftimart,
Inc.; Von's Grocery Co.; and Food Employers Council, Inc.,
Parties to the Contract
Alpha Beta Food Markets, Inc.; Food Giant Markets, Inc.;
Market Basket ; Mayfair Markets ; Ralph Grocery Company;
Safeway Stores, Inc.; Thriftimart , Inc.; Von 's Grocery Co.;
and Food Employers Council , Inc. and Retail Clerks Union,
Local 770 and Retail Clerks Union , Locals 899 , 1167, 1428 and
1442. Cases Nos. 21-CE-11, 21-CE-16-1, and 21-CE-16-2. Au-
gust 24, 1962
DECISION AND ORDER
On December 29, 1961, Trial Examiner Herman Marx issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in any unfair labor practices and
recommending that the complaint be dismissed. Thereafter, the
Respondents, the Intervenors,' the Charging Party, and the General
Counsel filed exceptions and supporting briefs.2
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the proceedings, and hereby adopts the Trial Examiner's findings and
conclusions only to the extent that they are consistent with this
decision.
The basic facts are not in dispute. As more fully set forth in the
Intermediate Report, the Respondent Employers and Unions became
parties to identical collective-bargaining contracts entered into on
either January 1, 1959, or April 1, 1959, effective until March 31, 1964.
Article I thereof contains the following terms :
B. WORK PERFORMED.
All work performed on the premises in the nature of work gen-
erally performed by retail clerks shall only be performed by em-
ployees in the bargaining unit as herein defined.
1 The Intervenors herein are Standard Merchandise Co ; U.S. Servateria Co.; Wesco
Merchandise Co.; American Bottlers of Carbonated Beverages ; California and Nevada
Manufacturers of Carbonated Beverages ; American Research Merchandising Institute ;
and Grocery Manufacturers of America, Inc
2 Respondents ', Charging Party's, and Intervenors ' requests for oral argument are hereby
denied as , in our opinion, the record and briefs adequately set forth the issues and posi-
tions of the parties..
138 NLR$ No. 27.
RETAIL CLERKS UNION, LOCAL 770, ETC. 245
C. SUB-CONTRACTING OR ASSIGNMENT OF WORK.
1. The Employers shall not sub-contract any work ordinarily
performed by retail clerks in the stores or markets of the Em-
ployers, and, further, any future work created by the Employer
within the Employer's stores or markets which would ordinarily
be performed by retail clerks, shall be performed only by mem-
bers of the bargaining unit as herein set forth, except that such
work may be sub-contracted to an employer who is signatory to
an Agreement with the Union.
2. The Employer agrees not to assign or contract with any
other union or person for work which is presently being performed
by members of the bargaining unit represented by the Union.
3. Any other work which is presently under specific contracts
with the Teamsters, Culinary Workers, and Building Service
Employees Unions shall not be affected by this Agreement, ex-
cept as to any change which may result from an agreement of
the unions involved and the signatory Union and upon presenta-
tion to the Employer of bona fide proof thereof.
These clauses have remained in the contract at all relevant times.
On August 30, 1960, Food Employers Council, Inc., herein called
Council, issued a bulletin to its members, as well as to nonmembers,
addressed "To All Market Operators having Contracts with Retail
Clerks Union, Local 770," explaining "the meaning and intent of the
contract, the rights of the employers, and the position of the Council
and its members." This bulletin summarized the history of the dispute
between the Retail Clerks and the Teamsters over the "rack jobber"
work in southern California food -markets. It also set forth what
Council calls the "status quo" principle, which reflects its policy re-
garding the assignment of "rack jobber" work in the grocery markets
Briefly stated, this policy was said by the bulletin to be that "any work
or services that have been performed by Teamsters driver-salesmen
anywhere in the southern California retail food industry may continue
to be performed" by Teamster driver-salesmen, but "work that has not
been performed by Teamsters driver-salesmen . . . must continue to
be performed by the Retail Clerks."
The Frito Company, the Charging Party, herein called Frito, is
engaged in the manufacture and distribution of food products in the
southern California area, and has been doing business with all of the
Respondent food market operators. In the course of its business Frito
sells and delivers food products to these markets, using its driver-
salesmen for that purpose. These employees are not represented by
any union. Formerly they entered the selling areas of the food mar-
kets and delivered, stocked, racked, and serviced Frito products or
performed shelving or display work thereon. As detailed in the In-
termediate Report, union representatives called on certain market
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operators named herein at various times between approximately
April 12 and September 7, 1960, and requested that they comply with
their contracts and prohibit Frito driver-salesmen from entering into
the selling area to service the Frito racks. The said market operators
acted in accordance with those requests, and as a result the Frito em-
ployees no longer perform functions in the selling area but merely
deliver merchandise to the markets.
The General Counsel alleged that article I, subdivisions C1 and 3,
quoted above, are proscribed by Section 8 (e) of the Act, and that the
Respondents enforced and gave effect to these clauses, thereby "enter-
ing into" a proscribed agreement in violation of that section. All
parties admitted "each and all" of the material allegations of the com-
plaint, except that the Respondent Employers and the Intervenors
contended that the allegations of the consolidated second amended
complaint 9 were incomplete because the aforementioned bulletin and
the incidents at the stores were pursuant to the entire contract and
hence clause B and subdivision C2 were also in issue 4 The Trial
Examiner construed the General Counsel's complaint allegation as
based on the mere continued existence of the subdivisions, and he re-
jected the concessions of the parties on the ground that the matters
admitted did not, in his opinion, constitute a violation of Section 8 (e).
He held, without ruling on the validity of subdivisions C1 and 3, that
even if they were invalid the Board is precluded by Section 10(b) of
the Act 5 from finding a violation based thereon. He concluded that
Section 8(e) was intended to apply only to "the act of acquiring a
contractual obligation or, in other words, beginning or embarking
upon one, as, . . . affix[ing] . . . signatures to the instru-
ment . . . ," but here, according to the Trial Examiner, the contract
was signed more than 6 months before the charges were filed. The
Trial Examiner rejected the General Counsel's contentions concerning
the bulletin on the ground that it was the unilateral act of the Council
and could not be termed a contract or agreement between the Respond-
ent Union and Respondent Employers. Finally, as to the incidents
at the individual markets, he construed the position of the Respondent
Employers as a denial that they had acted pursuant to subdivisions Cl
and 3 and as an assertion that they had acted pursuant to clause B.
He rejected the admissions of the Respondent Unions because he found
:Referred to in the Intermediate Report as the consolidated amended complaint.
'The original complaint alleged violations of Section 8(e) Involving subdivisions B,
C1, 2, and 3. The complaint herein alleges violation based only on subdivisions C1 and 3.
Although the Respondent Employers contend both B and C2 are in issue, they direct their
arguments solely to the alleged invalidity of subdivision B.
6 Section 10(b) of the Act provides in pertinent part : "That no complaint shall issue
based upon any unfair labor practice occurring more than six months prior to the filing
of the charge ...." As we do not base our conclusions in this case on any event
preceding the 6 -month period , Section 10 ( b) is inapplicable.
RETAIL CLERKS UNION, LOCAL 770, ETC. 247
that the evidence was not in accord with such admissions. Accord-
ingly, he recommended dismissal of the complaint on the ground that
the evidence did not support the complaint against the market opera-
tors and, as the Unions and Employers were inseparably linked, "it
would be a departure from logic" to hold that the Unions had violated
the Act but their companions to the agreements had not. We do not
agree with the Trial Examiner's conclusion. Rather, for the reasons
stated below, we find that subdivisions C1 and 3 of article I are in-
valid,' that the prohibition of Section 8(e) extends beyond the mere
initiation of a prohibited obligation, and that the Respondents, by
enforcing and giving effect to the said clauses within the period cov-
ered by the charges, engaged in conduct which is violative of Sec-
tion 8 (e).
1. All parties conceded, and we agree, that subdivisions C1 and 3
of article I of the contracts are agreements which are within the
proscription of Section 8(e). These subdivisions constitute an agree-
ment that the Respondent Employers will subcontract work only to
employers who are under contract with the Respondent Unions or with
"Teamsters, Culinary Workers, and Building Service Employees Un-
ions" and accordingly go beyond protecting work of the employees in
the unit. The clauses are thus, at least by implication, an agreement
not to do business with those who do not so qualify. Accordingly,
they are invalid within the meaning of Section 8(e).'
As these clauses are invalid, we find, contrary to the Trial Examiner,
that any enforcement thereof during the period covered by the
charges constitutes an "entering" into such agreement in violation of
that section of the Act. We have recently discussed at length our
reasons for so concluding in Dan McKinney Co., 137 NLRB 649,
and will not repeat them here. Further, all the Respondents have
admitted that they maintained the clauses in effect and enforced them
at all relevant times within the 10(b) period. We have found that a
concession that the parties to the contract have, in fact, enforced and
given effect to the unlawful clauses is sufficient evidence upon which
to base a finding that they have "entered into" an illegal agreement
in violation of the Act." The admissions in the instant case were,
6 We agree with the Trial Examiner that , as the General Counsel has formally with-
drawn the allegations concerning clauses B and C2, these clauses are not before the Board
7,See, e g., Automotive, Petroleum & Allied Industries Employees Union, Local 618,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America ( Greater St . Louis Automotive Trimmers and Upholsterers Associa-
tion, Inc.), 134 NLRB 1363; Highway Truck Drivers and Helpers, Local 107, Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America,
Indepgudent (E. A. Gallagher & Sons), 131 NLRB 925, Dan McKinney Co, 137 NLRB
649, General Teamste)s' Warehousemen and Helpers' Union, Local No. 890 (San
Joaquin Valley Shtppe) s' Labor Committee; et al ), 137 NLRB 641
s General Teamsters', Warehousemen and Helpers ' Union, Local No. 890 (San Joaquin
Valley Shoppers ' Labor Committee, et al ), supra.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore, not contrary to law and should not have been rejected.' Nor
do they go beyond the scope of the complaint. For it is clear from
the complaint, as well as from the briefs filed with the Trial Examiner
and the Board, that the General Counsel at all times alleged that the
violation occurred by reason of the enforcement as well as the main-
tenance of the contract clauses under attack. Accordingly, we find
that the Respondents, by maintaining, enforcing, or giving effect to
subdivisions-C1 and 3 of article I of their contract have "entered into"
an illegal agreement in violation of Section 8(e) of the Act.
2. Contrary to the Trial Examiner's conclusion, the Respondent
Employers at no time denied that they had acted pursuant to sub-
divisions C1 and 3 in complying with the requests of the Respondent
Unions that market operators exclude the Frito driver- salesmen from
entering the selling areas. Rather, they asserted that they were also
enforcing clauses B and C2, which we have already held to be outside
the scope of the complaint herein. Further, the fact that the Respond-
ent Unions referred to "the contract" rather than to a specific clause 10
and that the market operators may have intended to enforce clause B
as well as subdivisions C1 and 3 does not warrant the conclusion that
the allegation of the complaint has not been sustained. It is unneces-
sary to prove in this connection that the Frito employees were ex-
cluded solely pursuant to subdivisions C1 and 3. It is immaterial that
a valid agreement may have been enforced if the parties were also
enforcing an unlawful agreement. The Respondent Unions have con-
ceded that they were seeking to enforce the provisions which are in
issue, and the market operators admittedly acted, at least in part, to
enforce them. Nor is it essential that a violation be found as to both
parties to such a contract in order to find unlawful conduct by one of
them." In the instant case , the incidents at the individual markets
occurred more than 6 months before the charge was filed against the
Respondent Employers, and we therefore may make no unfair labor
practice finding as to them based thereon. However, all the incidents
were within the 10(b) period preceding the charge filed against the
Respondent Unions. As we find that these incidents constituted en-
forcement of the clauses which we have found to be unlawful, we
find that respective Respondent Unions thereby violated Section 8 (e) .
3. In view of our findings above, we deem it unnecessary to rule on
the contention relating to the bulletin, as such a ruling could not affect
the scope of our order herein. However, we specifically do not adopt
the Intermediate Report insofar as it deals with this aspect of the case.
9 Further , as discussed below , we do not find the evidence in conflict with these
admissions.
"As it is clear that the Union' s request at Safeway Store No. 395 was specifically
grounded on clause B, as evidenced by its letter , we base no finding on that incident.
11 See, e.g., Dan McKinney Co., supra
RETAIL CLERKS UNION, LOCAL 770, ETC. 249
THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondents set forth above have a close, inti-
mate, 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.
THE REMEDY
Having found that the Respondents have engaged in unfair labor
practices, we shall order them to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of
the Act.
Because the record indicates that Respondent Employers do busi-
ness with other distributors in the southern California area, in addi-
tion to Frito, and that the contracts herein found unlawful apply
equally to all of such distributors who do not meet the standards set
forth in these contracts,12 we find that the Order in this case should
enjoin Section 8 (e) violations involving any other person or employer
doing business with the Respondent Employers, rather than just Frito.
Upon the basis of the foregoing and the entire record, the Board
makes the following :
CONCLUSIONS OF LAW
1. Each of the Respondent Unions is, and has been at all times
material to the issues in this proceeding, a labor organization within
the meaning of Section 2(5) of the Act.
2. Each of the Respondent Employers is, and has been at all times
material to the issues in this proceeding , an employer within the mean-
ing of Section 2(2) of the Act.
3. By maintaining , enforcing , and giving effect to section I, sub-
divisions C1 and 3, contained in the collective -bargaining agreements
between the Respondent Employers and the Respondent Unions, the
Respondents named herein entered into an agreement in violation
of Section 8(e) of the Act.
4. The aforesaid unfair labor practice is an unfair labor practice
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
12 Cf Local 810, Steel, Metals , Alloys and Hardware Fabricators and Warehousemen,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Fenn Can Corporation), 131 NLRB 59, enforcement granted 299 F. 2d 636
(CA. 2) ; International Brotherhood of Electrical Workers, Local 501, et at. ( Samuel
Langer) V. N L R.B., 341 U.S. 694.
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondents, Retail Clerks
Union, Locals 770, 899, 1167, 1428, and 1442; Alpha Beta Food Mar-
kets, Inc.; Food Giant Markets, Inc.; Market Basket; Mayfair Mar-
kets; Ralph Grocery Company; Safeway Stores, Inc.; Thriftimart,
Inc. ; Von's Grocery Co.; and Food Employers Council, Inc., and
their officers, agents, representatives, successors, and assigns, shall:
1. Cease and desist from :
(a) Maintaining, enforcing, and giving effect to the collective-
bargaining contracts signed by Respondent Unions and Respondent
Employers on January 1, 1959, or on April 1, 1959, insofar as said
contracts provide that :
The Employers shall not sub-contract any work ordinarily per-
formed by retail clerks in the stores or markets of the employers,
and, further, any future work created by the Employer's stores
or markets which would ordinarily be performed by retail clerks,
shall be performed only by members of the bargaining unit as
herein set forth, except that such work may be sub-contracted to
an employer who is signatory to an Agreement with the Union.
Any other work which is presently under specific contracts with
the Teamsters, Culinary Workers, and Building Service Em-
ployees Unions shall not be affected by this Agreement, except
as to any change which may result from an agreement of the
unions involved and the signatory Union and upon presentation
to the Employer of bona fide proof thereof.
(b) Executing, maintaining, enforcing, or giving effect to any
other contract or agreement, express or implied, whereby any of the
Respondent Employers cease or refrain, or agree to cease or refrain,
from doing business with The Frito Company, Western Division, or
any other employer or person, in violation of Section 8(e) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Respondent Employers shall post at their places of business,
copies of the notice attached hereto marked "Appendix A." 11 Copies
of said notice, to be furnished by the Regional Director for the
Twenty-first Region, shall, after having been duly signed by an
authorized representative of the Respondent Employers, be posted
by said Respondents immediately upon receipt thereof, and be main-
tained by them for a period of 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
is In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order"
If, during the compliance stage of these proceedings , it appears appropriate to the
Regional Director to have separate notices signed by each Respondent Employer, rather
than a single notice signed on behalf of all, he is hereby empowered to do so
RETAIL CLERKS UNION, LOCAL 770, ETC. 251
ent Employers to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Respondent Union Locals shall post at Respondent Union
Locals' business offices, places of business, and meeting places, copies
of the notice attached hereto marked "Appendix B.714 Copies of
said notice, to be furnished by the Regional Director for the Twenty-
first Region, shall, after having been duly signed by an authorized
representative of the Respondent Unions, be posted by said Respond-
ents immediately upon receipt thereof, and be maintained by them for
a period of 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members,are customarily posted.
Reasonable steps shall be taken by the Respondent Unions to insure
that said notices are not altered, defaced, or covered by any other
material.
(c) Respondents shall notify the Regional Director for the Twenty-
first Region, in writing, within 10 days from the date of this Order,
what steps they have taken to comply herewith.
MEMBERS BROWN and FANNING took no part in the consideration
of the above Decision and Order.
14 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
If, during the compliance stage of these proceedings , it appears appropriate to the
Regional Director to have separate notices signed by each Respondent Union , rather than
a single notice signed on behalf of all, he is hereby empowered to do so.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT execute, maintain, give effect to, or enforce any
contract agreement, express or implied, with Retail Clerks Union,
Locals 770, 899, 1167, 1428, or 1442, whereby we cease or refrain,
or agree to cease or refrain, from doing business with The Frito
Company, Western Division, or any other employer or person,
in violation of Section 8(e) of the Act.
WE WILL NOT enforce, maintain, or give effect to our collective-
bargaining contracts signed with Retail Clerks Union, Locals
770, 899, 1167, 1428, or 1442, on January 1, 1959, or on April 1,
1959, insofar as said contracts provide that:
The employers shall not sub-contract any work ordinarily
performed by retail clerks in the stores or markets of the
Employers, and, further, any future work created by the
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer within the Employer's stores or markets which
would ordinarily be performed by retail clerks, shall be
performed only by members of the bargaining unit as herein
set forth, except that such work may be sub-contracted to an
employer who is signatory to an Agreement with the Union.
Any other work which is presently under specific contracts
with the Teamsters, Culinary Workers, and Building Service
Employees Unions shall not be affected by this Agreement,
except as to any change which may result from an agreement
of the unions involved and the signatory Union and upon
presentation to the Employer of bona fide proof thereof.
ALPHA BETA FOOD MARKETS, INC.,
FOOD GIANT MARKETS, INC.,
MARKET BASKET,
MAYFAIR MARKETS,
RALPH GROCERY COMPANY,
SAFEWAY STORES, INC.,
THRIFTIMART, INC.,
VON'S GROCERY CO.,
FOOD EMPLOYERS COUNCIL, INC.
Employers.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Eastern Columbia Building, 849 Broadway, Los Angeles 14,
California, Telephone Number, Richmond 9-4711, Extension 1031,
if they have any question concerning this notice or compliance with
its provisions.
APPENDIX B
NOTICE TO ALL OUR MEMBERS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that:
WE WILL NOT execute, maintain, give effect to, or enforce any
contract or agreement, express or implied, with Alpha Beta Food
Markets, Inc., Food Giant Markets, Inc., Market Basket, May-
fair Markets, Ralph Grocery Company, Safeway Stores, Inc.,
Thriftimart, Inc., Von's Grocery Co., or Food Employers Coun-
cil, Inc., whereby such employer ceases or refrains, or agrees to
cease or refrain, from doing business with The Frito Company,
RETAIL CLERKS UNION, LOCAL 770, ETC. 253
Western Division, or any other employer or person, in violation
of Section 8 (e) of the Act.
WE WILL NOT enforce or maintain in effect the collective-
bargaining contracts signed by the aforenamed Employers and
the undersigned Unions on January 1, 1959, or on April 1, 1959,
insofar as said contracts provide that :
The employers shall not sub-contract any work ordinarily
performed by retail clerks in the stores or markets of the
Employers, and further, any future work created by the
Employer within the Employer's stores or markets which
would ordinarily be performed by retail clerks, shall be per-
formed only by members of the bargaining unit as herein
set forth, except that such work may be sub-contracted to an
employer who is signatory to an Agreement with the Union.
Any other work which is presently under specific contracts
with the Teamsters, Culinary Workers, and Building Service
Employees Unions shall not be affected by this Agreement,
except as to any change which may result from an agree-
ment of the unions involved and the signatory Union and
upon presentation to the Employer of bona fide proof thereof.
RETAIL CLERKS UNION, LOCALS 770,
899, 1167, 1428, and 1442,
Labor Organizations.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Eastern Columbia Building, 849 Broadway, Los Angeles 14,
California, Telephone Number, Richmond 9-4711, Extension 1031,
if they have any question concerning this notice or compliance with
its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint in this proceeding , issued by the General Counsel of the National
Labor Relations Board , alleges, as amended,' that various employers (collectively
1 The amended complaint (described in the record as the consolidated amended com-
plaint) is based upon a charge against the Respondent Unions in Case No 21-CE-11
filed on October 12, 1960, by a firm named The Frito Company, Western Division; an
amendment of that charge filed on December 2, 1960; a charge in Case No. 21-CE-16-1
against the Respondent Employers filed by Local 770 on March 28, 1961 ; and a charge in
Case No 21-CE-16-2 filed by the other Respondent Unions against the Respondent Em-
ployers on March 28, 1961 . The cases in which the charges were respectively filed have
been duly consolidated pursuant to Section 102 33 of the Board's Rules and Regulations,
Series 8 Due service of it copy of the charges, the amended charge, and the consolidated
amended complaint has been effected upon each party entitled thereto.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
described herein as the Respondent Employers) and certain labor organizations
(referred to herein collectively as the Respondent Unions) 2 "entered into" and "gave
effect" to contractual provisions prohibited by the terms of Section 8(e) of the
National Labor Relations Act, as amended (29 U.S.C., Sec. 151 et seq.; also called
the Act herein); and have by such conduct' engaged in unfair labor practices pro-
scribed by the said Section 8(e).3
The Respondent Unions have filed answers in which they admit all of the allega-
tions of the amended complaint, and offer "to stipulate and agree" to a remedial
order .in terms they propose in the answers. The Respondent Employers have, by
answer, denied some of the allegations of the amended complaint, and admitted
others. The material denials and admissions by the Respondent Employers affecting
the issues will be noted in connection with findings and conclusions made below.
Prior to the hearing in this proceeding, the Regional Director of the Twenty-first
Region of the Board, upon motion, entered orders permitting intervention by three
employers and four organizations of employers, who, for convenience of reference,
will be collectively described herein as the Employer Intervenors.4 Following the
entry of the Intervention orders, the Respondent Unions filed with the Regional
Director a motion to limit the extent of participation by the Employer Intervenors
in this proceeding, seeking, in brief, to preclude the Employer Intervenors from
offering objections to evidence , calling or examining witnesses , presenting docu-
mentary or other evidence, or participating in "stipulations of fact." This motion
was referred by the Regional Director "to the Trial Examiner . for ruling."
A hearing upon the issues in this proceeding has been held before Trial Examiner
Herman Marx at Los Angeles, California. All of the parties, including the inter-
venors, appeared at, and participated in, the hearing through respective counsel, and
were afforded a full opportunity to be heard, examine and cross-examine witnesses,
adduce -pertinent evidence, file briefs, and submit oral argument. The briefs sub-
mitted to me since the close of the hearing have been read and considered.
Shortly after the hearing opened, and before any evidence was taken, a labor
organization known as Joint Council No. 42, International Brotherhood of Teamsters,
Chauffeur's, Warehousemen & Helpers of America, and a group of its local affiliates,
moved for leave to intervene. The motion was granted upon a showing by the
movants (collectively designated herein as the Teamster Intervenors) that the con-
tracts involved here exclude work performed "under specific contracts with the
Teamsters" from the operation of the contractual provisions challenged by the Gen-
eral Counsel , and that thus a determination of the issues could affect the Teamster
Intervenors. The latter then moved, successively, to dismiss the complaint, and for
a continuance . Both motions were denied for reasons adequately reflected in the
record and unnecessary to summarize here.5 I also denied the Respondent Unions'
2 The Respondent Employers are Alpha Beta Food Markets , Inc. ; Food Giant Markets,
Inc ; Market Basket ; Ralph Grocery Company ; Mayfair Markets ; Safeway Stores, Inc. ;
Thriftimart, Inc. ; Von's Grocery Co. ; and Food Employers Council, Inc . The Respondent
Unions are Retail Clerks Union, Locals 1442, 1428, 899, 1167, and 770. For convenience
of description, each of the Respondent Unions will also be referred to herein by its local
number , as, for example , Local 770.
3To the extent material here , Section 8 ( e) provides:
It shall be an unfair labor practice for any labor organization and any employer to
enter into any contract or agreement , express or implied, whereby such employer
ceases or refrains or agrees to cease or refrain from handling, using, selling , trans-
porting or otherwise dealing in any of the products o'f any other employer , or to cease
doing business with any other person, and any contract or agreement entered into
heretofore or hereafter containing such an agreement shall be to such extent un-
enforcible and void . .. .
4 The Employer Intervenors are Standard Merchandise Co ; U.S Servateria Co. ; Wesco
Merchandise Co ; American Bottlers of Carbonated Beverages ; California and Nevada
Manufacturers of Carbonated Beverages ; American Research Merchandising Institute;
and Grocery Manufacturers of America, Inc.
5 Following denial of the motion for a continuance , counsel for the Teamster Intervenors
withdrew from the hearing without presenting any evidence . He had stated before his
withdrawal that the dismissal motion "is the essential basis of our contentions here."
The Teamster Intervenors' motion for leave to intervene had been `granted subject to
"such limitations as may appear . . . appropriate as the case goes on"; and toward the
close of the hearing , after all the evidence was in, and it was clear that the Teamster
Intervenors would not avail themselves of an opportunity to present evidence, the Re-
spondent Unions moved to vacate the order granting leave for intervention by the
RETAIL CLERKS UNION, LOCAL 770, ETC. 255
motion, previously filed with the Regional Director, to limit the scope of intervention
by the Employer Intervenors, but I note in that connection that, upon objection, I
excluded substantially all of the testimony (of considerable volume, judging by the
offers of proof) proffered by the Employer Intervenors. Bearing in mind that they
are neither parties to the contracts in question here nor involved in any of the inci-
dents alleged in the complaint as applications of the agreements, and measuring the
offers of proof by the material facts in this proceeding (set forth in findings made
below), it is evident that the voluminous testimony sought to be adduced by the
Employer Intervenors tends neither to prove nor disprove any of the material issues
presented by the pleadings, goes far afield of such issues and the facts, and thus has
no place in this case.6
Upon the entire record , and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. NATURE OF THE BUSINESS OF THE RESPONDENT EMPLOYERS;
JURISDICTION OF THE BOARD
Each of the Respondent Employers, with the exception of Food Employers Coun-
cil, Inc. (also called the Council herein), is engaged in the business of operating
"retail food markets in the Southern California area"; and each, with the exception
noted, derives from its said operations an annual gross income in excess of $500,000,
and, in the course of its business, receives each year in California from points outside
thereof food products valued in excess of $50,000.
The Council is a nonprofit corporation consisting of members, including most of
the other Respondent Employers, "engaged in the retail food market business in
Southern California." Since about 1941, the Council has bargained collectively for
its members with the Respondent Unions, and has negotiated collective-bargaining
contracts with these labor organizations affecting terms and conditions of employ-
ment of retail clerks employed by members of the Council.
As the amended complaint alleges, and the answers admit, each of the Respondent
Employers is an employer within the purview of the Act, and is engaged in interstate
commerce within the meaning of the statute. Accordingly, the Board has jurisdiction
over the subject matter of this proceeding.
H. THE LABOR ORGANIZATIONS INVOLVED
Each of the Respondent Unions is, as the answers concede , a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
Each of the Respondent Employers has entered into one or more written collective-
bargaining agreements with one or more of the Respondent Unions. Some of the
contracts were entered into on January 1, 1959, and the rest on April 1, 1959. By
the terms of each contract, it was to remain in effect until March 31, 1964, and there-
after subject to prescribed notice provisions for termination or change after that
date. The provisions of all the contracts (referred to herein collectively as general
agreements and individually as a general agreement ) are substantially the same, and
the pertinent terms, identically stated in each general agreement , are as follows:
Teamster Intervenors . The motion was denied , but, upon subsequent motion by some of
the Respondent Unions, I limited the intervention by the Teamster Intervenors to their
motion to dismiss, noting , however , that the limitation did not restrict them in seeking
review of any ruling affecting them made in this proceeding , or in their right to file with
me a brief bearing upon any interest they may have in any order that may be made in
this proceeding. They have not availed themselves of the opportunity to file a brief.
e By denying the motion to limit the Employer Intervenors' participation, I do not
Imply any belief that their motions for intervention should have been granted in the first
place-a matter as to which I find it unnecessary to express an opinion. Section 102 29
of the Board's Rules and Regulations vests discretion in the Regional Director to grant
such a motion before the bearing; and it is evident that to grant the motion to limit
would have constituted a review and substantial modification of a determination com-
mitted by Board regulation to the Regional Director's discretion. I did not believe that
I should follow such a course in the circumstances presented, and hence denied the motion
to limit.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ARTICLE I
RECOGNITION OF THE UNION
A. Bargaining Unit.
1. The Union is hereby recognized as the sole collective bargaining agent for
all employees within the bargaining unit comprised of those classifications of
employees which constituted the Union's bargaining unit on January 1,
1955 ... .
B. Work Performed.
All work performed on the premises in the nature of work generally performed
by retail clerks shall only be performed by employees in the bargaining unit as
herein defined.
C. Sub-Contracting or Assignment of Work.
1. The Employers shall not sub-contract any work ordinarily performed by
retail clerks in the stores or markets of the Employers, and, further, any future
work created by the Employer within the Employer's stores or markets which
would ordinarily be performed by retail clerks, shall be performed only by
members of the bargaining unit as herein set forth, except that such work may
be sub-contracted to an employer who is signatory to an Agreement with the
Union.
* * * * * * *
3. Any other work which is presently under specific contracts with the
Teamsters, Culinary Workers, and Building Service Employees Unions shall
not be affected by this Agreement, except as to any change which may result
from an agreement of the unions involved and the signatory Union and upon
presentation to the Employer of bona fide proof thereof.
On August 30, 1960, the Council issued a bulletin addressed to "all market opera-
tors having contracts" with one of the Respondent Unions (Local 770), purporting
to interpret the meaning and intent of provisions of such contracts (without specifi-
cally identifying the articles or subdivisions so interpreted), and stating, in that con-
nection, among other things, that work previously performed "by Teamster driver-
salesmen . in the Southern California retail food industry may continue to be
performed"; and that "work generally performed by Retail Clerks-that is, work
that has not been performed by Teamster driver-salesmen must continue to be per-
formed by the Retail Clerks."
A concern named The Frito Company, Western Division (also called Frito herein),
which is engaged in the manufacture and distribution of food products in the southern
California area, has been doing business with all the Respondent Employers who
operate markets (in other words, all except the Council), and in the course of its
business sells and delivers food products to such markets, using driver-salesmen
for that purpose. These employees are not represented by any union. The duties
of the driver-salesmen formerly included the delivery of Frito's products in the selling
areas of the markets in question, and the placement and display of the products on
shelves in such areas, but because of reasons to be described later, the Frito employees
no longer perform such functions, doing substantially no more at the markets than
to deliver merchandise there. As will appear, much of the issues in this proceeding
center on the circumstances in which this change occurred.
B. The issues
The General Counsel's claims of violation of Section 8(e) may be divided into
the three categories set forth below:
1. One is a contention that the Respondent Unions and Employers committed
unfair labor practices by maintaining the provisions of subdivisions Cl and 3 of
article I of the general agreements. (Subdivisions C1 and 3 will on occasion be
labeled herein, for convenience of reference, as the subcontractors clause.) These
contractual terms have the effect, in substance, of permitting the Respondent Em-
ployers to subcontract work "ordinarily performed by (their) retail clerks" only
to an employer who is signatory to an Agreement with the (given) Union"; and
of exempting from the reach of the subcontractors clause "any other work which
is presently under specific contracts with the Teamsters, Culinary Workers and
Building Service Employees Unions." Hence, the General Counsel maintains, the
subcontracting prohibition is a continuing undertaking by each of the Respondent
RETAIL CLERKS UNION, LOCAL 770, ETC. 257
Employers to cease or refrain from doing business with other employers within the
reach of the prohibition; and therefore, to maintain subdivisions Cl and 3 of article I,
so the argument runs, is "to enter into" an unlawful "contract or agreement" within
the purview of Section 8(e).
It may be noted, in connection with the foregoing position, that the General
Counsel has deliberately refrained, as he has made evident in a number of ways,
including the text of the amended complaint, from placing in issue any question
of legality of subdivision B of article I, the clause requiring "work . on the
premises . generally performed by retail clerks" to "be performed (only) by em-
ployees in the bargaining unit" (in other words, by market employees subject to the
general agreements). Yet Frito and some of the Intervening Employers (those
joining in the brief of Grocery Manufacturers of America, Inc.) insist on challenging
the validity of that clause in this proceeding. To pass on that issue here would be
tantamount to an enlargement of the scope of the amended complaint, and would
have the effect of ignoring the plain legislative purpose, expressed in Section 3(d)
of the Act, to vest the General Counsel with "final authority, on behalf of the Board,
in respect of the investigation of charges and issuance of complaints." Such a course
would be obviously improper, and I thus must decline to take it .7
2. The General Counsel alleges in the amended complaint that by the Council's
issuance of the bulletin of August 30, 1960, the Respondent Unions and Employers
"invoked and gave effect" to the subcontractors clause and thereby, so it is alleged,
entered into "contracts or agreements" whereby the Respondent Employers, in con-
travention of Section 8(e), agreed to cease or refrain from "handling, using, selling,
or otherwise dealing in the products of," or "to cease doing business with," Frito
and other employers who do not have contracts with any of the Respondent Unions
or "with the Teamsters, Culinary Workers or Building Service Employees Unions.
3. Finally, the General Counsel claims that each of various alleged applications
of subdivisions Cl and 3 of article I of the general agreements to Frito at certain
markets mentioned in the amended complaint amounted to a "contract or agreement"
between the given Respondent Union and Respondent Employer involved, whereby
the latter, in violation of Section 8(e), "agreed to and did cease or refrain from
handling, using, selling, or otherwise dealing in the products of Frito, or to cease
doing business with Frito."
The foregoing contention of the General Counsel will be considered below in the
order in which they have been stated.
C. The claim regarding the subcontracting clause
What Section 8(e) of the Act forbids as an unfair labor practice is the act of
entering into any agreement within the statutory proscription . With that as a back-
ground, it is a critical fact that all of the written contracts in question here were
executed before the enactment of Section 8(e).
The General Counsel , however , would regard the date when the contracts came
into existence as no barrier to a holding that the Respondents violated the Act by
entering into them , and he achieves this result by reading the statutory words "to
enter into any contract or agreement " as meaning not only the act of becoming
bound to one , but the maintenance or continued existence of the obligation. It
should be borne in mind , in that connection , that while there is much in the
amended complaint about specific instances of alleged application of the subcon-
tractors clause, it is evident from the General Counsel's brief (particularly pp.
19-23 ) that he contends , among other claims, that the mere "continued existence
and maintenance" of the subcontractors clause within the 6-month period of limita-
tion prescribed by Section 10(b) of the Act is an unfair labor practice , without
regard to any application or enforcement of the clause.8
The General Counsel summons to his aid some legislative history, but the infer-
ences he would draw from it have a tenuous cast , and it does nothing of substance
for his position as I am led to conclude from the excerpt from his brief, which
7 The virtually unreviewable authority of the General Counsel over the issuance of com-
plaints has been noted repeatedly by courts of appeals. See, for example, Prank A.
Hourihan v. N.L.R B., 201 F. 2d 187 (C.A.D C.), and cases cited.
8I rejected a similar position in Dan McKinney Co., 137 NLRB 6149, where the Gen-
eral Counsel maintained in his brief that "every single day that it [the contract there
involved] continues to be in effect, it is an 'entering into' a new illegal act." The case
is now before the Board upon exceptions.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contains the legislative history in question, set forth in the margin.9 If one is to
resort to legislative background, more persuasive, in my judgment, than the history
upon which the General Counsel relies is the fact, as the Board has noted, that "the
words `sign' and `enter into' were used interchangeably during the congressional
debates and in congressional reports." Mary Feifer, d/b/a American Feed Com-
pany, 133 NLRB 214, and legislative history cited there.
In any case, I see no need to scout either the legislative history or the multiple
meanings and uses of the word " enter" described in unabridged dictionaries in order
to define the statutory words "to enter into any contract or agreement," for there is
nothing obscure about the language, and, indeed, it has an unadorned simplicity and
employs words in very common use and of common meaning. In normal usage,
the words mean the act of acquiring a contractual obligation or, in other words,
beginning or embarking upon one, as, for example, when contracting parties affix
their executing signatures to the instrument that binds them. Thus, when we say
that a party "entered into" a contract on January 1, 1959, we mean that he signed
or otherwise embarked upon the obligation on that date, and it would seem to be
self-evident that if the party did in fact execute the contract on January 1, 1959,
it would be a departure from fact and a distortion of language to say that he entered
into the contract on July 1, 1961, simply because the contract was still in existence
on the latter date. The General Counsel himself, it is interesting to note, gives
the phrase "to enter into" the meaning and usage commonly given it, as described
above, for in the very act of describing the collective-bargaining contracts in the
amended complaint, he states, in substance, that they were "enterd into," variously,
on January 1, 1959, and April 1, 1959. He puts the matter that way, obviously,
because that is the normal way to state the dates when the contracts were "entered
into" or, in other words, when the parties embarked upon or began their written
contractual obligations. Plainly, too, it would be an abuse of meaning and language
if he were to say that the contracts were "entered into" on some subsequent date
such as, for example, July 1, 1961, because they were in existence on the latter date.
Comparably, I believe it to be a misuse of meaning and language to assert that
Congress, by the phrase "It shall be an unfair labor practice . . . to enter into any
contract or agreement," meant to make the continued maintenance or existence of
such a contract or agreement an unfair labor practice.
That view of the matter is by no means negated by the fact that after specifying
that the act of entering into a prohibited contract or agreement is "an unfair labor
practice," Section 8 (e) provides that such a "contract or agreement entered into
heretofore or hereafter . . . shall be . . . unenforcible and void." The crucial
fact is that Congress chose to make entering into certain contracts an unfair labor
practice, and then, dealing with the subject of the status of such an agreement after
it was "entered into," omitted to specify that its continued maintenance or existence
9 The excerpt from the General Counsel's brief (omitting footnotes and inserting, paren-
thetically, appropriate Congressional Record references) is as follows:
As stated above, the legislative history of Section 8(e) also shows that Congress
intended to make maintenance of certain contracts an unfair labor practice. For
example, in debate on the Elliott bill (then a committee bill) and the Landrum-
Griffin bill , Congressman Smith of Virginia said about the portion of Landrum-
Griffin which eventually became the substance of 8(e), "That is the provision in the
Landrum-Griffin bill. There are no ifs, and, buts or provisos about it. It says you
have to stop the boycott, hot cargo practices period" (105 Cong. Rec. 14176.)
"Practices" is a word signifying current performance, carrying on, repetition. Prac-
tice does not refer to a "one-shot" Incident such as executing an agreement.
In a report to the House on changes made in the Landrum-Griffin bill, Representa-
tive Thompson of New Jersey stated, "Hot Cargo. The Landrum-Griffin bill ex-
tended the hot cargo provisions of the Senate bill to all agreements between an
employer and a labor union by which the employer agrees not to do business with
another concern." (105 Cong Rec. 16636.) The Congressman's remarks were ad-
dressed to agreements, not their mere execution
In commenting upon Section 8(e) as passed by the Congress, Senator Goldwater
said, "This means that such contractual clauses are per se illegal. It is unlawful foi
either party even to execute such an [hot cargo] agreement . . . ." (105 Cong. Rec.
A8523.) The Senator's remarks show that mere execution of the "hot cargo" contract
was but one aspect of relevant employer-union conduct which was outlawed by 8(e).
By stating that "even to execute" a "hot cargo" agreement was unlawful, Senator
Goldwater was indicating that other conduct-maintenance of a "hot cargo" con-
tract-was unlawful
RETAIL CLERKS UNION, LOCAL 770, ETC. 259
was an unfair labor practice , saying no more in that regard , than that "any contract
or agreement entered into heretofore or hereafter containing such ( a proscribed)
agreement shall be to such extent unenforcible and void." 10 The wisdom of the
choice is a matter for Congress , and it is not within the province of the Board, as
the Supreme Court has had occasion to remind us, to add, by construction, what
Congress has chosen to omit. Local 357, International Brotherhood of Teamsters,
etc. (Los Angeles-Seattle Motor Express ) v. N.L.R.B., 365 U.S. 667, 674-676;
Colgate-Palmolive-Peet Co. v. N.L.R.B ., 338 U .S. 355, 363.
In sum , for the reasons stated , without regard to the question whether the sub-
contractors clause contains language now declared "void" by Section 8(e), I hold
that by the mere maintenance and continued existence of the contracts variously
"entered into" on January 1, 1959, and April 1, 1959, the Respondent Unions and
Employers have not committed any unfair labor practices in violation of Section
8(e) of the Act."
D. The bulletin
By allegations of his amended complaint, the General Counsel treats the Council's
distribution of its bulletin "to various of its members" as the establishment by the
Respondent Employers of "a policy, . . . currently in effect, of uniformly granting
the work covered by" subdivisions Cl and 3 of article I of the general agreements,
and as a proscribed "contract or agreement" between the Respondent Unions and
Employers (paragraphs 13, 28, 29, 31, and 32, amended complaint). But the rele-
vant portions of the bulletin are, in fact, nothing more than the Council's view or
interpretation of parts of the collective-bargaining contracts (whether or not of the
subcontractors clause need not detain us); and one is utterly at a loss to understand
how the Council's unilateral act can justifiably be termed a "contract or agreement"
between the Respondent Unions and Employers. The record is barren of any
evidence that the Respondent Unions, at least, had any hand in the preparation or
distribution of the bulletin or based any action on it. The fact is that neither the
bulletin nor its distribution constituted a "contract or agreement ," and to apply
either term to the Council 's unilateral action is to ignore the meanining of words
of common usage.
To be sure, the Respondent Unions have, by their answers in blanket form, ad-
mitted "each and all" of the averments of the amended complaint , and have thus
admitted allegations to the effect that by force of the Council 's action in issuing-
and distributing the bulletin , the Respondent Unions and Employers "entered into"
a proscribed "contract or agreement" in violation of Section 8(e), but the relevant
10 The fact that the Board in Mary Feifer, d/b/a American Feed Company, 133 NLRB
214, required the respondents there to cease and desist from "maintaining ," as well as
from "entering into," contracts proscribed by Section 8(e) does not, in my judgment,
inevitably support the General Counsel 's construction of the statutory phrase "to enter
into." For one thing, the Board did not in the cited case hold that maintenance of the
agreement in issue there was an unfair labor practice , and it is such a holding, and not
merely a remedial prohibition against maintaining such a contract , that the General
Counsel seeks here. For another matter, particularly as the statute makes "unenforcible
and void" a contract into which unions and employers are forbidden "to enter," there
would appear to be reasonable justification for the inclusion in a remedy of a prohibition
against maintenance of such a contract as an implementation of a prohibition against
"entering into" one, even if the language of Section 8(e) permits no finding that mainte-
nance is an unfair labor practice . In other words, the fact that the Board has in effect
held that it has remedial power to enjoin maintenance of a "void " contract , in conjunction
with a holding that "entering into" it was an unfair labor practice, does not mean that
Section 8(e) confers authority upon the Board to find such maintenance to be an unfair
labor practice.
"In reaching the conclusion above, I am fully mindful that the Respondent Unions
have, by answer , admitted allegations of paragraph 31 of the amended complaint to the
effect that by maintenance of the contracts , they have engaged in unfair labor practices
In violation of Section 8(e). However , the allegation is a conclusion , as are the relevant
admissions , and, in any case, I think it would be neither proper nor an effectuation of the
policies of the Act to hold, by force of the admissions , that by the mere maintenance or
existence of the contracts , the Respondent Unions violated Section 8 (e), when the statute
does not, in fact, make such maintenance or existence an unfair labor practice Similarly,
I make no finding that the Respondent Employers engaged in unfair labor practices by
the mere maintenance or existence of the contracts.
662353-63-vol. 138-18
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admissions are not decisive and surely are no warrant for a departure from common-
sense and the law, not to speak of the ordinary meaning of words.12 The allegations
to the effect that the Respondent Unions and Employers entered into a "contract or
agreement" in violation of Section 8(e) by reason of the issuance and distribution of
the bulletin are, in substance, legal conclusions. Conventional rules of pleading
require that "facts and not legal conclusions should be alleged," and that "ordinarily
a conclusion of law does not aid the pleader (and) is no allegation at all." 71 C.J.S.
Pleading Sec. 13. Invoking these elementary principles here, the admissions of the
General Counsel's legal conclusions should be given no weight, but whether or not
one applies these rules to proceedings such as this, it seems to me that it would be
both inappropriate and not an effectuation of the policies of the Act to base findings
and conclusions upon conclusional conceptions reflected in the pleadings that the
available facts in the record do not support.
The sum of the matter is that the record is insufficient to support a holding that by
the issuance or distribution of the bulletin any of the Respondents violated Section
8(e).
E. The alleged applications of the subcontractors clause to Frito
The General Counsel's allegations of application of the subcontractors' clause
involve 10 markets. Basically, each incident centers upon a requirement by the
Respondent Employer concerned, at the instance of the Respondent Union with
which it has a general agreement, that Frito driver-salesmen who deliver the Com-
pany's products to the markets discontinue a prior practice of placing, arranging,
and displaying the merchandise on shelves in the selling areas of the stores.
With respect to the incidents, which will be described in more detail later, the
amended complaint (paragraphs 28-29, 31-32) alleges that by force of the incidents,
the Respondent Unions and Employers "have . entered into contracts whereby
the . Employers have agreed to and did and continue to cease or refrain from
handling . . or otherwise dealing in the products of Frito or any other employers,"
or to cease doing business with Frito or any other employers, "who do not have con-
tracts with the (Respondent) Unions, or with the Teamsters, Culinary Workers or
Building Service Employees Unions"; that by their "acts and conduct" in the premises,
the Respondent Unions and Employers "gave effect" to subdivisions Cl and 3 of
article I of the general agreements "insofar as those agreements provide for excep-
tions to the assignment of work ordinarily performed by retail clerks [in the bar-
gaining unit] in the stores or markets of the Employers which exceptions are based
upon the membership or nonmembership (of employees) in a labor organiza-
tion . . ."; and that by thus giving effect to the contract provisions in question, each
union and market operator "entered into, maintained and gave effect to a contract
or agreement" within the prohibition of Section 8(e), and thereby violated that
section.
The 10 markets involved, and the incidents respectively pertaining to them, may
be divided, for convenience of discussion, into 3 categories. Much of the findings and
discussion must necessarily entail a dissection of relevant portions of the pleadings
as they affect each store, for the General Counsel called no witnesses, resting his
case, substantially, on the pleadings and provisions of subdivisions Cl and 3 of article
I of the general agreements. The testimony is relatively scant, as will appear, and
what there is of it was given by the managers of two of the markets and the super-
visor of one such manager, all called by Frito. , Findings and conclusions with respect
to each of the three categories of stores and related incidents follow below.
12 In their brief (p. 11), counsel for all the Respondent Unions (except Local 770) ex-
plain that they admitted all of the allegations as a species of "plea of nolo contendere"
because in their view the General Counsel's case is based upon the theory that "the
Respondent Employers in response to demands made by the Respondent Unions, agreed
to prevent employees" of Frito from performing certain functions in the markets in ques-
tion by reason of provisions of the subcontractors clause; and because "the specific
remedial order . . . being sought by the General Counsel" is agreeable to the Respondent
Unions. It may be pointed out that the General Counsel's case is not as limited as
Respondent Unions would have it, for the General Counsel not only challenges the legality
of applications of the subcontractors clause to Frito, viewing such applications as "agree-
ments," but, as noted earlier, maintains that by the mere continued existence of the
clause and the issuance of the bulletin, the Respondents have committed unfair labor
practices. In any event , the reasons given by Respondent Unions for what they call their
"plea of nolo contendere" do not affect the results in this proceeding.
RETAIL CLERKS UNION, LOCAL 770, ETC. 261
1. Von's Store No. 23; Food Giant Store No. 24; and Ralph's Store No. 30
Von's Store No. 23 is operated by Von's Grocery Co.; Food Giant Store No. 24
by Food Giant Markets, Inc.; and Ralph's Store No. 30 by Ralph Grocery Company.
Employees. of each of these markets are represented by Local 770, and are subject
to the general agreements in effect between Local 770, the relevant market operators,
and the latter's collective-bargaining representative, the Council.
The gravamen of the allegations regarding the three markets is that Local 770
"insisted" that each store "fully comply" with subdivisions Cl and 3 of article I
of the relevant general agreement by barring Frito's driver-salesmen from entering
the selling area of such store to deliver Frito's products, and performing shelving,
display, and other work thereon, in such area; that each market operator complied
and "prevented" Frito's employees from entering the selling areas to perform the
work mentioned above; and that by their conduct, Local 770, and the relevant
Respondent Employers violated Section 8(e) in that they invoked and gave effect
to provisions of subdivisions Cl and 3, and thereby entered into agreements within
the reach of the prohibition in Section 8(e).
Local 770, as previously indicated, admits these allegations, but the three market
operators concerned, in their amended answer, although conceding that they "pre-
vented Frito's driver-salesmen . . . from servicing Frito's products," deny that
"said prevention was pursuant to alleged insistence of (Local 770) that said stores
fully comply" with subdivisions C1 and 3 of article I of the applicable general
agreements; and that they violated Section 8(e).
Unrebutted testimony, given after the General Counsel had rested, establishes
that the facts, in material respects, do not follow the course that the General Coun-
sel's relevant allegations, and Local 770's admissions, would lead one to believe.
What happened, I find on the basis of the unrebutted testimony, was that a busi-
ness agent of Local 770 was in Von's Store No. 23 in September 1960, another agent
in Food Giant Store No. 24 in June 1960, and a third in Ralph's Store No. 30 in
June or July 1960; that on each occasion, a Frito driver-salesman was engaged in
placing his company's products on a shelf in the "selling area of the store"; that
each business agent on the occasion in question told the manager of the given store
that the Frito driver-salesman "was not allowed, according to the contract, to work
his merchandise on the shelf, that it was just to be delivered and left (in a storage
area) at the back of the market"; that each manager then told the Frito employee
"to leave his merchandise in the warehouse," and that store personnel "would take
care of it" (or, in other words, would place the products on the shelf); that the
driver-salesman complied; and that since the incident at the given market, its man-
agement has not permitted Frito driver-salesmen to place Frito products on selling
area shelves, requiring them, instead, to leave the merchandise in the storage area
at the rear of the market.
The critical point to note about the testimony is that contrary to the General
Counsel's allegations, and Local 770's admissions, the business agents did not refer
to any particular aspect of the general agreement, saying no more in that regard
than that "the contract" did not permit Frito personnel to place products on the
store shelf. For all that appears, the agents had reference to subdivision B of
article I, requiring "work (on the premises) generally performed by retail clerks"
to be "performed by employees in the bargaining unit" or, in other words, by store
employees
The point is by no means hypertechnical; rather, the variance between the Gen-
eral Counsel's allegations and the facts is fatal to the claims he makes against the
three market operators involved. As is evident from the amended complaint and
repeated expressions of positions, the General Counsel has deliberately carved any
question of the validity of subdivision B out of the issues in this case, resting his
claims of unlawful conduct squarely on the thesis that provisions of subdivisions
Cl and 3 of article I are unlawful, and that by applying these contractual terms to
bar Frito employees from performing work on shelves in the selling areas of the
market, the Respondent Unions and Employers entered into agreements violative
of Section 8(e) of the statute.
Obviously, one does not expect union business agents to act with the precision of
legal instruments, and it goes without saying that if one could fairly conclude from
the evidence that the business agents involved sought to apply the provisions of the
subcontractors clause, the particular words used to carry out such a purpose would
not be controlling.
But the basic fact is that the evidence will not support a finding against the
market operators that the business agents did what the General Counsel, by the
boundaries of the issues he has fixed, claims they did. It is no answer to say that
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what the business agents meant by the allusion to "the contract" was inclusive enough
to embrace subdivisions Cl and 3 of article I, and it thus matters not whether other
provisions, such as subdivision B, were- included in the reference. In the posture
of the record, particularly as the business agents were not called to give their ver-
sions of what they said and did, how can one do any more than venture a guess as
to what they meant by their words and conduct? Significantly enough, as will appear
later, in a somewhat comparable allusion to "the contract" in a similar context at
another market, the evidence establishes that what the business agent there involved
had in mind was subdivision B. To sustain the General Counsel's relevant claims,
one would have to hold in effect that the conduct of Local 770 and each market
operator amounted to an agreement to exclude the Frito employees from the selling
areas on the basis of provisions of subdivisions C1 and 3, but such a holding, at least
as far as the market operators are concerned, is not permissible, for it is at least
equally consistent with the facts to hold that the agreement was to exclude the Frito
personnel on the basis of application of subdivision B-an agreement which by the
very text of the amended complaint, and by force of positions expressly taken by
the General Counsel, is beyond the scope of the issues in this case. Thus I find that
the evidence does not establish that any of the Respondent Employers violated
Section 8(e) as a result of the actions taken by the store operators and Local 770 at
the three markets under discussion.
This brings one to the rather anomalous situation that Local 770 has admitted
allegations which, put to the test of sworn evidence, are not established. It would
be inappropriate to shrug off the anomaly by taking the position that Local 770
must take the consequences in the form of a finding that it has violated Section
8(e). The Union is inseparably linked with each market operator concerned in a
charge that they engaged in the common act of making an unlawful agreement and,
hence, it would be a departure from logic to say that the labor organization has
violated the Act, and its companion in the agreement has not. Moreover, in my
judgment, it would not be proper for an instrumentality of the United States to
formulate a judgment, on the basis of admissions, that the one making them had
violated the law when the Government agency has actual knowledge, as here, on
the basis of sworn evidence, that the facts are not those admitted and do not support
the allegations made.
I conclude, in sum , that in the circumstances presented it would not effectuate the
policies of the Act to base findings on the admission in Local 770's answer, and
that the record, viewed as a whole, warrants dismissal of the relevant allegations of
the amended complaint.
2. Safeway Store No. 395
Safeway Store No. 395, as its name suggests, is operated by Safeway Stores, Inc.
The latter, the Council, and Local 899 are parties to a general agreement affecting
clerks employed in the store.
The General Counsel's allegations concerning the store are to the effect that in
September 1960, while a Frito driver-salesman was engaged in performing work
for his employer in the selling area of the store, one Leon Fontes, a business agent
of Local 899, "charged Safeway in writing with violating the contract clauses set
forth (in subdivisions Cl and 3 of article I of the applicable general agreement) by
permitting Frito's . . . employees to perform" the work in question "in the selling
area"; that "thereupon, Safeway ceased permitting Frito's driver-salesmen . to
enter the selling area of . . . the said store" to perform such work; and that by their
conduct, Safeway and Local 899 violated Section 8(e) in that they invoked and
gave effect to provisions of subdivisions Cl and 3, and thereby entered into an agree-
ment within the reach of the prohibition in Section 8(e).
Safeway's answer, as amended, unlike that of Local 899 which admits all of the
foregoing allegations, contains a denial that Local 899 "charged Safeway in writing
with violating" subdivisions C1 and 3 of article I; and that Safeway violated
Section 8(e).
With respect to this market, too, unrebutted sworn evidence presented after the
General Counsel had rested establishes that the facts differ materially from the
General Counsel's releint allegations and the admissions of Local 899 directed
thereto. The facts so established, I find, are that on September 7, 1960, Fontes, on
behalf of Local 899, told William Richardson, the store manager, in the market,
that he "had to write (Richardson) up" because the establishment "was violating
the union contract" in that "the Frito driver-salesman was stocking the rack" (in
other words, was placing Frito products on the selling area shelf used to display
such merchandise); that Fontes wrote something on a pad; that a day or two later,
Safeway's district manager, Oscar Ross, who is Richardson's superior, received in
RETAIL CLERKS UNION, LOCAL 770, ETC. 263
the mail from Local 899 a written "complaint" dated September 7, 1960, stating
that it was directed to Safeway Store No. 395 and "Manager Jim Richardson," and
that "notice of complaint is given herewith pursuant to the provisions of article 1,
paragraph B of our contract," and noting that the "subject matter of dispute or
disagreement" was a "Fritos salesman stocking rack"; that Ross then issued instruc-
tions to the store and other Safeway markets in his district that Frito personnel
should not be permitted to place Frito products on store shelves until further
notice; and that as a result of these instructions, Frito employees have not been
permitted to place merchandise on shelves at Safeway Store No. 395, but that the
practice has been for such employees to deliver the products to the store, and for
retail clerks employed at the market to put the merchandise on the shelf.
The General Counsel would, in effect, ignore the allusion in Local 899s "com-
plaint" to "the provisions of article I, paragraph B of our contract" (obviously a
reference to subdivision B of article I of the applicable general agreement), and
would treat the facts as establishing that Safeway and Local 899 "prevented Frito
driver-salesmen from doing work in a Safeway market" because of provisions of
subdivisions C1 and 3 of article I (General Counsel's brief, pp. 13-14). There is
no rational basis in the record for such a position, for the "complaint" by Local 899,
either written by Forties while in the store, or prepared within a day or so thereafter,
leaves no room for doubt that he regarded the work of the Frito employee as a
violation of subdivision B of article I, and that it was these contractual terms that
he was invoking to effect the exclusion of Frito personnel from working at the shelf.
And it should be borne in mind that Ross issued his instructions upon receipt of
the document, and thus it is reasonable to conclude that he acted upon the basis of
its contents. But whether he did or not, it is a basic fact that what Local 899 de-
manded, in effect, by its written "complaint," was that Frito personnel be barred
from shelf work on the basis of subdivision B of article I. Thus if any agreement
:resulted from the demand by Local 899, compliance with the Union's requirement,
it was an agreement to apply subdivision B.
But, as previously pointed out, the General Counsel, by the very posture of his
amended complaint and positions he has taken, has read the question of the legality
of such an agreement out of the issues, raised by the amended complaint, and this
factor, as in the case of the three markets in the category previously discussed, is
fatal to his claim, at least as far as Safeway is concerned, that the firm and Local 899
invoked and gave effect to subdivisions C1 and 3 to bar Frito from shelf work at
the store, and thereby entered into an agreement in violation of Section 8(e). And
for much the same reasons that I have declined to make a finding that Local 770
violated Section 8(e) in connection with the three markets in the prior category, I
hold that in view of the sworn evidence, establishing the facts, it would not effectuate
the policies of the Act to base findings regarding the incident at Safeway Store No.
395 on the relevant admissions in Local 899's answer; and that the record, taken
as a whole, warrants dismissal of the relevant allegations of the amended complaint.13
3. Alpha Beta Store No. 41; Safeway Store No. 214B; Market Basket Store No. 1;
Thriftimart Store No. 64; Von's Store No. 54; and Mayfair Store No. 20
The first store mentioned in the caption of this category is operated by Alpha Beta
Food Markets, Inc.; the second by Safeway Stores, Inc.; the third by Market Basket;
the fourth by Thriftimart, Inc.; the fifth by Von's Grocery Co.; and the last by
Mayfair Markets. Local 1167 represents employees at Safeway Store No. 214B,
and the labor organization, Safeway and the Council are parties to a general agree-
ment affecting the employees. Local 1442 is the representative of employees at
Mayfair Store No. 20, and has a general agreement with Mayfair Markets affecting
such employees. Local 1428 represents employees at each of the other four stores in
the category under consideration, and has a general agreement affecting the em-
ployees in each such store with its operator and the Council.
13 As previously noted, because the Act vests exclusive authority in the General Counsel
over the issuance of complaints, I do not pass on contentions by Frito and some of the
Emliloyer Intervenors that the provisions of subdivision B are unlawful or that their
application to Frito at the store in question violated Section 8(e) The claims, notwith-
standing the evidence of-what took place in connection with the exclusion of Frito from
shelving work at the store, deal with issues beyond the scope of the amended complaint.
It would seem clear that the mere fact that evidence of what actually took place in con-
nection with the market was received does not, particularly in view of the denial contained
in Safeway's amended answer, mean that the legality of subdivision B, or of its applica-
tion, is placed in issue To pass on such a question would obviously have the effect of
enlarging the scope of the amended complaint, and that would be inappropriate for reasons
previously set forth.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The amended complaint alleges that "on or about , and after August 23, 1960,
Local 1167 , by its business agents, . demanded that Safeway cease permitting
driver-salesmen employees of Frito from entering the selling area of the premises
of Safeway Store No. 214B . . . to deliver , stock, rack, service or display Frito's
products , or perform shelving or display work thereon "; and that "thereupon Safe-
way ceased permitting Frito's driver -salesmen employees to enter the area" to per-
form the functions described above.
The allegations regarding the other markets in this category , except Mayfair Store
No. 20, are substantially the same as for Safeway Store No. 2148 , except that it was
Local 1428, "by its business agents" that "demanded" the preclusion of the Frito
employees, and that the demands were made on "various occasions since .. .
April 12, 1960."
In the case of Mayfair Store No. 20 , the amended complaint alleges that "on two,
or more occasions since . April 12, 1960 ," Local 1442, by its business agents,
"demanded" that the store "cease permitting Frito's driver-salesmen employees to
enter the selling area of the said store " to perform work of the type described above;
that on each such occasion , "the said business agents, with the knowledge and in the
presence of the market director of the said store, prevented Frito's driver-salesmen"
from performing such work; and that "the market director . . . did not disclaim,
disavow or in any manner repudiate" the acts of the business agents.
With respect to the stores in question , as with the others, the market operators,
unlike the unions, do not admit all of the relevant allegations . The operators , in their
answers, as amended , "admit that they and Respondent Unions did agree to exclude
and that Respondent Employers did exclude pursuant to such agreement employees
of Frito"; but allege that "all acts and things done, as alleged ( in the amended com-
plaint ) were done and performed pursuant to the terms and provisions contained
in the collective -bargaining agreement and in accordance with the requirements of
such contract and the demands of (the Respondent Unions involved ), which de-
mands were predicated upon ( subdivisions B and C of article I) in their entirety
and other relevant portions of the contract and not limited as alleged " in the amended
complaint ; and deny the allegations of paragraphs 31 and 32 of the amended com-
plaint to the effect that by their "acts" pertaining to the six stores in question, the
relevant Respondent Unions and Employers "entered into , maintained and gave
effect to a contract or agreement ," in violation of Section 8(e), in that by such "acts,"
the unions and market operators concerned "gave effect" to subdivisions Cl and 3,
"insofar as those agreements provide for exceptions to the assignment of `work
ordinarily performed by retail clerks [in the bargaining unit] in the stores .. .'
which exceptions are based upon the membership or nonmembership in a labor or-
ganization of the employees of Frito or of any other employer or . person."
No testimony was presented in connection with any of the allegations regarding
the six markets, and whatever findings are to be made must be based on the pleadings
and relevant provisions of the general agreements . This, I think , is a regrettable
circumstance , for the failure to produce any of the union business agents and
managerial personnel involved , thus omitting from the record any benefits , including
nuances of expression by witnesses and the penetration of cross-examination to the
facts, that may be gained from the living descriptions of participants in the alleged
incidents , has the effect of making the factfinder and adjudicator the captive of
conclusional conceptions , and static abstractions , reflected in the pleadings , such as,
for example , the averment that what the unions and market operators did by their
"acts" was to give effect to the "exceptions" in subdivisions C1 and 3 and thereby
enter into "a contract or agreement" in violation of Section 8(e) of the Act. The
abstract and static quality of the record regarding the six markets is underscored
by the spread between the General Counsel 's averments to the effect that what the
unions and market operators did was to apply provisions of subdivisions Cl and 3
of article I and the Respondent Employers' allegations that the business agents'
"demands," and the market operators' compliance therewith , "were predicated upon
[subdivisions B and C of article I] in their entirety and other relevant portions of
the contract ." It is no answer to say that this includes an admission that subdivision
C was applied , and that therefore this ends the matter ; for the particular contractual
instrument which the General Counsel claims was used to exclude the Frito em-
ployees was the application of the "exceptions" in the subcontractors clause, as the
General Counsel reads them ; and as to those, the bald facts are that the allegations
in questions are denied and put in issue by the Respondent Employers , and are not
supported by substantial evidence.
The reading the General Counsel gives the "exceptions " in his allegations of
violation of the Act is a basic infirmity of the record upon which he relies. In the
amended complaint , he asserts that the "exceptions" are "based upon the member-
ship or nonmembership in a labor organization of the employees of Frito or of any
STAHL-MEYER, INC. 265
other employer or . person." But the reading is not supported by the text
of the "exceptions," which says nothing about "membership or nonmembership in a
labor organization," but exempts from the reach of the subcontractors clause (1)
"work . .. subcontracted to an employer who is signatory to an Agreement with
the Union," and (2) "any other work which is presently under specific contracts
with the Teamsters, Culinary Workers and Building Service Employees Unions."
To be sure, the Frito employees are not represented by any union, but this does not
mean that the "exceptions" specified in subdivisions Cl and 3 of article I, and
allegedly applied to the Frito employees, "are based upon the membership or non-
membership in a labor organization of employees . . .
It is important to bear in mind, in that connection, that the General Counsel's
claim is not simply that there was an agreement to exclude the Frito employees be-
cause they were not union members; his allegations go much beyond that, for they
are that the relevant unions and market operators entered into unlawful agreements
by force of the application to the Frito employees of specific contractual terms-the
"exceptions"-coupled to the reading the General Counsel gives them. The Re-
spondent Employers deny these allegations, except that there was an agreement to
exclude the Frito employees; and it is thus incumbent upon the General Counsel to
establish his claim with substantial evidence. This, so far as the Respondent Em-
ployers are concerned, he has not done, and thus his relevant claims against them
must fail.
As for the Respondent Unions concerned, they are inseparably linked with the
relevant market operators in the incidents in question, and thus, as the record will
not support a finding that the Respondent Employers violated the Act by reason
of such incidents, in my judgment, it would be inappropriate and not an effectuation
of the policies of the Act to conclude on the basis of the admissions in their answers
that the Respondent Unions entered into any contract or agreement in violation of
Section 8(e). Thus, I shall recommend dismissal of all the allegations pertaining
to the incidents in the third category, discussed above.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Each of the Respondent Unions is, an has been at all times material to the
issues in this proceeding, a labor organization within the meaning of Section 2(5)
of the Act.
2. Each of the Respondent Employers is, and has been at all times material to the
issues in this proceeding, an employer within the meaning of Section 2(2) of the Act.
3. The evidence in this proceeding is insufficient to warrant a finding that any of
the Respondent Unions and Employers committed unfair labor practices in violation
of Section 8(e) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the complaint, as amended, be
dismissed in its entirety.
iStahl-Meyer, Inc. and William Neville and Local 30, 30A, 30B
and 30C, International Union of Operating Engineers, AFL-
CIO, Party in Interest
Stahl-Meyer, Inc. and Stahl-Meyer, Inc., Debtor in Possession
and William Neville and Local 30, 30A, 30B and 30C, Inter-
national Union of Operating Engineers , AFL-CIO, Party in
Interest. Cases Nos. 2-CA-7791-8 and 2-CA-8538. August 24,
1962
SUPPLEMENTAL DECISION AND ORDER
On June 5, 1962, Trial Examiner Frederick U. Reel issued his
Opinion and Order Granting Motion To Dismiss in the above-entitled
proceeding. Although the Trial Examiner assumed, without decid-
138 NLRB No. 34.