Retail Clerks Union, Local 1222

National Labor Relations Board - Board Decisions

Apr 2, 1975

217 N.L.R.B. 271 (N.L.R.B. 1975)

RETAIL CLERKS UNION, LOCAL 1222 271
Retail Clerks Union , Local 1222, Retail Clerks Inter-
national Association , AFL-CIO (Lucky Markets of
San Diego, Inc.) and Mitchell J. Copitas. Case
21-CB-4907
April 2, 1975
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
On October 2, 1974, Administrative Law Judge Earl-
dean V. S. Robbins issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed a
brief in support of the Administrative Law Judge's De-
cision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and finds merit in General Counsel's exceptions to the
dismissal of the complaint. The Board has accordingly
decided to sustain the complaint's allegations and to
affirm only those rulings and findings of the Adminis-
trative Law Judge which are consistent with this Deci-
sion,
The events forming the basis of the complaint's alle-
gations are not disputed. On March 18, 1974,' Mitch-
ell Copitas, an ex-member of and former organizer for
Respondent, applied for work at Lucky Markets, an
enterprise with which Respondent had a contract. He
told Lucky's president, Jack Kent, he had been "black
balled" by the Union and needed some type of job in
the retail grocery industry in order to get back his
membership in the Union. Kent promised him a part-
time job to commence on March 25. On March 24,
however, following a visit admittedly made by union
agents to Lucky Markets on March 19, Kent told Copi-
tas not to report for work because, as Kent put it, "It
looked like I was going to get harassed by the Union
[for hiring Copitas] . . . . I didn't want any part of it."
In litigating the alleged violation of Section
8(b)(1)(A) and (2) of the Act, General Counsel con-
tended that the Union caused or attempted to cause the
discriminatory refusal by Kent to hire Copitas;2 that
it did so because Copitas had been an outspoken critic
of the Union's executive officer, Bill Wall, and his ad-
ministration of union affairs; and that Wall and his
supporters therefore wanted to prevent Copitas from
All dates are 1974 unless otherwise indicated
z There is no contention and no evidence that Copitas' employment would
have violated any provision of the contract between Lucky Markets and
Respondent.
reactivating his membership. The Administrative Law
Judge dismissed the complaint, however, because, in
her view, the General Counsel did not directly" establish
either that the Union wanted to prevent Copitas from
reactivating his membership, or that it in fact actively
interfered with his obtaining employment. We disagree.
Relevant as background is the uncontradicted evi-
dence that, in the fall of 1973 during Copitas' incum-
bency as an "organizer" and member of Respondent,
Copitas had incurred Wall's displeasure by his dissi-
dent activity directed against Wall's policies and the
performance of his job as the executive officer of the
-Respondent (a position to which Copitas had also as-
pired). Wall's retaliation against Copitas in small ways
is well documented in the record. Wall went out of his
way to criticize Copitas for minor infractions of job
rules which had been usually overlooked; to warn him
against spending time in the office, rather Than in the
field, after Copitas asked to examine the union books;
and, just before a general membership meeting was to
be held, to direct Copitas to be present in another city
for strike duty on the day preceding said meeting and
refusing Copitas' request that someone else be sent, and
then discharging him when he did not go, even though
Copitas explained he had not done so because a threat
had been made on his life.3 All of the above evidence
persuades us that there existed between Wall and Copi-
tas a mutually antagonistic relationship which was still
evident at the time the events in question occurred
herein.'
With his discharge as union organizer, Copitas'
membership was suspended. Under the Union's rules
this could not be reactivated unless and until he ob-
tained a job in the retail industry. Therefore, Copitas
actively sought work as a retail clerk, but found no such
jobs available until he applied for work at Lucky Mar-
kets as above set out.
Immediately upon being promised a job by Jack
Kent, Copitas visited the Union's offices, informed
those present of his job, and sought to pay dues and
regain active member status. But both the clericals and
the union officials then in the office made it clear they
would not process Copitas' application for active mem-
bership absent Wall's personal clearance. Wall, in turn,
made it clear to Copitas and to the union agents named
below that he was not pleased over the prospect of
Copitas' regaining active status. Thus, when Wall ex-
pressed doubts concerning Copitas' representations
about having a retail clerk job, Copitas responded that
the matter could easily be checked by telephone. Wall,
3 No allegation was made that Respondent's discharge of Copitas violated
the Act.
4 We also note that Respondent stipulated there was animosity between
Copitas and Wall; between Copitas -and Don Kirkpatrick, Respondent's
former chief executive officer, and between Copitas and Brown , Respon-
dent's former secretary-treasurer.
217 NLRB No. 48
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, rejected that approach, deciding instead to
send two union business agents, Tom Carter and Leo
Duncan, to visit Lucky Markets and investigate the
matter.5 Business Agent Carter, on his way to Lucky
Markets, encountered Copitas in the Union's parking
lot and said to him, "Hey man, they are really trying
to stick it to you."
From the above incidents when read in their totality,
we conclude that Wall's purpose in sending the two
agents to Lucky Markets was for other than the ostensi-
ble one of merely determining whether Copitas had
been hired there. In our view, the real reason behind the
visit, as found below, was the Respondent's reluctance
to reinstate him to active membership, and the
animosity exhibited towards Copitas by Wall.'
When Carter and Duncan visited Lucky Markets,
they questioned Kent as to whether he had hired any-
one new. When told the answer of the job offer to
Copitas, they asked for the work schedule for the week
of March 18 and, noticing that it did not list any new
hires, asked Kent why. His reply was that Copitas was
to start the following week. Although that explanation
would have normally sufficed to bring their visit to an
end, Duncan and Carter in an unusual procedure criti-
cized Kent's personnel policies. They took him to task
for. failing to list employees' surnames on the work
schedule as contrary to the contract-despite the fact
that Kent had used only,first names for 13 years with-
out incident. They further accused him of having vi-
olated the seniority provisions of the contract by hiring
a particular produce man listed in the schedule.'
In our opinion, Kent would reasonably perceive the
above conduct to be decidely more than required to
establish the fact of his offer of a job to Copitas. The
conduct convinces us, as it did him, that the actual
purpose of the agents' visit was to persuade Kent to
rescind that offer of employment or suffer more of the
same kind of harassment from Respondent in the fu-
ture. Plainly, Respondent, by the actions of its agents,
showed that, unless Kent bowed to its wishes, it was
ready to police strictly its contract with Lucky Markets
so that Kent could take no actions without coming
under its intense scrutiny. Thus, we are convinced that
the presence of Carter and Duncan at Lucky Markets
was directly attributable to Copitas' being offered a job
by Kent. Clearly no other purpose prompted the visit
5 The undisputed testimony reveals that routine checking visits were
usually made by only one such union agent.
6 The Board may, and in this case does, consider circumstantial evidence
as well as direct evidence to make a realistic analysis of the Respondent's
conduct. Local Union No. 272, International Association ofBridge, Struc-
tural and Ornamental Iron Workers, AFL-CIO (Prestress Erectors, Inc.), 172
NLRB 207, 209 (1968), enfd. 427 F 2d 211 (C.A. 5, 1970); Local 25, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO (New York Telephone
Company), 162 NLRB 703 (1967).
7 This last accusation was retracted by Duncan on March 26 when he
visited the store and was told by Kent that Copitas was not employed there.
of two, rather than one, union agents, which repre-
sented an unusual procedure. Furthermore, upon ar-
rival at the store, the union agents did not restrict their
inquiries to-determining whether Copitas had in fact
been offered employment, which-if this had been their
true objection-could have been quickly accomplished
(or as suggested by Copitas, but rejected by Wall, over
the telephone). Instead, they immediately began raising
other matters related to Kent's personnel practices
which had never previously concerned Respondent.
Accordingly, it is clear that Kent, in subsequently
assessing the conduct of Respondent's two agents, drew
the connection intended by Respondent between their
actions and his offer to employ Copitas. As a result
Kent decided to rescind his offer to Copitas lest he be,
in his words, "harassed" by the Union.
Based on all of the above, therefore, we find that
Respondent deliberately set in motion a chain of events
which would cause Kent to refuse to hire Copitas and
that it did so because Copitas had incurred Wall's dis-
pleasure and enmity while Copitas was a union member
and employee. In so finding, we reject Respondent's
contention that the reasons for Kent's change of heart
respecting his offer of employment to Copitas were
Kent's personal considerations unrelated to the Union.
It is evident that all that Respondent here did clearly
conveyed to Kent the message that his best interests
would be served by not hiring Copitas. We conclude,
therefore, that but for this union message Kent would
have employed Copitas. Accordingly we find, that by
causing Kent to withdraw the job offer and to refuse to
hire Copitas Respondent violated Section 8(b)(1)(A)
and (2) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices proscribed by Section 8(b)(1)(A) and (2)
of the Act, we shall order that it cease and desist there-
from and that it take certain affirmative action de-
signed to remedy its unfair labor practices and to effec-
tuate the policies of the Act.
As Respondent has been found to have caused Lucky
Markets to rescind its offer of employment made to
Copitas, because of his intraunion activities, we shall
order it to notify Lucky Markets and Mitchell J. Copi-
tas, in writing, that it has no objections to his employ-
ment by Lucky Markets. We shall also order that Re-
spondent make Mitchell J. Copitas whole for any loss
of earnings he may have suffered by reason of its unfair
labor practices. Respondent's liabilities therefor shall
terminate 5 days after notifying Lucky Markets and
Mitchell J. Copitas, as set forth above, that it has no
objections to Copitas' employment. Loss of pay shall be
computed in accordance with the formula in F W.
RETAIL CLERKS UNION, LOCAL 1222
Woolworth Company, 90 NLRB 289 (1950), with inter-
est at the rate of 6 percent per annum , as set forth in
his Plumbing & Heating Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
L Lucky Markets of San Diego , Inc., is an employer
engaged in commerce within the meaning of the Act.
2. Retail Clerks Union, Local 1222, Retail Clerks
International Association , AFL-CIO, is a labor organ-
ization within the meaning of Section 2(5) of the Act.
3. Bill Wall, Tom Carter, and Leo Duncan are, and
at all times material herein have been , agents of Re-
spondent within the meaning of Section 2(13) of the
Act.
4. By causing or attempting to cause Lucky Markets
of San Diego , Inc., to discriminate against Mitchell J.
Copitas in violation of Section 8(a)(3) of the Act, Re-
spondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b)(1)(A) and
(2) of the Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended , the National Labor Relations
Board hereby orders that the Respondent, Retail
Clerks Union, Local 1222, Retail Clerks International
Association , AFL-CIO, its officers , agents, and repre-
sentatives , shall:
1. Cease and desist from:
(a) Causing or attempting to cause Lucky Markets of
San Diego, Inc., or any other employer, to discriminate
against employees in violation of Section 8(a)(3) of the
Act.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act, except to the extent that
those rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized by Section 8(a)(3) of the
Act.
2. Take the following action which the Board finds
will effectuate the policies of the Act:
(a) Make whole Mitchell J. Copitas for any loss of
earniings he may have suffered as a result of the dis-
crimination against him caused by Respondent, in the
manner set forth in the section of this Decision entitled,
"The Remedy."
(b) Notify Lucky Markets of San Diego, Inc., in
writing, that Respondent has no objection to the em-
ployment of Mitchell J. Copitas. Also notify Mitchell
273
J. Copitas, in writing, that is has no objection to his
employment by Lucky Markets of San Diego, Inc.
(c) Post at its business offices and meeting halls in
San Diego, California, copies of the,attached notice
marked "Appendix."8 Copies of said notice, on forms
provided by the Regional Director for Region 21, after
being duly signed by Respondent 's representative, shall
be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to members are customarily posted . Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered , defaced, or covered by any
other material.
(d) Additional copies of the attached notice marked
"Appendix" shall be signed by an authorized represen-
tative of the Respondent and forthwith returned to the,
aforesaid Regional Director for posting-by Lucky Mar-
kets of San Diego, Inc., said Employer being willing, at
its place of business at San Diego, California, where
notices to its employees are customarily posted.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
S In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Lucky
Markets of San Diego, Inc., or any other em-
ployer, to discriminate against employees in viola-
tion of the National Labor Relations Act.
WE WILL NOT in any like or related manner re-
strain or coerce employees of Lucky Markets of
San Diego , Inc., in the exercise of rights guaran-
teed in Section 7 of the National Labor Relations
Act, except to the extent that those rights may be
affected by an agreement requiring membership in
a labor organization as a condition of employment
as authorized in Section 8(a)(3) of the Act.
WE WILL notify Lucky Markets of San Diego,
Inc., in writing, that we have no objection to the
hiring of Mitchell J. ' Copitas by that company.
WE WILL notify Mitchell J. Copitas, in writing,
that we have written as above stated to Lucky
Markets of San Diego, Inc..
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL reimburse Mitchell J . Copitas for any
loss of earning he may have suffered because we
caused Lucky Markets of San Diego , Inc., to re-
scind its offer of employment made to him, or to
refuse to hire him, together with interest at 6 per-
cent.
RETAIL CLERKS UNION, LOCAL
1222, RETAIL CLERKS
INTERNATIONAL ASSOCIATION,
AFL-CIO
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge: This
case was tried before me in San Diego, California, on July 31,
1974. The charge was filed by Mitchell J. Copitas, an in-
dividual, and served on the Respondent on April 1, 1974. The
complaint issued June 19, 1974, alleging that Respondent had
violated Section 8(b)(1)(A) and (2) of the National Labor
Relations Act. Posttrial briefs were filed by the -General
Counsel and by Respondent.
The basic issue herein is whether Respondent through acts
of harassment caused, or attempted to cause, Lucky Markets
of San Diego, Inc., to refuse to hire Copitas in retaliation for
his intraunion activities in opposition to Billy Wall, Respon-
dent's secretary-treasurer.'
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by the
General Counsel and the Respondent, I make the following:
FINDINGS OF FACT
I JURISDICTION
Lucky Markets of San Diego, Inc., hereinafter called
Lucky Markets, is engaged in the operation of a retail grocery
store located in National City, California. Lucky Markets, in
the course and conduct of its business operations, annually
derives gross revenues in excess of $500,000 and annually
purchases and receives goods and products valued in excess
of $2,000 from suppliers located within the State of Cali-
fornia, which in turn purchased and received those goods and
supplies directly from suppliers located outside the State of
California.
On the basis of the above facts, to which the parties stipu-
lated, I find that Lucky Markets is, and at all times material
herein has been, an employer engaged in commerce and in
operations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that
Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1 Background
Respondent is a labor organization which represents em-
ployees in retail stores in San Diego County including Lucky
Markets. Until September 19, 1973,2 when he was ter-
minated by Wall, Copitas had been employed by Respondent
as an organizer for approximately 6-1/2years. In early 1973,
following the resignation of Respondent's secretary-treasurer
Marvin Brown, Wall, Copitas, Don Kirkpatrick and Ollie
Hammerness were in competition for an interim appointment
by Respondent's executive board to fill the remainder of
Brown's term. Wall was appointed to the position. There-
after, Copitas expressed strong opposition to certain of Wall's
policies. Thus, at a September 18 membership meeting he,
expressed opposition to Wall's position on staff car allow-
ances and a proposed staff salary reduction. Among other
things, Copitas told the membership that Wall was lying in
regard to the proposed salary reduction and was trying to
deceive them as to the car allowances, that in fact the car
allowance plan proposed by Wall would be more costly than
the old plan, and one employee was in actuality receiving a
raise rather than a reduction in salary. Though Wall was
present, he did not respond to the accusations.
Around the first part of September, Copitas petitioned the
Union to inspect its books and records. Within a week, this
was permitted. On September 7, Wall issued him a warning
notice for returning to the office to eat with office staff per-
sonnel in violation of Respondent's instruction to all business
representatives that they should perform their service for the
membership in the field.
On September 14, Wall instructed Copitas to report to San
Francisco on Sunday, September 16, to assist a sister-local in
a strike situation. Copitas asked Wall to send someone else,
stating that he had some pending matters, including serving
on a committee to seek an impartial attorney to look into the
severance pay matter, and a pending grievance involving a
$3,200 wage claim which the Company indicated it was seek-
ing to have quashed through Respondent's President Don
Kirkpatrick because Respondent owed the Company a favor.
Wall said Ollie Hammerness would handle the severance pay
issue and Copitas could turn his grievances over to Kirkpa-
trick. Copitas did not report to San Francisco as instructed.
Instead, on Monday, September 17, he went to Wall's office
and told him that on the evening of September 14 he had
received a warning by telephone not to go to San Francisco
as an attempt might be made on his life, and again asked that
another person be sent to San Francisco. Wall said he would
speak to him later. After about 1-1/2 hours, Wall told Copi-
tas he had ordered him to go to San Francisco, he had refused
to go, so there was no alternative but to give him a warning
notice, which he did. In addition to reciting the above inci-
dent, the notice instructed Copitas to report to San Francisco
on September 18 and warned that refusal to comply with
these instructions would result in termination. Nevertheless,
Copitas again failed to go to San Francisco. On September 18
he attended the membership meeting and opposed certain
I The secretary-treasurer is the chief executive officer of Respondent 2 Unless otherwise indicated, all dates in this section are 1973
RETAIL CLERKS UNION, LOCAL 1222
proposals made by Wall as set out above. On September 19,
he was terminated for failing to report to San Francisco as
instructed.' In November Copitas unsuccessfully ran for
election as one of Respondent's business agents.
2. Sequence of events
On March 18, 1974,' Copitas applied for employment at
Lucky Markets. He told Jack H. Kent, Sr., president of
Lucky Markets that he had been blackballed' by Respond-
ent and that he needed a job so he could reactivate his mem-
bership in Respondent.' Kent said he didn't want any prob-
lems with Respondent.7 Copitas asked if Kent had any
part-time employees. When Kent answered in the negative,
Copitas told him that there would be no problem with Re-
spondent if he had no part-time help and there was no reduc-
tion in hours for the full-time employees. Kent said he could
use him 4 hours a week on Monday mornings to unload and
stock shelves. At Copitas' request Kent further agreed to hire
David Lasky, also one of Respondent's former business
agents. Kent said he would be hospitalized for surgery and
that Copitas and Lasky could begin work the following Mon-
day, March 25.
Later that same day, Copitas went to Respondent's office
and attempted to pay his union dues. He said he had been
hired by Lucky Markets and would start on Monday. The
office clerks would not accept his tender so Copitas and
Lasky talked to Kirkpatrick. Copitas asked Kirkpatrick if
they could pay their dues to him since the clerks would not
accept their dues because they could not find their ledger
cards. Copitas asked if this meant that as long as the ledger
cards could not be found, he and Lasky could not activate
their membership. Kirkpatrick just smiled and shrugged his
shoulders. Copitas asked if they could give their dues to
Kirkpatrick and then the payment could be recorded when
the ledger cards were found. Kirkpatrick said he wasn't ac-
cepting moneys from anyone. Kirkpatrick also said "you
know how Bill Wall is." Copitas said ask him if he makes it
a habit of giving all members that want to join the Union this
kind of hassle. Kirkpatrick said "you know the way Bill Wall
is. l[ suggest that you come in tomorrow morning and speak
to Mr. Wall on the matter." Copitas said he and Lasky were
working, that Kirkpatrick could call to verify it. Kirkpatrick
said he didn't have to call, that if they said they were hired,
he had no reason to doubt it.
On Tuesday, March 19, immediately following a meeting
of Respondent's general membership, Copitas and Lasky ap-
3The uncontradicted testimony of Copitas is that one representative from
Respondent remained in San Francisco for 1-1 /2 days and another for
one-half day even though the strike lasted 8 months. There is no contention
that the termination was illegally motivated
4 All dates hereinafter are in 1974 unless otherwise indicated.
5 Copitas concluded that he had been blackballed since he had been
unable to find a job in the grocery industry However he admits that, except
in one instance , he always applied for employment through an intermediary
because he realized that his activity as a business representative with Re-
spondent might make him persona non grata with employers.
6 Shortly after he was terminated by Wall, Respondent unilaterally placed
Copitas on withdrawal (inactive membership) status. Copitas admits that
constitution of Respondent 's parent organization requires that a member
who is not working in the industry be placed on withdrawal status.
7 Lucky Markets is signatory to a collective-bargaining agreement with
Respondent which contains a union-security clause
275
proached Wall on the podium. Copitas asked Wall if he and
Lasky could join the Union. Wall said "you have got a job,
you are working, you can join ." Copitas said they did have
a job but the office clerks would not accept their dues. Wall
just shrugged. Copitas told him that the office clerks said
Wall had left orders for them not to accept their dues unless
he okayed it. Wall turned away. Copitas asked what they had
to do to join. Wall said "get it job." Copitas told him where
they were working. Wall said he had two representatives out
then checking on their employment who should return at any
time. Wall asked Copitas and Lasky to meet him at his office.
A short time later, Copitas asked if Wall had in fact in-
structed the office clerks not to accept their dues without
Wall's okay. Wall denied giving such instructions . Copitas
asked if Wall made a habit of dispatching two representatives
to verify a person's employment. Wall said, "Well, I had to
do it with you." Copitas inquired why and Wall replied,
"because you had told me that you were working at the
Highlander Store at one time and you never did work there."
Whereupon Copitas produced a payroll stub from High-
lander to show that he had worked there. Wall said nothing,
neither did he accept the dues.'
Lasky and Copitas then went to the union office around
noon. They were told that Wall was in a staff meeting. They
told the office clerks that Wall said he had never instructed
anyone not to accept their dues and Copitas again tendered
his dues Again the tender was rejected. Copitas and-Lasky
went to Kirkpatrick's office and asked if the representatives
had returned from verifying their employment. Kirkpatrick
said they had not left to make the check. Copitas inquired
why they didn't telephone. Kirkpatrick said, "Well, you
know Bill Wall. Those are his orders." Kirkpatrick also said
that business representatives, Tom Carter and Leo
Duncan,' would be leaving immediately to go to Lucky
Markets to verify their employment. Duncan came by and
Copitas asked him if he would take two hire cards for Kent
to sign. Kirkpatrick said they didn't have any hire cards.
Copitas said they did, that Kirkpatrick had given him some
the day before."' Lasky, Copitas, Duncan, and Carter then
walked out into the parking lot. Carter went to his car and
beckoned to Copitas. When Copitas approached him, Carter
said, "Hey, man, they are really trying to stick it to you."
Copitas said, "Yeah, I can read."
Duncan and Carter went to Lucky Markets that afternoon
and spoke to Kent. Duncan asked if Copitas and Lasky had
been hired. Kent said yes, they were to start the following
Monday, that he was going to the hospital and they would
unload for him. Duncan gave Kent the hire cards to fill out.
After checking the work schedule, Duncan told Kent that his
use of first names only on the schedule was insufficient and
that he would have to use last names and first initials. Kent
said they had used first names only for 13 years. Duncan
8 There is no evidence that an actual tender of dues was made to Wall
9 Duncan was a new representative with only 2 - 1/2 months experience
on the job . He was the representative assigned to service Lucky Markets.
Carter was an experienced representative whom Wall had assigned as coor-
dinator for the grocery division . His job was to train and assist new represen-
tatives.
io Hire cards apparently are formal written notifications, signed by the
Employer, as to the employment of new employees Duncan testified that
they had run out of these cards and he had not been informed that any were
then available
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
noticed on the schedule that a new produce man had been
hired, so he inquired as to what would happen when the
produce man who was out ill returned, saying there might be
some seniority problem. Kent said he would have a job but
there should be no seniority problem since he did not have the
"know-how" of the new produce man.
Later that afternoon, on being told that Wall was in a
meeting , Copitas spoke to Carter by telephone. Carter in-
formed him that they had checked with Kent who had veri-
fied that Copitas and Lasky were to start work the following
Monday. Copitas asked if he could come in and pay his dues.
Carter said it was up to Wall. Copitas asked him to check
with Wall. After a short wait, Carter told him that Wall said
he would not accept dues from Lasky and Copitas until they
actually went to work.
Later that week, Kent's son told him two men had come
to the store and asked for Kent. The son said he thought he
recognized them as Respondent's business representatives.
Whereupon Kent concluded that Respondent was beginning
to harass him and therefore it would be best if he did not hire
Copitas and Lasky. He called Copitas, told him the Union
had been hassling him, that he could not afford any union
problem so he was not going to hire them.
On March 25, at a union meeting, Ronald Landrum, a
member of Respondent and political supporter of Copitas,
talked to Duncan in the presence of Michael Sweeney, a
former, business representative for Respondent. Landrum
asked Duncan how many times prior to the previous week he
had visited Lucky Markets. Duncan said, "one." Landrum
inquired as to the reason for the visit the previous week.
Duncan said Wall had sent him to check the, scheduling.
Landrum said, "you mean it took two business reps to go out
and check one schedule." Duncan said Wall sent him.
Sweeney asked, "did you and Carter go out to harass him."
Duncan replied that Wall made them go. Sweeney asked
what Copitas was going to do. Landrum said he didn't know.
Sweeney asked if Duncan could get together with Copitas,
Lasky, and Kent and straighten things out. Duncan said he
would be glad to, and asked Landrum to ask Copitas if they
could get together and talk to Kent. Landrum said Duncan
should check with Copitas. The record does not indicate
whether there was any follow through on this suggestion.
Duncan's testimony as to this conversation preceded Land-
rum's. His version does not specifically contradict Land-
rum's. However, he did not testify that there was any discus-
sion about "straightening things out" and he was not
specifically questioned in this regard.
On March 26, Duncan returned to Lucky Markets to
check the schedule. Copitas and Lasky were not listed so he
asked Kent if he had hired them. Kent said no. Duncan said
it appeared that he had been wrong regarding the produce
man. There was, further conversation.
B. Conclusions
There is little or no dispute as to the essential facts herein.
General Counsel urges that a violation be found based on
what he characterized as being "the extraordinary steps taken
by Respondent to ascertain whether Copitas, a bitter and
vituperative internal union opponent of the incumbent secre-
tary-treasurer Wall, had in fact been hired, and the unusual
demands made upon Lucky Markets during Respondent's
visits to the store . . ." In support thereof, General Counsel
relies on (1) Copitas' intraunion opposition to Wall, their
"often bitter and acrimonious disagreements" over internal
union policy matters, (2) Wall's termination of Copitas for
insubordination, (3) the fact that Respondent chose to verify
Copitas' employment through a personal visit rather than
through a telephone call, (4) the fact that two business repre-
sentatives, rather than one, were dispatched to obtain such
verification, (5) Carter's statement: "Hey, man, they are
really trying to stick it to you," (6) raising the question of
Kent's use of first names only on the work schedule, a prac-
tice he has followed for 13 years, (7) raising the possibility of
a seniority problem arising over a new hire in the produce
department upon the return to work of a produce man then
out ill, (8) the refusal to accept Copitas' dues; and (9) Dun-
can's agreement "to straighten things out" between Copitas
and Kent. Contrary to the General Counsel, I find these facts
insufficient to support an inference of illegal motivation. Any
bitterness or acrimony between Copitas and Wall was solely
on the part of Copitas insofar as revealed by the record.
Copitas admits that Wall never responded to his accusations,
and there is insufficient evidence to establish animus sur-
rounding the circumstances of Copitas' discharge. Copitas
admits that the international constitution requires that mem-
bers not working in the industry be placed'on inactive status
and although General Counsel asserts that refusing to accept
Copitas' dues was contrary to usual practice, there is no
evidence as to what the practice was on accepting dues prior
to an employee actually beginning work in the industry. The
fact that employment was verified by personal visit by two
representatives rather than by telephone and that at the time
of the visit, the representative assigned to service Lucky Mar-
kets followed the routine" for a normal servicing visit and
raised two items, apparent from the fact of the work schedule,
is insufficient without more to establish that Respondent had
embarked on a campaign of harassment. Nor does the asser-
tion of illegal motivation gain any support from Carter's
statement or Duncan's agreement to straighten things, out.
There is no evidence that Carter participated in any decision
with regard to Copitas and no evidence as to any facts on
which he based his remarks. As to Duncan, his_ statement is
as easily attributable to a desire to straighten out any,unfortu-
nate misunderstanding as it is to a more sinister motive.
In all of the circumstances, I find that a preponderance of
the evidence fails to establish that Respondent caused, or
attempted to cause, Lucky Markets to fail and refuse to hire
Lasky in violation ofSection 8(b)(1)(A) and (2) of the Act
and I therefore recommend that the complaint be dismissed
in its entirety.
11 According to Carter, the normal routine is to check the names on the
work schedule against those in the representatives' route book If the
schedule contains names not listed in the route book, these names would be
turned in to the office to determine if they were members of Respondent
In this way they could police the union-security provision of the contract
and also keep track of any transfers.
RETAIL CLERKS UNION , LOCAL 1222 277
CONCLUSIONS OF LAW
1. Lucky Markets of San Diego , Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. - t
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) and (2) of the Act.
[Recommended Order for dismissal omitted from
publication.]