Retail Store Employees Union

National Labor Relations Board - Board Decisions

Jun 18, 1958

120 N.L.R.B. 1535 (N.L.R.B. 1958)

RETAIL STORE EMPLOYEES UNION 1535
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT coerce, restrain , or interfere with the exercise by our employees
of their rights to engage in or to refrain from engaging in union activities by
interrogating them as to their union activities and sympathies , or by warning
them of or by threatening them with discharge or any other act of reprisal for
engaging in or continuing to engage in union activities.
WE WILL NOT discourage membership in Marine Allied Workers of Maryland,
District of Columbia , Virginia and West Virginia , Seafarers International Union
of North America, Atlantic and Gulf District , AFL-CIO, or Seafarers Interna-
tional Union of America , AFL-CIO, or in any other labor organization of our
employees by discriminating in any manner in regard to hire, tenure, or any
term or condition of employment.
WE WILL offer to William R. Dawson, Hubert Jackson, Oscar J. Sweets,
William Kunak , Gilbert Essberg, Charles L. Copeland , George T. Willoughby,
and Charles R. Voland immediate and full reinstatement to their former or
substantially equivalent positions , without prejudice to their seniority or other
rights and privileges , and we will make them whole for any loss of pay suf-
fered as a result of the discrimination against them.
WE WILL NOT in any manner interfere with, restrain , or coerce our employees
in the exercise of the right to self-organization , to form labor organizations, to
join or assist the above-named or any other labor organization , to bargain
collectively through representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from engaging in any or all such
activities , except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of employment in
conformity with Section 8 (a) (3) of the Act.
All our employees are free to become or remain, or to refrain from becoming or
remaining members of any labor organization , except to the extent above stated.
BALTIMORE STEAM PACKET COMPANY,
Employer.
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.
Retail Store Employees Union , Local 1595, Retail Clerks Inter-
national Association , AFL-CIO and J. C. Penney Company,
Store No. 309. Case No. 14-CB-468. June 18,1958
DECISION AND ORDER
On November 13, 1957, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
120 NLRB No. 188.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board 1 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 brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the modifications indicated below,
We agree with the Trial Examiner that the Respondent, by picket-
ing the Company's premises for recognition as the exclusive bargain-
ing representative of the employees at a time when it concededly did
not represent a majority of the employees, restrained and coerced em-
ployees in violation of Section 8 (b) (1) (A) of the Act2 Like the
Trial Examiner, we further find, contrary to the Respondent's con-
tention, that despite its asserted disclaimers and changes in the word-
ing of its picket signs, the Respondent did not abandon its original
objective to secure recognition and did not merely seek to organize
the Company's employees. Indeed, there is no evidence in the record
that the Respondent resorted to such traditional organizational meth-
ods as the distribution of circulars, personal solicitation of employees,
or the use of picket signs addressed to the employees.' In fact, the
last sign used by the Respondent indicates that it was seeking to ob-
tain "union working conditions" which are normally secured through
collective bargaining with the employees' representative. It is thus,
clear that the Respondent was seeking, by picketing, to compel the
Company to bargain with it without regard to the question of the
Respondents' status as representative of the employees.4
Moreover, when a union has expended time and funds in an or-
ganizing campaign and in picketing for recognition, when it sub-
sequently participates in an election which it loses 6 to 0, and continues
picketing but announces that it is not picketing for the purpose of
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act,
the Board has delegated its powers in connection with this case to a three -member panel
[ Chairman Leedom and Members Bean and Jenkins].
2 Drivers , Chauffeurs, and Helpers, Local 6 .49, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America ( Curtis Brothers , Inc.), 119 NLRB
232; Building Material & Dump Truck Drivers Local No 420, International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and Helpers o f America ( Fisk & Mason),
120 NLRB 135; Paint, Varnish & Lacquer Makers Union, Local 1232; AFL-CIO, and-
Steel, Paperhouse, Chemical Drivers & Helpers Local 578, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America ( Andrew Brown Com-
pany ), 120 NLRB 1425 . The Trial Examiner properly took official notice of the Board's
decision in Case No . 14-RM-147 (not published ). Paint, Varnish & Lacquer Makers
Union, Local 1232 , et al. (Andrew Brown Company ), supra
8 Paint, Varnish & Lacquer Makers Union , Local 1232 , et al. ( Andrew Brown Company),
supra.
* Francis Plating Cc , 109 NLRB 35, 36.
We reject any implication in the Intermediate Report to the effect that organizational,
as distinct from recognition , picketing by a minority union is here present and found to
violate the Act. Our unfair labor practice findings, like the Trial Examiner 's, are grounded
on our agreement with his conclusion that the Respondent was picketing for recognition.
See Building Material & Dump Truck Drivers Local No. 420, et al. (Fisk & Mason),
supra
RETAIL STORE EMPLOYEES UNION 1537
compelling recognition in the face of the Board's finding that it does
not represent a majority of the employees involved, there is not a con-
clusive, but there is a strong presumption, that the announced motive
for, and objective of, the picketing are mere pretexts, and that the real
intent of the picketing is to obtain recognition despite the lack of
majority status. Experience in the affairs of man teaches that unions,
as well as other types of organizations, do not go to the expense, time,
and effort necessary to maintain a picket line without some hope of
recouping the expense they have thus put themselves to. It is difficult
to believe that unions engage in picketing for the sole purpose of
malicious harassment or the incidental annoyance such picketing may
cause the public. While the presumption is strong but not conclusive,
it is not irrebutable. There may be circumstances under which a union
may show that its motives and objectives are not those originally an-
nounced, but in our opinion it will require strong and conclusive
evidence to show affirmatively that it is not continuing to picket for
recognition. Evidence which could be-used to rebut such a presump-
tion might be a course of conduct utilizing traditional organizational
methods, such as distribution of circulars, personal solicitation of
employees, assurance to the employers, and employees that they were
not seeking recognition, etc. The probable futility of continuing to
solicit membership in a union of employees who have unanimously
rejected the union-in a•Board-conducted election leads and lends sup-
port to a strong inference that the object of the picketing is to compel
the employer to recognize the union in derogation of the rights of
employees guaranteed by Section 7 of the Act. The absence of evi
dence to show that ordinary means of solicitation were thereafter
employed is persuasive indication that the newly alleged objective is
a mere sham.
Accordingly, we find that the Respondent violated Section 8 (b)
(1) (A) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Retail Store
Employees Union, Local 1595, Retail Clerks International Associa-
tion, AFL-CIO, and its officers, representatives, agents, successors,
and assigns, shall: -
1. Cease and desist from restraining or coercing the employees of
J. C. Penney Company, in the exercise of the rights guaranteed by
Section 7 of the Act, by picketing the Company, or engaging in any
other conduct, for the purpose of forcing the said Company to recog-
483142-59-vol. 120-98
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nize the Respondent as the exclusive bargaining representative of its
employees when the Respondent does not represent a majority of such
employees in an appropriate unit..
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its offices and meeting halls in Murphysboro, Illinois,
copies of the notice attached hereto marked "Appendix." I Copies of
said notice, to be furnished by the Regional Director for the Four-
teenth' Region,, shall, after, being duly signed by an authorized repre-
sentative of Respondent, be posted by the Respondent immediately
upon receipt thereof and be maintained by it for sixty (60) consecu-
tive days thereafter in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that the said notices are not altered,
defaced, or covered by any other material.
(b) Mail to the- Regional Director for the Fourteenth Region
signed copies of the notice attached hereto marked "Appendix" for
posting at the premises of J. C. Penney Company, in places where
notices to the Company's employees are customarily posted, if the
Company is willing to do so. Copies of said notice, to be furnished
by the Regional Director for the Fourteenth Region, shall, after being
duly signed by an authorized representative of Respondent, be forth-
with returned to the Regional Director for such posting.
(c) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
6In 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."
APPENDIX
NOTICE TO ALL MEMBERS OF RETAIL STORE EMPLOYEES UNION, -LOCAL
1595, RETAIL CLERKS INTERNATIONAL AssocLATIoN, AFL-CIO AND
TO ALL EMPLOYEES OF J. C. PENNEY COMPANY, STORE 309
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 restrain or coerce the employees of J. C. Penney
Company, in the exercise of the rights guaranteed by Section 7
of the Act, by picketing the Company, or engaging in any other
conduct, for the purpose of forcing J. C. Penney Company, to
recognize us as the exclusive bargaining representative of its
RETAIL -STORE` EMPLOYEES UNION - 1539
employees when we do not represent a majority of such employees
in an appropriate'unit.
RETAIL STORE EMPLOYEES UNION, LOCAL
1595, RETAIL CLERKS INTERNATIONAL
ASSOCIATION, AFL-CIO,
Labor Union.
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein alleges that the Union has violated Section 8 (b) (1) (A)
of the National Labor Relations Act, as amended, 61 Stat. 136, by picketing the
Company's store in Murphysboro, Illinois, since on or about May 10, 1951, for the
purpose of causing or requiring the Company to recognize the Union as the
exclusive bargaining representative of certain of the Company's employees although
in a Board-conducted election on January 17, 1957, the employees voted against
the Union and the Regional Director thereafter so certified. Admitting the facts
alleged in the complaint, the answer denies that the picketing was for the purpose
of causing or requiring recognition.
A hearing was held before me at St. Louis, Missouri, on July 30, 1957. Pursuant
to leave granted, briefs were thereafter filed by the General Counsel, the Company,
and the Union, the time to do so having been extended. It was agreed at the hear-
ing that, with reservation of the purpose or object of the picketing, the issue would
be governed by the ruling in the Curtis Brothers, Inc.,' case. At the hearing, Curtis,
Shepherd,2 and several other and then-pending cases were noted, and it was stated
and agreed that, the Board then having heard argument on the issue and a decision
being expected soon, the Intermediate Report herein would be withheld until after
such decision. The decision issued on October 31, and the Board has held that
recognition picketing by a union which does not represent the majority of the
-employees in an appropriate unit restrains or coerces employees in the exercise of
rights guaranteed in Section 7 of the Act.
In New York State. Employers Association, Inc.,3 distinction was specifically noted
,between interference with employees' rights, there for the first time found against
a union in the execution and maintenance of an invalid union-shop agreement, and
"strike pressure exercised against an Employer to compel him to sign a discriminat-
ing agreement ." (Emphasis in original .) Continuing, the Board in that case
declared:
As the strike in the NMU case did not result in a closed-shop contract, the
right of the employees to refrain from joining the union was not impaired
by any act of the union. -
Whether the Board in Curtis Brothers overlooked the New York State Employers
Association decision; whether it intended to depart from that holding and the clear
distinction there noted, I am not privileged to know. Its 'attention called to that
-case, the Board may adhere to its Curtis Brothers ruling and pro tanto modify the
ruling in New York State Employers Association that a strike does not interfere
with employees' rights under the Act. The Board does have the authority to do
this by what has been called "administrative fiat," merely by making a different find-
ing with respect to the effect of a strike on employees' rights. The consideration
' Drivers, Chauffeurs, and Helpers Local 639, Internatsonal Brotherhood of Teamsters,
-etc. (Curtis Brothers, Inc ), 119 NLRB 232. -
2Internatsonal Union of Operating Engineers, Local Union No. 12, AFL-CIO (Shep-
Jierd Machinery Company), 119 NLRB 320.
3 93 NLRB 127, 129, 146.
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which has been given to "ends" and "means ," "direct" and "indirect" coercion may
be permitted to stand ; the same result might have been reached in Curtis Brothers,
had New York State Employers Association , been taken into account , by acknowl-
edgment that a different determination was now being made of the effect of a
strike . (The additional possibility exists , and for this there is precedent , that prec-
edent may be ignored.)
Upon the entire record in the case , I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. COMMERCE AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a Delaware corporation with
principal office in New York, New York, sells at retail wearing apparel and other
merchandise through retail stores located throughout the United States; that its
retail store in Murphysboro, Illinois, is here involved; and that during 1956 the
Company purchased and shipped or caused to be shipped from points in one State
to points in other States where its retail stores are located, merchandise valued at
more than $10,000,000. I find that the Company is engaged in commerce within
the meaning of the Act.
It was admitted and I find that the Union is a labor organization within the
meaning of the Act.
II. THE ALLEGED VIOLATION OF SECTION 8 (B) (1) (A)
Since on or about May 10, 1951, to the date of the hearing, the Union has picketed
the store here involved; and from May 10, 1951, to January 17, 1957, the pickets
carried a picket sign which read: "We do not patronize. The J. C. Penney Com-
pany employs persons not members of Retail Clerks (A. F. of L.) L. U. 1595 of
Murphysboro, Illinois." On a petition filed by the Company,4 the Board held an
election hearing on October 25, 1956. The Union did not appear at the hearing,
but sent the following telegram on the day of the hearing: "This is to advise you
that Retail Clerks No. 1595, Murphysboro, Illinois, does not represent nor claim
to represent the employees of J. C. Penney, Murphysboro,' Illinois, nor is the
union picket line to be construed as a claim for recognition." In its Decision and
Direction of Election, dated December 28, 1956, the Board declared as follows:
We are unable to reconcile the Union's current picketing activities with its
disclaimer of October 25. For it is manifest from the record that the purpose
of the picketing is to compel the Employer to bargain with the Union without
regard to the Union's status as representative of its employees.
At the election, six votes were cast against the Union, none for it, and the Regional
Director, on January 25, 1957, certified that no labor organization is the exclusive
representative of the employees at the store. The facts recited above have been
stipulated.
The Board's decision and the election and certification established that the picket-
ing was for recognition and that the Union lacks a majority, the latter fact admitted.
Did the character or object of the picketing change after- the Board found on
December 28 that it was for recognition? In the Packard Knitwear 5 case, the
Board found that the picketing, despite signs that it was organizational, was in fact
for recognition where it had been for recognition before the election, there being no
evidence that the Union changed its object thereafter. This citation constitutes the
short answer to the Union's argument that "a claim for recognition could [not] be
turned into an unfair labor practice" where the picketing is continued as here.
In the instant case, the language of the picket sign was changed on January
19, 1957, to read: "The Retail Clerks in this store are not members of the Retail
Clerks Local Union 1595, A. F. of L.-C. I. 0.," and picketing with this sign con-
tinued through July 20, 1957. From July 21 through 26, there was no picketing.
The Union resumed picketing on July 27, 1957, and from that date until at least the
date of the hearing has picketed with a sign which read: "Attention John Q. Public.
4 Case No. 14-RM-147 (not published).
6Knitgoodg Workers Union, Local 155, etc. (Packard Knitwear, Inc.), 118 NLRB 577.
RETAIL STORE EMPLOYEES UNION 1541
The non-union employees in this store are a threat to union working conditions.
Please patronize union employees Retail Clerks Local 1595, A. F. of L-C. I. 0."
,On July 19, 1957 the Union notified the store manager by letter that it had not
previously claimed the right to act as exclusive bargaining representative, and did
not now claim such right. Here again the emphasis is not on change in the Union's
claim or purpose, but rather on consistent continuity, the earlier conduct or state-
ments having perhaps been "misconstrued": the Union did not seek recognition on
or before October 25, 1956, and it does not now on July 19, 1957. The Board has
passed on the earlier conduct and statements. If its decision of December 28,
1956, is binding, the Union in its brief now urges that a different finding is called
for with respect to the picketing on and after July 27, 1957.
On this issue we can adopt the ruling of the Board concerning the earlier so-called
disclaimer and also the very claim of consistency in the letter of July 19. Despite
the testimony which we received from a union official concerning the Union's purpose
in changing the signs and in refraining from picketing for a week in July 1957, the
different signs and the letter of July 19 do not prove, indicate, or even suggest that
the Union changed its object. We have noted its earlier disclaimer of representa-
tion and denial of claim for recognition. The picketing having been for recognition
before the election hearing, as the Board has found, here as in Packard Knitwear
the evidence does not show that the Union changed its object thereafter. Further,
since under the cases , we here consider the tendency to restrain or coerce , an alleged
union purpose does not control; its overt acts, its picketing and the signs, are to be
considered for their effect on employees. I find that the picketing herein since the
election on January 17, 1957, and the certification on January 25, 1957, has been
for recognition. Following the decision in Curtis Brothers, I further find that such
picketing restrains and coerces and has restrained and coerced employees in violation
of Section 8 (b) (1) (A) of the Act.
The Union develops an ingenious argument by declaring that the General Counsel's
position is that the Board "based upon alleged coercive picketing by the Union" the
finding that a representation question existed . But that finding was based on the
picketing and the sought-for recognition, without any element of coercion. The
Board did not aid a violator of -the Act when it directed the election ; this is clear
despite the argument in the Union's brief. The coercive aspect entered with the
picketing which continued after it was shown that the Union did not represent a
majority. Nor does the finding herein antedate the election, when the Union's lack
of majority was thus established.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON, COMMERCE
The activities of the Union set forth in section II, above, occurring in connection
with the operations of the Company described in section I, above, have a close, in-
timate, 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.
IV. THE REMEDY
Having found that the Union has violated Section 8 (b) (1) (A) of the Act, I
shall recommend that it cease and desist therefrom and take certain affirmative
action in order to effectuate the policies of the Act.
Upon the basis of the above findings of fact , and upon the entire record in the-
case, I make the following:
CONCLUSIONS OF LAW
1. Retail Store Employees Union, Local 1595, Retail Clerks International Asso-
ciation, AFL-CIO, is a labor organization within the meaning of Section 2 (5)
of the Act.
2. By picketing J. C. Penney Company, Store No. 309, for the purpose of obtain-
ing recognition as bargaining representative, thereby restraining and coercing em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act, the Union
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (b) (1) (A) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]