St. Helens Shop 'N Kart

National Labor Relations Board - Board Decisions

Aug 18, 1993

311 N.L.R.B. 1281 (N.L.R.B. 1993)

1281
311 NLRB No. 180
ST. HELENS SHOP ’N KART
1 On May 17, 1993, the Respondent Union filed a motion to in-
clude in the record a copy of a Federal court judgment in a matter
involving some of the same parties. The Respondent Employer op-
posed the motion. We accept the Respondent Union’s submission
and take administrative notice of the court’s judgment.
2 The Respondent Union has excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3rd Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
We agree with the judge’s findings that the Respondent Employer
violated Sec. 8(a)(1), (2), and (3), and the Respondent Union vio-
lated Sec. 8(b)(1)(A) and (2) of the Act by entering into collective-
bargaining agreements that contained union-security and dues-deduc-
tion clauses when the Union did not represent an uncoerced majority
of employees in the units. The General Counsel has excepted to the
judge’s apparently inadvertent failure to include in his remedy a pro-
vision requiring the Respondents to make employees whole for dues
or other fees unlawfully coerced or withheld from employees. The
Respondent Employer also has requested that we state clearly the
status of the collective-bargaining agreement entered into by the Re-
spondents.
We agree with the General Counsel that the judge apparently inad-
vertently omitted the make-whole remedy from his Order and we
correct the omission. The purpose behind the Board’s routine remedy
for similar violations of Secs. 8(a)(1) and (2) and 8(b)(1)(A) and (2)
is to return the employees to the position they were in before the
employer and the union entered into the illegal agreements. See, e.g.,
Caro Bags, Inc., 285 NLRB 656 (1987); Safeway Stores, 276 NLRB
944 (1985). For purposes of the Act, we view the collective-bar-
gaining agreements as never having had legal effect.
In adopting the judge’s finding that the petition signed by 18 of
22 unit employees on July 31, 1991, and requesting union represen-
tation does not demonstrate uncoerced majority support, Member
Devaney relies particularly on the following facts in addition to
those cited by the judge: (1) the Employer dictated the language of
the petition at an employee meeting called by the Employer for the
purpose of resolving the representation issue; and (2) the petition
was returned to the Employer after it was signed by the employees,
rather than to the Union.
Lowe’s Markets, Inc. d/b/a St. Helens Shop ’N Kart
and Edna S. Tunnell
United Food & Commercial Workers, Local 555
(Lowe’s Markets, Inc. d/b/a St. Helens Shop ’N
Kart) and Edna S. Tunnell
United Food & Commercial Workers, Local 555
and Lowe’s Markets, Inc. d/b/a St. Helens Shop
’N Kart. Cases 36–CA–6713, 36–CB–1669, and
36–CP–154
August 18, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On February 24, 1993, Administrative Law Judge
Gordon J. Myatt issued the attached decision. The Re-
spondent Union, the Respondent Employer, and the
General Counsel have filed exceptions with supporting
briefs and the Respondent Union has filed an answer-
ing brief.1
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Lowe’s Markets, Inc.
d/b/a St. Helens Shop ’N Kart, St. Helens, Oregon, and
United Food & Commercial Workers, Local 555, their
officers, agents, successors, assigns, shall take the ac-
tion set forth in the Order as modified.
1. Insert the following as paragraph A,2,(b) and re-
letter the subsequent paragraph.
‘‘(b) Jointly and severally with the Union, reimburse
all unit employees for any moneys required to be paid
pursuant to the August 2, 1991 collective-bargaining
agreements between it and the Union, together with in-
terest to be computed as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).’’
2. Insert the following as paragraph B,2,(a) and re-
letter the subsequent paragraphs.
‘‘(a) Jointly and severally with the Union, reimburse
all unit employees for any moneys required to be paid
pursuant to the August 2, 1991 collective-bargaining
agreements between it and the Employer, together with
interest to be computed as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).’’
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
Accordingly, we assure you that:
WE WILL NOT assist or contribute support to United
Food & Commercial Workers, Local 555, or any other
labor organization, by coercing you to request the
Union to become your collective-bargaining represent-
ative.
1282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT assist or contribute support to United
Food & Commercial Workers, Local 555, or any other
labor organization, and discriminate against you to en-
courage your membership in United Food & Commer-
cial Workers, Local 555, or any other labor organiza-
tion, by granting recognition to and executing collec-
tive-bargaining agreements with the Union, which con-
tain union-security and dues-deduction authorization
provisions, at a time when the Union does not rep-
resent an uncoerced majority of our employees.
WE WILL NOT give effect to, or in any manner en-
forcing the collective-bargaining agreements executed
with United Food & Commercial Workers, Local 555
on August 2, l991, unless and until that Union has
been certified by the National Labor Relations Board
as the exclusive bargaining representative of our em-
ployees. Nothing, however, shall require us to vary or
abandon any wage, hour, seniority, or other substantive
feature of our relations with you which has been estab-
lished in the performance of these agreements with the
Union, nor will you be prejudiced in the assertion of
any rights you may have under the agreements.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL withdraw and withhold all recognition
from United Food & Commercial Workers, Local 555
as your representative for the purpose of collective bar-
gaining, and cease to maintain or give effect the col-
lective-bargaining agreements executed with the Union,
unless and until that labor organization has been cer-
tified by the National Labor Relations Board as your
exclusive collective-bargaining representative.
WE WILL jointly and severally with the Union, reim-
burse all unit employees for any moneys required to be
paid pursuant to the August 2, 1991 collective-bar-
gaining agreement between us and the Union, together
with interest.
LOWE’S MARKETS, INC. D/B/A ST. HEL-
ENS SHOP ’N KART
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT accept recognition from Lowe’s Mar-
kets, Inc. d/b/a St. Helens Shop ’N Kart as the bar-
gaining representative of Lowe’s employees at a time
when we do not represent an uncoerced majority of the
employees in appropriate bargaining units.
WE WILL NOT act as the exclusive collective-bar-
gaining representative of Lowe’s employees, unless
and until we have been certified by the National Labor
Relations Board as the exclusive representative of
Lowe’s employees in appropriate bargaining units.
WE WILL NOT give any effect to the collective-bar-
gaining agreements executed with Lowe’s on August
2, 1991, or any extension, renewal, or modification
thereof.
WE WILL NOT accept any unlawful assistance or
support from Lowe’s in soliciting or acquiring union
membership among Lowe’s employees.
WE WILL NOT discriminate against or attempt to
cause Lowe’s to discriminate against employees, in
violation of Section 8(a)(3) of the Act, by maintaining
or implementing the terms of the union-security and
dues-deduction authorization provisions of the collec-
tive-bargaining agreements executed with Lowe’s on
August 2, 1991.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the National Labor Rela-
tions Act.
WE WILL NOT picket, or cause to be picketed, the
premises of Lowe’s, where an object of such picketing
is to force or require that Employer to recognize or
bargain with us as the representative of its employees,
at a time when we are not certified as such representa-
tive, and such picketing has been conducted without a
petition filed under Section 9(c) of the Act within a
reasonable period of time not to exceed 30 days from
the start of such picketing.
WE WILL jointly and severally with the Employer,
reimburse all unit employees for any moneys required
to be paid pursuant to our August 2, 1991 collective-
bargaining agreement with the Employer, together with
interest.
UNITED FOOD & COMMERCIAL WORK-
ERS, LOCAL 555
Dale Cubbison, Esq., for the General Counsel.
Frank S. Wesson, Esq., of Portland, Oregon, for the Re-
spondent St. Helens Shop ’N Kart.
Gene Mechanic, Esq., of Portland, Oregon, for the Respond-
ent United Food & Commercial Workers Local 555.
DECSION
GORDON J. MYATT, Administrative Law Judge. Upon
charges filed in Cases 36–CA–6713 and 32–CB–1669 by
Edna Sue Tunnell, an individual, against Lowe’s Markets,
Inc., d/b/a St. Helens Shop ’N Kart (Lowe’s) and United
Food and Commercial Workers, Local 555 (the Union), re-
spectively, and a charge filed by Lowe’s in Case 36–CP–154
against the Union, the Regional Director for Region 19
issued a an order consolidating cases and a second amended
consolidated complaint and notice of hearing on May 21,
1992. In substance, the consolidated complaint alleges that in
1283ST. HELENS SHOP ’N KART
1 All dates herein refer to the year 1991 unless otherwise indicated.
2 The Union supplied agreements covering two separate units of
the employees. One was for the meat department employees and the
other was for the grocery, produce, and delicatessen employees.
July 1991,1 Lowe’s unlawfully recognized and assisted the
Union as the collective-bargaining representative of it em-
ployees in two separate units at a time when it knew the
Union did not represent an uncoerced majority of the em-
ployees. Additionally, that as a result of this conduct, Lowe’s
and the Union entered into collective-bargaining agreements
covering these employee units. That the agreements, in turn,
contained union-security provisions requiring membership in
good standing as a condition of employment, and dues-
checkoff provisions requiring Lowe’s to withhold union dues
from unit employees’ wages and remit them to the Union.
Further, that on March 17, 1992, the Union commenced
picketing Lowe’s facility where an object of the picketing
was to force Lowe’s to recognize and bargain with the Union
as the representative of the employees, and that the picketing
continued for a period of time exceeding 30 days. The con-
solidated complaint alleges that by engaging in the above
conduct the Respondent Lowe’s has violated Section 8(a)(1),
(2), and (3) of the National Labor Relations Act (the Act).
Also, that the above conduct of the Respondent Union vio-
lated Sections 8(b)(1)(A), 8(b)(2), and 8(b)(7)(C) of the Act.
Both Respondents filed answers to the consolidated com-
plaint in which they admitted certain allegations, denied oth-
ers, and specifically denied committing violations of the Act.
A hearing was held in this matter on June 18, 1992, in
Portland, Oregon. All parties were represented by counsel
and afforded full opportunity to examine and cross-examine
witnesses and to present material and relevant evidence on
the issues. Counsel for the General Counsel gave oral argu-
ment at the conclusion of the hearing and briefs have been
submitted by the Respondents. The oral argument and the
briefs have been fully considered in arriving at this decision.
On the entire record in this matter, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Lowe’s is an Oregon corporation with an of-
fice and place of business located in St. Helens, Oregon,
where it is engaged in the business of operating a food store.
During the 12-month period preceding the issuance of the
complaint, Lowe’s had gross sales in excess of $500,000
from its business operations. During the same period, Lowe’s
purchased and caused to be delivered to its St. Helens facil-
ity goods and materials valued in excess of $50,000, directly
from sources outside the State of Oregon, or from suppliers
within the State who in turn obtained such goods and mate-
rials directly from sources outside the State of Oregon. Ac-
cordingly, I find the Respondent Lowe’s is, and has been at
all times material, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union, United Food and Commercial Workers, Local
555, is a labor organization within the meaning of Section
2(5) of Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
In mid-July, the Union began picketing at Lowe’s facility.
The picket signs of the Union urged the public not to patron-
ize Lowe’s store and displayed the following legend:
Notice to the Public
Do Not Patronize
Shop ’N Kart Does Not Deserve
the Patronage of Hard-Working
Consumers
Please Do Not Patronize Shop ’N Kart
The undisputed testimony indicates that as a result of the
picketing, Lowe’s business and customer count began to drop
substantially. At no time during the picketing had the Union
attempted to organize Lowe’s employees or to secure signed
authorization cards from them. In an effort to get the pick-
eting to cease, Lowe’s owner, Gene Lowe (Lowe), called
Robert Patterson, the collective-bargaining director of the
Union. Patterson informed Lowe that he would not negotiate
with Lowe, and the Union’s intention was to have a ‘‘busi-
ness impact’’ on Lowe’s operation and close it down.
Harold Higgingbottom, Lowe’s store manager, contacted
Lowe’s attorney, Frank Wesson, about the situation on July
19. Wesson, in turn, filed an representation petition (RM)
with the Board’s subregional office and contacted Patterson
about the picketing. Patterson reiterated that the Union’s ob-
jective was to drive Lowe’s out of business. At this point,
Wesson indicated that Lowe’s was willing to sign a standard
area agreement with the Union. According to Wesson, Patter-
son stated that a contract could not be executed with Lowe’s
until the Union received a petition signed by the employees.
The undisputed testimony reveals that Wesson asked for
blank copies of the area agreement and Patterson agreed to
supply them. Shortly thereafter, the Union delivered the
agreements to Wesson’s office.2 Wesson testified that the
contracts delivered by the Union were signed but undated.
Patterson, on the other hand, testified that the agreements
were unsigned at the time they were given to Wesson. Ac-
cording to Patterson, they were ‘‘samples’’ of the standard
area contracts. Pursuant to a verbal arrangement with the
Union, Lowe’s withdrew the RM petition on July 26 and the
Union ceased picketing.
On July 31, Lowe’s held two meetings at its store with the
employees on separate shifts during their working hours. At
each meeting Lowe introduced Wesson to the employees and
then left the meeting. Wesson testified that he advised the
employees about his initial telephone conversation with Pat-
terson concerning the picketing. Wesson acknowledged that
he told the employees the Union wanted to put Lowe’s out
of business and if the picketing resumed and business de-
creased, employees would have to be laid off. He stated he
further informed the employees that the Union was agreeable
to signing a contract with Lowe’s, provided the employees
signed a petition requesting the Union represent them. Ac-
cording to Wesson, he told the employees the petition was
necessary to back up the contracts. Wesson further stated he
told the Employees that if they had any questions, they could
1284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Under the terms of the collective-bargaining agreement, the
produce manager was a member of the bargaining unit.
4 Schwirse was employed as a checker by Lowe’s from March to
September 1991, and her surname was Smith at that time. Upon the
termination of her employment, the Union filed charges alleging she
was discriminatorily discharged. These charges, however, were sub-
sequently dismissed by the Regional Director, infra.
5 Pohrman was hired by Lowe’s in September, and discharged on
November 27 for not properly performing his job.
6 Early worked for Lowe’s from October 1991 to April 1992,
when she quit to join the union picketing of the store.
7 All dates hereafter refer to the year 1992 unless otherwise indi-
cated.
contact the Board and he gave them the telephone number
of the Subregion’s Office. Wesson testified he dictated the
language for a petition to Dan Heroux, the produce man-
ager,3 at the latter’s request during the first meeting and then
left the meeting. At the end of the second meeting, Heroux
returned the petition containing signatures of 18 employees.
(G.C. Exh. 5.) The undisputed testimony indicates there was
a total of 22 employees in the combined units.
Employee Edna Tunnell, the Charging Party in Cases 36–
CA–6713 and 36–CB–1669, testified that she attended the
second meeting on July 31. According to Tunnell, Wesson
told the employees to sign the petition requesting representa-
tion by the Union, and that the petition itself was circulated
by the produce manager. Tunnell stated Wesson told the em-
ployees that if they did not sign the petition, the Union
would continue picketing. She further stated that Wesson in-
dicated Lowe’s had signed, or would sign, a collective-bar-
gaining agreement with the Union; although she could not
recall which was the case with complete certainty. According
to Tunnell, Wesson indicated Lowe’s had done so, or would
do so, to protect the employees. Tunnell asked why there
were no representatives from the Union at the meeting. There
is no indication in the record that she received a response to
the inquiry. When the petition was circulated, Tunnell de-
cided not to sign it.
Examination of the petition reveals that while it was
signed by a number of the employees, several of them ex-
pressed unhappiness in doing so. In the margin to the left of
his name, one employee noted, ‘‘unfair.’’ Another placed the
expression ‘‘union sucks’’ next to his name. (G.C. Exh. 5,
supra.)
After receipt of the petition, Lowe made several changes
in each of the bargaining agreements and executed them.
Wesson forwarded the signed contracts and a copy of the pe-
tition to the Union on August 2. Patterson stated that when
the agreements and the petition were received, the union offi-
cials determined that a majority of the employees in each
unit signed the petition and the union president then executed
the contracts on behalf of the Union. Each of the agreements
contained identical union-security provisions requiring em-
ployees to become and remain members in good standing of
the Union, and for the payment of dues. (G.C. Exhs. 3 and
4.)
On August 22, the Union held two separate meetings with
the unit employees at the union hall. Tunnell attended the
afternoon meeting, which she stated was conducted by sev-
eral representatives of the Union. According to Tunnell, the
union representatives discussed the wages and benefits con-
tained in the contracts and passed out information about the
union dues the employees had to pay. Tunnell stated the
union representatives told the employees attending the meet-
ing that if they failed to join the Union and pay dues, they
would not have jobs.
Tunnell O’Brien, a business representative of the Union,
testified that she was present at the afternoon meeting with
employees. O’Brien confirmed the union representatives dis-
cussed the provisions of the contracts with the employees,
and stated the employees were given applications to join the
Union. While O’Brien denied the employees were told they
had to join the Union, she admitted the applications for
membership required them to pay dues 30 days after the con-
tracts were signed or face the loss of their jobs. Former em-
ployee Susan Schwirse testified that she attended one of the
meetings at the union hall. Similar to the testimony of
O’Brien, Schwirse denied that any of the union representa-
tives said the employees had to join the Union or lose their
jobs.4
In early November, Tunnell circulated a petition among
the employees stating the employees’ rights had been denied
and requesting an election regarding union representation.
(G.C. Exh. 2.) There is testimony from several witnesses for
the Union that Tunnell’s circulation of the petition was not
entirely voluntary on her part. James Pohrman, formerly the
meat department manager,5 testified that Lowe instructed
Tunnell to circulate the petition requesting an election. Ac-
cording, to Pohrman, Tunnell told him that she did not want
to circulate the petition but that Lowe was ‘‘getting on the
employees about the Union,’’ and she was doing so to pro-
tect her job. Former employee Evelyn Early6 stated that in
late October or early November, Lowe told her it was stupid
to pay union dues since she would never get the money
back, and that he had broken the contract with the Union.
Early further testified that she was given the antiunion peti-
tion by Tunnell shortly after these comments by Lowe and
she signed it. Shauna Hawkins, a current employee, testified
that she was called at home by Tunnell and asked to come
to the store and sign the antiunion petition. According to
Hawkins, when she arrived, she observed Lowe talking to
Tunnell, who had the petition in her hand. Hawkins stated
Lowe then left and she signed the petition because she was
afraid she would lose her job. On November 14, Tunnell
filed the charges against Lowe’s and the Union in the ‘‘CA’’
and ‘‘CB’’ cases that are a part of this consolidated matter.
On February 25, 1992,7 the Union filed three separate un-
fair labor practice charges against Lowe’s. Two of the
charges related to the alleged discrimination against Schwirse
and another employee, Renee Schwappe, in violation of Sec-
tion 8(a)(1) and (3) of the Act. The other alleged, among
other things, that Lowe’s refused to comply with the terms
and conditions of the collective-bargaining agreements (en-
tered into on August 2, 1991) and sought to discourage em-
ployees from joining the Union in violation of Section
8(a)(1), (3), and (5) of the Act. On March 17, the Union
commenced picketing Lowe’s facility and distributing hand-
bills. The picket signs stated the Lowe’s had committed un-
fair labor practices against its own employees. The handbills
also indicated that Lowe’s had committed unfair labor prac-
tices against its employees. (G.C. Exh. 8.)
The three charges filed by the Union were dismissed by
the Board’s Regional Office on April 30. Prior to that, how-
1285ST. HELENS SHOP ’N KART
ever, the Union sent Lowe’s attorney a letter on April 20,
which purported to set out the purpose of the picketing. The
letter disclaimed the picketing to be in support of the
Union’s 8(a)(5) charges—refusal to bargain with the rep-
resentative of the employees—but, rather, that the picketing
was in protest of the alleged unlawful conduct against the
employees as cited in the charges. (R. Exh. 1.) The picketing
ceased on April 30 when the charges were dismissed by the
Regional Director, and the Union appealed the dismissal of
all the charges to the General Counsel. On June 2, the Union
withdrew the appeal of the 8(a)(5) portion of the charges and
on June 12, the General Counsel sustained the dismissal of
the balance of the charges.
Concluding Findings
The threshold issue to be determined here is whether
Lowe’s granted recognition to the Union as the exclusive
representative of its employees at a time when the Union did
not represent an uncoerced majority of the employees in the
two bargaining units. If this is found to be the situation, then
the case law is clear that Lowe’s and the Union have com-
mitted violations of the Act.
The seminal case, and indeed the only case cited by coun-
sel for the General Counsel in his oral argument, is Ladies’
Garment Workers (Bernard Altman) v. NLRB, 366 U.S. 731
(1961). There, the Supreme Court upheld the Board’s finding
that an employer violates Section 8(a)(2) and (1) and a union
violates Section 8(b)(1)(A) of the Act, when the employer
grants and the union accepts recognition at a time when the
union does not represent a majority of the employees in an
appropriate unit. From this holding evolved the well-estab-
lished principle that a union must represent an uncoerced
majority in the appropriate unit and when the employer ren-
ders unlawful assistance in establishing the union’s majority,
recognition and acceptance thereof violates Sections 8(a)(2)
and (1) and 8(b)(1)(A) on the part of the employer and the
union, respectively. Mr. Glass Inc., 220 NLRB 104 (1975)
(employer’s conduct in assisting the union to obtain majority
status held a violation); Seaview Manor Home, 222 NLRB
596 (1976) (co-owners’ solicitation of signatures on author-
ization cards and union acceptance of recognition based
thereon held a violation); S.M.S. Automotive Products, 282
NLRB 36 (1986) (unlawful poll by employer to establish
majority and union’s acceptance of recognition held a viola-
tion by both); Brown Transport Corp., 296 NLRB 552
(1989) (employer’s coercive conduct tainted authorization
cards and union’s acceptance of recognition thereafter vio-
lated the Act). See also UPF Corp., 309 NLRB 832 (1992);
Human Development Assn., 293 NLRB 1228 (1989). In addi-
tion, when a collective-bargaining agreement, executed under
these circumstances, contains union-security and dues-deduc-
tion authorization provisions, the participating employer and
union further violate Sections 8(a)(1), (2), and (3) and
8(b)(1)(A) and (2) of the Act, respectively. A To Z Mainte-
nance Corp., 309 NLRB 672 (1992); Baby Watson Cheese-
cake, 309 NLRB 417 (1992); Human Development Assn.,
supra; A.M.A. Leasing, 283 NLRB 1017 (1987).
Applying the above principles to the instant case, I find
the record evidence establishes that Lowe’s did in fact recog-
nize the Union at a time when the Union did not represent
an uncoerced majority. Further, that upon acceptance of such
recognition, the parties entered into collective-bargaining
agreements which contained union-security and dues-deduc-
tion authorization provisions.
First, the uncontroverted evidence in the record clearly es-
tablishes that when the Union began the initial picketing of
Lowe’s business, it made no attempt to organize any of the
employees. Rather, the Union’s only stated purpose was to
reduce the volume of Lowe’s business—euphemistically de-
scribed by the Union’s attorney as ‘‘having an economic im-
pact’’ on Lowe’s business. Thus, when Lowe’s offered to
sign an area agreement with the Union, none of the employ-
ees were represented by the Union nor were they, at that
point, seeking to have the Union represent them. In addition,
it is apparent from the testimony that the employees were
well aware that business was declining as a result of the
picketing and could impact on their job tenure.
Viewing the meetings between Lowe’s attorney and the
employees on July 31 in this context, I find the statements
made to the employees to induce them to sign the supporting
petition for union representation were coercive. This is espe-
cially true since the picketing had stopped on July 26, by
prior agreement between Lowe’s and the Union, and Wesson
informed the employees at the meetings that if the picketing
resumed and business declined, there would have to be lay-
offs. I find it reasonable, in these circumstances, to infer that
the threat of possible loss of employment tended to have as
coercive an impact on the employees as a direct statement
that they would be fired if a majority did not sign the peti-
tion supporting the Union. I do not deem it necessary to de-
termine here whether the employees were told that Lowe’s
had already signed or would sign a contract with the Union.
The threat of possible loss of employment is sufficient to
taint the signatures on the petition.
In view of the above, I find that Lowe’s violated Section
8(a)(1) and (2) of the Act by coercing employees to sign a
petition requesting the Union represent them as their bar-
gaining representative. I also find that the Union in accepting
such recognition, at a time when it did not represent an
uncoerced majority of the unit employees, violated Section
8(b)(1)(A) of the Act. It follows, therefore, that by executing
collective-bargaining agreements containing union-security
and dues-deduction provisions, covering the two separate em-
ployee units, Lowe’s further violated Section 8(a)(1), (2), and
(3) and the Union further violated Section 8(b)(1)(A) and (2)
of the Act. See A To Z Maintenance Corp., supra; Baby Wat-
son Cheesecake, supra; Human Development Assn., supra;
A.M.A. Leasing, supra.
The sole remaining issue is whether the picketing by the
Union, from March 17 to April 30, 1992, is determined to
be for recognitional purposes and in violation of Section
8(b)(7)(C) of the Act. In the circumstances found here, I con-
clude that a violation has been established.
The record demonstrates that when the Union commenced
picketing in March, it had filed three separate charges against
Lowe’s; two of which alleged discriminatory conduct against
two employees; and one of which alleged discouraging mem-
bership in the Union and a refusal to bargain by not com-
plying with the terms of the contracts. The Union asserts that
both the legend on the picket signs and the information on
the handbills, distributed during the picketing, preclude any
inference that picketing was for recognitional purposes. Rath-
er, the Union contends that the picketing was in protest of
unfair labor practices committed against the employees. To
1286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 275 NLRB 744–745 (1985), and the cases cited therein at fn. 5.
9 Hod Carriers Local 840 (C. A. Blinne Construction), 135 NLRB
1153, 1167 (1962).
10 I note the record is barren of any evidence indicating the dues-
deduction authorization provisions were implemented by Lowe’s and
payments made to the Union.
11 Since there is no evidence in the record of implementation of
the union-security and dues-deduction authorization provisions in the
agreements, this matter is left to the compliance stage of these pro-
ceedings.
bolster this claim, the Union points to its letter of April 20,
in which it advised Lowe’s that it was not picketing to sup-
port the 8(a)(5) charges based on the alleged refusal to abide
by the terms of the collective-bargaining agreements. I find
these contentions of the Union are not sufficient to negate
the fact that an object of the picketing was indeed for recog-
nitional purposes.
First, in Stage Employees IATSE Local 15 (Albatross Pro-
ductions),8 the Board reiterated the principle of Blinne Con-
struction9 that even if there are legitimate purposes for pick-
eting by a union, the prescriptions of Section 8(b)(7) apply
‘‘if one of the union objects is recognitional.’’ Thus, even as-
suming the alleged violations of Section 8(a)(1) and (3) ex-
isted at the time of the picketing (which is not the case here
since all of the Union’s charges were dismissed by the Re-
gional Director and his actions were upheld on appeal), the
Union was also clearly pursuing its 8(a)(5) charges alleging
Lowe’s was not complying with the terms of the executed
agreements. Inasmuch as the 8(a)(5) charges lacked merit be-
cause the Union did not represent an uncoerced majority of
the employees at the time of recognition, the record fully
demonstrates the picketing was also in support of the
Union’s recognitional and bargaining claim. Food & Com-
mercial Workers Local 23, 283 NLRB 116 (1987). To assert
otherwise is to ignore the undisputed evidence in the record.
The picket signs and the union handbills stated Lowe’s
committed unfair labor practices against its own employees.
Section 8(a)(5) charges carry a derivative violation of Sec-
tion 8(a)(1) by interfering with the Section 7 rights of the
employees to be represented by unions of their own choos-
ing. In these circumstances, it is evident the picketing was
in protest of all of the unfair labor practices alleged to have
been committed by Lowe’s. Nor does the disclaimer in the
Union’s letter of April 20 vitiate this fact. As noted in
Lowe’s brief, the picketing began March 17 and the pur-
ported disclaimer was nor until April 20—some 34 days after
the picketing started. Since no timely election petition was
filed during the course of the picketing and no meritorious
8(a)(5) charge existed, it is clear that ‘‘Section 8(b)(7)(C) is
applicable and a violation [of that section of the Act] has oc-
curred.’’ Food & Commercial Workers Local 23, supra.
In view of all of the above, I find and conclude that
Lowe’s and the Union violated Sections 8(a)(1), (2), and (3)
and 8(b)(1)(A) and (2) of the Act, respectively, when Lowe’s
granted and the Union accepted recognition as the bargaining
representative of the unit employees, and when Lowe’s and
the Union executed collective-bargaining agreements con-
taining union-security and dues-deduction authorization pro-
visions.10 I further find and conclude that the Union violated
Section 8(b)(7)(C) of the Act, when the Union picketed
Lowe’s from March 17 to April 30, 1992.
CONCLUSIONS OF LAW
1. Respondent Lowe’s Markets, Inc., d/b/a St. Helens Shop
’N Kart is an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Respondent United Food and Commercial Workers,
Local 555 is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By coercing employees to sign a petition requesting the
Union become their collective-bargaining representative and
by granting recognition and executing collective-bargaining
agreements with the Union, which contained union-security
and dues-deduction authorization provisions, Respondent
Lowe’s has violated Section 8(a)(1), (2), and (3) of the Act.
4. By accepting recognition as the bargaining representa-
tive of Respondent Lowe’s employees at a time when it did
not represent an uncoerced majority of the unit employees,
and by executing collective-bargaining agreements with Re-
spondent Lowe’s that contained union-security and dues-de-
duction authorization provisions, Respondent Union has vio-
lated Section 8(b)(1)(A) and (2) of the Act.
5. By picketing Lowe’s from March 17, 1992, to April 30,
1992, where an object of such picketing was for recog-
nitional and bargaining purposes and no timely election peti-
tion had been filed, the Respondent Union has violated Sec-
tion 8(b)(7)(C) of the Act.
4. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Lowe’s and Respondent
Union have engaged in certain unfair labor practices within
the meaning of Sections 8(a)(1), (2), and (3) and 8(b)(1)(A),
8(b)(2), and 8(b)(7)(C), respectively, of the Act, they shall be
ordered to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
Respondent Lowe’s shall be ordered to cease and desist
from assisting the Respondent Union by threatening employ-
ees with loss of employment if a majority fail to request that
the Respondent Union become their bargaining representa-
tive. Further, Respondent Lowe’s shall be ordered to with-
draw all recognition from the Respondent Union as the col-
lective-bargaining representative of the unit employees, and
the Respondent Union shall be ordered to cease and desist
from acting as such representative.11 The Respondents shall
also be ordered to cease and desist from giving effect to, or
in any manner enforcing the collective-bargaining agreements
executed on August 2, 1991. However, nothing shall require
Respondent Lowe’s to vary or alter any substantive feature
or term of its relations with the unit employees which have
been established by performance under the agreements, or
prejudice any rights the employees may have acquired under
the agreements.
The Respondent Union shall be ordered not to picket, or
cause picketing, at Lowe’s where an object of such picketing
1287ST. HELENS SHOP ’N KART
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
13 If 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.’’
14 See fn. 13, supra.
is to force or require that employer to recognize or bargain
with the Respondent Union as the collective-bargaining rep-
resentative of its employees at a time when the Respondent
Union is not certified as such representative, and where such
picketing has been conducted without a petition under Sec-
tion 9(c) of the Act being filed within a reasonable period
of time not to exceed 30 days from the start of such pick-
eting.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
A. The Respondent, Lowe’s Markets, Inc., d/b/a St. Helens
Shop ’N Kart, St. Helens, Oregon, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Assisting or contributing support to United Food and
Commercial Workers, Local 555, or any other labor organi-
zation, by coercing employees to request the Union become
their collective-bargaining representative.
(b) Assisting or contributing support to United Food and
Commercial Workers, Local 555, or any other labor organi-
zation, by discriminating against employees to encourage
membership in United Food and Commercial Workers, Local
555, or any other labor organization, and by granting rec-
ognition to and executing collective-bargaining agreements
with the Union, which contain union-security and dues-de-
duction authorization provisions, at a time when the Union
does not represent an uncoerced majority of the unit employ-
ees.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
(d) Giving effect to, or in any manner enforcing the col-
lective-bargaining agreements executed on August 2, 1991,
unless and until the Respondent Union has been certified by
the Board as the exclusive bargaining representative of the
unit employees. Nothing, however, shall require Respondent
Lowe’s to vary or abandon any wage, hour, seniority or other
substantive feature of its relations with the unit employees
which has been established in the performance of the agree-
ments with the Respondent Union, or prejudice the assertion
by unit employees of any rights they may have under the
agreements.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Withdraw and withhold all recognition from United
Food and Commercial Workers, Local 555 as the exclusive
bargaining representative of its employees for the purpose of
collective bargaining, and cease to maintain or give effect the
collective-bargaining agreements executed with the Union,
unless and until that labor organization has been certified by
the Board as the exclusive representative of the employees.
(b) Post at its facility in St. Helens, Oregon, copies of the
attached notice marked ‘‘Appendix A.’’13 Copies of the no-
tice, on forms provided by the Regional Director for Region
19, after being signed by Respondent Lowe’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
B. The Respondent United Food and Commercial Work-
ers, Local 555, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Accepting recognition from Lowe’s Markets, Inc., d/b/a
St. Helens Shop ’N Kart as the bargaining representative of
Lowe’s employees at a time when the Respondent Union
does not represent an uncoerced majority of the employees
in appropriate bargaining units.
(b) Acting as the exclusive collective-bargaining represent-
ative of Lowe’s employees, unless and until the Respondent
Union has been certified by the National Labor Relations
Board as the exclusive representative of the employees in ap-
propriate bargaining units.
(c) Giving any effect to the collective-bargaining agree-
ments executed with Lowe’s on August 2, 1991, or any ex-
tension, renewal, or modification thereof.
(d) Accepting any unlawful assistance or support from
Lowe’s in soliciting or acquiring union membership among
Lowe’s employees.
(e) Discriminating against or attempting to cause Lowe’s
to discriminate against the unit employees, in violation of
Section 8(a)(3) of the Act, by maintaining or implementing
the terms of the union-security and dues-deduction authoriza-
tion provisions of the collective-bargaining agreements exe-
cuted on August 2, 1991.
(f) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
(g) Picketing, or cause picketing at the premises of
Lowe’s, where an object of such picketing is to force or re-
quire that employer to recognize or bargain with the Re-
spondent Union as the representative of its employees, at a
time when the Respondent Union is not certified as such rep-
resentative, and such picketing has been conducted without
a petition filed under Section 9(c) of the Act within a reason-
able period of time not to exceed 30 days from the start of
such picketing.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at the Respondent Union’s business offices and
meeting places in St. Helens and Tigard, Oregon, copies of
the attached notice marked ‘‘Appendix B.’’14 Copies of the
1288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
notice, on forms provided by the Regional Director for Re-
gion 19, after being signed by the Respondent Union’s au-
thorized representative, shall be posted by it immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be taken
by the Respondent Union to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Sign and return to Regional Director for Region 19
sufficient copies of the notice for posting by the Lowe’s, if
willing, at all places where notices to employees are custom-
arily posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.