United Wholesale & Warehouse Employees, Etc.

National Labor Relations Board - Board Decisions

Dec 4, 1961

134 N.L.R.B. 931 (N.L.R.B. 1961)

UNITED WHOLESALE & WAREHOUSE EMPLOYEES, ETC. 931
United Wholesale and Warehouse Employees , Local 261, Retail,
Wholesale and Department Store Union , AFL-CIO [Perfec-
tion Mattress & Spring Company ] and Samuel H. Burr. Case
No. 10-CC-448. December 4, 1961
SUPPLEMENTAL DECISION AND AMENDED ORDER
On December 28, 1960, the Board 1 issued its Decision and Order
in the above-entitled proceeding, in which it found, inter alia, that
the Respondent violated Section 8(b) (4) (i) (B) of the Act by engag-
ing in consumer picketing in front of the retail stores operated by sec-
ondary employers. In addition to the remedial provisions applicable
to the other violations found, the Board ordered the Respondent to
,cease and desist from engaging in such conduct as violated clause (i)
of Section 8 (b) (4) for an object proscribed by clause (B).
Thereafter, in the Upholsterers Frame ct Bedding Workers, etc.
(Minneapolis House Furnishing Company) case, 132 NLRB 40, the
Board 2 overruled the holding of the instant case insofar as consumer
picketing of secondary retail stores was found to constitute "induce-
ment or encouragement" of an individual within the meaning of
clause (i). However, the findings in the instant case with respect to
the violations of Section 8(b) (4) (ii) (B) were not disturbed.
At the time the Board issued its decision in Upholsterers Frame c6
Bedding Workers, supra, the instant case was pending before the
United States Court of Appeals for the Fifth Circuit on the Respond-
ent and the Charging Party's petitions for review, and on the Board's
petition for enforcement of the Board's Order. In view thereof, the
Board authorized the General Counsel, on behalf of the Board, to file
a motion with that court requesting, alternatively, that the court de-
lete from the Board's Order those portions which relate to the viola-
tions of Section 8 (b) (4) (i) (B) of the Act, or to remand the case to
the Board for the limited purpose of permitting the Board to amend
its Decision and Order in the light of the intervening decision in
Upholsterers Frame cI Bedding Workers.
On October 10, 1961, the Court of Appeals for the Fifth Circuit
issued an order which, in pertinent part, reads as follows :
(4) The application of the Board to modify its decision is
denied, but the entire matter is remanded to the Board for lira-
1 Consisting of then Chairman Leedom and Members Rodgers and Jenkins, with Member
Fanning registering a partial dissent on the issue treated in this amendment.
2 The Decision and Order in the Upholsterers Frame & Bedding Workers, etc . (Minne-
apolis House Furnishing Company) case was issued by the full Board as it is presently
constituted , Members Rodgers and Leedom dissenting . See 132 NLRB 40, at footnote 4.
Although Members Rodgers and Leedom join in this Decision which deletes the remedial
order based on the initial finding of a violation of Section 8(b) (4) (i ) ( B), they do so
only because their colleagues of the majority have reversed that substantive finding in
the Minneapolis case.
134 NLRB No. 99.
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ited reconsideration of its decision and order and the filing of
such amended or supplemental order as may be appropriate;
(5) The Court retains jurisdiction of the matter, and on the
filing of a supplemental or amended order of the Board, all
parties shall have the right to file whatever amended pleadings
and papers as each might think advisable or appropriate;
(6) The Court does not, of course, intimate any decision as to
the correctness or propriety of any change by the Board in its
decision or order.
Pursuant to the court's remand, the Board, having duly reconsidered
its Decision and Order in the light of Upholsterers Frame c6 Bedding
Workers, etc. (Minneapolis House Furnishing Company), 132 NLRB
40, has decided to issue the following amended Order wherein we
shall delete the remedial provisions which are applicable to viola-
tions of Section 8 (b) (4) (i) (B) of the Act.
ORDER
IT IS HEREBY ORDERED that the Board's Order in this case be, and it
hereby is, amended by striking out therefrom subparagraph (a) of
paragraph numbered 1, in its entirety.
IT IS HEREBY FURTHER ORDERED that the Board's Order in this case
be, and it hereby is, amended by striking out therefrom the following
portion of subparagraph (b) of paragraph numbered 1, ": where
in either case," and substituting in lieu thereof the following :
", where".
IT IS HEREBY FURTHER ORDERED that the notice required to be posted
by the Respondent, attached as the Appendix to the Board's original
Decision and Order in this case, be, and it hereby is, amended by
striking out therefrom the language following "We Will Not" begin-
ning with "induce or encourage employees ..." and ending with
"... any services, or".
The Superior Upholstery Company and Local 919, Retail Em-
ployees Union, Retail Clerks International Association, AFL-
CIO. Cases Nos. 1-CA-3431 and 1-RC-5925. December 5, 1961
DECISION AND ORDER
On August 14, 1961, Trial Examiner William Seagle issued his In-
termediate Report, finding that the Respondent had engaged in and
was engaging in unfair labor practices in violation of Section 8 (a) (1)
and (2) of the Act and recommending that it cease and desist there-
from and take affirmative action, as set forth in the Intermediate Re-
port attached hereto. Thereafter, the Respondent filed exceptions and
134 NLRB No. 88.