Retail Clerks Local Union No. 1222, Etc., 1458 (1961)

Docket Number:21-CB-01503
 
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DECISION AND ORDER

On February 2, 1961, Trial Examiner David F. Doyle issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto.

Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief.

133 NLRB No. 137.

RETAIL CLERKS LOCAL UNION NO. 1222, ETC. 1459

The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, but only for the following reasons :

The' facts are accurately set forth in the Intermediate Report.' The present case is an outgrowth of a long-standing dispute between the Retail Clerks and Teamsters Unions as to who should perform the work of shelving certain specialty food and nonfood items delivered to retail markets by employees of various independent suppliers.2

Teamsters contends that its members, the driver-salesmen employed by the independent suppliers, should perform the disputed shelving work; Retail Clerks, on the other hand, contends that this work should be done by those employees of the retail markets who are in the bargaining units represented by Respondent or other Clerks' locals. , In support of its cla'im' in the present case, Respondent Local cites a provision in its contract with each employer,' providing that 'all work performed on the premises in the nature of work generally performed by retail clerks shall only be performed by employees in the bargaining unit as herein defined.' Although the dispute over shelving work had continued for some time, Respondent decided in January 1960 to procure, if possible, stricter' adherence to the Employers' contractual commitment, as interpreted by Respondent. Toward this end, Respondent instructed its organizers to be watchful for instances of suppliers' employees shelving merchandise they delivered. If this occurred, the organizers were instructed to introduce themselves to the offending driver-salesman, and, upon ascertaining that ' he was not a member of the Retail Clerks, to go directly to the store manager and inform him he was violating the above-quoted provision of Respondent's contract. The organizers were forbidden to threaten any employer with a picket line, under penalty of discharge.

The record discloses a number of incidents at the premises of each employer in which Respondent's agents observed driver-salesmen stocking shelves, and thereupon requested the market employers to comply with the Clerks' agreement. In virtually every instance, the Employers complied with the Clerks' request, for periods lasting from 1 day to several weeks, but thereafter reverted to their former practice without further incident. In most cases, reversion to the former prac1 We note, however, that the Trial Examiner inadvertently states that no Section 8(a) (3) charge was filed against the employers Section 8 ( a) (3) charges were filed, in Case No 21-CA-3917, and were the subject of a settlement agreement signed July 12, 1960.

2 See Retail Clerks International Association , AFL-CIO, et al (Food Employems Council,

Inc), 125 NLRB 984 and 127 NLRB 1522

3 Four Employers are involved. Mayfair Markets, Unimart, Inc, Bradshaw, Inc and M & S Foods tice resulted from the store manager's consultation with Food Employers' Council, a trade association to which. several of the markets belonged, and to which, apparently, the other, markets also looked for guidance. , .

The theory of the complaint as advanced by the General Counsel is that for the period when the market employers refused to permit the driver-salesmen to perform their normal shelving work on the market premises, the employers discriminated against the driver-salesmen in violation of Section 8(a) (3) ; and that the Respondent violated Section 8(b) (1) (A) and 8(b) (2) by causing or attempting to cause the market employers to commit such discrimination through the reassignment of such work to employees of the markets. The Trial Examiner,dismissed the complaint, on several separate grounds.

As noted above, we agree with the Trial Examiner's recommended.

dismissal of the complaint. We do not, however, find it necessary to pass on all the grounds cited by him. In our view, Respondent was merely attempting to persuade the market Employers to conform voluntarily to what Respondent considered their contractual commitments to be. Respondent's conversations with the Employers in each case were totally devoid of either threats or actual coercive measures or any directions or instructions or other demands to Employer agents that went beyond mere requests and efforts at persuasion .4 When, as happened in most instances, the Employers after a brief period of compliance reverted to their previous practice of permitting driversalesmen to shelve the disputed merchandise, no further action was taken by Respondent. Under the circumstances, we find that Respondent's limited efforts to convince the Employers that their contracts did not permit shelving by driver-salesmen did not constitute causing or attempting to cause employee discrimination within the meaning of Section 8(b) (2).1 We shall, therefore, on this ground alone, dismiss the complaint.

[The Board dismissed the complaint.] * The General Counsel contends that in at least two instances, at IInimart and M & S,

Respondent went beyond mere peaceful persuasion. We do not agree. At M & S, any statements that might be deemed coercive were made only to South, a driver-salesman, and not to the employer or his representative . The alleged threat at Unimart was found by the Trial Examiner not to have been made The fact that the Trial Examiner did not specifically mention certain 'corroborative' testimony of one witness, as alleged by the General Counsel, is not, in our opinion , sufficient reason to disturb his finding 5 Cf. Local 450, International Union of Electrical, Radio and Machine Workers, AFL-CIO (Sperry Gyroscope Company ), 128 NLRB 682, 698.

INTERMEDIATE REPORT AND RECOMMENDED ORDER

STATEMENT OF THE CASE

This proceeding, with all parties represented, was tried before the duly designated Trial Examiner in San Diego, California, on August 29, 30, 1960, on complaint of the General Counsel and answer of Retail Clerks Local Union No. 1222, herein called the Union. The issues litigated were whether the Union had violated Section RETAIL CLERKS LOCAL UNION NO. 12 22, ETC. 1461

8(b)(1)(A) and (2) of the Act by certain conduct more particularly described hereinafter.

Upon the entire record and my observation of the witnesses, I hereby make the following:

FINDINGS OF FACT 1. THE BUSINESS OPERATIONS OF THE RETAIL MARKETS Mayfair Markets, herein called Mayfair, is and at all times pertinent hereto has been a California corporation engaged in the operation of a chain of retail stores in the vicinity of San Diego, California, and elsewhere. In the course and conduct of its business operations, Mayfair annually does a gross volume of business in excess of $500,000 and it annually purchases and receives goods valued in excess of $50,000 directly from points outside the State of California.

Unimart, Inc., herein called Unimart, is also a California corporation engaged in the operation of a retail store and gasoline service station at San Diego, California.

Unimart commenced business operations on or about November 5, 1959. In the course and conduct of its business operations, Unimart, from November 5, 1959, to about March 1, 1960, did a gross volume of business in excess of $500,000. During the same period Unimart purchased and received goods valued in excess of $50,000 directly from points outside the State of California.

Bradshaw, Inc., herein called Bradshaw, is also a California corporation engaged in the operation of a chain of retail stores in the San Diego, California, area and is _a member of Food Employers Council, Inc., more fully described hereinafter.

M & S Foods, herein called M & S, is a partnership composed of Seymour Rabin,

J. Herbert Reder, and Bernard Arenson which engages in the operation of a retail store at San Diego, California. This partnership is also a member of Food Employers Council, Inc.

Food Employers Council, Inc., is and at all times material hereto has been a trade association of employers in Southern California which exists, in part, for the purpose of representing its employer-members, including Bradshaw and M & S, in multiemployer collective bargaining with labor organizations, and which participates, through designated representatives, in the negotiation, execution and administration ,of collective-bargaining agreements on behalf of its employer-members with various labor organizations, including the Union. The...

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