Retail Clerks International Association, Etc.

984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find it unnecessary to require that each employee's losses should be computed on a quarterly basis, in the manner customarily prescribed by this Agency See F W Woolworth Company, 90 NLRB 289, 291-294, N.L R B v Seven-Up Bottling Com- pany of Miami, Inc, 344 U S 344 In order to assure expeditious compliance with this recommendation, it will be recommended, finally, that the various Respondents, upon request, make available to the Board and its agents, for examination and copying, all payroll and other records necessary to enable this agency to analyze and compute the amounts of backpay due Since the available evidence, however, will not warrant an inference that the various Respondents, in the commission of the unfair labor practices found, were motivated by some affirmative antipathy to Plumbers and Steamfitters Local Union No 347, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, as a labor organi- zation, or to its employee members-although their course of conduct, herein found to be subject to statutory proscription, may deserve characterization as a course of conduct improperly motivated in a legal sense-no inference may be drawn that the Respondents, when apprised of the national labor policy, will nevertheless continue to engage in these unfair labor practices, or any others forbidden under the statute No recommendation will be made, therefore that the Respondents be required to cease and desist from such other unfair labor practices, or that they be required to post notices to that effect In the light of the foregoing findings of fact, and upon the entire record in the case, I have reached the following CoNcLusioNs OF LAW I The Willamette Association of Plumbing and Heating Contractors, Inc, and its various employer members and associated contractors , Hoffman Engineering Co, Buchanan Co, Inc, W T Lord and George A Lord, d/bi a Lord Bros, Contractors, and Widmer Plumbing & Heating Co, are employers engaged in commerce and business activities which affect commerce within the meaning of Section 2(2), (6), and (7) of the Act, as amended 2 Plumbers and Steamfitters Local Union No 347, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits employees of the various employers designated to membership 3 By discrimination in regard to the hire or employment tenure of their employ- ees, reasonably calculated to discourage membership in the above-designated labor organization, the employers named have engaged in and are engaged in unfair labor pracitces within the meaning of Section 8(a)(l) and (3) of the Act, as amended 4 The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2(6) and (7) of the Act, as amended [Recommendations omitted from publicationI Retail Clerks International Association, AFL-CIO, and Retail Clerks Union Local 770, AFL-CIO and Food Employers Council, Inc. Case No 21-CD-488 December 18, 1959 DECISION AND DETERMINATION OF DISPUTE Food Employers Council, Inc (herein called the Council), filed charges with the Regional Director for the Twenty-first Region, and amended charges thereafter, alleging that Retail Clerks International Association, AFL-CIO, and Retail Clerks Union Local 770 (herein called the International and Local 770, respectively, or the Clerks, collectively), had engaged in certain unfair labor practices within the 125 NLRB No 86 RETAIL CLERKS INTERNATIONAL ASSOCIATION, ETC. 985 meaning of Section 8 (b) (4) (D) of the Act. The charges in substance alleged that the Clerks had induced and encouraged employees of certain retail food markets who are members of the Council to engage in strikes or concerted refusals to perform services, or to handle goods or materials in the course of their employment, with the object of forcing their employers to assign the displaying, arranging, replenish- ing, and servicing of such merchandise as hardware, health and beauty aids, paper products, soft drinks, and dairy and bakery products to employees who are members of the Clerks rather than to members of the Teamsters. Pursuant to Section 10 (k) of the Act and Sections 102.79 and 102.80 of the Board's Rules and Regulations, the Acting Regional Director investigated the charges and provided for an appropriate hearing upon due notice. A hearing was held at Los Angeles, California, be- fore Karl W. Filter and Kenneth M. Schwartz, hearing officers. Copies of the charges and the notice of hearing were also served on Joint Council of Teamsters No. 42; United States Hardware and Paper Co.; and Wesco Merchandise Co., all of whom intervened at the hearing. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the hearing officers made at the hearing are free from prejudicial error and are hereby affirmed. The Clerks, the Teamsters, and the Council filed briefs with the Board. Local 770 moved the Board to reopen the proceedings for submis- sion of a judgment of the United States District Court for the South- ern District of California ordering arbitration of the recognition and work assignment clauses of the agreement between Local 770 and the Council, and to stay such proceedings pending final determination of the dispute by arbitration, or in the alternative, to dismiss these pro- ceedings. Thereafter, the Council, the Teamsters, United States Hardware, and We'sco filed statements in opposition. The Board heard oral argument at which all parties to the proceed- ing participated. In addition, a representative of the General Counsel appeared for the limited purpose of arguing that there was reasonable cause to believe that the charge alleging violations of Section 8(b) (4) (D) had merit. At the oral argument and subsequently, further motions and memoranda were filed by various parties. The Board hereby accepts the motions, the oppositions thereto, and the memo- randa as part of these proceedings, and so far as they are relevant to the issues has considered them in its determination. Upon the entire record in the case, and upon consideration of the briefs and memoranda filed by the parties, the Board makes the following : 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. The Council is a nonprofit corporation composed of employers who are engaged in food processing and distribution at wholesale and retail levels in southern California. Employer members of the Coun- cil annually purchase and receive goods valued in excess of $2,000,000 from points outside the State of California. We find that the Council is engaged in commerce within the meaning of the Act. 2. Retail Clerks International Association, AFL-CIO, Retail Clerks Union Local 770, AFL-CIO; Joint Council of Teamsters No. 42, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers; and the local unions affiliated with the Joint Council are all labor organizations within the meaning of the Act. 3. The dispute : A. The facts The Council is an employer association which negotiates and ad- ministers collective-bargaining agreements on behalf of about 180 employers in southern California who are engaged in food processing or in the wholesale and retail distribution of food. The bulk of its membership consists of retail food markets which range in size from individuals who own and operate a single outlet, to the largest chain operator in the area which controls over 200 outlets. The greatest concentration of Council members is in Los Angeles, where Local 770 has jurisdiction for the representation of food market clerks. The Council has bargained with Local 770 and other Clerks locals in south- ern California for many years, negotiating identical contracts on be- half of its members with each local having jurisdiction in a particular geographical area. The contract in effect during the dispute under consideration here was effective from January 1, 1956, through De- cember 31, 1958. There are no Board certifications for the units repre- sented by the Clerks. In recent years, the development of the self-service food market has been marked by an expansion in the number and type of items which are displayed and sold there. A centralized source of supply of nonfood items has been provided in the Los Angeles area, by dis- tributors referred to as rack-jobbers or suppliers who specialize in handling kitchenware, hardward, toys, health and beauty aids, and paper products for distribution to the markets. These items are often prepackaged and premarked by the rack-jobbers, and are displayed on racks and gondolas which they furnish to their customer outlets. Be- cause of the great variety of items supplied, the rack-jobbers believe that they can be best displayed by their own employees who are trained in their merchandising techniques. This requires the rack- jobbers' employees, commonly known as driver-salesmen, to deliver RETAIL CLERKS INTERNATIONAL ASSOCIATION, ETC. 987 the items to the individual market, and to shelve them in a particular area set aside by the market. Thereafter, they replenish, rotate, and clean their stock, remove damaged articles and items which are not selling well, and otherwise improve the appearance of their displays.' Many of the rack-jobbers, including United States Hardware and Wesco, have bargaining agreements with the Teamsters covering the driver-salesmen. Some rack-jobbers bargain with the Clerks for the individuals who do the shelving work in the stores' selling area, al- though apparently in these cases, the items are first delivered by truck from the rack-jobbers' warehouse to the store's backroom. It also appears that the employees of some of the specialty food and soft- drink distributors are not represented by any labor organization. As the food markets took on new lines of nonfood items, the busi- ness of the rack-jobbers also expanded. Since the driver-salesmen's duties in the selling areas of the markets are no different from those of food market clerks in shelving, displaying, and rotating food items, there has been a running controversy between the Clerks and the markets over the driver-salesmen's impingement on the claimed juris- diction of the Clerks. Because of alleged interference by the Clerks with their systems of distribution, United States Hardware, in 1949 and 1954, and Wesco in 1954, obtained injunctions against the Clerks. These were not dissolved until April 1958 during the pendency of this proceeding. Nor were Clerks' claims for all shelving work directed solely against the employment of Teamsters members; also involved were those distributors who employed nonunion driver sales- men, and "book salesmen" who take orders and set up displays of their products. In June 1956, shortly after the execution of the new agreement, the Clerks and the Council disagreed over the meaning of the work as- signment clauses. The dispute was set off by the decision of the largest retail food chain in the Los Angeles area, Safeway Stores, to use rack-jobbers' employees who were Teamster members for shelving work. After oral representations by the Clerks against the expansion of the rack-jobbers' activities in the selling areas of the stores, all the Clerks locals in the area formally protested against "the unilateral innovations and practices of [Safeway] in subcontracting, assigning or permitting employees of other employers outside of the bargaining unit to stock and otherwise handle and care for merchandise within the store premises." The letter of protest referred to article XIV of the agreement, and asked for a meeting of representatives of the Council 1 Even before the development of self-service markets, food stores were often supplied with perishable products such as milk and bread by driver -salesmen who placed their products directly on the store's shelves . For many years also, distribution of such specialty food items as soft drinks , potato chips , cookies, spices , etc., has frequently been done through driver-salesmen who have performed the same tasks in the stores ' selling area as the rack-jobbers' employees. 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the Clerks in an effort to reach a settlement. This constituted a preliminary step in the procedure for adjustment and arbitration of disputes under the agreement. The Council and Safeway claimed that the agreement was industry-, wide and areawide in scope so that any employer who was a signatory to it was entitled to use the services of rack-jobbers and driver-sales- men for all products which were being distributed to other food., markets in the area. In their view, the only limitation on their right to use driver-salesmen was as to new lines not already being handled. by a rack-jobber. In October 1956, representatives of the Council and the Clerks met to settle the Safeway dispute, but failed to agree. The Council took the position that this was not a matter covered by article XIV because the dispute involved the jurisdiction of the Clerks, an area excepted from the issues which might be arbitrated under the agreement. In succeeding months there were further disagreements over shelving work. At least two additional meetings were held, in April and October 1957, in an effort to reach a mutually acceptable understand- ing as to the meaning of the work assignment and subcontracting clauses of the agreement. At all these meetings, the parties reargued their opposing interpretations as to the intent behind, and the meaning of the provisions, and the steps which might be taken to work out a satisfactory solution. Representatives of the Teamsters also at- tended the April meeting and, in accord with the Council's position,. refused to accept the Clerks claim that their driver-salesmen members could work in store selling areas only with the permission of the Clerks. Also in April 1957, Local 770 advised its members in its publication, "The Voice of 770" that clerks' work in the stores could not be per- formed by persons outside the bargaining unit, and that anyone who worked for outside companies was permitted to do shelving work in the stores only if they were members of the Clerks and worked for a company which was under contract with one of the southern Cali- fornia locals. It listed the names of the firms with such contracts, and advised its members to question any person doing stocking, pric- ing, or displaying work who was not employed by the store as to whether he had an authorization letter from the Clerks. The last meeting, held in October 1957, was attended by the presi- dent of the Council and a committee of employers, and by representa- tives of all the Clerks locals, as well as officials of the International. The General Counsel of the International accused the Council of violating the agreement. He stated that all work in the food markets from wall to wall and from floor to ceiling belonged to the Clerks, and that other persons worked in the stores only at its sufferance. The president of the Council again disputed this interpretation of RETAIL CLERKS INTERNATIONAL ASSOCIATION, ETC. 989 the agreement, and when asked if the employers would arbitrate the issue, restated their position that the dispute was not arbitrable. Sometime in the autumn of 1957, Hughes Markets, a Council mem- ber operating five markets, transferred its purchases of hardware items from a rack-jobber which had a contract with the Clerks, to United States Hardware which had a contract with the Teamsters for the driver-salesmen. On October 30, 1957, a business agent of the Clerks entered one of the markets and demanded of the manager that all items displayed by United States Hardware be removed from the shelves and be replaced by the store employees who were within the Clerks' bargaining unit. The manager refused to do so. A few hours later, two business agents of the Clerks returned to the market, spoke to the employees, and as a result of their conversation, the employees stopped working and congregated at the front of the store. About this time, the president of Hughes Markets arrived at the store and then phoned the recording secretary of Local 770 who told him that the merchandise would have to be removed or covered up so that it could not be sold until store employees could take it off the shelves and restock it. When the president agreed to do so, the clerks resumed working, and thereafter, the merchandise was first removed and then replaced by store employees. The next morning, a business agent of the Clerks arrived at the Pasadena store of Boys Market, a Council member, and informed the assistant manager that all the merchandise of Serveteria, a sub- sidiary of United States Hardware, supplying drugs and cosmetics, would have to be removed from the shelves and restocked by store employees. This was rejected, and the business agent then spoke to the employees who immediately stopped working. The assistant man- ager then called Serveteria which sent its employees to remove its items from the shelves. When they arrived and began their work, the store employees resumed working, later replacing those items which had been removed by Serveteria employees. A similar incident also occurred on the same date at Hollywood Ranch Market except that the Clerks' business agent did not order the store employees to cease working, since the store manager agreed to cover merchandise supplied by Wesco so that it would be unavail- able for sale until Clerks' member had had an opportunity to remove, and return it to the shelves. In the next 2 months a number of other incidents involving Clerks' business agents took place at other markets operated by Council mem- bers, in which the business agents told the driver-salesmen who were engaged in delivering goods to the store to be shelved, that they were not permitted to do the shelving work unless they had authorization letters from Local 770. 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Within a week after the actual stoppages of work by clerks at the stores operated by Hughes Markets and Boys Markets, the Council filed charges alleging violations of Section 8(b) (4) (D), and Hughes Markets obtained a preliminary injunction against Local 770. In the State court proceedings relating to the preliminary injunction, the Clerks filed a cross-petition for arbitration of the work assignment clauses which was denied on the ground that the necessary prelim- inary steps for adjustment of the grievance had not been complied with. On May 9, 1958, the General Counsel of the Board obtained a Sec- tion 10 (1) injunction against further violations of Section 8 (b) (4) (D) from a United States district court. In October 1958, Local 770 filed an action under Section 301 of the Act in district court against the Council, seeking arbitration of its dispute over the interpretation of the agreement. The court ordered arbitration if the arbitrator first determined that the dispute was arbitrable under the contract. After the expiration of the contract on December 31, 1958, the Council requested that this order be suspended, and on February 5, 1959, the court suspended its order for arbitration but reserved jurisdiction over the proceedings. B. Contentions of the parties The Council, the Teamsters, United States Hardware, and Wesco argue that there is reasonable cause to believe that the clerks have violated Section 8(b) (4) (D). They contend that the Clerks' de- mands and the stoppages were to compel the assignment of the shelving work to its own members, despite the arrangements between the food markets and the suppliers which provided that the work be performed by the latter's employees. They also urge that the Clerks-Council contract permits the markets to subcontract the disputed shelving work but, if it is ambiguous on that point, then the Clerks are thereby deprived of any basis under the contract for their alleged right to the disputed work. Further, even if the dispute is arbitrable, the arbitra- tion provisions of the contract are not a method for the voluntary ad- justment of the dispute, as contemplated in Section 10(k), because the Teamsters and the suppliers, whose interests would be directly af- fected by an arbitration award are neither parties to the contract nor have any standing in an arbitration proceeding arising thereunder. They also point out that the district court's order to arbitrate has now been suspended. Finally, they contend that the expiration of the contract has not rendered the dispute moot since the Clerks has not abandoned its continuing claim for shelving work performed by em- ployees of suppliers who are not under contract with the Clerks. The Clerks contend that the proceeding should be dismissed because (1) its dispute with Council is solely one of contract interpretation, RETAIL CLERKS INTERNATIONAL ASSOCIATION , ETC. 991 not constituting a jurisdictional dispute within the meaning of Section 8(b) (4) (D ) ; (2) even if a jurisdictional dispute exists , the contract has unambiguously assigned all shelving work to its members; (3) the Board should as a matter of policy abide by the parties ' agreement to arbitrate their contractual differencies , because such an award would be definitive as to the Clerks ' rights under the contract, and it there- fore constitutes a method of voluntary adjustment under Section 10 (k) since it would be binding on all the essential parties to the dispute; (4) as the contract has now expired , a Board determination would constitute only an advisory opinion based on facts which are no longer applicable, the termination of the agreement having deprived the Clerks of any basis for insisting upon the Council 's compliance; and (5) the Board has found certain Teamsters' agreements with United States Hardware and Wesco illegal and such agreements cannot be "specific contracts" within the meaning of the clause permitting sub- contracting by the food markets under the basic 1956 agreement be- tween the Clerks and the Council. C. Applicability of the statute Before the Board may proceed with a determination of a dispute pursuant to Section 10 (k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b) (4) (D) has been violated by the Respondents. We must first consider whether there has been inducement or en- couragement by the Respondents, or by either of them, of employees of an employer to engage in a concerted refusal in the course of their employment to handle any goods or to perform any services for the food markets. This question must be answered in the affirmative. The evidence shows that on October 30 and 31, 1957 , business agents of Local 770 induced employees at a Hughes Markets store and a Boys Markets store (both of which are Council members ) to engage in work stoppages in protest against the store managers ' refusal to re- move items from the shelves which had been placed there by em- ployees of United States Hardware or its subsidiary . We find that on these two occasions employees of Council members were induced to cease working in furtherance of the disagreement between Local 770 and the Council over shelving work which was being performed by employees of the suppliers and other distributors who were employ- ing non-Clerks members. We do not consider it necessary to set out or to decide whether other inducements, as to which testimony was taken at the hearing, are violative of the Act. The Clerks contend, however, that its disagreement with the Coun- cil does not amount to a jurisdictional dispute within the meaning of Section 8 (b) (4) (D). The argument is supported by two related as- sertions : (1) that its demands of the food markets and of the Council ,992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are part of its claim that the Clerks-Council agreement prohibits sub- contracting of shelving work to anyone not within its bargaining unit; and (2) that the dispute is not for an object proscribed by Sec- tion 8 (b) (4) (D) since there are no conflicting demands by competing groups of employees upon a single employer with the authority to assign work as between the two groups. The Clerks' demands of the Council were that the latter abide by the Clerks' interpretation of the agreement, under which no shelving work could be performed by anyone not a Clerks member. Where such work was presently being done by others, such as Teamsters members employed by the rack-jobbers, satisfaction of the Clerks' de- mands could be obtained only by reassigning work from one group of employees to another group. The insistence of the Clerks that its view as to the meaning of the agreement be accepted was therefore no more and no less than a demand that Clerks members be reassigned work which had already been assigned to other groups of employees. This is an objective proscribed by Section 8(b) (4) (D). The Clerks, however, have cited to us as a controlling precedent the Austin Com- pany case.' The facts in that case were that Austin, the Charging Party, was doing construction work at a plant owned by Dow Chemi- cal Company. Austin used compressed air obtained from Dow's plant lines which were, at Dow's insistence, controlled by a Dow em- ployee. Austin had a contract with the Respondent Union under which Austin was obligated to employ a union member whenever plant steam or air was used on a job. The Union caused a strike when Austin refused to employ a union operator to handle the air lines. The Board found that the stoppage was not violation of Section 8(b) (4) (D). It reasoned that since Austin was powerless to assign the work to its own employees, its refusal to employ a union operator was not a refusal to reassign work which had already been assigned to employees of Dow. 'The Clerks urge that here also there were no conflicting demands which have been made of a single employer with the authority or power to settle such demands. But even if we concede, for the pur- poses of this proceeding, that the Clerks did not insist that the rack- jobbers employ Clerks members, or that the Teamsters made no work assignment claims upon the food-markets, we would still find that the Clerks' pressure on the markets to use its members for shelving work were either demands that they directly assign store clerks to do such work, or that they indirectly assign it such work by transferring their business to rack-jobbers who employed Clerks members. Demands for an indirect as well as for a direct assignment of work is, in these cir-: 2 Local 450, International Union of Operating Engineers, AFL-CIO ( The Austin Company ), 119 NLRB 135. RETAIL CLERKS INTERNATIONAL ASSOCIATION, ETC. 993 cumstances, an object proscribed by Section 8(b) (4) (D).3 In both situations the markets could, unlike the Charging Party in Austin, reassign the work to the Respondent Union. They could certainly have banned the driver-salesmen from their selling areas, and by this act alone would have reassigned the shelving work to employees in the Clerks bargaining unit. They could also, if they wanted to, have discontinued purchasing from suppliers who employed Teamster members in order to buy from those suppliers who had contracts with the Clerks. The Clerks also contend that, even if the Board finds that the dis- pute is cognizable under Section 8 (b) (4) (D), it should, as a matter of policy, accept the parties' agreement to arbitrate their differing views as to the meaning of the recognition and work assignment clauses of the contract. Answering the assertion of the Council that the dispute is not arbitrable because of a reservation in the arbitration provision relating to questions of the Clerks jurisdiction, the Clerks point out that the agreement specifically provided that questions as to arbitra- bility should also be arbitrated. An award in the arbitration pro- ceedings would, according to the Clerks, be definitive as to its rights under the contract, and the dispute would thus be settled as between the essential parties. It therefore argues that the arbitration clauses of the contract constitute agreement for a method of voluntary adjust- ment, which under Section 10(k), is a ground for quashing the instant notice of hearing. A jurisdictional dispute necessarily involves a conflict arising from the competing demands of two groups of employees. Such a dispute cannot be finally resolved unless all the parties caught up in the work assignment controversy have bound themselves to abide by in arbitra- tion award. The argument of the Clerks that the agreement to arbi- trate need include only itself and the Council is based upon the contention, which we have discussed previously, that the dispute is exclusively concerned with the meaning to be given to the recognition and work assignment clauses of the 1956 agreement. But this is only the manner in which the controversy happens to be phrased; the sub- stance of the controversy is whether the food markets have a statu- torily protected right to make work assignments without being United Brotherhood of Carpenters and Joiners of America , Local 581, et at. (Ora Collard ), 98 NLRB 346 ; Local 562, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry, etc., et at. ( Northwest Heating Company),. 107 NLRB 542 ; Local 553, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry, etc., et at. (Alton Water Company), 106 NLRB 186; International Longshoremen's Association, Local 1294 (Independent ) ( Cargill, Inc.), 108 NLRB 313; United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry, etc., et at., Local 177 ( Carrier Corporation), 111 NLRB 940; Bay Counties District Council of Carpenters and Joiners of America, AFL-CIO, et at. (Associated Home Builders of San Francisco, Inc.), 115 NLRB 1757; Local 173, Wood, Wire and Metal Lathers' International Union, AFL-CIO, et at. (Newark & Essex Plaster- ing Co.), 121 NLRB 1094. 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subjected to strike pressures. If the Council has contracted away certain work assignment rights of the markets in favor of a "wall to wall, floor to ceiling" jurisdiction of the Clerks, it is the Clerks pre- rogative to test the alleged failure of the Council to live up to its agreement by methods provided for in the agreement. But whether the Clerks are willing or are now able to proceed with a determination of their rights through arbitration, the Board must still determine if it had a right to induce a work stoppage in order to obtain work reas- signments. This is a statutory problem which only the Board is qualified to pass upon. The Council and the Clerks may be the essen- tial parties in determining whether there has been a violation of the agreement, but the Teamsters and the suppliers are equally essential parties to the voluntary method of adjustment contemplated in Section 10(k). Without their consent to participate in an arbitration pro-: ceeding, there can be no effectual voluntary settlement of the dispute.' We also find no merit in the Clerks contention that the dispute is now moot because the 1956 contract under which its claims allegedly were made has now expired. This again merely restates its basic contention that the contract assigned the shelving work to it, so that the expiration of the contract has deprived it of any further right to demand the disputed work. The Clerks demand for the shelving work was not, however, based solely on the 1956 contract. Similar demands were asserted under previous contracts which did not contain the same recognition or work assignment provisions. The claims of the Clerks are in fact based on its status as the recognized bargaining representa- tive of employees doing "clerks work" in the food markets, and it is in support of this basic jurisdictional claim that the Clerks are demanding the right to all shelving work which the markets permit others to perform. We find, therefore, that expiration of the 1956 4 Local 173, Wood, Wire and Metal Lathers' International Union, AFL-CIO; et at. (Newark & Essex Plastering Co.), supra; Millwrights Local 1102 , United Brotherhood of Carpenters and Joiners of America, AFL-CIO; et at. (Don Cartage Co.), 121 NLRB 101 ; Local 46, Wood, Wire and Metal Lathers' International Union, AFL-CIO; et at. (Acousti- cal Contractors Association of New York), 120 NLRB 837; Wood, Wire and Metal Lathers International Union and its Local Union No. 2 , AFL-CIO, et at. (Acoustical Contractors Association of Cleveland ), 119 NLRB 1345; Wood, Wire & Metal Lathers' International Union, Local 46, AFL-CIO (Jacobson & Co., Inc. ), 119 NLRB 1658; Local Union No. 1, Sheet Metal Workers International Association, AFL, at at. (Meyer Furnace Company ), 114 NLRB 924; Local Union No. 9, Wood, Wire, and Metal Lathers International Union, AFL (A. W. Lee, Inc.), 113 NLRB 947; Truck Drivers Local Union No, 375, International Brotherhood of Teamsters , etc. (Service Transport Co.), 113 NLRB 452; National Association of Broadcast Engineers and Technicians , etc. (National Broadcasting Company, Inc.), 105 NLRB 355, footnote 22. General Warehousemen and Employees Union, Local 636, et al. (Roy Stone Transfer Corporation), 99 NLRB 662 ; International Brotherhood of Teamsters , etc., Local #236, etc. (Wm. F. Traylor), 97 NLRB 1003; United Brotherhood of Carpenters and Joiners of America, Local 943, A.F. of L. (Manhattan Construction Company, Inc.), 96 NLRB 1045; Local 26, Inter- national Fur and Leather Workers Union, etc. (Winslow Bros. & Smith Co.), 90 .NLRB 1379. RETAIL CLERKS INTERNATIONAL ASSOCIATION, ETC . 995 contract has not extinguished the Clerks continuing claim to the work in dispute. Responsibility of the International: Respondent International was not a party to the agreement between the Council and the southern California locals, including Respondent Local 770, nor is there any evidence that it participated in the negotiations leading thereto. Its participation in the events preceding the stoppages in October 1957 consisted in having its representatives appear at the three meetings which were held in 1956 and 1957 between the Council and the nine signatory locals. In October 1956, a year before the work stoppage, Philpot, West Coast regional director for the International, attended such a meeting. Philpot was not the spokesman for the locals, having apparently been called in to act as a mediating influence. Philpot was also present at the next meeting in April 1957, attended by officials of the Council, Local 770, and Teamsters Joint Council No. 42. DeSilva, executive secretary of Local 770, acted as spokesman for the Clerks, a role he had also filled in the previous meeting. However, at the third of these meetings, held shortly before the work (stoppages, the presi- dent and the general counsel of the International appeared, with the latter assuming the most active role among the Clerks' representatives. When the Council president refused to give an unequivocal answer as to whether it would arbitrate the dispute, the general counsel of the International stated that the Clerks would be free to take other steps. There is no evidence that Local 770 required, or obtained, the ap- proval of the International before engaging in the work lstoppages which constitute the inducement of employees in this case, nor does it appear that the International could have forced Local 770 to desist from the actions it took. The only evidence of joint responsibility of the International for the stoppages is the fact that its general counsel warned the employers that the Clerks would not be satisfied until their disagreement was arbitrated. We find that this is not sufficient to establish either participation in, or ratification of the steps subse- quently taken by Local 770 in its efforts to enforce its demands. Accordingly, the notice of hearing in this proceeding as to the Respondent International will be quashed. Upon the entire record, we find that there is reasonable cause to believe that Respondent Local 770 has induced or encouraged em- ployees of Council members to refrain from performing services for the purpose of forcing food markets who are Council members to as- sign the work of shelving, displaying, and rotating items supplied by United States Hardware, Wesco, and other suppliers to Clerks members, and that the said Respondent thereby violated Section 8 (b) (4) (D) of the Act. We further find that the dispute in this proceeding is properly before us for determination under Section 10 (k) of the Act. 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Merits of the dispute It is well established that an employer is free to make work assign- ments without being subject to strike pressure of a labor organization seeking work for its members, unless the Employer is failing to con- form to an order or certification of the Board determining the bar- gaining representative for employees performing the disputed work, or unless the Employer is bound by an agreement to assign the dis- puted work to the claiming union. No order or certification of the Board is invoked in this case. There remains for consideration, there- fore, in determining this dispute, the Clerks' contention that it has a contractual right to the work. Before proceeding to an analysis of the 1956 contract, we believe it would be helpful to set out the recog- nition clause of previous contracts, and the proposals made in nego- tiating the 1956 contract, in order to determine what changes, if any, the parties intended to make. From 1948 to 1956, the recognition clause of the Clerks-Council agreement was "The Employer recognizes the Union as the sole col- lective bargaining agency for all employees working for the Employer and within the jurisdiction of the Union. . . ." [Emphasis supplied.] During the negotiations for the 1956 agreement, the Clerks proposed a recognition clause which would cover all persons working within the employers' establishments. The proposal also contained a clause whereby the employer would agree not to subcontract any work in the stores unless the work was to be performed by journeymen clerks em- ployed by companies signatory to the agreement between the Clerks and the Council. Finally, the Clerks proposed that where the work performed in the employers' stores was being performed by persons not covered by the agreement, the practice could continue only at the discretion and sole consent of the Clerks. On the other hand, the Council's proposal was that work performed in the employers' stores would be in accordance with the practices and policies in effect in January 1955, and that a status quo of the condi- tions as of that date would be maintained for the duration of the contract to be negotiated. Article I of the 1956 agreement is quite detailed but does not incor- porate the specific wording proposed by either party. It reads as follows : Article I-Recognition of the Union. A. Bargaining unit. 1. The Union is hereby recognized as the sole collective bar- gaining agent for all employees within the bargaining unit com- prised of those classifications of employees which constituted the Union's bargaining unit on January 1, 1955, or on such other RETAIL CLERKS INTERNATIONAL ASSOCIATION, ETC. 997' basis as may result from the Agreement [between Retail Clerks and Meat Cutters Union]. B. Work Performed : All work performed on the premises in the nature of work gen- erally performed by retail clerks shall only be performed by employees in the bargaining unit as herein defined. C. Subcontracting or Assignment of Work. 1. The Employers shall not subcontract any work ordinarily performed by retail clerks in the stores or markets of the Em- ployers, and, further, any future work created by the Employer within the Employer's stores or markets which would ordinarily be performed by retail clerks shall be performed only by members of the bargaining unit as herein set forth, except that such work may be subcontracted to an employer who is signatory to an Agreement with the Union. 2. The Employer agrees not to assign or contract with any- other union or person for work which is presently being per- formed by members of the bargaining unit represented by the- Union. 3. Any other work which is presently under specific contracts. with the Teamsters, Culinary Workers, and Building Service Employees Unions shall not be affected by the Agreement, except as to any change which may result from an agreement of the- unions involved and the signatory Union and upon presentation to the Employer of bona fide proof thereof. D. Exceptions of Paragraphs B and C Above. [Not set out here, but discussed below.] E. Union Jurisdiction. The recognition understanding, and the practices hereunder- shall govern with further agreement that, during the life of this Agreement, the Union will not engage in jurisdictional disputes on the premises of the Employer's place of business. Should the jurisdiction as hereinabove set forth be violated, the Union re- serves the right to take any defensive action of a lawful nature.- It will be noted that article I does not specifically refer to the prob- lem of what services could be performed by driver-salesmen on the- premises of the food markets, even though the Clerks and Council were fully aware of their dispute with respect to that problem. If' the agreement assigned this work to the Clerks, it did so inferentially,. through the general broad coverage granted that union, and not sub- sequently qualified by other provisions which permit the food market- operators to subcontract, and to assign, work to members of other- unions. 535828-60-vol. 125-64 '998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The first major issue then, in ascertaining the coverage of article I is to determine the meaning of the phrases "performed on the prem- ises in the nature of work generally performed by retail clerks" and "work" which is "presently" and "ordinarily" performed by retail clerks, which the employers may not subcontract or assign to others than Clerks members. We are urged by the Clerks to find that work generally performed by retail clerks covers the work of the driver- salesmen in the markets because it is of the same general type as that admittedly assigned to clerks in the stores. Succinctly stated, since clerks ordinarily do shelving work, all shelving work has been as- signed to the Clerks. The Council and Teamsters, however, point out that driver-salesmen have been performing shelving work for many years in the ordinary and regular course of food market operations, so that the tasks assigned to the driver-salesmen have not generally or ordinarily been performed by food market clerks. The second major area of difference in the interpretation of the agreement is as to the rights of the food markets to subcontract work to be performed on their premises. Some markets have individual contracts with the Culinary Workers Union covering the employees at snack bars in the stores, and with the Building Service Employees Union for their janitorial help. Other markets have leased out the snack bars, or subcontracted the maintenance work, to independent firms who have contracts with these unions. Only one market op- erator, Ralph's Markets, has a specific contract with the Teamsters for work to be performed on the store premises, and this applies only to backroom employees who act as receiving clerks away from the selling area. The Clerks regard the privilege of subcontracting, or the assigning of work to members of other unions, as being limited to those types of work which are not ordinarily performed by Clerks, and then only if it is covered by a specific contract with one of the three named unions. Thus it is argued, that work which is ordinarily performed by store clerks is within the Clerks' jurisdiction, even though it is the subject of a specific contract between a market and one of the above-named unions. This argument is further developed by asserting that the phrase "specific contracts" does not refer to con- tracts between one of the three named unions and an independent contractor who may be performing services on the market premises with his own employees. The Clerks would therefore recognize as the only specific Teamsters contract which it is bound to respect as that which the Teamsters have with Ralph's Markets for the backroom employees. The counterargument of the Council and Teamsters is that the "specific contracts" which the Clerks must honor refers to the contracts between the markets and the rack-jobbers, leading to RETAIL CLERKS INTERNATIONAL ASSOCIATION, ETC . 999 the conclusion that the work of the driver-salesmen, in the words of paragraph C-3 "shall not be affected by the Agreement. . . ." The Clerks also argue that those specific contracts with the Team- sters which it must honor can mean only contracts entered into with market operators, and not with rack-jobbers, since otherwise para- graph D "Exceptions to Paragraphs B and C" would be unnecessary. Paragraph D consists of minor exceptions permitting non-Clerks members to do clerks' work such as inventory taking, offering of sam- ples, and certain activities in connection with opening new stores. However, these exceptions would be necessary whether or not para- graph C was intended to exempt the services of the driver- salesmen from the Clerks' jurisdiction. There are other closely reasoned arguments based on a word by word analysis of the various paragraphs of article I. Enough, how- ,ever, has been set out above to indicate the conflicting interpretations to which this article has given rise. Each side can point to phrases and sentences which support its position, and each side has built up .a logical argument based on article I, on the past practice of the parties, and on the course of the negotiations which led to the 1956 agreement. An arbitrator who might have to decide the ultimate meaning of article I could do so by balancing the relative reason- ableness of the opposed interpretations. For our part, however, we can only find that the agreement is susceptible to varying interpreta- tions, none of which can be summarily rejected as wholly irrational or unreasonable. Thus, it is clear that the shelving work performed by driver-salesmen is certainly work of the same nature as that gen- .erally performed by retail clerks, but it is also work which was not recognized as being within the Clerks unit on January 1, 1956. We also believe that the agreement contemplated the performance of services for the food markets by Teamster members under certain circumstances which are not fully explicated. As we stated above, article I offers some support for the inconsistent interpretations of the contracting parties. We can only conclude that article I does not display the degree of clarity which we require when a respondent union relies on a contract provision as exoneration for its inducement of employees to engage in a work stoppage with the object of forcing an employer to reassign work to it .5 National Association of Broadcast Engineers and Technicians, C.I.O., Hollywood Chapter (National Broadcasting Company, Inc.), 105 NLRB 3,55; Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, .AFL-CIO ( Columbia Broadcasting System, Inc.), 114 NLRB 1354; General Drivers, Warehousemen and Helpers, Local 968, International Brotherhood of Teamsters, etc. (Farnsworth & Chambers Co., Inc. ), 115 NLRB 617; and Local 675, Union of Operating Engineers, etc. (Port Everglades Terminal Company, Inc .), 116 NLRB 27. Our dissenting colleagues would find that the Clerks- Council agreement is a defense to the charges because its ambiguous work assignment provisions are susceptible of eventual -determination through arbitration and are, therefore, potentially unambiguous. They 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, the Clerks urge us to find that agreements between United States Hardware and Wesco with the Teamsters during the 1956-58 period were illegal and cannot therefore be "specific contracts" within the meaning of article I C-(3) of the agreement. On August 4, 1959,. the Board issued a Decision and Order in Cases Nos. 21-CA-2852 and 2853 pursuant to a settlement stipulation of the parties, under which United States Hardware and Wesco were ordered to withdraw and withhold recognition from the Teamsters until it was certified, and not to renew, apply, or enforce any agreement with the Teamsters, unless it conformed to Section 8(a) (3). The illegality of a contract between the Teamsters and the two suppliers, who are Charging Parties here, is wholly extraneous to the issues presented for deter- mination in this proceeding. Whether the food-markets were justi- fied in subcontracting work to rack-jobbers who had an illegal contract with the Union whose members were then assigned the disputed work is irrelevant to a determination of the food markets' rights to assign disputed work tasks. The food markets who made the assignments had no contracts with the Teamsters, and no taint of illegality pertains to that relationship e DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and the entire record in this case, the Board makes the following determination of dispute pursuant to Section 10(k) of the Act : 1. Retail Clerks Union, Local 770, AFL-CIO, and its agents are not, and have not been entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to force or require members of Food Em- would treat an admittedly ambiguous work assignment clause with the same effect as a Board order or certification for purposes of exoneration , if the meaning of the clause can be arbitrated. The members of the majority, on the other hand, believe that a con- tractual provision for arbitration constitutes an agreed upon method for the voluntary adjustment of a work assignment dispute under Section 10 ( k), and may be a defense to Section 8(b) (4) (D) charges only when all parties to the dispute have agreed to be bound by such method. See cases cited in footnote 4. We believe that our view of the effect to be given an agreement to arbitrate in a work assignment dispute, i .e., the necessity that all the parties be bound, is preferable to that of our dissenting colleagues because we are of the opinion that in this respect arbitration to settle the meaning of an ambiguous work-assignment clause should be treated like arbitration to settle the conflicting claims arising thereunder. In both cases, the arbitration procedure is ineffective unless all parties having an interest in the outcome of the dispute agree to be bound . Secondly, even when the Board has refused to remedy an unfair labor practice because the same facts also constitute a dispute subject to arbitration, it has done so only when all the affected interests have had an opportunity to participate in the arbitration. See, for example, Spielberg Manufacuring Company, 112 NLRB 1080 . Finally, we see no reason to favor the Clerks on the ground that the Council refused to accept arbitration, since the Clerks did not seek judicial enforcement of their right to arbitration until after it had resorted to self-help. Cf. W. L. Mead, Inc., 113 NLRB 1040. 0National Association of Broadcast Engineers and Technicians , C.I.O., and its Chicago Chapter ( American Broadcasting-Paramount Theatres, Inc.), 110 NLRB 1233, 1243 ; Local 595, International Association of Bridge , Structural and Ornamental Iron Workers, A.F.L., et al. (Bechtel Corporation ), 108 NLRB 823 , 835 ; and International Longshore- men's Association, Ind., et al. (Abraham Kaplan, et al.), 116 NLRB 1533, 1537. RETAIL CLERKS INTERNATIONAL ASSOCIATION, ETC. 1001 ployers Council, Inc., to assign the work of displaying, arranging, inventorying, checking, replenishing, and servicing merchandise owned and/or supplied by United States Hardware and Paper Co., Wesco Merchandise Co., and other rack-jobbers, suppliers, and dis- tributors, to its members rather than to the employees of said suppliers who are not members of the Respondent. 2. Within 10 days from the date of this Decision and Determination of Dispute, Respondent Retail Clerks Union, Local 770, AFL-CIO, shall notify, in writing, the Regional Director for the Twenty-first Region of the National Labor Relations Board whether or not it will refrain from forcing or requiring members of Food Employers Council, Inc., by means proscribed by Section 8(b) (4) (D) of the Act, to assign the work in dispute to its members rather than to the employees of said suppliers who are not its members. 3. Notice of hearing as to Retail Clerks International Association, AFL-CIO, heretofore issued herein, be, and it hereby is quashed. MEMBERS ROiGERS and FANNING, dissenting : We would quash the notice of hearing herein because, in our opinion, the 1956 agreement between the Clerks and the Council provides a defense for the Clerks action in striking to protest the food markets alleged violation of that agreement. The Board has long recognized the value, in its disposition of jurisdictional disputes, of requiring parties to adhere to their agreements by denying relief under Section 10(k) to an employer who has assigned work to one group of employ- ees in derogation of the unambiguous assignment of that work to another group of employees by contract? In acknowledging the validity of a clear assignment by contract as a defense in a Section 10(k) proceeding, the Board has gone beyond a literal construction of Section 8(b) (4) (D) under which only failure by an employer to conform to an order or certification of the Board determining the bargaining representative for employees performing the work con- stitutes a defense for a labor organization charged with violating that section." But now the Board refuses to take the next step, which is essential to the logic of its position-that a contract which provides ' National Association of Broadcast Engineers and Technicians , C.I.O., Hollywood Chapter (National Broadcasting Company, Inc.), 105 NLRB 355 ; Radio & Television Broadcast Engineers Union, Local 1212, etc . ( Columbia Broadcasting System, Inc.), 114 NLRB 1354 ; Local No. 48, Sheet Metal Workers, etc. ( Gadsden Heating, et al.), 119 NLRB 287. 8 In the National Broadcasting Company case, 105 NLRB 355 at 364, the Board said : . . [Al literal construction of Section 8(b) (4) (D ), in the circumstances of this case, would require that the Board acquiesce in the invasion of an incumbent union's con- tractual rights by sanctioning ,the device of reallocating work assignments under color of an agreement with a rival union at a time when the applicable contract is in full force and effect. The incumbent union compelled thereby to strike to protect its contract would be denied a determination in its favor in a 10 ( k) proceeding because it lacked a certifica- tion or Board order, a result wholly incongruous with the purpose of the Act to promote stability of bargaining relations and minimize industrial disputes." 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for final and binding arbitration of its meaning is not an ambiguous contract. In providing a method for resolving its meaning, such a contract will perforce, when its own terms are properly complied with, be clear and unambiguous. We agree with the majority that the Board should not decide whether the intention of the Clerks and the Council can now be accu- rately determined, or how the apparent inconsistencies of article I of the agreement can be reconciled. This is not to say, however, that its meaning must forever remain uncertain and be a continuing source of perplexity and discord. The parties have provided a method of self-governance in their contract through the grievance and arbitra- tion procedures of article XIV, even to the extent of agreeing on means for determining whether a particular dispute is arbitrable. But despite its commitment to the settlement of contract disputes through the machinery of arbitration, the Council has unilaterally selected the Board as its favored forum in its longstanding controversy with the Clerks. We see no reason why that choice requires the Board to intrude into a situation which could have been finally and effectively disposed of through arbitration. Precedents in other areas of the Board's jurisdiction, moreover, satisfy us that here is an overlap between statutory and contractual rights which should be settled wholly by resort to the contract itself. Alleged violations of Section 8(a) (3) and (5) which arise from con- duct that may also be considered a contract violation have been dis- posed of by our refusal to remedy the statutory violation if the griev- ance and arbitration procedures of the contract have not been invoked.' The Board has also refused to issue a determination of dis- pute in a Section 10(k) proceeding when a party which first agreed to arbitrate a work assignment dispute later refused to do so. In effect, we uphold the validity of an agreement to arbitrate, even when the Charging Party is thereby denied the immediate protection of a Section 10(k) determination.lo Encouraging compliance with stipulated grievance and arbitration procedures in a collective-bargaining agreement would better effectu- ate the statutory policy underlying Section 8(b) (4) (D) than does the action of the majority here.ll This case well illustrates the truth e Consolidated Aircraft Corporation, 47 NLRB 694, enfd. as mod . 141 F. 2d 785 (C.A. 9) ; Timken Roller Bearing Co. v. N.L.R.B., 161 F. 2d 949 (C.A. 6) ; Crown Zellerbaeh Corporation, 95 NLRB 753; McDonnell Aircraft Corporation, 109 NLRB 930; United Telephone Company of the West, et al., 112 NLRB 779; Spielberg Manufacturing Company, 112 NLRB 1080. - Don Cartage Co., Inc., 121 NLRB 101; Meyer Furnace Company, 114 NLRB 924, 930; A. W. Lee, Inc., 113 NLRB 947, 951; Wm. F. Traylor, 97 NLRB 1003. u The expiration of the agreement in effect during the period of the disputes and stoppages does not relieve the Council of its contractual duty to arbitrate a dispute aris- ing thereunder. Textile Workers Union of America, AFL-CIO v. Lincoln Mills of Alabama, 353 U.S. 448; N.L.R.B. v. Knight Morley Corporation, 251 F. 2d 753, 759-760 (C.A. 6) ; Purex Corporation, Limited, 123 NLRB 1507. DIT-MCO, INC. 1003 of that observation. The Clerks first requested arbitration in June 1956, 6 months after the effective date of the agreement. Fifteen months later, in October 1957, the work stoppages took place as a direct consequence of the Council's refusal to abide by the contract-a refusal even to arbitrate the arbitrability of the dispute. Two years thereafter, the Board is determining that there is reasonable cause to believe that Section 8(b) (4) (D) has been violated. It should be obvious that we compound "the law's delay" by allowing our processes to be utilized whenever the arbitration provisions of a contract are not respected. Accordingly, we would quash the notice of hearing. DIT-MCO, Inc. and District Lodge No. 71, International Asso- ciation of Machinists, AFL-CIO, Petitioner. Case No. 17-RC- 2991. December 18, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing on this case was held before William M. Guerin, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Bean and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Employer, at its plant and office in Kansas City, Missouri, is engaged in the manufacture and sale of electronic equipment. The Petitioner seeks to represent the production and maintenance em- ployees. While the parties are in agreement generally as to the ap- propriateness of such a unit of employees' the Employer would exclude assembler leadladies and the final assembler leadman as supervisors, and test-out technicians as technical employees. The Petitioner would include all these employees. i The parties agree that the employees in the following classifications should be in- cluded in the unit : assemblers , final assemblers, stock handler, storeroom clerk, receiving clerk, shipping clerk, shopman, and assistant shopman. Likewise, they agree to the exclusion of the draftsmen and guard. 125 NLRB No. 103.