Murray Plopper, Director of Organization, Etc.

362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW - 1 Local No 328, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act 2 By discriminating in regard to the hire, tenure, and condition of employment of Gerald Rostello and Donald Kauepila, thereby discouraging membership in and activity on behalf of the (above-named labor organization, the Respondent has en- gaged m and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act 3 All employees in the Respondent's Calumet and Laurium , Michigan, stores, including regular part-time employees but excluding store managers, meat managers, and supervisors as defined in the National Labor Relations Act, as amended, con- stitute a unit of the Respondent's employees appropriate for the purposes of colllec- tive bargaining within the meaning of Section 9(b) of the Act 4 The above-named labor organization was on October 27, 1958, and at all times since then has been, the exclusive representative of all employees in the afore- said unit for the purposes of collective bargaining, within the meaning of the Acct 5 By refusing, on or about October 28, 1958, and thereafter, to recognize and bargain with the above-named labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act 6 By interfering with, restraining, and coercing its employees in the exercise of Tights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 7 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act [Recommendations omitted from publication 7 Murray Plopper, Director of Organization; Richard Russo, Business Agent ; Local #98, Retail Clerks International Asso- ciation, AFL-CIO and Piggly-Wiggly Midwest Co., Inc. Case No 13--CB-801 January 29, 1960 DECISION AND ORDER On October 12, 1959, Trial Examiner Henry S Sahm issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto Thereafter, the Respondents filed exceptions to the Intermediate Report, together with a support- ing brief The Board i hats 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 Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner ' 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 Rodgers and Bean] 426 NLRB No 48 MURRAY PLOPPER, DIRECTOR OF ORGANIZATION, ETC. ORDER 363 Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Local #98, Retail Clerks International Association, AFL-CIO ; Murray Plopper, Director of Organization; and Richard Russo, Business Agent; and their officers, agents, successors, and assigns, shall : 1. Cease and desist from restraining or coercing employees of the Sterling, Illinois, store of Piggly-Wiggly Midwest Co., Inc., in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places in the Respondent Union's business offices, meeting halls, and all places where notices to its members are customarily posted, copies of the notice attached to the Intermediate Report marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by official representatives of the Respondent Union, be posted by the Respondent Union immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter. Reason- able -steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Thirteenth Region signed copies of the aforementioned notice for posting by Piggly-Wiggly Midwest Co., Inc., the Company willing, in places where notices to employees are customarily posted. Copies of said notice, to be fur- nished by the Regional Director for the Thirteenth Region, shall, after being signed by the Respondents, as indicated, be forthwith returned to the Regional Director for disposition by him. (c) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order, what steps they have taken to comply herewith. 2 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." INTERMEDIATE REPORT STATEMENT OF THE CASE FINDINGS OF FACT Piggly-Wiggly, the Charging Party, is a Delaware corporation, with its principal office located at Rockford, Illinois, where it is engaged in the sale and distribution of all types of food through 60 retail stores located in the States of Illinois , Iowa, and Wisconsin . In the course of its business operations , Piggly-Wiggly during the year 1958 did a gross volume of business in excess of $50,000,000 and its retail grocery store located at Sterling, Illinois, did a gross volume of business in excess of 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $2,000,000. During the same period of time, Piggly-Wiggly purchased and received from States outside the State of Illinois foodstuffs valued in excess of $20,000,000 and its retail store located at Sterling, Illinois, purchased and received from States outside the State of Illinois foodstuffs valued in excess of $500,000. By reason of the foregoing facts, it is found that Piggly-Wiggly Midwest Co., Inc., the Charging Party, is engaged in commerce within the meaning of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, and that it will further the purpose and policies of the Act to assert jurisdiction in this case. Background Sometime in the middle of January 1959 , Local #98, Retail Clerks International Association, AFL-CIO, the Respondent , hereinafter called the Union, which is a labor organization within the meaning of Section 2(5) of the Act, initiated plans to organize the employees of Piggly-Wiggly's Sterling, Illinois, store. By February 12, 1959, 12 of the then 23 eligible workers employed by Piggly-Wiggly at its Sterling, Illinois, store, signed cards authorizing the Respondent Union to represent them in collective-bargaining negotiations with Piggly-Wiggly.' On February 13, Richard Russo, secretary-treasurer of the Respondent Union telephoned Charles T. Vanausdall , vice president of Piggly-Wiggly , notifying him that 12 of the 23 eligible employees 2 in the Sterling store had signed authorization cards and requested the Company to recognize the Union as the exclusive bargain- ing representative of said employees . Vanausdall informed Russo that "a simple majority was not enough"-that he would not recognize the Union until it obtained signed authorization cards from a "substantial majority" of the employees at the Sterling, Illinois, store. Russo agreed to attempt to obtain additional authorizations from the other 11 Sterling store employees who had not signed cards as yet. Vanausdall then agreed that Russo would be allowed on the premises of the Sterling store at a time mutually agreeable to him and the store manager in order for Russo to contact these 11 employees. February 18 was the date agreed upon which was the day Russo returned to the Sterling store in order to attempt to sign up more of the employees In the course of soliciting the remaining 11 employees at the Sterling store, who had not yet signed authorization cards, Russo learned that the Company had polled its Sterling employees the day before, February 17, after working hours, as to whether they desired to be represented by the Respondent Union and that the employees had voted 14 to 9 against the Union . When Russo learned this, he left the store without attempting to solicit any additional employees to sign authorization cards and since that time the Union has made no effort to directly contact the employees at Piggly- Wiggly's Sterling, Illinois, store. Delia Mossesso, International representative of the Retail Clerks Union, the parent body of the Respondent Local Union , telephoned Vanausdall , vice president of Piggly-Wiggly, on February 20 objecting to the Company having polled its Sterling store employees and advised him that a picket line would be established at the Sterling, Illinois, store. The picket line was established the same day,3 February 20, and the sign carried by the pickets read: 4 'The Company, when it was approached in January by union officials, agreed that its employees could be solicited on the Sterling store premises, at a mutually agreeable time, whereupon the Company sent letters to its employees on February 6, explaining Piggly- Wiggly's policy with respect to union organization and advising them that their right to organize would be respected. (General Counsel's Exhibit No. 4 ) 2 The unit found appropriate by the Board on May 8, 1959, comprised 22 employees. (Case No. 13-RM-441, unpublished.) 3 The first day there were three pickets and thereafter one picket. None of the pickets were store employees * In addition, the pickets, on the first day only, distributed to customers of Piggly- Wiggly's Sterling store, on its parking lot, leaflets reading as follows : TO THE SHOPPING PUBLIC We bring our story to you. Your support, your refusal to patronize an Employer who refuses to recognize and bargain with the Union selected by the majority of his employees, will help us get recognition The Retail Clerks Union, Local 98 represents a majority of the employees of the Piggly Wiggly store in Sterling. This Employer, having agreed with the Union that he would recognize it if the Union could prove that it represented the majority of the employees. When the Union called the Employer for a meeting to prove its MURRAY PLOPPER, DIRECTOR OF ORGANIZATION, ETC . 365 Piggly Wiggly unfair to the Retail Clerks Union in Sterling, Illinois The picketing has continued and was in effect at the time of the hearing. Murray Plopper, International vice president of the Retail Clerks International Association, telephoned Vanausdall on February 23, requesting Piggly-Wiggly to recognize the Union as the bargaining representative for its employees at the Sterling store. The conversation was inconclusive. On February 24, 1959, the Company filed a petition with the Board requesting that a representation election be held to determine whether the employees in the bargaining unit desired to be represented by the Union. Following a hearing in the representation case on March 16, 1959, and the issuance of a Decision and Direction of Election on May 8, a Board election was held on May 26 for all clerks in the grocery and produce departments employed at Piggly-Wiggly's Sterling, Illinois, store, excluding all meat department employees, professional employees, and guards and supervisors. The result of the election was 12 votes "No" and 10 votes "Yes" in answer to the following question printed on the ballots: "Do you wish to be represented for purposes of collective bargaining by Local Union 98, Retail Clerks International Association, AFL-CIO?" The Regional Director issued a certificate of the results of the election on June 25, 1959. On February 26, 1959, the Union filed a charge (Case No. 13-CA-3185, un- published, alleging that Piggly-Wiggly "held a captive meeting at which time a secret ballot election [was held] on the store premises" in violation of Section 8(a)( I) and that the Company has refused to bargain with the Union, which represents a majority of the employees, in violation of Section 8(a)(5). The Regional Director refused on March 10 to issue a complaint and his action, on appeal to the General Counsel, was sustained on May 15. On May 29, Piggly-Wiggly filed a charge against the Union and the General Counsel issued a complaint on July 20, 1959. The complaint alleges, in substance, that: (1) On May 26, 1959, the Board conducted an election among the eligible employees at Piggly-Wiggly's Sterling, Illinois, grocery store. (2) The Respondent Union lost the election.5 (3) Since February 20, 1959, Respondent Union has picketed the Piggly-Wiggly store located at Sterling, Illinois, for the purpose of forcing Piggly-Wiggly to recog- nize the Union as the employees' bargaining representative. (4) Respondent, by the economic coercion of its picketing, has restrained and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, thereby committing unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act.6 majority, the Piggly Wiggly tap management was dumbfounded and immediately re- fused on the pretext that the Union should prove that it represents 90% of the employees, not the majority as the law of the land states. We are still willing to prove our majority. We have the cards to do it. We are asking you to help us. Do not patronize Piggly Wiggly. Only your sup- port, your refusal to shop at this Unfair Employer will get us the Union recognition. PGGLY WIGGLY EMPLOYEES COMMITTEE, RETAIL CLERKS UxioN, LOCAL 98 5Piggly-Wiggly Midwest Co., Inc., and Local Union #98, Retail Clerks, Case No. 13-R\I-441 (unpublished). 6 The pertinent provisions of the National Labor Relations Act (61 Stat. 136, as amended, 29 U.S.C. 151, et seq.) are as follows : SEC. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a) (3). Sac. 8(b). It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7:.. . 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The proceeding in this case was held at Rockford, Illinois, on August 11, 1959, before the duly designated Trial Examiner, Henry S. Salim, pursuant to due notice and with all parties represented by counsel. The General Counsel, Charging Party, and the Respondent have filed briefs. Issue The question here presented is whether peaceful picketing by a union which does not represent a majority of the employees, to compel recognition as the employees' exclusive bargaining representative, after the employees rejected the union in an election, is an unfair labor practice within the meaning of Section 8(b)(1)(A). Contentions The General Counsel contends that the exertion of economic pressure, through picketing of Piggly-Wiggly's Sterling, Illinois, store, in order to compel the Company to recognize the Union, at a time when it did not represent a majority of the employees, as evidenced by the Union losing the Board election, restrained and coerced the Company's employees in the exercise of rights guaranteed by Section 7 and thereby violated Section 8(b) (1) (A) of the Act. The Respondent acknowledges that one of its purposes in establishing the picket line was to obtain recognition from the Company. Also, contends Respondent, an additional purpose for picketing the Company's Sterling store was to advertise to the public that it was the victim of unfair labor practices committed by the Company when it polled its employees and when the Company refused to recognize it as the bargaining agent of its employees even though it offered to prove it obtained signed authorization cards from 12 of the 23 employees at the Sterling store.? Moreover, its loss of majority status, Respondent Union argues, is directly attributable to the Company's alleged unfair labor practices. Conclusions The contention of the General Counsel is, in effect, what the Board held in the Curtis Brothers case, 119 NLRB 232. In that case, the Board held that peaceful picketing of a worksite to achieve recognition by a union which was defeated in an election, diminished the worker's financial security and, therefore, restrains and coerces the employees involved in the exercise of their right of free choice in the selection of a representative by seeking to force them to accept the union they had rejected which is a violation of Section 8(b) (1) (A) of the Act. The two compo- nents of a violation of Section 8 (b) (1) (A) are that: (1) union conduct "restrain or coerce" employees, and (2) such restraint and coercion be in derogation of their organizational rights under Section 7. For the Company to have recognized the Union, in the face of a majority having rejected it by their votes in the Board- conducted representation election, would have abridged the employees' Section 7 rights to be represented by a union "of their own choosing" or, if they desired "to refrain from being represented by any union at all." The manner in which picketing by a minority union for recognition restrains and coerces employees is described by the Board in the Curtis Brothers case, supra, as follows: the pressure [exerted by picketing] is necessarily an economic one, a device to reduce the business to the point where his financial losses force . . . [the employer] to capitulate to the union's demands. It is immaterial whether the ostensible technique, or the unspoken but necessary consequence, is to cut off the employer's labor supply by preventing the employees from reporting to work; to keep the customers from buying his products; or to interrupt deliveries of supplies to the premises. The important fact of the situation is that the union seeks to cause economic loss to the business during the period that the employer refuses to comply with the union's demands. And the employees who choose to continue working, while the union is applying this economic hurt to the employer, cannot escape a share of the damage caused to the business on which their livelihood depends. Damage to the employer during such picketing is a like damage to his employees. That the pressure thus exerted upon the employees-depriving them of the oppor- 7 Russo, an officer of the Respondent Union, testified that the authorization cards which were allegedly signed by 12 of the 23 employees at the Sterling store were not shown to Vanausdall, Piggly-Wiggly's vice president, because he never asked to see them, although the Union was ready to do so at all times. MURRAY PLOPPER, DIRECTOR OF ORGANIZATION, ETC. 367 tunity to work and be paid-is a form of coercion cannot be gainsaid. There is nothing in the statutory language of Section 8 (b) (1) (A) which limits the intendment of the words "restrain or coerce" to direct application of pressure by the respondent union . . . [upon] the employees. The diminution of their financial security is not the less damaging because it is achieved indirectly by a preceding curtailment of the employer's interests. Accordingly, it is found that the Respondent Union by picketing for recognition as the exclusive bargaining representative, when it did not represent a majority of Piggly-Wiggly's Sterling employees, restrained and coerced said employees in the exercise of the rights guaranteed them by Section 7 of the Act, thereby violating Section 8 (b)(I)(A) 8 Respondent's contention that in addition to recognition, its objective in picketing was to protest Piggly-Wiggly's actions in polling its employees and its refusal to bargain with the Union, which was the cause for its loss of majority status, does not change the conclusion reached above as the Trial Examiner is precluded from inquiring into whether this justified the Respondent's picketing. The charges filed with the Board by the Union alleging the polling and the refusal to bargain were dismissed by the General Counsel who refused to issue a complaint. It is well established that disposition of charges filed is within the exclusive province of the General Counsel. Section 3(d) of the Act confers upon the General Counsel "final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under Section 10, and in respect of the prosecution of such complaints before the Board." The Trial Examiner, therefore, may not inquire into the correctness of the General Counsel's administrative determinations when he refused to issue a complaint based upon the Union's charge that the Company committed unfair -labor practices in polling its employees and insisting that the authorization cards signed by 12 of the 23 employees was not a sufficiently substan- tial majority.9 The Union's argument that regardless of its activities aimed at securing recogni- tion that nevertheless, the Company's polling the employees and refusing to recog- nize the Union legally justified it in advertising to the public by the leaflets it distributed alleging that the Company was unfair is not here decided. Inasmuch as Respondent has already been found to have violated Section 8 (b) (1) (A) of the Act, discussion of the leaflet distribution incident would be cumulative in nature as the same kind of restraining order will issue whether predicated on one or more violations of the Act because it has already been held, supra, that the Respondent violated the Act in continuing to picket for recognition after it had been determined in a Board-conducted election that it did not represent a majority of the employees. 'International Association of Machinists, Lodge 942, AFL-CIO (Alloy Manufacturing Company, etc.), 119 NLRB 307 (postelection oral requests to customers and publication of the company name on a union "we do not patronize list") ; International Union of Operating Engineers, Local Union No. 12 (Shepherd Machinery Company), 119 NLRB 820; International Brotherhood of Teamsters, etc, Local 641 ( Buffalo's Trucking Service, Inc ), 119 NLRB 1268; Joint Council of Sportswear, etc., Workers Union (Harou, Inc , and En Tour), 120 NLRB 659; Retail Store Employees Union, Local 1595 (J. C Penney -Co, Store No. 309), 120 NLRB 1535; Paint, Varnish it Lacquer Makers Union, et al. (Andrew Brown Company), 120 NLRB 1425 ; Building Material it Dump Truck Drivers Local No 420, International Brotherhood of Teamsters, etc (Fisk it Mason), 120 NLRB 135; New Furniture it Appliance Drivers, etc, Local Union No 196, International Brotherhood of Teamsters, etc, AFL-CIO, at al (Biltmore Furniture Manufacturing Corporation etc.), 120 NLRB 1728; General Teamsters, etc, Local No 912, etc. (H. A. Rider it Sons), 120 NLRB 1577; International Association of Machinists, Local Lodge No. 311, AFL-CIO, et al . (Machinery Overhaul Company, Inc.), 121 NLRB 1176; International Brotherhood of Teamsters, etc, Local Union No. 182, etc. (The Alling it Cory Company), 121 NLRB 315 ; Department Store Employees Union, Local 1100, AFL-CIO, et al. (Lane Bryant San Francisco, Inc.), 121 NLRB 688; United Rubber, etc., AFL-CIO, and its Local 511 (O'Sullivan Rubber Corporation), 121 NLRB 1439; Local 1922, International Brotherhood of Electrical Workers, AFL-CIO (Mid-Island Electrical Sales Corp, et al ), 122 NLRB 850. 9 Frank A. Hourihan v N L R B., 201 F. 2d 187 (C A., D C.), cert. denied 345 U S. 930, rehearings denied 345 U.S 961 and 346 U S. 843, 880, and 917; United Brotherhood of Carpenters and Joiners of America, Local Union No. 978, AFL-CIO, et al. (Kenneth Markwell and William Hartz, partners d/b/a Markwell it Hartz Contractors), 120 NLRB 610, 612; Times Square Stores Corporation, 79 NLRB 361, 364-365, Colonial Provision Company, Inc., 112 NLRB 1056, 1058; Hughes Tool Company, 104 NLRB 318, 323 See Davis-Administrative Law 160-167, 846-848 (1951) 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Therefore, no good purpose could be served in considering the validity of the Union's additional contention that its right to advertise to the public the Company's alleged unfair labor practices constitutes a protected exercise of free speech guar- anteed by the Constitution of the United States. THE REMEDY Having found that the Respondent Union has engaged in unfair labor practices in violation of Section 8(b) (1)'(A) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record, the Trial Examiner makes the following: a CONCLUSIONS OF LAW 1. Local #98, Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By picketing Piggly-Wiggly 's Sterling , Illinois, store for the purpose of coercing and restraining the employees of said Employer , Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act. 3. The violative activities of Respondent set forth immediately above, occurring in connection with the operations of the Company described in Findings of Fact above, have a close, intimate , and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL MEMBERS OF LOCAL #98, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT restrain or coerce the employees of Piggly-Wiggly's Sterling, Illinois, store, in the exercise of the rights guaranteed to them in Section 7 of the Act, including the right to refrain from engaging in any or all of the activities guaranteed thereunder. LOCAL #98, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, Labor Organization. Dated---------------- By---------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. J. G. Braun Company I and Local 781, Miscellaneous Warehouse- men Union, I.B.T. Case No. 13-CA-2988. January 29, 1960 DECISION AND ORDER On July 27, 1959, Trial Examiner James T. Rasbury issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- 1 The Respondent's name appears as amended at the hearing. 126 NLRB No. 7.