Retail Clerks Intl.

818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Retail Clerks International Association , Local Union No. 899, AFL-CIO; Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 556, AFL-CIO; International Brother- hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local Union No. 381; In- ternational Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Joint Council of Teamsters No 42; and San Luis Obispo Building and Construction Trades Council, AFL-CIO (State-Mart, Inc., d/b/a Giant Food) and Ted R . Frame. Case 31-CP-15 Council of Teamsters No. 42; and San Luis Obispo Building and Construction Trades Council, AFL-CIO, their officers, agents , and representa- tives, shall take the action set forth in the Trial Ex- aminer's Recommended Order. ' In determining whether Respondents' conduct violated Section 8(b)(7)(C), Member Fanning deems it unnecessary to decide whether Respondents ' express disclaimers of a recognitional or bargaining object were mere pretexts designed to conceal a true object of forcing Giant Food to adopt their area contract Accordingly , he does not rely on the contract adoption theory advanced by the Trial Examiner as a basis for finding Respondents ' conduct to be unlawful July 19, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On January 12, 1967, Trial Examiner Louis S. Penfield issued his Decision in this 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 attached Trial Examiner's Decision. Thereafter, the General Counsel, Respondents Retail Clerks Union and Amalgamated Meat Cut- ters and Butchers Union, and the Charging Party filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondents, Retail Clerks Interna- tional Association , Local Union No. 899, AFL-CIO; Amalgamated Meat Cutters and Butcher Workmen of North America , Local Union No. 556 , AFL-CIO; International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Help- ers of America , Local Union No. 381 ; Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Joint TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Louis S. PENFIELD, Trial Examiner: This proceeding was heard before me in San Luis Obispo, California, on August 16 and 17, 1966, on a complaint of the General Counsel and answers of Retail Clerks International As- sociation, Local Union No. 899, AFL-CIO, herein called Respondent Retail Clerks; Amalgamated Meat Cutters and Butcher Workmen of North America, Local Union No. 556, AFL-CIO, herein called Respondent Meat Cutters; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 381, herein called Respondent Team- sters; International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Joint Council of Teamsters No. 42, herein called Respondent Teamsters Joint Council; and San Luis Obispo Building and Construction Trades Council, AFL-CIO, herein called Respondent Building Trades Council. The forego- ing individually named organizations will be referred to hereinafter collectively as Respondents.' The issue litigated was whether Respondents violated Section 8(b)(7)(C) of the Act. The firm of Brundage and Hackler entered an appearance at the hearing by submitting a letter setting forth that such firm represented Respondent Teamsters, Respondent Teamsters Joint Council, and Respondent Building Trades Council, but that a formal appearance and participation in the hearing would not be undertaken, inasmuch as counsel regarded such Respond- ents as only nominally involved and was willing to be bound by the record as made by other Respondents par- ticipating in the proceeding. Following the conclusion of the hearing participating counsel filed a stipulation for certain corrections in the transcript. Such corrections appear appropriate and, pur- suant to such stipulation, have been made. It may also be noted that other portions of the transcript, particularly ' A consolidated complaint was oiiginally Issued on June 24, 1966, based on charges filed with the National Labor Relations Board, herein called the Boaid, on the following dates a charge in Case 31-CP-15 filed on February 23, 1966, a charge in Case 3I-CC-58 filed on February 3, 1966, and an amended charge in the same case filed on May 26, 1966 On August 11, 1966, the Acting Regional Director issued an order severing cases and withdrawing portions of the consolidated complaint whereby it was recited that a settlement agreement between Respondents and the General Counsel had been approved in Case 31-CC-58, and that said case was thereby severed from the previously consolidated cases, and further providing that those portions of the consolidated complaint relat- ing to Case 3 I-CC-58 were withdrawn 166 NLRB No. 92 RETAIL CLERKS INTL. 819 certain places where the Trial Examiner and various counsel were making statements or arguments, appear garbled in a manner which, at the very least, is unflatter- ing. While I am satisfied that the actual expressions were more uniformly lucid, I do not view the uncorrected gar- bled statements as distorting basic issues in any material manner. Accordingly, I see no purpose in directing further corrections which might result in more elegance of expression. Upon the entire record, including consideration of briefs filed by all the parties who actually participated in the hearing, and upon my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER State-Mart, Inc., d/b/a Giant Food, herein called State- Mart, is a California corporation engaged in the opera- tion of two retail food stores under the name and style of Giant Food, One is located at Arroyo Grande, California, and the other at San Luis Obispo, California. In the course of its business operations State-Mart has a gross revenue which exceeds $500,000 annually, and it annually purchases and receives products, goods, and materials valued in excess of $50,000 from enter- prises located in the State of California which have received such goods and products from points located outside the State of California. I find that State-Mart is engaged in a business which affects commerce within the meaning of the Act, and the assertion of jurisdiction over matters affecting its operations is appropriate in this proceeding. Ii. THE LABOR ORGANIZATIONS INVOLVED Respondent Retail Clerks, Respondent Meat Cutters, Respondent Teamsters , Respondent Tramsters Joint Council, and Respondent Building Trades Council are each labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The General Counsel alleges that Respondent Retail Clerks and Respondent Meat Cutters picketed two retail markets owned by State-Mart for the unlawful object of obtaining recognition in violation of the provisions of Sec- tion 8(b)(7)(C) of the Act. It is further alleged that the other three respondents made common cause with Respondent Retail Clerks and Respondent Meat Cutters and joined in such unlawful picketing. Respondents acknowledge engaging in picketing, and that such picket- ing continued for more than 30 days without a representa- tion petition being filed. Respondent Retail Clerks and Respondent Meat Cutters, however, insist that they never sought recognition, nor engaged in conduct tan- tamount to seeking recognition from State-Mart, and in- sist that at all times the picketing was conducted in the lawful pursuit of persuading State-Mart to meet area stan- dards regarding wages and working conditions. State-Mart operates two retail markets with which we are concerned in this proceeding. One, located in San Luis' Obispo, commenced its operation on November 2, 1965, and employs from 24 to 40 persons. The other is located approximately 13 miles away in the town of Ar- royo Grande. It commenced operation in September 1961, and presently employs approximately 30 persons. Both stores sell both meat and a general line of groceries and produce. At no time pertinent-to any issues of this proceeding were the employees at either of the stores represented by a labor organization. A. The Picketing of the State-Mart Stores State-Mart's Arroyo Grande store was opened in Sep- tember 1961. From the outset it has been picketed. Originally the picketing was conducted only by Respond- ent Retail Clerks, with the picket sign advertising that State-Mart had no contract with that labor organization. By June 1963, however, the legend on the sign was changed to set forth only that State-Mart did not meet area standards. In June 1963 Respondent Meat Cutters joined in the picketing at Arroyo Grande, and, like Respondent Retail Clerks, used signs indicating that State-Mart did not meet area standards. State-Mart's San Luis Obispo store opened on November 2, 1965. On the opening day pickets appeared carrying signs stating "This market unfair because they do not pay the prevailing wage rates or benefits paid by other markets in this area. Members of Retail Clerks Local 899 and Meat Cutters Local 556, AFL-CIO protest the substandard wage rates paid in this market." These signs were identical with those carried by both unions at the Arroyo Grande store. On or about December 20, 1965, Respondent Building Trades Coun- cil joined in the picketing with a sign carrying the follow- ing legend: "AFL-CIO picket San Luis Obispo Building Trades Council support the Retail Clerks and Meat Cut- ters Unions." On or about January 20, the other labor organizations were joined by Respondent Teamsters and Respondent Teamsters Joint Council whose representative carried picket signs with the following legend: "This picket line sanctioned by Teamsters Local 381 and Joint Council of Teamsters 42." After January 20, 1966, regular deliv- eries by suppliers represented by the Teamsters ceased al- together at both stores. Inquiry solicited the information that this came about because of the presence of the Team- sters' picket lines. Picketing was carried on initially at both locations by a large number of pickets. A State court injunction was obtained in January 1966, which limited the number of pickets who might appear before the San Luis Obispo store to 16. By agreement of the parties a similar limit was imposed at the Arroyo Grande store. Both before and after the injunction picketing at the San Luis Obispo store was conducted on a 24-hour basis, and was carried on from 6 a.m. to 10 p.m. at the Arroyo Grande store. At both stores picketing took place when the stores were not open for business. There is testimony that prior to the limitation in numbers pickets had obstructed access to the stores, had on occasion shouted obscenities at customers, had been observed taking pictures of customers, and had been seen writing down license numbers of cars entering the premises. Witnesses, however, were vague as to when these instances had occurred, and no attempt was made to undertake a detailed exploration of the exact circum- stances in which each came about. Apparently, however, such conduct occurred principally at the San Luis Obispo store during the early stages of the picketing and has not persisted in the picketing still being conducted. Prior to picketing none of Respondents directly sought 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD information from State-Mart either as to the wage rate being paid employees at its stores or as to fringe benefits accorded such employees. Nor was information of this nature ever volunteered by Respondent. It stands un- disputed, however, that, prior to picketing, representa- tives of both Respondent Retail Clerks and Respondent Meat Cutters had been apprised directly by employees or applicants for employment at each of the State-Mart stores that the wage scales and fringe benefits in effect were considerably lower than those provided for in the area contracts which each labor organization had negotiated covering employees in comparable stores. There is nothing to show that this situation had changed during the course of the controversy nor has State-Mart made any claim to this effect. Neither Respondent Retail Clerks nor Respondent Meat Cutters has at any time ever made a direct request for recognition of State-Mart, nor, insofar as this record shows, has either organization ever sought to organize or claimed to represent any of State-Mart employees at either of its stores. It is not asserted that the picket signs carried by any of Respondents are to be construed as requests for recognition or that they do not conform with signs found acceptable to use in support of area stan- dards' picketing. Neither Respondent Retail Clerks nor Respondent Meat Cutters has ever been certified as a representative of State-Mart's employees and it is acknowledged that the picketing has been carried on for more than 30 days without a petition having been filed. Since January, deliveries have been all but totally stopped directly as a result of the picketing and no claim is made that the proviso to Section 8(b)(7)(C) has any applicabili- ty whatsoever to the issue before us. B. The Efforts To Ascertain the Area Standards On or about January 27, 1966, Ted Frame, counsel representing State-Mart, telephoned Kenneth Schwartz, counsel for Respondent Retail Clerks, and inquired what could be done to bring about the removal of the picket lines. Schwartz advised Frame that all that was required was that State-Mart meet the area standards. Schwartz, however, declined to define the area standards over the telephone. He and Frame agreed to meeting at a future date for this purpose. The meeting took place on February 1, 1966, at San Luis Obispo. Respondents were represented by officers of the organizations involved and by counsel. State-Mart was represented by officers of the corporation, by managers of the local stores, and by counsel. Kenneth Schwartz acted as the principal spokesman for Respond- ents Ted Frame acted as spokesman for State-Mart. No substantial dispute exists as to what happened at the meeting, and all differences in the versions of the prin- cipals center largely on matters of emphasis rather than substance. It stands substantially undisputed that Schwartz an- nounced at the outset that the purpose of the meeting was solely to advise the Employer "what we meant by stan- dards in the particular area," and that at no time did the unions expressly claim to represent the employees nor as- sert that they sought "to negotiate any agreement." In response to Frame's query as to what the standards were, t It is undisputed that the contracts were represented as embodying the benefits which constituted the area standards. At exactly what point in the meeting they were produced and whether or not their production was Schwartz stated that in speaking about area standards he was "not only speaking about wages, but [he] was speak- ing about fringe benefits and speaking about other benefits." Schwartz represented the fringe benefits to re- late principally to health and welfare plans, to pensions, and to vacations, stating that "these benefits that the em- ployees are enjoying under the contract are best ex- pressed in the collective-bargaining agreement." Schwartz announced that it was the position of the unions that they sought "the same benefits" for State-Mart em- ployees that other employees in the area were receiving and that the unions were not concerned "as to the cost of the benefits." At some point copies of the area contracts were produced and presented to the Employer.2 Schwartz, in presenting the contracts explained that he had not "wanted it to be construed that [he was] making any demands but [he wanted them] to know the type of benefits the employees enjoy under our agreement, to ex- plain the area standards." Before presenting the contracts to the employer representatives, both unions undertook to strike out certain clauses in the agreements, principally those relating to matters of recognition. There is testimony, conflicting in a measure, about some events occurring at the meeting. Thus Frame testified that Schwartz asked that the Employer "agree to meet and agree to continue to meet area standards." Schwartz denies that he sought "agreement," insisting that he said no more than that the Employer must "meet" area standards. Frame also testified that Schwartz con- ceded that the cost to the Employer of providing contract benefits for its employees such as vacations, health and welfare, and pensions would be "insurmountable" or "as- tronomical" unless provided under the contracts. Schwartz insists that at no time did he use terms of this nature. Schwartz admits, however, that he stated that "ours being a larger group and his being a smaller group ... these benefits would cost [the Employer] more." Frame states that, at one time during the meeting, Schwartz asserted that the Employer had been condition- ing its employees against unionization, and that if the Em- ployer would only indicate that it had no objection to or- ganization, the unions could organize the employees and the Employer could then "buy these benefits at a practi- cal, realistic cost." Schwartz admits that he expressed the wish that the Employer "would not condition [its] em- ployees against the union," but asserts such statement to have been made in conjunction with repeated assertions that the unions were not there seeking to represent the employees. The foregoing conflicts must be evaluated in the context of the meeting As noted above, the purpose of the meeting was to discuss and define area standards so that the Employer might be apprised of what it need do to bring about the removal of the picket lines. I regard it as doubtful that Schwartz ever solicited an agreement from the Employer. It is abundantly clear that representatives of the unions were studiously avoiding negotiating. I believe it most unlikely that so expenenced a practitioner as Schwartz in the field of labor relations would have used the words "agree" or "agreement" in any manner that could be reasonably construed as a direct demand that the Employer agree to abide by the contracts. Although the implications which flow from the volunteered by Respondents or was requested by the Employer is the sub- ject of a minor dispute which I regard as of no significance RETAIL CLERKS INTL. 821 admitted nature of the demands, themselves, are arguably tantamount to a bargaining demand, and this will be discussed below, I am satisfied, however, that Schwartz at no time expressly sought an agreement as such, or that Frame so understood him, and I so find. Admittedly the costs of the fringe benefits were discussed, and, during the course of the meeting, Schwartz gave to the Employer the contract costs of the health and welfare and pension packages. As noted above, Schwartz concedes that he made the obvious com- ment that costs of equivalent benefits for an indivudual employer when contrasted with costs under plans or trusts covering 10 or 20 thousand employees would un- doubtedly be considerably higher. However, even if we assume that Schwartz used such terms as "insurmounta- ble" or "astronomical," I would regard it as no more than a possibly exaggerated statement of the self evident and not necessarily a representation inconsistent with express disclaimers of a representation or bargaining object. There remains for consideration the terms of the con- tracts themselves. These were submitted with the representation that, except for those portions physically stricken, they set forth the benefits that employees in the area were receiving, and that the unions demanded for employees of State-Mart if the Employer were to meet area standards. Both contracts are eleborate in nature and contain detailed provisions concerning the employment relationship and the relationship between the signatory employers and the unions. The items physically stricken as inapplicable for area standards conformity relate al- most exclusively to the recognition and union-shop clauses.3 Schwartz testified that neither he nor any other representative of the unions attempted at the February 1 meeting to carefully go through each contract and delete each and every provision not essential to attain area stan- dards conformity. Schwartz does not claim, however, that at any time during the course of the meeting he undertook to state with precision what, if any, limit there should be in the applicability of any clause not physically stricken. Frame testified that at the February 1 meeting, he as- sumed all the clauses not physically stricken to be ap- plicable if his client were to meet area standards. Discussions of the meaning or applicability of specific contract provisions, insofar as they took place at all, cen- tered principally upon such fringe benefits as health and welfare and pensions. These fringe benefits, like wages, are, of course, measurable cost items. The contract speaks for itself as to wages generally, and the unions un- dertook to supply the employers with the hourly contract costs of the health and welfare and pension packages although making it clear that participation in the trusts was limited to parties signatory to the contracts. Frame insists that he made particular efforts to inquire as to the applicability to his client of the so-called portability or transfer of benefit features of the pension and vacation plans. He states that Schwartz would not discuss the matter, but merely replied that nothing was -negotiable. Schwartz denies any discussion of portability features whatsoever. He admits, however, stating that since it was not a negotiation session, he would not negotiate any position, and that in demanding equivalent benefits as to pensions and vacations the contracts spoke for them- selves as to the definition of these benefits. The principal application of the so-called portability features is to be found in the pension provisions of the contracts.4 The pension provisions in both contracts are tied to pension trusts which in turn purport to cover the entire organized Southern California food industry.5 Only employers who are parties signatory to contracts with the respective unions are eligible to contribute to the funds or to receive benefits- therefrom on behalf of their em- ployees. The rights of an employee vest after a certain number of years of employment, and he becomes eligible to receive a pension at a certain age. For vesting pur- poses, however, work done in the employ of all covered employers is cumulated, thus eligibility for a pension will be determined by accrued time of a particular employee in the service of various covered employers. Counsel for Respondents assert it to be their consistent position at all times that the Employer was not required to give such service credits to meet area standards. If so it is not shown in the record that such position was made manifest at a meeting whose purpose was to define area standards. As we have seen, Schwartz denies engaging in any discussions whatsoever of the so-called portability issue. At the same time, however, he was insisting on equivalent benefits for State-Mart employees and representing the contracts to embody such benefits. When we examine contract pension provisions it is difficult to see how State- Mart could grant its employees equivalent pension benefits and not, where appropriate, accord them credit for services performed for contract employers. If Respondents were not seeking precisely this, it was in- cumbent on them to have said so at the time. Their reliance on the contracts and their repeated assertions that nothing was negotiable made it reasonable for State- Mart to assume that, among other things, if it were to conform to area standards it must grant service credits to its employees who had formerly worked for contract em- ployers. The General Counsel adduced evidence that in the April 4, 1966, edition of Union Labor News, an official union publication distributed only to members of various 3 In the Retail Clerks contract, article I entitled, "Recognition of the Union," was stricken almost in toto. Segments defining the bargaining unit with its general inclusions and exclusions were crossed out, but section F of the article which described categories of food market employees, such as food clerks and the like, was left in Article II containing a union-securi- ty clause and providing for mechanics of hiring when using union hiring procedures was also stricken. The following articles, however, were not stricken: article III describing discharge procedures and including elaborate seniority provisions; article IV describing working hours and overtime provisions; article V describing vacation benefits; article VI setting forth wage standards, article VII limiting store meetings to times not in conflict with union meetings; article X limiting visits of union representatives to the store, article XI concerning the discharge of ex- pelled union members; article XIV describing grievance procedures in- cluding arbitration provisions, article XXV containing detailed provisions describing health and welfare benefits and the applicable trust funds and pension provisions and the applicable trust'funds. The only other provi- sion physically stricken was article XVIII, a so-called favored nations clause. Comparable provisions were physically stricken and left in Re- spondent Meat Cutters contract and no purpose will be served by detailing them here. 4 Portability or transfer of credit provisions also appear to apply to the vacation trust features of the Retail Clerks contract . Respondent Meat Cutters contract does not contain such features. Since the problem is es- sentially the same as with pensions, it will serve no purpose to outline the provisions insofar as they apply to vacations. 5 A number of locals participate in the trust funds, and It was estimated that some 10,000 employees were affected by Respondent Meat Cutters trusts and over 20 ,000 by those of Respondent Retail Clerks. 308-926 0-70-53 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AFL-CIO unions in the San Luis Obispo and adjacent areas, there was a story concerning an interview with an official of Respondent Meat Cutters which read as fol- lows: Warren Underwood, executive secretary of Meat Cutters, Local 556, emphasized that the picket line, informational at the outset, became a standard picket line some months ago. Picketing is carried out on a 24 hour basis, 7 days a week at both stores. InJanu- ary, Teamsters Local 381, supported by Joint Coun- cil 42, joined actively in the line "Suppliers and consumers alike should take note that there is no truth in any statement to the effect that the picket line is merely an advertising line," Underwood said. "This is a bona fide picketing operation and we expect it to be honored as such." Underwood concedes that he read the article shortly after its distribution, that he thought the statements to be true, and that he made no attempt to retract any portion of it. General Counsel advances such statement as an admis- sion that the picketing had a recognitional rather than an area standards objective. C. Discussion of the Issues and Conclusions While Section 8(b)(7) purports to prohibit picketing "where an object thereof is forcing or requiring an em- ployer to recognize or bargain ..." it is well established that picketing for area standards, as distinguished from picketing for recognition or for an agreement, is lawful. This doctrine was originally established by the Board in Houston Building and Construction Trades Council (Claude Everett Construction Company), 136 NLRB 321, and it has been followed ever since The doctrine, however, has not been interpreted as having an unlimited application. In a number of cases the Board has indicated that it will scrutinize the conduct of a union in any given case to determine if its efforts were limited to seeking compliance with area standards, or if it appeared that the union was using such announced objective as a pretext to disguise an object of obtaining recognition and an agree- ment. In such evaluation it might consider, among other things, the picket sign legend itself, the character and manner in which the picketing had been conducted, whether or not prior to picketing inquiry had been made as to the wage scale paid, inconsistent actions and state- ments by union representatives, and various other mat- ters which might characterize the announced object as a possible pretext.e To resolve the issue in the instant case we must examine the development of the controversy and consider the significance of the conduct of Respondents in furtherance of their announced objectives. I have found no evidence of express demand for recog- nition by either union, but on the contrary have noted each to have taken steps expressly to disclaim that its picketing had such object.' The picket signs disclose nothing beyond an area standards object The General 6 Operative Plasterers' and Cement Masons' International Associa- tion , Local Union No 44, AFL-CIO (Perim Construction Company, Inc ), 144 NLRB 1298, Chefs, Cooks, Pastry Cooks and Assistants Union of New York, Local 89, AFL-CIO et al (Cafe Renaissance, Inc ), 154 NLRB 192, Local 3, International Brotherhood of Electrical Work- ers, AFL-CIO (Jack Picoult), 144 NLRB 5, Local 107, International Hod Carriers, Building and Common Laborers' Union of America, Counsel and the Charging Party, however, point to cer- tain conduct or representations which they deem to signi- fy an unlawful object even apart from the nature of de- mands themselves. The General Counsel contends that picketing con- ducted on a 24-hour basis, mass picketing, and obstruc- tion of entry is conduct of so aggravated a nature as to be inconsistent with a mere area standards object, and to support an inference of a broader recognitional object. I do not agree. The lawful character of such conduct is not an issue in this proceeding. Assuming that it all took place as has been rather sparsely developed in this record, it seems no more than a vigorous pursuit by the unions of an object deemed lawful. If an organization may engage in picketing to obtain conformity to area standards, an all- out effort to achieve success in such a venture is not necessarily an indication that it has an object different from that proclaimed. I likewise find unconvincing the claim that the article in the Union Labor News which was not repudiated by a representative of Respondent Meat Cutters is properly interpreted as an admission of unlawful object. The state- ment is at the most somewhat ambiguous. Describing the picketing as a "standard picket line" does not necessarily characterize it as having a recognitional object. Picketing in pursuit of an area standards object as distinguished from a recognitional object might be characterized as more than informational and to so describe it does not necessarily connote an unlawful object. As noted above, prior to the picketing the unions deter- mined that State-Mart operated below area standards both as to wage scales and fringe benefits. Thus there has not been such disregard of prevailing practices as would support an inference that they might have an object dif- ferent from that stated. There remains for consideration, however, the right of a union despite its express disclaimer of recognitional ob- ject and even in the absence of overt conduct from which an express demand may be inferred to insist that area standards be defined in terms of benefits equivalent to those set forth in the area contracts regardless of the costs. We must face the issue of whether an express dis- claimer will effectively insulate such a demand against a charge of unlawful object, or if such object is implicit in the very nature of the demand itself. To answer this, we must consider the basic purpose of the 8(b)(7) proscrip- tions and examine the rationale behind the area standards exception. It is a fundamental statutory right of employees to or- ganize free from interference and to bargain through unions of their own choosing. Once a majority has selected a bargaining representative, a duty arises for both the employer and the designated representative to bargain in good faith. Section 9 of the Act provides Board machinery designed to determine if the bargaining duty exists by defining the scope of bargaining units' and majority choice. The Section 8(b)(4)(C) and 8(b)(7) amendments to the statute were in substantial measure designed to encourage unions to use this statutory AFL-CIO (Texarkana Construction Company), 138 NLRB 102, The Building & Construction Trades Council of Philadelphia and Vicinity, AFL-CIO (Fisher Construction Company), 149 NLRB 1629 ' The General Counsel has not alleged that either Respondent Retail Clerks or Respondent Meat Cutters had an unlawful organizational ob- ject, nor does the record show any evidence of this nature RETAIL CLERKS INTL. 823 machinery in pursuit of their organizational or recogni- tional efforts by proscribing the use of secondary boycotts and picketing to attain such ends. Initially, when considering the meaning of the terms "recognize or bar- gain" in these sections, the Board held that picketing to change "prevailing rates of pay and conditions of employ- ment" constituted an attempt to bargain and thus was a proscribed object." The same case, however, was later brought before the Board for reconsideration, and at this time it reversed its earlier view holding that where a union limited its efforts to getting an unorganized employer to conform to area standards it was not necessarily pursuing an unlawful organizational or recognitional object, and that picketing to obtain conformity with recognized area standards was a permissible object.9 As noted above, the Board found the rationale as to Section 8(b)(4)(C) to be equally applicable to an organizational or recognitional object arising under Section 8(b)(7).1° The underlying reasoning supporting the area standards doctrine is ex- pressed in the following:" A labor union normally seeks to organize the unor- ganized and to negotiate bargaining agreements with employees; and it also has a legitimate interest apart from organization or recognition that employers meet prevailing wage scales and employee benefits, or otherwise employers paying less than prevailing wage scale could ultimately undermine the area standards. [Emphasis supplied.] Implicit in the foregoing doctrine is the proposition that whatever long-range objective a union may have regard- ing organization and bargaining for employees in a given industry, it may at any given time decide to forego its long-range objective and limit the thrust of its immediate activity to preserving what it already has. Where a union has in some measure organized an industry and negotiated collective-bargaining contracts for the or- ganized employees, it presumably has achieved standards of employment for those covered employees which it wishes to protect. A competing employer who is not or- ganized, and who pays its employees on a lesser scale will normally have lesser costs, and may thus be able to lower its prices to an extent that may enable it to gain a greater share of the market. This may place an organized em- ployer who is unable to make similar price cuts and still meet the costs of his union contract at a competitive dis- advantage. Such employer may be driven out of business altogether, or at the very least may be forced to press the union to lower the negotiated standards so that it may remain in business . A union has an obvious interest in forestalling this sort -of-thing, and the area standards-doc;' trine permits it lawfully topicket inpursuit of an-object oft this nauce -evert though in so doing it specifically un- dertakes to increase the unorganized employer's cost. It would seem, however, that a union should not be per- mitted to demand more than is needed to protect this in- terest. Except insofar as the demands made can be re- garded as directly related or incidental to the protection of the economic gains already achieved, they should not encompass any element of bargaining for working condi- tions for employees that the union does not claim to represent . Thus, in any given situation , we must examine the thrust of a union's demands upon the unorganized em- ployer to see if, contrary to any express disclaimer of in- tent to bargain for such employees , the union is, in reality, undertaking to impose on the unorganized employees' contract conditions or benefits which they did not have before, and which they may not even want. In the instant case Respondents , although disclaiming a recognitional or bargaining object, demand that State- Mart grant its employees the same or equivalent benefits as those awarded the contract employees. Whether such demand includes such benefits as seniority and grievance machinery provisions , which do not sound in terms of economic advantage but appear as the direct fruits of a collective-bargaining relationship, itself, is not altogether clear, and will be discussed further below. Even if we were to assume benefits of this nature were not sought, however, clearly Respondents were demanding that the employer provide an equal wage scale and provide such equivalent fringe benefits as health and welfare and pen- sion plans. By definition the justification for area stan- dards picketing is premised not on representation of the unorganized, but on its absence . I see no apparent reason for permitting a union to impose upon unrepresented em- ployees union gains which it has negotiated for those it represents. The area standards doctrine would appear to go no further than to accord a union a means , apart from organization and recognition, of preventing the unor- ganized employer from obtaining a competitive advantage over the organized employer. Does not a demand for equivalent benefits such as health and welfare and pension plans necessarily result in imposing working conditions on the unrepresented em- ployees in a manner not required to protect its legitimate interest? The lawful object effectively can be achieved by assuring that the unorganized employer is required to pay employee costs equivalent to those paid by the organized employer. To insist that its negotiated standards are in danger unless the unorganized employer is subject to equal costs is a reasonable pursuit of the lawful object, but an attempt to dictate how the cost package is to be distributed sounds in terms of bargaining. Unless the union purports to represent and bargain for the em- ployees of the picketed employer, what legitimate con- cern does it have insisting that such employees have health and welfare benefits or pensions or, indeed, specific benefits of any sort whatsoever, let alone benefits equivalent to those of the represented employees? It is quite possible that the unrepresented employees them- selves might infinitely prefer that the economic package designed to impose equal costs upon the unrepresented employer be given wholly in terms of a wage increase. However, whether it be given them in that form or any other should be of no concern to the union so long as it receives assurance that the cost package is the same. Thus it would appear reasonable that a union might picket for equal wages or for equivalent costs, but when it un- dertakes to go beyond this and to dictate what benefits " International Hod Carriers, Building and Common Laborers' Union of America, Local No 41, AFL-CIO (Calumet Contractors Associa- tion), 130 N LRB 78 The construction in this initial case arose under Sec- tion 8(b)(4)(C) rather than Section 8(b)(7) " 133 NLRB 512 10 Houston Building and Construction Trades Council (Claude Everett Construction Company), supra " Local Union No 741, United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO (Keith Riggs Plumbing and Heating Contrac- tor), 137 NLRB 1125 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are to be granted , it is attempting to engage in pro tanto - the equivalent benefits sought by Respondents, the thrust bargaining to gain benefits for employees which it does of the unions ' demands sounds more in terms of demand- not claim to represent. The unions in the instant case specifically demand equivalent benefits. I am convinced, and find, that by couching their demands in such a manner they are in reality undertaking to bargain for State -Mart employees and to control certain of their working conditions.12 Picketing in support of such a recognitional or bargaining object is clearly proscribed , and I find that by engaging in such picketing for such object Respondents have thereby violated Section 8(b)(7)(C) of the Act. While I regard the foregoing as sufficent to dispose of the issues in this case, the result is buttressed by other considerations. The unions represented the area standards to be em- bodied in the area contracts. When presenting such con- tracts to the employer, ostensibly for informational pur- poses, virtually the only items they undertook physically to strike therefrom and specifically to denote as inapplica- ble to the area standards demands , were the recognition clauses . Thus the unions did not strike detailed provisions concerning seniority, grievances, and other noncost items ordinarily associated with an established collective-bar- gaining relationship . As we have seen, Frame assumed that all of the provisions not specifically stricken were ap- plicable to the employer if it were to undertake to con- form to area standards, and I have found such assumption to be a reasonable one. Schwartz, while testifying that he made no effort to strike physically all items he deemed not applicable, does not claim that he took any affirmative position. On the contrary he states that during the February 1 meeting he was "speaking about fringe benefits and speaking about other benefits," and that he pesented the contracts to the employer so that the em- ployer would "know the type of benefits the employees enjoy under our agreement, to explain the area stan- dards." This, he coupled with continuing assertions that the unions were demanding equivalent benefits without regard to costs. The failure of the unions to be specific as to the precise scope of the benefits sought suggests that they may have had a broader aim than that stated. It would have been a relatively simple proposition to have stricken some, if not all, of the noncost benefits, or at least to have specifically represented that some of these may not have had applica- bility to the employer's operation if it were to meet area standards. Failure to make any effort in this direction at a meeting called to define area standards suggests that the unions may not have intended to exclude such provisions, but that they were presenting all portions of the contracts not stricken as embodying the general benefits and de- manding adherence thereto as the price of discontinuing picketing. This general approach appears to gear the benefit demands to contract terms with no attempt made to differentiate between those benefits measurable in terms of economic costs and those more closely related to an existing collective-bargaining relationship. Yet ostensibly the unions were pressing for area standards alone, an object which , as we have seen, has limitations. However, should an unorganized employer refrain from providing contract seniority benefits, it scarcely seems it would be taking a step to undermine area standards. In- sofar as benefits such as seniority are to be found among ing acceptance of the area bargain than adherence to area standards. Accordingly I find that the unions by defining their demands in terms of general contract benefits, as set forth above, were in reality undertaking to impose con- tract conditions upon employees of State-Mart to a degree far beyond that needed to protect area standards and to that extent were undertaking to bargain . Such ob- ject is unlawful within the meaning of Section 8(b)(7), and picketing in furtherance of it is violative of Section 8(b)(7)(C) of the Act, and I so find. The record is barren of evidence as to the cost of equivalent health and welfare or pension benefits if State- Mart be required to supply them from a source other than the contract plans and trusts. One need not resort to speculation to conclude that the comparative cost of equivalent benefits to an individual employer as con- trasted with costs to a contract employer under group plans or trusts covering the entire Southern California food industry would necessarily be so much greater that it would present a virtual economic impossibility. The unions do not dispute this, but they treat it in a cavalier manner, asserting costs for equivalent benefits to be ir- relevant and of no concern. If the underlying reason for permitting a union to engage in area standards picketing is to protect the gains as they are secured, and such in- terest if unrelated either to its long- or short-range recog- nitional bargaining object, such disregard of economic realities when approaching the employer appears incon- gruous. The protection to which a union is entitled can readily be achieved by insisting upon equivalent costs for the competing employer. I see no basis which will justify a demand for more. Where, as here, a union pickets with a demand that not only goes far beyond equivalent costs, but which encompasses equivalent benefits which are knowingly not economically feasible, it is a fair inference that the union's real object may differ from the ostensible one. The most obvious way that State-Mart could provide equivalent benefits at a feasible cost would be for it to become party signatory to the contracts and thus to become eligible to avail itself of the trust funds. These contracts were before it and appeared as a practical alter- native to an economically impossible demand. Presenting an employer with a demand that it cannot reasonably meet and still stay in business, and placing this in a con- text where the most practical alternative is the adoption of a union contract, gives rise to an inference that the unions' express disclaimers of a recognitional or bargain- ing object may be a mere pretext designed to conceal a true object of contract adoption, and I so find. Such ob- ject, of course, would be proscribed, and picketing in sup- port of it would constitute a violation of Section 8(b)(7)(C) of the Act, and I so find The specific issue as to the lawful character of the ob- ject relates solely to the demands of Respondent Retail Clerks and Respondent Meat Cutters. The other Re- spondents, however, Respondent Teamsters, Respond- ent Teamsters Joint Council, and Respondent Building Trades Council have joined in picketing to support the objects which Respondent Retail Clerks and Respondent Meat Cutters were seeking. By doing so they made com- mon cause with these organizations, and to that extent adopted their objects as their own. Since I have found, 'Y If the demand be regarded as also including the so-called noneconomic benefits my conclusion would have an a fortiori application. RETAIL CLERKS INTL. 825 above, that Respondent Retail Clerks and Respondent Meat Cutters engaged in picketing for an unlawful objec- tive violative of Section 8(b)(7)(C) of the Act, I further find that Respondent Teamsters, Respondent Teamsters Joint Council, and Respondent Building Trades Council likewise engaged in picketing for such unlawful object, and thereby likewise engaged in conduct violative of Sec- ion 8(b)(7)(C) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents as set forth in section III, above, occurring in connection with the operations of the Employer as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents, collectively, have en- gaged in certain unfair labor , practices , we shall order them to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. State-Mart Inc., d/b/a Giant Food, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Retail Clerks, Respondent Meat Cut- ters, Respondent Teamsters, Respondent Teamsters Joint Council, and Respondent Building Trades Council are each labor organizations within the meaning of Sec- tion 2(5) of the Act. 3. Respondents, and each of them, by picketing retail stores of State-Mart at Arroyo Grande and San Luis Obispo, California, with an object of forcing or requiring State-Mart to recognize or bargain collectively with Respondent Retail Clerks and Respondent Meat Cutters, respectively, as the representatives of its employees although neither organization was at any time certified as the representative of such employees and although neither had filed a petition under Section 9(c) of the Act within 30 days from the commencement of said picketing, have engaged in unfair labor practices within the meaning of Section 8(b)(7)(C) of the Act. 4. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, I recommend that Respondent Retail Clerks, Respondent Meat Cutters, Respondent Teamsters, Respondent Teamsters Joint Council, and Respondent Building Trades Council, and each of them, and their respective agents, successors, and assigns, shall: 1. Cease and desist from picketing, causing to be picketed, or threatening to picket or cause to be picketed, State-Mart, Inc. d/b/a Giant Food, at its Arroyo Grande and San Luis Obispo stores where an object thereof is to force or require said Employer to recognize or bargain with either Respondent Retail Clerks or Respondent Meat Cutters, or any other labor organization, as the bar- gaining agent of the employees of State-Mart in circum- stances violative of Section 8(b)(7)(C) of the Act. 2. Take the following affI rmatlve action which is deemed necessary to effectuate the policies of the Act: (a) Post at the respective business offices and meeting halls of each of Respondents described above, copies of the attached notice marked "Appendix." 13 Copies of said notice, to be furnished by the Regional Director for Re- gion 31, after being duly signed by a representative of each one of Respondents, shall be posted by each respec- tive Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for Region 31 signed copies of said notice for posting by State-Mart, Inc. d/b/a Giant Food, if willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director, after being signed by each of respective Respondents, shall be forthwith returned to the Regional Director for distribu- tion by him. (c) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Decision, what steps Respondents have taken to comply herewith. 14 i3 In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 14 In the event that this Recommended Order be adopted by the Board, paragraph 2(d) shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respond- ents have taken to comply therewith." APPENDIX NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES OF STATE-MART, INC. D/B/A GIANT FOOD Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, Nye hereby notify you that: WE WILL NOT picket, or cause to be picketed, or threaten to picket, or ;cause to be picketed, State- Mart, Inc. d/b/a Giant Food, at either its Arroyo Grande or San Luis Obispo store where an object thereof is to force or require that Employer to bar- gain with Retail Clerks Local Union No. 899, or Meat Cutters Local Union No. 556, or any other labor organization, as the bargaining representative of its employees in circumstances violative of Sec- tion 8(b)(7)(C) of the Act. 826 Dated Dated By By DECISIONS OF NATIONAL LABOR RELATIONS BOARD RETAIL CLERKS INTERNA- TIONAL ASSOCIATION, LOCAL UNION No. 899, AFL-CIO (Labor Organization) (Representative) (Title) AMALGAMATED MEAT CUT- TERS AND BUTCHER WORK- MEN OF NORTH AMERICA, LOCAL UNION No. 556, AFL-CIO (Labor Organization) (Representative) (Title) INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL UNION No. 381 (Labor Organization) Dated By (Representative) (Title) Dated By Dated By INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELP- ERS OF AMERICA, JOINT COUNCIL OF TEAMSTERS No. 42 (Labor Organization) (Representative) (Title) SAN Luis OBISPO BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO (Labor Organization) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 10th Floor, Bartlett Building , 215 West Seventh Street , Los Angeles, California, Telephone 688-5850.