Retail Clerks Union, Local 1222

RETAIL CLERKS UNION, LOCAL 1222 271 Retail Clerks Union, Local 1222, Retail Clerks Inter- national Association, AFL-CIO (Lucky Markets of San Diego, Inc.) and Mitchell J. Copitas. Case 21-CB-4907 April 2, 1975 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On October 2, 1974, Administrative Law Judge Earl- dean V. S. Robbins issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief, and Respondent filed a brief in support of the Administrative Law Judge's De- cision. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and finds merit in General Counsel's exceptions to the dismissal of the complaint. The Board has accordingly decided to sustain the complaint's allegations and to affirm only those rulings and findings of the Adminis- trative Law Judge which are consistent with this Deci- sion, The events forming the basis of the complaint's alle- gations are not disputed. On March 18, 1974,' Mitch- ell Copitas, an ex-member of and former organizer for Respondent, applied for work at Lucky Markets, an enterprise with which Respondent had a contract. He told Lucky's president, Jack Kent, he had been "black balled" by the Union and needed some type of job in the retail grocery industry in order to get back his membership in the Union. Kent promised him a part- time job to commence on March 25. On March 24, however, following a visit admittedly made by union agents to Lucky Markets on March 19, Kent told Copi- tas not to report for work because, as Kent put it, "It looked like I was going to get harassed by the Union [for hiring Copitas] . . . . I didn't want any part of it." In litigating the alleged violation of Section 8(b)(1)(A) and (2) of the Act, General Counsel con- tended that the Union caused or attempted to cause the discriminatory refusal by Kent to hire Copitas;2 that it did so because Copitas had been an outspoken critic of the Union's executive officer, Bill Wall, and his ad- ministration of union affairs; and that Wall and his supporters therefore wanted to prevent Copitas from All dates are 1974 unless otherwise indicated z There is no contention and no evidence that Copitas' employment would have violated any provision of the contract between Lucky Markets and Respondent. reactivating his membership. The Administrative Law Judge dismissed the complaint, however, because, in her view, the General Counsel did not directly" establish either that the Union wanted to prevent Copitas from reactivating his membership, or that it in fact actively interfered with his obtaining employment. We disagree. Relevant as background is the uncontradicted evi- dence that, in the fall of 1973 during Copitas' incum- bency as an "organizer" and member of Respondent, Copitas had incurred Wall's displeasure by his dissi- dent activity directed against Wall's policies and the performance of his job as the executive officer of the -Respondent (a position to which Copitas had also as- pired). Wall's retaliation against Copitas in small ways is well documented in the record. Wall went out of his way to criticize Copitas for minor infractions of job rules which had been usually overlooked; to warn him against spending time in the office, rather Than in the field, after Copitas asked to examine the union books; and, just before a general membership meeting was to be held, to direct Copitas to be present in another city for strike duty on the day preceding said meeting and refusing Copitas' request that someone else be sent, and then discharging him when he did not go, even though Copitas explained he had not done so because a threat had been made on his life.3 All of the above evidence persuades us that there existed between Wall and Copi- tas a mutually antagonistic relationship which was still evident at the time the events in question occurred herein.' With his discharge as union organizer, Copitas' membership was suspended. Under the Union's rules this could not be reactivated unless and until he ob- tained a job in the retail industry. Therefore, Copitas actively sought work as a retail clerk, but found no such jobs available until he applied for work at Lucky Mar- kets as above set out. Immediately upon being promised a job by Jack Kent, Copitas visited the Union's offices, informed those present of his job, and sought to pay dues and regain active member status. But both the clericals and the union officials then in the office made it clear they would not process Copitas' application for active mem- bership absent Wall's personal clearance. Wall, in turn, made it clear to Copitas and to the union agents named below that he was not pleased over the prospect of Copitas' regaining active status. Thus, when Wall ex- pressed doubts concerning Copitas' representations about having a retail clerk job, Copitas responded that the matter could easily be checked by telephone. Wall, 3 No allegation was made that Respondent's discharge of Copitas violated the Act. 4 We also note that Respondent stipulated there was animosity between Copitas and Wall; between Copitas -and Don Kirkpatrick, Respondent's former chief executive officer, and between Copitas and Brown , Respon- dent's former secretary-treasurer. 217 NLRB No. 48 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD however, rejected that approach, deciding instead to send two union business agents, Tom Carter and Leo Duncan, to visit Lucky Markets and investigate the matter.5 Business Agent Carter, on his way to Lucky Markets, encountered Copitas in the Union's parking lot and said to him, "Hey man, they are really trying to stick it to you." From the above incidents when read in their totality, we conclude that Wall's purpose in sending the two agents to Lucky Markets was for other than the ostensi- ble one of merely determining whether Copitas had been hired there. In our view, the real reason behind the visit, as found below, was the Respondent's reluctance to reinstate him to active membership, and the animosity exhibited towards Copitas by Wall.' When Carter and Duncan visited Lucky Markets, they questioned Kent as to whether he had hired any- one new. When told the answer of the job offer to Copitas, they asked for the work schedule for the week of March 18 and, noticing that it did not list any new hires, asked Kent why. His reply was that Copitas was to start the following week. Although that explanation would have normally sufficed to bring their visit to an end, Duncan and Carter in an unusual procedure criti- cized Kent's personnel policies. They took him to task for. failing to list employees' surnames on the work schedule as contrary to the contract-despite the fact that Kent had used only,first names for 13 years with- out incident. They further accused him of having vi- olated the seniority provisions of the contract by hiring a particular produce man listed in the schedule.' In our opinion, Kent would reasonably perceive the above conduct to be decidely more than required to establish the fact of his offer of a job to Copitas. The conduct convinces us, as it did him, that the actual purpose of the agents' visit was to persuade Kent to rescind that offer of employment or suffer more of the same kind of harassment from Respondent in the fu- ture. Plainly, Respondent, by the actions of its agents, showed that, unless Kent bowed to its wishes, it was ready to police strictly its contract with Lucky Markets so that Kent could take no actions without coming under its intense scrutiny. Thus, we are convinced that the presence of Carter and Duncan at Lucky Markets was directly attributable to Copitas' being offered a job by Kent. Clearly no other purpose prompted the visit 5 The undisputed testimony reveals that routine checking visits were usually made by only one such union agent. 6 The Board may, and in this case does, consider circumstantial evidence as well as direct evidence to make a realistic analysis of the Respondent's conduct. Local Union No. 272, International Association ofBridge, Struc- tural and Ornamental Iron Workers, AFL-CIO (Prestress Erectors, Inc.), 172 NLRB 207, 209 (1968), enfd. 427 F 2d 211 (C.A. 5, 1970); Local 25, Interna- tional Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Company), 162 NLRB 703 (1967). 7 This last accusation was retracted by Duncan on March 26 when he visited the store and was told by Kent that Copitas was not employed there. of two, rather than one, union agents, which repre- sented an unusual procedure. Furthermore, upon ar- rival at the store, the union agents did not restrict their inquiries to-determining whether Copitas had in fact been offered employment, which-if this had been their true objection-could have been quickly accomplished (or as suggested by Copitas, but rejected by Wall, over the telephone). Instead, they immediately began raising other matters related to Kent's personnel practices which had never previously concerned Respondent. Accordingly, it is clear that Kent, in subsequently assessing the conduct of Respondent's two agents, drew the connection intended by Respondent between their actions and his offer to employ Copitas. As a result Kent decided to rescind his offer to Copitas lest he be, in his words, "harassed" by the Union. Based on all of the above, therefore, we find that Respondent deliberately set in motion a chain of events which would cause Kent to refuse to hire Copitas and that it did so because Copitas had incurred Wall's dis- pleasure and enmity while Copitas was a union member and employee. In so finding, we reject Respondent's contention that the reasons for Kent's change of heart respecting his offer of employment to Copitas were Kent's personal considerations unrelated to the Union. It is evident that all that Respondent here did clearly conveyed to Kent the message that his best interests would be served by not hiring Copitas. We conclude, therefore, that but for this union message Kent would have employed Copitas. Accordingly we find, that by causing Kent to withdraw the job offer and to refuse to hire Copitas Respondent violated Section 8(b)(1)(A) and (2) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices proscribed by Section 8(b)(1)(A) and (2) of the Act, we shall order that it cease and desist there- from and that it take certain affirmative action de- signed to remedy its unfair labor practices and to effec- tuate the policies of the Act. As Respondent has been found to have caused Lucky Markets to rescind its offer of employment made to Copitas, because of his intraunion activities, we shall order it to notify Lucky Markets and Mitchell J. Copi- tas, in writing, that it has no objections to his employ- ment by Lucky Markets. We shall also order that Re- spondent make Mitchell J. Copitas whole for any loss of earnings he may have suffered by reason of its unfair labor practices. Respondent's liabilities therefor shall terminate 5 days after notifying Lucky Markets and Mitchell J. Copitas, as set forth above, that it has no objections to Copitas' employment. Loss of pay shall be computed in accordance with the formula in F W. RETAIL CLERKS UNION, LOCAL 1222 Woolworth Company, 90 NLRB 289 (1950), with inter- est at the rate of 6 percent per annum, as set forth in his Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW L Lucky Markets of San Diego, Inc., is an employer engaged in commerce within the meaning of the Act. 2. Retail Clerks Union, Local 1222, Retail Clerks International Association, AFL-CIO, is a labor organ- ization within the meaning of Section 2(5) of the Act. 3. Bill Wall, Tom Carter, and Leo Duncan are, and at all times material herein have been, agents of Re- spondent within the meaning of Section 2(13) of the Act. 4. By causing or attempting to cause Lucky Markets of San Diego, Inc., to discriminate against Mitchell J. Copitas in violation of Section 8(a)(3) of the Act, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b)(1)(A) and (2) of the Act. 5. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Retail Clerks Union, Local 1222, Retail Clerks International Association, AFL-CIO, its officers, agents, and repre- sentatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Lucky Markets of San Diego, Inc., or any other employer, to discriminate against employees in violation of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or co- ercing employees in the exercise of their rights guaran- teed in Section 7 of the Act, except to the extent that those rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act. 2. Take the following action which the Board finds will effectuate the policies of the Act: (a) Make whole Mitchell J. Copitas for any loss of earniings he may have suffered as a result of the dis- crimination against him caused by Respondent, in the manner set forth in the section of this Decision entitled, "The Remedy." (b) Notify Lucky Markets of San Diego, Inc., in writing, that Respondent has no objection to the em- ployment of Mitchell J. Copitas. Also notify Mitchell 273 J. Copitas, in writing, that is has no objection to his employment by Lucky Markets of San Diego, Inc. (c) Post at its business offices and meeting halls in San Diego, California, copies of the,attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to members are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Additional copies of the attached notice marked "Appendix" shall be signed by an authorized represen- tative of the Respondent and forthwith returned to the, aforesaid Regional Director for posting-by Lucky Mar- kets of San Diego, Inc., said Employer being willing, at its place of business at San Diego, California, where notices to its employees are customarily posted. (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. S In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Lucky Markets of San Diego, Inc., or any other em- ployer, to discriminate against employees in viola- tion of the National Labor Relations Act. WE WILL NOT in any like or related manner re- strain or coerce employees of Lucky Markets of San Diego, Inc., in the exercise of rights guaran- teed in Section 7 of the National Labor Relations Act, except to the extent that those rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. WE WILL notify Lucky Markets of San Diego, Inc., in writing, that we have no objection to the hiring of Mitchell J. ' Copitas by that company. WE WILL notify Mitchell J. Copitas, in writing, that we have written as above stated to Lucky Markets of San Diego, Inc.. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL reimburse Mitchell J. Copitas for any loss of earning he may have suffered because we caused Lucky Markets of San Diego , Inc., to re- scind its offer of employment made to him, or to refuse to hire him, together with interest at 6 per- cent. RETAIL CLERKS UNION, LOCAL 1222, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge: This case was tried before me in San Diego, California, on July 31, 1974. The charge was filed by Mitchell J. Copitas, an in- dividual, and served on the Respondent on April 1, 1974. The complaint issued June 19, 1974, alleging that Respondent had violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act. Posttrial briefs were filed by the -General Counsel and by Respondent. The basic issue herein is whether Respondent through acts of harassment caused, or attempted to cause, Lucky Markets of San Diego, Inc., to refuse to hire Copitas in retaliation for his intraunion activities in opposition to Billy Wall, Respon- dent's secretary-treasurer.' Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS OF FACT I JURISDICTION Lucky Markets of San Diego, Inc., hereinafter called Lucky Markets, is engaged in the operation of a retail grocery store located in National City, California. Lucky Markets, in the course and conduct of its business operations, annually derives gross revenues in excess of $500,000 and annually purchases and receives goods and products valued in excess of $2,000 from suppliers located within the State of Cali- fornia, which in turn purchased and received those goods and supplies directly from suppliers located outside the State of California. On the basis of the above facts, to which the parties stipu- lated, I find that Lucky Markets is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Facts 1 Background Respondent is a labor organization which represents em- ployees in retail stores in San Diego County including Lucky Markets. Until September 19, 1973,2 when he was ter- minated by Wall, Copitas had been employed by Respondent as an organizer for approximately 6-1/2years. In early 1973, following the resignation of Respondent's secretary-treasurer Marvin Brown, Wall, Copitas, Don Kirkpatrick and Ollie Hammerness were in competition for an interim appointment by Respondent's executive board to fill the remainder of Brown's term. Wall was appointed to the position. There- after, Copitas expressed strong opposition to certain of Wall's policies. Thus, at a September 18 membership meeting he, expressed opposition to Wall's position on staff car allow- ances and a proposed staff salary reduction. Among other things, Copitas told the membership that Wall was lying in regard to the proposed salary reduction and was trying to deceive them as to the car allowances, that in fact the car allowance plan proposed by Wall would be more costly than the old plan, and one employee was in actuality receiving a raise rather than a reduction in salary. Though Wall was present, he did not respond to the accusations. Around the first part of September, Copitas petitioned the Union to inspect its books and records. Within a week, this was permitted. On September 7, Wall issued him a warning notice for returning to the office to eat with office staff per- sonnel in violation of Respondent's instruction to all business representatives that they should perform their service for the membership in the field. On September 14, Wall instructed Copitas to report to San Francisco on Sunday, September 16, to assist a sister-local in a strike situation. Copitas asked Wall to send someone else, stating that he had some pending matters, including serving on a committee to seek an impartial attorney to look into the severance pay matter, and a pending grievance involving a $3,200 wage claim which the Company indicated it was seek- ing to have quashed through Respondent's President Don Kirkpatrick because Respondent owed the Company a favor. Wall said Ollie Hammerness would handle the severance pay issue and Copitas could turn his grievances over to Kirkpa- trick. Copitas did not report to San Francisco as instructed. Instead, on Monday, September 17, he went to Wall's office and told him that on the evening of September 14 he had received a warning by telephone not to go to San Francisco as an attempt might be made on his life, and again asked that another person be sent to San Francisco. Wall said he would speak to him later. After about 1-1/2 hours, Wall told Copi- tas he had ordered him to go to San Francisco, he had refused to go, so there was no alternative but to give him a warning notice, which he did. In addition to reciting the above inci- dent, the notice instructed Copitas to report to San Francisco on September 18 and warned that refusal to comply with these instructions would result in termination. Nevertheless, Copitas again failed to go to San Francisco. On September 18 he attended the membership meeting and opposed certain I The secretary-treasurer is the chief executive officer of Respondent 2 Unless otherwise indicated, all dates in this section are 1973 RETAIL CLERKS UNION, LOCAL 1222 proposals made by Wall as set out above. On September 19, he was terminated for failing to report to San Francisco as instructed.' In November Copitas unsuccessfully ran for election as one of Respondent's business agents. 2. Sequence of events On March 18, 1974,' Copitas applied for employment at Lucky Markets. He told Jack H. Kent, Sr., president of Lucky Markets that he had been blackballed' by Respond- ent and that he needed a job so he could reactivate his mem- bership in Respondent.' Kent said he didn't want any prob- lems with Respondent.7 Copitas asked if Kent had any part-time employees. When Kent answered in the negative, Copitas told him that there would be no problem with Re- spondent if he had no part-time help and there was no reduc- tion in hours for the full-time employees. Kent said he could use him 4 hours a week on Monday mornings to unload and stock shelves. At Copitas' request Kent further agreed to hire David Lasky, also one of Respondent's former business agents. Kent said he would be hospitalized for surgery and that Copitas and Lasky could begin work the following Mon- day, March 25. Later that same day, Copitas went to Respondent's office and attempted to pay his union dues. He said he had been hired by Lucky Markets and would start on Monday. The office clerks would not accept his tender so Copitas and Lasky talked to Kirkpatrick. Copitas asked Kirkpatrick if they could pay their dues to him since the clerks would not accept their dues because they could not find their ledger cards. Copitas asked if this meant that as long as the ledger cards could not be found, he and Lasky could not activate their membership. Kirkpatrick just smiled and shrugged his shoulders. Copitas asked if they could give their dues to Kirkpatrick and then the payment could be recorded when the ledger cards were found. Kirkpatrick said he wasn't ac- cepting moneys from anyone. Kirkpatrick also said "you know how Bill Wall is." Copitas said ask him if he makes it a habit of giving all members that want to join the Union this kind of hassle. Kirkpatrick said "you know the way Bill Wall is. l[ suggest that you come in tomorrow morning and speak to Mr. Wall on the matter." Copitas said he and Lasky were working, that Kirkpatrick could call to verify it. Kirkpatrick said he didn't have to call, that if they said they were hired, he had no reason to doubt it. On Tuesday, March 19, immediately following a meeting of Respondent's general membership, Copitas and Lasky ap- 3The uncontradicted testimony of Copitas is that one representative from Respondent remained in San Francisco for 1-1 /2 days and another for one-half day even though the strike lasted 8 months. There is no contention that the termination was illegally motivated 4 All dates hereinafter are in 1974 unless otherwise indicated. 5 Copitas concluded that he had been blackballed since he had been unable to find a job in the grocery industry However he admits that, except in one instance, he always applied for employment through an intermediary because he realized that his activity as a business representative with Re- spondent might make him persona non grata with employers. 6 Shortly after he was terminated by Wall, Respondent unilaterally placed Copitas on withdrawal (inactive membership) status. Copitas admits that constitution of Respondent's parent organization requires that a member who is not working in the industry be placed on withdrawal status. 7 Lucky Markets is signatory to a collective-bargaining agreement with Respondent which contains a union-security clause 275 proached Wall on the podium. Copitas asked Wall if he and Lasky could join the Union. Wall said "you have got a job, you are working, you can join." Copitas said they did have a job but the office clerks would not accept their dues. Wall just shrugged. Copitas told him that the office clerks said Wall had left orders for them not to accept their dues unless he okayed it. Wall turned away. Copitas asked what they had to do to join. Wall said "get it job." Copitas told him where they were working. Wall said he had two representatives out then checking on their employment who should return at any time. Wall asked Copitas and Lasky to meet him at his office. A short time later, Copitas asked if Wall had in fact in- structed the office clerks not to accept their dues without Wall's okay. Wall denied giving such instructions . Copitas asked if Wall made a habit of dispatching two representatives to verify a person's employment. Wall said, "Well, I had to do it with you." Copitas inquired why and Wall replied, "because you had told me that you were working at the Highlander Store at one time and you never did work there." Whereupon Copitas produced a payroll stub from High- lander to show that he had worked there. Wall said nothing, neither did he accept the dues.' Lasky and Copitas then went to the union office around noon. They were told that Wall was in a staff meeting. They told the office clerks that Wall said he had never instructed anyone not to accept their dues and Copitas again tendered his dues Again the tender was rejected. Copitas and-Lasky went to Kirkpatrick's office and asked if the representatives had returned from verifying their employment. Kirkpatrick said they had not left to make the check. Copitas inquired why they didn't telephone. Kirkpatrick said, "Well, you know Bill Wall. Those are his orders." Kirkpatrick also said that business representatives, Tom Carter and Leo Duncan,' would be leaving immediately to go to Lucky Markets to verify their employment. Duncan came by and Copitas asked him if he would take two hire cards for Kent to sign. Kirkpatrick said they didn't have any hire cards. Copitas said they did, that Kirkpatrick had given him some the day before."' Lasky, Copitas, Duncan, and Carter then walked out into the parking lot. Carter went to his car and beckoned to Copitas. When Copitas approached him, Carter said, "Hey, man, they are really trying to stick it to you." Copitas said, "Yeah, I can read." Duncan and Carter went to Lucky Markets that afternoon and spoke to Kent. Duncan asked if Copitas and Lasky had been hired. Kent said yes, they were to start the following Monday, that he was going to the hospital and they would unload for him. Duncan gave Kent the hire cards to fill out. After checking the work schedule, Duncan told Kent that his use of first names only on the schedule was insufficient and that he would have to use last names and first initials. Kent said they had used first names only for 13 years. Duncan 8 There is no evidence that an actual tender of dues was made to Wall 9 Duncan was a new representative with only 2 - 1/2 months experience on the job. He was the representative assigned to service Lucky Markets. Carter was an experienced representative whom Wall had assigned as coor- dinator for the grocery division . His job was to train and assist new represen- tatives. io Hire cards apparently are formal written notifications, signed by the Employer, as to the employment of new employees Duncan testified that they had run out of these cards and he had not been informed that any were then available 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD noticed on the schedule that a new produce man had been hired, so he inquired as to what would happen when the produce man who was out ill returned, saying there might be some seniority problem. Kent said he would have a job but there should be no seniority problem since he did not have the "know-how" of the new produce man. Later that afternoon, on being told that Wall was in a meeting, Copitas spoke to Carter by telephone. Carter in- formed him that they had checked with Kent who had veri- fied that Copitas and Lasky were to start work the following Monday. Copitas asked if he could come in and pay his dues. Carter said it was up to Wall. Copitas asked him to check with Wall. After a short wait, Carter told him that Wall said he would not accept dues from Lasky and Copitas until they actually went to work. Later that week, Kent's son told him two men had come to the store and asked for Kent. The son said he thought he recognized them as Respondent's business representatives. Whereupon Kent concluded that Respondent was beginning to harass him and therefore it would be best if he did not hire Copitas and Lasky. He called Copitas, told him the Union had been hassling him, that he could not afford any union problem so he was not going to hire them. On March 25, at a union meeting, Ronald Landrum, a member of Respondent and political supporter of Copitas, talked to Duncan in the presence of Michael Sweeney, a former, business representative for Respondent. Landrum asked Duncan how many times prior to the previous week he had visited Lucky Markets. Duncan said, "one." Landrum inquired as to the reason for the visit the previous week. Duncan said Wall had sent him to check the, scheduling. Landrum said, "you mean it took two business reps to go out and check one schedule." Duncan said Wall sent him. Sweeney asked, "did you and Carter go out to harass him." Duncan replied that Wall made them go. Sweeney asked what Copitas was going to do. Landrum said he didn't know. Sweeney asked if Duncan could get together with Copitas, Lasky, and Kent and straighten things out. Duncan said he would be glad to, and asked Landrum to ask Copitas if they could get together and talk to Kent. Landrum said Duncan should check with Copitas. The record does not indicate whether there was any follow through on this suggestion. Duncan's testimony as to this conversation preceded Land- rum's. His version does not specifically contradict Land- rum's. However, he did not testify that there was any discus- sion about "straightening things out" and he was not specifically questioned in this regard. On March 26, Duncan returned to Lucky Markets to check the schedule. Copitas and Lasky were not listed so he asked Kent if he had hired them. Kent said no. Duncan said it appeared that he had been wrong regarding the produce man. There was, further conversation. B. Conclusions There is little or no dispute as to the essential facts herein. General Counsel urges that a violation be found based on what he characterized as being "the extraordinary steps taken by Respondent to ascertain whether Copitas, a bitter and vituperative internal union opponent of the incumbent secre- tary-treasurer Wall, had in fact been hired, and the unusual demands made upon Lucky Markets during Respondent's visits to the store . . ." In support thereof, General Counsel relies on (1) Copitas' intraunion opposition to Wall, their "often bitter and acrimonious disagreements" over internal union policy matters, (2) Wall's termination of Copitas for insubordination, (3) the fact that Respondent chose to verify Copitas' employment through a personal visit rather than through a telephone call, (4) the fact that two business repre- sentatives, rather than one, were dispatched to obtain such verification, (5) Carter's statement: "Hey, man, they are really trying to stick it to you," (6) raising the question of Kent's use of first names only on the work schedule, a prac- tice he has followed for 13 years, (7) raising the possibility of a seniority problem arising over a new hire in the produce department upon the return to work of a produce man then out ill, (8) the refusal to accept Copitas' dues; and (9) Dun- can's agreement "to straighten things out" between Copitas and Kent. Contrary to the General Counsel, I find these facts insufficient to support an inference of illegal motivation. Any bitterness or acrimony between Copitas and Wall was solely on the part of Copitas insofar as revealed by the record. Copitas admits that Wall never responded to his accusations, and there is insufficient evidence to establish animus sur- rounding the circumstances of Copitas' discharge. Copitas admits that the international constitution requires that mem- bers not working in the industry be placed'on inactive status and although General Counsel asserts that refusing to accept Copitas' dues was contrary to usual practice, there is no evidence as to what the practice was on accepting dues prior to an employee actually beginning work in the industry. The fact that employment was verified by personal visit by two representatives rather than by telephone and that at the time of the visit, the representative assigned to service Lucky Mar- kets followed the routine" for a normal servicing visit and raised two items, apparent from the fact of the work schedule, is insufficient without more to establish that Respondent had embarked on a campaign of harassment. Nor does the asser- tion of illegal motivation gain any support from Carter's statement or Duncan's agreement to straighten things, out. There is no evidence that Carter participated in any decision with regard to Copitas and no evidence as to any facts on which he based his remarks. As to Duncan, his_ statement is as easily attributable to a desire to straighten out any,unfortu- nate misunderstanding as it is to a more sinister motive. In all of the circumstances, I find that a preponderance of the evidence fails to establish that Respondent caused, or attempted to cause, Lucky Markets to fail and refuse to hire Lasky in violation ofSection 8(b)(1)(A) and (2) of the Act and I therefore recommend that the complaint be dismissed in its entirety. 11 According to Carter, the normal routine is to check the names on the work schedule against those in the representatives' route book If the schedule contains names not listed in the route book, these names would be turned in to the office to determine if they were members of Respondent In this way they could police the union-security provision of the contract and also keep track of any transfers. RETAIL CLERKS UNION , LOCAL 1222 277 CONCLUSIONS OF LAW 1. Lucky Markets of San Diego, Inc., is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. - t 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. [Recommended Order for dismissal omitted from publication.]