Retail Clerks Store Employees Union Local 1407

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Retail Clerks Store Employees Union Local 1407, as chartered by Retail Clerks International Associa- tion, AFL-CIO and J. M. Batter Co., Inc., d/b/a Jaison's. Case 6-CP-269 December 9, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon, charges. duly filed on April 30, 1974, as amended on June 4, 1974, by J. M. Balter Co., Inc., d/b/a Jaison's, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 6, issued a complaint and notice of hearing dated June 14, 1974, against Respondent Retail Clerks Store Employees Union Local 1407. The complaint alleges that the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(7)(C) and Section 2(6) and (7) of the Act. On July 17, 1974, the parties to this proceeding en- tered into a stipulation of facts, in which they agreed that the stipulation of facts and certain other docu- ments, copies of which were attached thereto and made a part thereof, constitute the entire record in this pro- ceeding. The parties also waived a hearing before an Administrative Law Judge, and the issuance of an Ad- ministrative Law Judge's decision. On July 25, 1974, the Board issued an order approving stipulation and transferring proceeding to the Board for findings of fact, conclusions of law, and the issuance of an appro- priate Decision and Order. 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. FINDINGS OF FACT I JURISDICTION J. M. Balter Co., Inc., d/b/a Jaison's, the Charging Party herein, is a Pennsylvania corporation engaged in the retail merchandising industry. It maintains various retail stores in Allegheny County, Pennsylvania. More particularly, Jaison's operates retail stores located in Braddock, Monroeville, McKeesport, and Pleasant Hills, Pennsylvania. During the proceding 12-month period, Jaison's has sold and distributed products, the gross value of which exceeded $500,000, and has pur- chased goods and materials valued in excess of $50,000 from points directly outside the Commonwealth of Pennsylvania for use within the said Commonwealth. Accordingly, we find that Jaison's is, and at all times material herein has been, an employer engaged in com- merce and operations affecting commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdic- tion herein. 11 THE LABOR ORGANIZATION INVOLVED Respondent Union is, and at all times material herein has been, a labor organization within the mean- ing of Section 2(2) of the Act. III THE UNFAIR LABOR PRACTICE A. Facts The complaint herein alleges that the Respondent Union has, since April 22, 1974, picketed Jaison's several retail stores in furtherance of its demand for recognition as the collective-bargaining representative of Jaison's employees; that such picketing has con- tinued for more than 30 days without a petition for an election having been filed under Section 9(c) of the Act; that the Respondent Union is not currently certified as the bargaining representative of Jaison's employees; and therefore that by the aforesaid conduct the Re- spondent Union has violated Section 8(b)(7)(C) of the Act. On August 13, 1973, the Respondent Union filed a petition seeking to represent employees of Jaison's Pleasant Hills, Pennsylvania, store, otherwise known as the Southland store. Contemporaneously, a charge was filed against Jaison's alleging violations of Section 8(a)(1), (3), and (5) of the Act, involving employees at the Southland store. Accordingly, processing of the aforementioned petition was held in abeyance. On October 29, 1973, the aforesaid charge was amended to delete the allegation that Jaison's violated Section 8(a)(5) of the Act, and the Respondent Union signed a "Request to Proceed" with the representation case.' Notwithstanding the fact that only a unit comprising Jaison's Southland store employees was sought in its petition, the Respondent Union, on November 15, 1973, executed a stipulation for certification upon con- sent election covering employees at all four of Jaison's stores. Accordingly, the Respondent Union was given time to submit additional authorization cards evidenc- ing employees' showing of interest in the broadened unit. The Respondent Union failed to submit such ad- ditional cards and, on November 27, 1973, requested ' As more fully set forth hereinafter, the Board, on June 24, 1974, issued its Decision and Order (212 NLRB 1) finding that Jaison's violated Sec. 8(a)(1) and (3) of the Act 215 NLRB No 77 RETAIL CLERKS STORE EMPLOYEES UNION LOCAL 1407 that it be allowed to withdraw its petition. The Re- gional Director approved this request. On November 30, 1973, 3 days later, the Respondent Union again filed a petition seeking to represent Jai- son's Southland store employees. On April 15, 1974, the Regional Director issued a Decision and Order dismissing the aforementioned petition. In his decision, the Regional Director held, inter alia, that the pre- sumption that a single-store unit is appropriate has in this case been effectively rebutted and, therefore, that a unit confined to Jaison's Southland store, as sought by the Respondent Union's new petition, would be inappropriate. Accordingly, as the Union made no al- ternative unit request, the Regional Director granted Jaison's motion to dismiss the petition. The Respond- ent Union did not file a request for review of the afore- mentioned decision. Meanwhile, on February 22, 1974, an Administra- tive Law Judge issued his Decision in the complaint case against Jaison's, heretofore mentioned. In his Decision, which we subsequently adopted,' the Ad- ministrative Law Judge found that Jaison's had unlaw- fully discharged a known union adherent who was the principal participant in the Union's organizing cam- paign; had unlawfully interrogated and threatened em- ployees; had suggested that employees might have en- joyed greater benefits were it not for the Union; and had given employees the impression that they were under survillance. Furhter, on February 25, 1974, the Respondent Union again filed a charge, alleging that Jaison's had unlawfully refused to bargain with the Union as the representative of employees "in an appro- priate unit" at the Southland store. Commencing on April 22, 1974, while the refusal-to- bargain charge against Jaison's was still pending before the Regional Director, and continuing to June 17, 1974, the Respondent Union picketed Jaison's South- land store during that store's regular business hours. During the picketing, individuals acting on behalf of the Respondent Union made verbal appeals to the con- suming public not to do business with Jaison's because of certain alleged unfair labor practices committed by the latter and because of its refusal to recognize and bargain with the Respondent Union. Contemporane- ously, these individuals distributed handbills to mem- bers of the consuming public, variously seeking their support and asserting that Jaison's has violated the rights of employees because the latter wished to im- prove their status through collective bargaining. One such handbill was a copy of the recommended Order of the Administrative Law Judge in the aforementioned unfair labor practice case, which was ultimately adopted by the Board on June 24, 1974. 2 212 NLRB 1. 411 In addition to the foregoing picketing which oc- curred at the Southland store during a period substan- tially in excess of 30 days, the Respondent Union also picketed, in identical fashion, Jaison's stores located in McKeesport, Braddock, and Monroeville, Pennsyl- vania. Such picketing, however, was exceedingly brief, occurring at McKeesport for a 2-hour period on May 21, at Braddock for 2 hours on May 23, and at Monroe- ville for 3 hours on the 24th. Approximately I week after picketing began at the Southland store, the Regional Director, by letter dated April 30, 1974, informed the Respondent Union that he would not issue a complaint based on the 8(a)(5) allega- tions contained in the Union's charge, which was filed on February 25, "inasmuch as the single-store unit for which you seek recognition constitutes an inappropri- ate unit." The Respondent Union appealed the decision of the Regional Director. In its May 16 letter to the General Counsel, the Union alluded to the unfair labor practices found by the Administrative Law Judge to have been committed by Jaison's at each of its four locations, as aforementioned, and asserted that, by engaging in such conduct, organizational efforts have been made "im- possible." The Union further stated: The Regional Director ruled that a one-store unit is inappropriate in this case and that only a four- store unit would be appropriate. It is the position of the [Union] that the Employer should be re- quired to bargain with the union at all four of its locations because of the destructive effect the em- ployer's conduct has had on organizational efforts. The [Union] does not, therefore seek recogni- tion in a single store unit as suggested by the Re- gional Director in his dismissal letter. On May 31, 1974, the General Counsel denied the Union's appeal, stating, inter alia: Insofar as your appeal suggests that the unit sought herein encompassed all four of the Com- pany's stores rather than only its Southland store, and notwithstanding certain 8(a)(1) conduct on the part of the Company affecting all four stores, it could not be said that a bargaining order was thereby warranted inasmuch as no evidence was adduced nor was it even contended that a timely bargaining demand had been made or majority status claimed concerning employees in any unit of Company employees other than those in the Southland store unit which the Regional Director found inappropriate. The Respondent Union concedes that an object of its picketing at all the stores in question was to force or require Jaison's to recognize or bargain with the Union 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the representative of Jaison's employees to force or require those employees to accept or select it as their collective-bargaining representative at those stores, notwithstanding that the Union lacks certification as the representative of Jaison's employees. B. Contentions of the Parties Based on the above facts, the General Counsel con- tends that the Respondent Union violated Section 8(b)(7)(C) of the Act not only by picketing the South- land store, which the Union concedes, but also by its brief picketing at Jaison's three remaining stores. In this respect, the General Counsel argues that the pick- eting at the three remaining locations is no less violative of the Act simply because such picketing was of short duration and would not itself have run afoul of the 30-day provision contained in Section 8(b)(7)(C) of the Act. Accordingly, the General Counsel argues that an appropriate remedy in this case would be to enjoin further picketing at all of the aforementioned locations. As previously stated, the Respondent Union con- cedes that it violated Section 8(b)(7)(C) of the Act by its picketing at the Southland store. However, it main- tains that an order requiring a cessation of picketing should be limited to that store alone. In support of its position, the Union argues that employees at each of the Employer's stores are entitled to a 30-day period of exposure to the Union's "message," conveyed by the picketing, and further, that in this case it lacked the manpower to undertake simultaneous picketing at all four of Jaison's stores . Accordingly, the Union con- tends that the Board should not prohibit picketing at Jaison's Braddock, Monroeville, and McKeesport stores until such time as it has had an opportunity to engage in organizational picketing for a period not to exceed 30 days at each of those locations. C. Conclusions We hold, in agreement with the General Counsel, that the Respondent Union violated Section 8 (b)(7)(C) of the Act, not only by its picketing at the Southland store, which the Respondent Union concedes, but also by its picketing at the three remaining locations. The Union, however, would have us restrict our find- ings of unlawful conduct to the single location at which picketing occurred for a period in excess of 30 days. We find its arguments unpersuasive. It does not suggest that separate questions concerning representation are raised by the picketing at each of the locations. Indeed, the Respondent Union admits that the picketing at all four stores was for a single recognitional object encom- passing all locations . The Union argues simply that the Act assures employees at each of the aforementioned locations the opportunity to receive the Union's "mes- sage" for a period of 30 days. The fault in this argument lies in the Union's failure to distinguish between the basic right of Jaison's employees to be apprised of the advantages of collective bargaining, which Section 8(b)(7)(C) does not limit, and the right of the Union to engage in picketing for the purpose of forcing or requir- ing Jaison's to recognize or bargain with it, or of forcing or requiring Jaison's employees to accept or select it as their collective-bargaining representative, which that section of the Act does limit, in clear terms, to a period not to exceed 30 days' duration. In sum, that section does not grant a right but limits one. We do not ignore this limitation simply because a single question con- cerning representation ranges over a number of geo- graphical locations.' To do so here, as the Union sug- gests, would not only do violence to the clear language of that section, which establishes 30 days as an "outside limitation" on the time deemed reasonable for the kind of picketing dealt with therein,' but would also sub- vert the legislative purpose in enacting Section 8(b)(7)(C); namely, to encourage prompt resort to the Board's election machinery, rather than protracted picketing, as the method for resolving questions con- cerning representation.' Accordingly, we find that the Respondent Union not only violated Section 8(b)(7)(C) by picketing Jaison's Southland store, as admitted, but also, by engaging in identical or similar picketing for the same object at Jaison's Braddock, Monroeville, and McKeesport stores. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with Jai- son's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow thereof. V. THE REMEDY It having been found that the Respondent Union has engaged in certain unfair labor practices, we shall order that the Respondent Union cease and desist therefrom and take certain affirmative action deemed necessary to effectuate the policies of the Act. 3 Los Angeles Building and Construction Trades Council, AFL-CIO (Church's Fried Chicken, Inc., et al.), 183 NLRB 1032, 1038 (1970). 4 District 65, Retail, Wholesale & Department Store Union, AFL-CIO (Eastern Camera & Photo Corp.), 141 NLRB 991, 999-1000 (1963). 5 Dayton Typographical Union No. 57 v. N.L.R.B., 326 F.2d 634, 636-637 (C.A.D.C., 1963). RETAIL CLERKS STORE EMPLOYEES UNION LOCAL 1407 413 CONCLUSIONS OF LAW 1. J. M. Baiter Co., Inc., d/b/a Jaison's, is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Store Employees Union Local 1407, as chartered by Retail Clerks International Associa- tion, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing Jaison's Southland store from April 22 to June 17, 1974, its McKeesport store on May 21, its Braddock store on May 23, and its Monroeville store on May 24, 1974, with an object of forcing or requiring Jaison's to recognize and bargain collectively with the Respondent Union as the representative of its em- ployees and with an object of forcing or requiring the employees of Jaison's to accept or select the Respond- ent Union as their collective-bargaining representative, although the Respondent Union has not been certified as the representative of any such employees and has not, within 30 days after the commencement of such picketing, filed a petition under Section 9(c) of the Act, the Respondent Union has committed unfair labor practices within the meaning of Section 8(b)(7)(C) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. agreement with it, or to force or require Jaison's em- ployees to accept or select the Respondent Union as their collective-bargaining representative in circum- stances prohibited by Section 8(b)(7)(C) of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Re- gional Director for Region 6, after being duly signed by an authorized representative, shall be posted by it immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to members are customarily posted. Reason- able steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (b) The Respondent Union shall transmit to the Re- gional Director for Region 6 signed copies of the said notice for posting by Jaison's, said company being will- ing, in places where notices to its employees are cus- tomarily posted. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. APPENDIX 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 Store Employees Union Local 1407, as chart- ered by Retail Clerks International Association, AFL-CIO, Pittsburgh, Pennsylvania, its officers, agents, and representatives, shall: 1. Cease and desist from picketing or causing to be picketed or threatening to picket J. M. Balter Co., Inc., d/b/a Jaison's, at its Southland, McKeesport, Brad- dock, or Monroeville stores, where an object thereof is to force or require the said Company to enter into an 6 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." NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, under any conditions prohibited under Section 8(b)(7)(C) of the National Labor Relations Act, picket, cause to be picketed, or threaten to picket Jaison's Southland, McKees- port, Braddock, or Monroeville stores, where an object thereof is to force or require said Company to enter into a labor agreement with us, or to force or require Jaison's employees to accept or select us as their collective-bargaining representative. RETAIL CLERKS STORE EMPLOYEES UNION LOCAL 1407, AS CHARTERED BY RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO