United Food and Commercial Workers Union, Local 135, AFL-CIO; United Food and Commercial Workers Uni

373 NLRB No. 77 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. United Food and Commercial Workers Union, Local 135, AFL–CIO; United Food and Commercial Workers Union, Local 324, AFL–CIO; United Food and Commercial Workers Union, Local 770, AFL–CIO; United Food and Commercial Workers Union, Local 1167, AFL–CIO; United Food and Commercial Workers Union, Local 1428, AFL–CIO; United Food and Commercial Workers Union, Local 1442, AFL–CIO; and United Food and Commercial Workers Union, Local 8-Golden State, AFL–CIO and Ralphs Grocery Company. Case 21-CE-300089 July 19, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX On December 21, 2023, Administrative Law Judge Amita Baman Tracy issued the attached decision. The Re- spondents filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed answering briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order as modified.2 ORDER The Board adopts the recommended Order of the ad- ministrative law judge as modified below and orders that 1 Members Prouty and Wilcox acknowledge that Food & Commercial Workers Local 1442 (Ralphs Grocery), 271 NLRB 697 (1984), is the governing law for the purpose of deciding this case and apply it here for institutional reasons. In Ralphs Grocery, the Board found that a clause contained in a collective-bargaining agreement was an unlawful union signatory clause under Sec. 8(e), relying upon the facially plain meaning of the clause, thereby adopting the judge’s rejection of contextual and as- applied evidence regarding the meaning of the disputed clause. 271 NLRB at 698 fn. 9, 699 fn. 4. However, in a future appropriate case, Members Prouty and Wilcox would be open to reconsidering the propri- ety of a facial analysis, given that the legality of any clause under Sec. 8(e) turns on determining its purpose—whether it has a lawful primary purpose of “preservation of work” for unit members or an unlawful sec- ondary purpose of “satisfy[ing] union objectives elsewhere”—and that “determination . . . cannot be made without an inquiry . . . under all the surrounding circumstances.” National Woodwork Manufacturers Asso- ciation v. NLRB, 386 U.S. 612, 644 (1967). 2 We shall modify the judge’s recommended Order to conform to the Board’s standard remedial language. the Respondents, United Food and Commercial Workers Union, Locals 135, 324, 770, 1167, 1428, 1442, and 8- Golden State, AFL–CIO, their officers, agents, and repre- sentatives, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(b). “(b) Within 14 days after service by the Region, post at their business offices and meeting halls copies of the at- tached notice marked ‘Appendix.’3 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondents’ authorized repre- sentative, shall be posted by the Respondents and main- tained for 60 consecutive days in conspicuous places, in- cluding all places where notices to members are custom- arily posted. In addition to physical posting of paper no- tices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondents customarily communicate with their members by such means. Rea- sonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other material.” 2. Insert the following as paragraph 2(c) and reletter the subsequent paragraph accordingly. “(c) Within 14 days after service by the Region, deliver to the Regional Director for Region 21 signed copies of the notice in sufficient number for posting by the Em- ployer, if willing, at all places where its notices to employ- ees are customarily posted.” 3. Substitute the attached notice for that of the admin- istrative law judge. Dated, Washington, D.C. July 19, 2024 ______________________________________ Lauren McFerran, Chairman 3 If the facilities involved in these proceedings are open to members, the notices must be posted within 14 days after service by the Region. If the facilities involved in these proceedings are closed or not accessible to members due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notices must be posted within 14 days after the facilities reo- pen and are accessible to members. If, while closed or not accessible to members due to the pandemic, the Respondents are communicating with their members by electronic means, the notices must also be posted by such electronic means within 14 days after service by the Region. If the notices to be physically posted were posted electronically more than 60 days before physical posting of the notices, the notices shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If 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 Pur- suant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 ________________________________________ David M. Prouty, Member ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain on your behalf with your employer Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT enter into, maintain, enforce, or give ef- fect to Article 1.A.2 of our current Retail Food, Meat, Bakery, Candy and General Merchandise Agreement with Ralphs Grocery Company or with any other employers or employer associations who have become party to similar agreements because that Article violates Section 8(e) of the National Labor Relations Act. WE WILL NOT enter into, maintain, enforce, or give ef- fect to any contract or agreement, express or implied, with Ralphs Grocery Company or with any other employers or employer associations whereby the employer ceases or re- frains or agrees to cease or refrain from handling, using, selling, transporting, or otherwise dealing in any of the products of any other employer, or ceases doing business with any other person. WE WILL rescind, remove, and render null and void and of no effect Article 1.A.2 of our current Retail Food, Meat, Bakery, Candy and General Merchandise Agreement with Ralphs Grocery Company, which states the following: All work or services not specifically excluded by this Agreement is hereby recognized as bargaining unit work. Such bargaining unit work shall not be subcontracted, except as provided herein. Employees of lessees, licensees and concessionaires (hereinafter re- ferred to as leased departments) shall be covered by this Agreement, and the Employer will at all times exercise and retain full control of the terms and conditions of em- ployment within its stores of all employees of such leased departments. The employees of such leased de- partments shall be and remain members of a single over- all unit encompassing all employees at the stores. This Agreement shall apply to all bargaining unit employees of such leased departments, except that if such leased de- partment engages in a line of business which has not been historically and generally been of the type and kind engaged in by the Employer through its grocery, pro- duce, drug, delicatessen, general merchandise, bakery or liquor departments, then in such event, the Union and the operator of the leased department shall meet and negoti- ate appropriate wages for employees performing such work. If the Union and the operator of the leased depart- ment are unable to agree upon such appropriate wages, an arbitrator shall be selected to hear and determine the dispute with respect to such matter, in accordance with Article 12 of this Agreement, notwithstanding in this sit- uation any provisions to the contrary contained therein. The seniority of employees of leased departments shall be separate from the seniority of employees of the Em- ployer and the employees of other leased departments. The obligation of the Employer under this Agreement with respect to any leased department shall be limited to the foregoing, and the Employer shall not be liable for any breach of contract or failure of a leased department to abide by any provision of this Agreement; provided that the Employer shall furnish to the Union written ev- idence of its agreement with the operator of the leased department that the operator of the leased department has assumed the obligations of this Agreement. With respect to leased departments which are in existence as of the effective date of this Agreement, this Paragraph 2 shall have no application to such leased departments and no claim of violation of this Agreement or any predeces- sor agreement shall be made or maintained with respect to any such leased departments in existence as of the ef- fective date of this Agreement. UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 135, AFL–CIO UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 324, AFL–CIO UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 770, AFL–CIO UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 135 3 UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 1167, AFL–CIO UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 1428, AFL–CIO UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 1442, AFL–CIO UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 8-GOLDEN STATE, AFL–CIO Dated ______________ By _________________________ (Representative) (Title) The Board’s decision can be found at https://www.nlrb.gov/case/ 21-CE-300089 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National La- bor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940 Phuong Do, Esq., for the General Counsel. Margo Feinberg, Esq. and Henry Willis, Esq., for Respondent Local 770, 1428. Ryan Spillers, Esq. and Joseph Paller, Esq., for Respondent Lo- cal 324, 1442. Jeffrey S. Wohlner, Esq., for Respondent Local 1167. Hannah Weinstein, Esq. and Glenn Rothner, Esq., for Respond- ent Local 135. Timothy F. Ryan, Esq., for the Charging Party. 1 The transcripts and exhibits in this case are generally accurate ex- cept that references to “Hearing Officer Tracy” should be to “Judge Tracy.” 2 Although I have included several citations to the evidentiary record in this decision to highlight testimony or exhibits, I emphasize that my findings and conclusions are not based solely on those citations, but ra- ther are based on my review of the entire record for this case. Counsel for the General Counsel called no witnesses, while the Unions called two witnesses to testify about the history of the collective-bargaining DECISION STATEMENT OF THE CASE AMITA BAMAN TRACY, Administrative Law Judge. This mat- ter concerns whether specific contract language between Ralphs Grocery Company and locals of the United Food and Commer- cial Workers is deemed to be unlawful under Section 8(e), “the hot cargo section” of the 1959 Landrum-Griffin amendments to the National Labor Relations Act (the Act). Generally, Section 8(e) prohibits unions and employers from entering into agree- ments where the employer agrees to not deal with the products of another employer or to stop doing business with another per- son. Such execution is without regard to whether any party to the contract attempts to enforce the unlawful clause. Here, es- sentially the same language at issue has been found by the Na- tional Labor Relations Board (the Board) to violate the Act at least four times, the last violation being found almost 40 years ago. I find that this provision, once again, on its face, violates the Act a fifth time. The Unions’ arguments that the provision is law- ful as a work preservation clause are unpersuasive. I heard this case on August 2, 2023, in Los Angeles, Califor- nia. This matter is before me on a complaint and notice of hear- ing (complaint) issued on February 24, 2023, arising from an un- fair labor practice charge filed by Ralphs Grocery Company (Charging Party or Employer) against United Food and Com- mercial Workers (UFCW), Locals 135, 324, 770, 1167, 1428, 1442, and 8-Golden State, AFL–CIO (collectively, Respondents or Unions or individually, Local, followed by the number) on July 25, 2022. The General Counsel alleges that on April 4, 2022, the Unions entered into and maintained an agreement pro- hibited by Section 8(e) of the Act whereby the Employer agreed not to do business with any other employer or person. The Un- ions filed timely answers and amended answers to the complaint, denying all material allegations and alleging that the agreement at issue contains a lawful, primary valid work preservation clause. On the entire record,1 including my observation of the wit- nesses’ demeanor,2 and after considering the posthearing briefs and other motions and briefs filed by the General Counsel, the Charging Party, and the Respondents,3 I make the following. FINDINGS OF FACT I. JURISDICTION At all material times, Ralphs Grocery Company has been a California corporation, with an office and place of business in Compton, California (Compton facility), and has been operating retail grocery stores in California. Ralphs Grocery Company, during the 12-month period ending September 1, 2022, derived language at issue. Kathy Finn and Andrea Zinn testified about the inten- tion and enforcement of the language in dispute historically. There are no credibility disputes in this matter. 3 Other abbreviations used in this decision are as follows: “GC Exh.” for the General Counsel’s exhibit; “R. Exh.” for Respondents’ exhibit; “Jt. Exh.” for Joint Exhibit; “GC Br.” for the General Counsel’s Brief; “CP Br.” for Charging Party’s Brief; “R. Br.” for Respondents’ Brief, and “p.” for page number. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 gross revenues in excess of $500,000 and purchased and re- ceived at its Compton facility goods valued in excess of $50,000 directly from points outside the State of California. Ralphs Gro- cery Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and the Unions are labor organizations within the meaning of Section 2(5) of the Act. Based on the foregoing, I find that this dispute affects com- merce and that the Board has jurisdiction of this case, pursuant to Section 10(a) of the Act. THE ALLEGED UNFAIR LABOR PRACTICES A. The Parties’ Article 1,A,2 On about April 4, 2022, the Employer and the Unions entered into a collective-bargaining agreement (Agreement)4 which state, at Article 1, A (Recognition of the Union, Bargaining Unit), paragraph 2: All work or services not specifically excluded by this Agree- ment is hereby recognized as bargaining unit work. Such bar- gaining unit work shall not be subcontracted, except as pro- vided herein. Employees of lessees, licensees and concession- aires (hereinafter referred to as leased departments) shall be covered by this Agreement, and the Employer will at all times exercise and retain full control of the terms and conditions of employment within its stores of all employees of such leased departments. The employees of such leased departments shall be and remain members of a single overall unit encompassing all employees at the stores. This Agreement shall apply to all bargaining unit employees of such leased departments, except that if such leased department engages in a line of business which has not been historically and generally been of the type and kind engaged in by the Employer through its grocery, pro- duce, drug, delicatessen, general merchandise, bakery or liquor departments, then in such event, the Union and the operator of the leased department shall meet and negotiate appropriate wages for employees performing such work. If the Union and the operator of the leased department are unable to agree upon such appropriate wages, an arbitrator shall be selected to hear and determine the dispute with respect to such matter, in ac- cordance with Article 12 of this Agreement, notwithstanding in this situation any provisions to the contrary contained therein. The seniority of employees of leased departments shall be sep- arate from the seniority of employees of the Employer and the employees of other leased departments. The obligation of the Employer under this Agreement with respect to any leased de- partment shall be limited to the foregoing, and the Employer shall not be liable for any breach of contract or failure of a leased department to abide by any provision of this Agreement; provided that the Employer shall furnish to the Union written evidence of its agreement with the operator of the leased de- partment that the operator of the leased department has as- sumed the obligations of this Agreement. With respect to leased departments which are in existence as of the effective 4 This Agreement is the conformed retail Food, Meat, Bakery, Candy, and General Merchandise Agreement, dated March 7, 2022, through March 2, 2025 (GC Exh. 2, R. Exh. 1). date of this Agreement, this Paragraph 2 shall have no applica- tion to such leased departments and no claim of violation ofthis Agreement or any predecessor agreement shall be made or maintained with respect to any such leased departments in ex- istence as of the effective date of this Agreement. (GC Exh. 2). Also, on April 4, 2022, the Employer, the Unions, Albertsons, and Vons reached a memorandum of understanding whereby the new Agreement would contain the provisions of the expired collective-bargaining agreement (March 4, 2019, through March 6, 2022) (GC Exh. 4; R. Exh. 20), which in- cluded, unchanged the language in Article 1,A,2 (GC Exh. 3). B. History of the Alleged 8(e) Contractual Provisions As the Unions admit, the language contained in Article 1,A,2 has largely remained the same since 1964 (GC Exh. 1(y), p. 1).5 The major difference in the language is that rather than two sep- arate sections of Article 1, the provision now is encompassed in one section. Also, since 1965, the Board has found this language to be facially unlawful at least four times. See Retail Clerks Lo- cal 1428 (Jones & Jones), 155 NLRB 656 (1965) (holding vio- lation of Sec. 8(e) by requiring non-bargaining unit employees (rack jobbers) and others doing business with the employer to become members of the bargaining unit and execute the 1964 collective-bargaining agreement as a condition of continued em- ployment, known as a union-signatory clause); Retail Clerks Lo- cal 770 (Hughes Markets, Inc., and Saba Prescription Phar- macy), 218 NLRB 680 (1975) (holding that the provision was not designed to address the labor relations of the contracting em- ployers vis-à-vis their own employees, but rather was calculated to achieve union objectives elsewhere including as an unlawful unit acquisition clause); Retail Clerks Local 324 (Ralph’s Gro- cery I), 235 NLRB 711 (1978) (holding that the provision is an unlawful unit acquisition clause as well as effectively an unlaw- ful union-signatory clause thereby violating Sec. 8(e)); and Food & Commercial Workers Local 1442 (Ralph’s Grocery II), 271 NLRB 697 (1984) (holding violation of Sec. 8(e) as contract clause is not designed to protect wages and job opportunities for unit employees covered by the contract, but instead is directed at furthering general union objectives and regulating the labor pol- icies of other employers by its unlawful union-signatory clause). The specific unlawful provisions that were found to violate Section 8(e) are as follows:  Retail Clerks Union, Local 1428 (Jones & Jones), 155 NLRB 656, 665–666 (1965): Article 1 (Recognition of the Union). A. Bargaining unit. 1. The Employer recognizes the Union as the sole collective bar- gaining agent with respect to work, rates of pay, hours, and terms and conditions of employment for the appropriate bar- gaining unit composed of all employees, including employees of lessees, licensees and concessionaires (sometimes herein re- ferred to as “leased departments”), except as limited below, who perform work within food markets, discount stores, drug 5 Prior to 1979, the UFCW was known as the Retail Clerks Interna- tional Union. UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 135 5 stores, and shoe stores presently operated and hereafter estab- lished, owned or operated by the Employer within the territorial jurisdiction of the Local Union. Food markets are defined as those types of establishments covered by collective bargaining agreements identified as Retail Food, Bakery, Candy and Gen- eral Merchandise Agreement, January 1, 1959, to March 31, 1964. 2. All work or services, not specifically excluded by this Agreement, is hereby recognized as bargaining unit work. Such bargaining unit work shall neither be subcontracted nor per- formed by any person not a member of the bargaining unit. 3. The Employer agrees that any employees performing bargain- ing unit work set forth in this Agreement, within its establish- ments, including employees of lessees, licensees, and conces- sionaires shall be members of a single, overall unit, and the Em- ployer will at all times exercise and retain full control of the terms and conditions of employment within its establishments of all such employees pursuant to this Agreement, and shall not enter into or maintain and enforce any lease or other agreement inconsistent with the provisions hereof. The Employer's obli- gation with respect to operators of leased departments is limited to that set forth above, provided that the Employer shall furnish to the Union written evidence that the operator of the leased department has assumed such obligation. With respect to con- cessionaires, such as rack jobbers, who do not have a fixed re- tail place of business, the Employer shall have the Concession- aire Agreement, a sample of which is attached as Appendix B, executed by the concessionaire or his designated agent. Pro- vided the Employer fulfills his obligation as set forth above, the Employer shall not be liable for any breach of contract or fail- ure of a leased department to abide by the wages, hours and working conditions set forth in this Agreement. The seniority of employees of leased departments shall be separate from the seniority of employees of the Employer and of employees of other leased departments. 4. In the event that the Employer es- tablishes a new department or creates new work or enters into any lease, license agreement, or concession agreement involv- ing the performance of any new work in any of the stores or establishments operated by the Employer which are covered by this Agreement, for which wages are not specifically provided in this Agreement, it is agreed that, should the parties be unable to reach agreement upon wages for such work, the parties shall then submit the matter to arbitration in accordance with Article XIV of this Agreement, notwithstanding in this situation any provisions to the contrary contained therein, and shall be bound by the terms of the arbitration award. 5. In the event the signa- tory Employer should operate discount stores, drug stores, or shoe stores within the territorial jurisdiction of the Local Union, the appropriate terms and conditions of employment, as in ex- istence with the other employers operating alike retail estab- lishments, shall be immediately applied by the signatory Em- ployer, except in those marketing areas where Local Unions 137, 899 and 1167 have not established a prevailing scale through a collective bargaining agreement. In that event, the Employer and such Local Union shall negotiate an equitable rate for said store or stores which shall remain in effect subject to the usual reopening of the contract for further negotiations, or until such time as the Union is able to establish with other competitive employers higher prevailing wage rates and conditions which shall then become applicable. Upon failure of the parties to agree on the wage rates, the rates shall be estab- lished by arbitration, again notwithstanding in this situation any provisions to the contrary contained therein. 6. It is recognized by the Employer and the Union that the bargaining unit as de- fined hereinabove is composed of several segments consisting of food markets, discount stores, drug stores, and shoe stores. With reference to such segments, it is agreed that negotiations shall be conducted in each segment, separate and apart from any other segment, and that any economic action undertaken by the Union or Employer shall not extend to or include, or in any way involve any other segment. It is further agreed that with reference to any segment, the Employer may join with any other employers in any collective bargaining negotiations cov- ering such segment and may participate fully therein, including participation in any economic action which may occur, subject to the limitations hereinabove set forth regarding non-involve- ment of other segments. 7. It is agreed that the provisions of Article I relating to the performance of work by persons other than employees of the Employer shall not become applicable or effective until July 1, 1964, and neither shall the provisions relating to the inclusion of Drug, Discount and Shoe segments. 8. No restrictions or prohibitions shall be placed on the sale of any prepackaged or pre-treated merchandise purchased from any source not directly related through ownership or manage- ment control to the Employer. It is understood, however, that the work involved in the sale of such merchandise will be per- formed in accordance with this Agreement.  Retail Clerks Local 770 (Hughes Markets, Inc.), 218 NLRB 680, 681–682 (1975): Article 1 (Recognition of the Union), A. Bargaining Unit. 3. The Employer agrees that any employees performing bargain- ing unit work set forth in this Agreement, within its establish- ments, including employees of lessees, licensees, and conces- sionaires shall be members of a single, overall unit, and the Em- ployer will at all times exercise and retain full control of the terms and conditions of employment within its establishments of all such employees pursuant to this Agreement and shall not enter into or maintain and enforce any lease or other agreement inconsistent with the provisions hereof. The Employer’s obli- gation with respect to operators of leased departments is limited to that set forth above, provided that the Employer shall furnish to the Union written evidence that the operator of the leased department has assumed such obligation [. . . .]. Article II, A. Union Shop. All employees shall as a condition of employ- ment, become members of the Union not later than the thirty- first (31st) day following the date of their employment by the Employer who is signatory to this Agreement, or not later than the thirty-first (31st) day following the effective date of this Agreement, or the date of signature, whichever is later. Such employees shall remain members of the Union during the pe- riod of such employment.  Retail Clerks Local 324 (Ralph’s Grocery I), 235 NLRB 711, 715–716 (1978): Article 1 (Recognition of the Union), A. Bargaining Unit. 1. The Employer recognizes the Union as the sole collective DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 bargaining agent with respect to work, rates of pay, hours and terms and conditions of employment for the appropriate bar- gaining unit composed of all employees, including employees of lessees, licensees and concessionaires (sometimes herein re- ferred to as “leased departments”), except as limited below, who perform work within food markets, discount stores, drug stores and shoe stores presently operated and hereafter estab- lished, owned or operated by the Employer within the territorial jurisdiction of the Local Union. The territorial jurisdiction of the Local Union as referred to in this Agreement is defined as set forth in Appendix “B”. Food markets are defined as those types of establishments covered by collective bargaining agree- ments identified as Retail Food, Bakery, Candy and General Merchandise Agreement, April 1, 1969, to March 31, 1972. 2. All work or services, not specifically excluded by this Agree- ment, is hereby recognized as bargaining unit work. Such bar- gaining unit work shall neither be subcontracted nor performed by any person not a member of the bargaining unit. 3. The Employer agrees that any employees performing bar- gaining unit work set forth in this Agreement, within its estab- lishments, including employees of lessees, licensees, and con- cessionaires shall be members of a single, overall unit, and the Employer will at all times exercise and retain full control of the terms and conditions of employment within its establishments of all such employees pursuant to this Agreement and shall not enter into or maintain and enforce any lease or other agreement inconsistent with the provisions hereof. The Employer's obli- gation with respect to operators of leased departments is limited to that set forth above, provided that the Employer shall furnish to the Union written evidence that the operator of the leased department has assumed such obligation. Provided the Em- ployer fulfills his obligation as set forth above, the Employer shall not be liable for any breach of contract or failure of a leased department to abide by the wages, hours and working conditions set forth in this Agreement. The seniority of em- ployees of leased departments shall be separate from the sen- iority of employees of the Employer and of employees of other leased departments. 4. In the event that the Employer estab- lishes a new department or creates new work or enters into any lease, license agreement, or concession agreement involving the performance of any new work in any of the stores or estab- lishments operated by the Employer which are covered by this Agreement, for which wages are not specifically provided in this Agreement, it is agreed that, should the parties be unable to reach agreement upon wages for such work, the parties shall then submit the matter to arbitration in accordance with Article XIV of this Agreement, notwithstanding in this situation any provisions to the contrary contained therein and shall be bound by the terms of the arbitration award.  Food & Commercial Workers Local 1442 (Ralph’s Grocery II), 271 NLRB 697, 700 (1984): Article 1,A,3. The Employer agrees that any employees per- forming bargaining unit work set forth in this Agreement, within its establishments, including employees of lessees, li- censees, and concessionaires shall be members of a single, overall unit, and the Employer will at all times exercise and re- tain full control of the terms and conditions of employment within its establishments of all such employees pursuant to this Agreement and shall not enter into or maintain and enforce any lease or other agreement inconsistent with the provisions hereof. The Employer's obligation with respect to operators of leased departments is limited to that set forth above, provided that the Employer shall furnish to the Union written evidence that the operator of the leased department has assumed such obligation. Provided the Employer fulfills his obligation as set forth above, the Employer shall not be liable for any breach of contract or failure of a leased department to abide by the wages, hours and working conditions set forth in this Agreement. The seniority of employees of leased departments shall be separate from the seniority of employees of the Employer and of em- ployees of other leased departments. The above-contractual language is almost identical to the lan- guage in dispute here. The parties do not dispute this similarity, but the Unions dispute the General Counsel’s allegation that the provision violates the Act. The Unions claim that the bargaining and enforcement history prove that the clause is a valid work preservation agreement. III. DISCUSSION Prehearing Motions Motion to Defer On June 28, 2023, Respondent filed a pretrial motion as well as brief in support of the motion and declaration of Margo A. Feinberg to defer this matter pursuant to Dubo Mfg. Corp., 142 NLRB 431 (1963), to a pending arbitration hearing involving the Unions’ grievance challenging the Employer’s subcontracting of bargaining unit work to another employer. On July 12 and 13, 2023, respectively, the General Counsel and Charging Party op- posed the motion, arguing that this matter concerns the lawful- ness of the contract clause at issue, which cannot be deferred to an arbitrator. Typically, the Board does not defer to arbitration an issue which concerns the application of statutory construction (the lawfulness of the contract clause), as distinguished from contract interpretation, as these are legal questions concerning the Act. Carpenters (Mfg. Woodworkers Assn.), 326 NLRB 321, 322 (1998). See also Central Pennsylvania Regional Council of Car- penters (Novinger’s, Inc.), 337 NLRB 1030 (2002) (citing Car- penters). Here, the alleged violation is whether the contract clause is facially valid under the Act. Such a question may only be answered by the expertise of the Board, rather than arbitrators. Thus, having considered the parties’ arguments, I find that de- ferral is not appropriate in this case. Motions to Strike On July 12, 2023, the General Counsel filed a motion to strike portions of the Unions’ brief and declaration of Margo A. Fein- berg in support of the Unions’ motion for deferral. Specifically, the General Counsel motioned to strike portions of the Unions’ brief, declaration paragraphs 13 through 19, and declaration ex- hibits I through V as irrelevant, inadmissible hearsay, or improp- erly relied on inadmissible hearsay. On July 20, 2023, the Gen- eral Counsel also filed a motion to strike portions of the Unions’ UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 135 7 prehearing brief filed on July 17, 2023. The Unions opposed the General Counsel’s motions, and the General Counsel filed a reply to one of the opposition motions. I deny the General Counsel’s motions as these portions and the declaration are part of the Unions’ defense in this matter. However, I do give these materials little evidentiary weight as these documents are not relevant and not controlling to determin- ing whether Article 1,A,2 is facially unlawful. See Ralph’s Gro- cery II, supra; Sheraton University City Hotel, 326 NLRB 1058 (1998) (provision was facially invalid, and thus, parties’ intent in negotiations and enforcement not relevant). The General Counsel's Arguments The General Counsel argues that this matter concerns whether the Unions entered into an agreement with Ralphs Grocery Com- pany containing language facially prohibited by Section 8(e) of the Act. The General Counsel argues that Article 1,A,2 is un- lawful as it is a unit acquisition, work acquisition, and union- signatory clause. First, that all neutral employers must agree to surrender control of their employees to the Employer, who must then add these employees to the Unions’ bargaining units, which is an unlawful unit acquisition. Second, all neutral employers must agree to both economic and noneconomic terms of the col- lective-bargaining agreement between the Unions and the Em- ployer, even if the neutral employer is not a party to the collec- tive bargaining agreement, which is an unlawful work acquisi- tion clause. Finally, all neutral employers must also sign and assume the terms of the collective-bargaining agreement be- tween the Unions and the Employer in writing or be required to cease doing business with the Employer who would then be lia- ble for any noncompliance with the collective bargaining agree- ment by the neutral employer, which is a union signatory clause. Furthermore, the General Counsel disputes the Unions’ argu- ment that this matter concerns enforcement of Article 1,A,2 and disputes the Unions’ arguments that this section is a work preser- vation clause. The Unions’ Arguments The Unions argue that the Board’s decision in Ralph’s Gro- cery II, supra, should not be followed as the litigation was unfair when the Unions were not allowed to present evidence to support their defense that the provision is lawful to preserve work for the unit. The Unions further argue that in Ralphs Grocery II the Board did not follow the Supreme Court decision in National Woodwork Mfrs. Assn. v. NLRB, 386 U.S. 612 (1967), where the surrounding circumstances should be considered. The Unions argue that they have never sought to enforce this contract provi- sion in any unlawful manner as proven by numerous arbitration decisions, and that the language of a contract provision cannot be viewed only facially but the intention for that provision must be considered. Thus, according to the Unions, the bargaining 6 In General Teamsters Local 982 (J.K. Barker Trucking Co.), 181 NLRB 515 (1970), affd. 450 F.2d 1322 (D.C. Cir. 1971), the Board set forth its method for examining agreements: If the meaning of the clause is clear, the Board will determine forthwith its validity under 8(e); and where the clause is not clearly unlawful on its face, the Board will interpret it to require no more than what is al- lowed by law. On the other hand, if the clause is ambiguous, the Board history and enforcement history of this contract provision is rel- evant. Legal Analysis Section 8(e) provides: It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, ex- press or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, trans- porting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unen- forceable and void [. . .]. As the Supreme Court explained in National Woodwork, preser- vation of work for bargaining unit employees is a lawful, primary objective. Section 8(e) only prohibits agreements with a second- ary purpose, i.e., those directed at a neutral employer or entered into for their effect on another employer. Id. at 632. After considering the General Counsel and Unions’ arguments and keeping the above legal principles in mind, I find that this case continues to be controlled by the Board’s decision in Ralph’s Grocery II, Ralph’s Grocery I, Hughes Markets, and Jones & Jones.6 Focusing on Ralph’s Grocery II, which was the most recent Board decision concerning the language, albeit in 1984, the Board determined that this provision on its face was an unlawful “union signatory clause, rather than a lawful, union standards or work preservation clause.” Id. The Board stated: Although Section 8(e) can literally be read as forbidding all agreements which prevent an employer from establishing a business relationship with another employer, or which causes it to terminate an already existing relationship, it has not been so construed. Thus, the Board has held that a contract clause which limits subcontracting so as to preserve for bargaining unit employees work that has traditionally been performed by them, the so-called work-preservation clause, or one which limits subcontracting to employers who maintain the same standards of employment, the so-called union standards clause, does not violate the Act. See Teamsters Local 94 (California Dump Truck Owners Assn.), 227 NLRB 269, 272 (1976). The underlying rationale for the lawful character of these clauses is that the union has a primary interest in preserving unit work for unit employees and to ensure that negotiated standards will not be undermined. Id. However, if a subcontracting clause runs to noneconomic items which have the effect of requiring a sub- contractor to adhere to working conditions unrelated to eco- nomic benefits, then the clause is viewed as being secondary in nature and within the proscription of Section 8(e). Tri-State Building Council (Stark Electric), 262 NLRB 672, 674 (1976). will not presume unlawfulness, but will consider extrinsic evidence to determine whether the clause was intended to be administered in a law- ful or unlawful manner. In the absence of such evidence, the Board will refuse to pass on the validity of the clause. Id. at 517. The Board in Hughes Markets, Ralph’s Grocery I, and Ralph’s Grocery II did not analyze the contract language at issue explic- itly using the framework established in J.K. Barker Trucking. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 Thus, a contract clause which purports to limit subcontracting to employers who are signatories to the union contract, the so- called union signatory clause, violates the Act since such a clause is not designed to protect the wages and job opportuni- ties of unit employees covered by the contract, but rather is di- rected at furthering general union objectives and regulating the labor policies of other employers. Teamsters Local 94, supra at 272. Ralph’s Grocery II, supra The specific language at issue in Ralph’s Grocery II is essen- tially the same as the one found in here, and the Unions do not argue otherwise. In Ralph’s Grocery II, the Board found that the provision more than preserved work but rather had an unlawful secondary objective by requiring any lessee, licensee, or conces- sionaire wishing to do business with the employer to assume al- most all, if not all, the obligations of the contract between the employer and the unions, including such noneconomic terms of the contract as the union-security clause. See also Hughes Mar- kets. Moreover, by requiring written evidence that the subcon- tractor will follow the terms of the contract, the unions have caused a subcontractor to enter into essentially a union signatory clause. The Board noted that the “written evidence” component of the language is not necessary to find a provision facially un- lawful, but rather the key is whether a subcontractor is required as a condition of doing business with the employer to recognize and be bound by the terms of the agreement, thereby creating a union signatory clause. See also Jones & Jones, supra at 660. Thus, the Board held that this language was designed not as a work preservation clause but rather designed to control the em- ployment practices of other employers who do business with the employer. Here, the only addition to the language in the prior decisions is a clause that requires a neutral employer who engages in busi- ness not historically employed by the Employer to negotiate wages of their employees and to engage in interest arbitrate if there is any wage dispute. As the language of this provision, even with the additional clause, is essentially the same as previ- ously found by the Board to be facially invalid, hereto, the pro- vision at Article 1,A,2, on its face, violates Section 8(e) of the Act. See also Ralphs’ Grocery II, supra at 698. In Ralphs Grocery II, the Board rejected the Unions’ claims the Supreme Court decisions in NLRB v. International Long- shoremen’s Assn. (ILA), 447 U.S. 490 (1980), and NLRB v. En- terprise Assn. of Pipefitters, 429 U.S. 507 (1977), overruled Ralphs I, supra, nor was controlling. Both Supreme Court deci- sions discussed their prior holding in National Woodwork. In ILA, the Supreme Court held that ILA’s attempt to enforce the provision was a lawful work preservation clause. The Board thus concluded in Ralph’s Grocery II, “We find nothing in that deci- sion [ILA] to suggest that the Board is prohibited from determin- ing whether a clause facially violates Sec. 8(e) of the Act.” Ralphs II, supra at fn. 9. The Board came to the same conclusion when analyzing Enterprise Assn. of Pipefitters, as therein how the union chose to enforce the provision was at issue (work stop- page), not the whether the clause could be found to be facially invalid. Even though the Board did not specifically mention the Supreme Court’s decision in National Woodwork, the Board would have considered such a decision when deciding Hughes Markets, Ralph’s Grocery I, and Ralph’s Grocery II. The Unions do not argue that the language in the present case is significantly different from that found unlawful by the Board in previous cases. Instead, the Unions contend that the language of Article 1,A,2 can be interpreted differently and that the bar- gaining and enforcement history must be reviewed to prove that the language at issue is a valid work preservation clause under the test set forth in National Woodwork. Here, I permitted the Unions to introduce evidence of the drafting of the provision as well as any enforcement evidence to support their argument that the provision is not illegal. After consideration of the parties’ arguments as well as Board history in this matter, I find that this evidence is not relevant to proving or disproving whether the contract provision is unlawful facially. The Board in Ralphs II did not consider such evidence to be relevant and did not disturb the administrative law judge’s decision to reject such evidence. Only the Board can determine whether the surrounding circum- stances should be considered in this matter which only concerns the facial validity of the provision. Enforcement is a different theory than whether a provision is facially valid. The Board has consistently held that the maintenance of such an agreement con- stitutes “entering into,” within the meaning of Section 8(e); it is not necessary that there be a demand for compliance with the provision. J.K. Barker Trucking, supra; see also Sheraton Uni- versity City Hotel, supra. The language in Article 1,A,2 contin- ues to exceed a legitimate purpose of protecting unit work and is directed at the secondary purpose of furthering general union ob- jectives, including unit acquisition. The Board has found that lack of evidence of enforcement of this provision does not alter the conclusion as the maintenance of the provision is why the provision is unlawful. Thus, the provision at issue here, Article 1,A,2, on its face, is not designed to protect or preserve the jobs and working conditions of unit employees, but instead is de- signed to control the employment practices of other employers who would do business with the Employer. Hence, Article 1,A,2 violates Section 8(e) of the Act. CONCLUSIONS OF LAW 1. Charging Party, Ralphs Grocery Company, has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Unions, United Food and Commercial Workers, Lo- cals 135, 324, 770, 1167, 1428, 1442, and 8-Golden State, AFL– CIO has been labor organizations within the meaning of Section 2(5) of the Act. 3. The Unions committed an unfair labor practice in violation of Section 8(e) of the Act. 4. The unfair labor practice found affects commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the poli- cies of the Act. I agree with the General Counsel’s request for a cease-and-desist order prohibiting the Unions from entering into, maintaining, enforcing, and giving effect to this provision as the UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 135 9 Unions continue to violate Section 8(e) with various iterations of this language over the decades. See Teamsters Local Union No. 166 (Shank/Balfour Beatty), 327 NLRB 449 (1999) (generally, proclivity should be based on prior adjudications of similar un- lawful conduct in the past). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended7 ORDER The Unions, United Food and Commercial Workers, Locals 135, 324, 770, 1167, 1428, 1442, and 8-Golden State, AFL–CIO, Compton, California, its officers, agents, and representative, shall: 1. Cease and desist from (a) Entering into, maintaining, enforcing, giving effect, to Ar- ticle 1, A, 2 of its current “Retail Food, Bakery, Candy, and Gen- eral Merchandise Agreement,” with the Employer and/or with any other employers or employer associations who have entered into similar agreements, to the extent said contract article is found to be unlawful herein. (b) Entering into, giving effect to, enforcing, or seeking to enforce, any contract or agreement, express or implied with the Employer and/or with any other employers or employer associa- tions who have entered into similar agreements, whereby said Employer ceases or refrains or agrees to cease and refrain from handling, using, selling, transporting, or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person. 2. Take the following affirmative action necessary to effectu- ate the policies of the Act. (a) Rescind, remove, and render null and void and of no effect to Article 1,A,2 of the current Retail Food, Bakery, Candy, and General Merchandise Agreement collective-bargaining agree- ment, which states: All work or services not specifically excluded by this Agree- ment is hereby recognized as bargaining unit work. Such bar- gaining unit work shall not be subcontracted, except as pro- vided herein. Employees of lessees, licensees and concession- aires (hereinafter referred to as leased departments) shall be covered by this Agreement, and the Employer will at all times exercise and retain full control of the terms and conditions of employment within its stores of all employees of such leased departments. The employees of such leased departments shall be and remain members of a single overall unit encompassing all employees at the stores. This Agreement shall apply to all bargaining unit employees of such leased departments, except that if such leased department engages in a line of business which has not been historically and generally been of the type and kind engaged in by the Employer through its grocery, pro- duce, drug, delicatessen, general merchandise, bakery or liquor departments, then in such event, the Union and the operator of the leased department shall meet and negotiate appropriate 7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. wages for employees performing such work. If the Union and the operator of the leased department are unable to agree upon such appropriate wages, an arbitrator shall be selected to hear and determine the dispute with respect to such matter, in ac- cordance with Article 12 of this Agreement, notwithstanding in this situation any provisions to the contrary contained therein. The seniority of employees of leased departments shall be sep- arate from the seniority of employees of the Employer and the employees of other leased departments. The obligation of the Employer under this Agreement with respect to any leased de- partment shall be limited to the foregoing, and the Employer shall not be liable for any breach of contract or failure of a leased department to abide by any provision of this Agreement; provided that the Employer shall furnish to the Union written evidence of its agreement with the operator of the leased de- partment that the operator of the leased department has as- sumed the obligations of this Agreement. With respect to leased departments which are in existence as of the effective date of this Agreement, this Paragraph 2 shall have no applica- tion to such leased departments and no claim of violation of this Agreement or any predecessor agreement shall be made or maintained with respect to any such leased departments in ex- istence as of the effective date of this Agreement. (b) Within 14 days after service by the Region, post, in Eng- lish, at its business offices and meeting halls copies of the at- tached notice marked “Appendix.”8 Copies of the notice, on forms provided by the Regional Director for Region 21, after be- ing signed by the Unions’ authorized representatives, shall be posted by the Unions and maintained for 60 consecutive days in conspicuous places including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by the Unions to ensure that the notices are not altered, defaced, or covered by any other material. If, during the pendency of these proceedings, the Union(s) have gone out of business or closed the business office(s) or meeting hall(s), the Unions shall dupli- cate and mail, at its own expense, a copy of the notice to all cur- rent members and former members of the Unions at any time since March 7, 2022. (c) Within 21 days after service by the Region, file with the Regional Director for Region 21 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Unions have taken to comply. Dated, Washington, D.C., December 21, 2023. APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. 8 If 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 WE WILL NOT enter into, maintain, enforce, or give effect to Article 1,A,2 of our current “Retail Food, Bakery, Candy, and General Merchandise Agreement” with Ralphs Grocery Com- pany and/or with any other employers or employer associations who have become party to similar agreements, insofar as said article has been interpreted by the National Labor Relations Board as being violative of Section 8(e) of the National Labor Relations Act. WE WILL NOT enter into, give effect to, enforce, or seek to en- force, any contract or agreement, express or implied, with Ralphs Grocery Company and/or with any other employers or employer associations who have entered into similar agreements, whereby said Employer ceases or refrains or agrees to cease and refrain from handling, using, selling, transporting, or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person. WE WILL rescind, remove, and render null and void and of no effect Article 1,A,2 of the current Retail Food, Bakery, Candy, and General Merchandise Agreement collective bargaining agreement, which provides for the following: All work or services not specifically excluded by this Agree- ment is hereby recognized as bargaining unit work. Such bar- gaining unit work shall not be subcontracted, except as pro- vided herein. Employees of lessees, licensees and concession- aires (hereinafter referred to as leased departments) shall be covered by this Agreement, and the Employer will at all times exercise and retain full control of the terms and conditions of employment within its stores of all employees of such leased departments. The employees of such leased departments shall be and remain members of a single overall unit encompassing all employees at the stores. This Agreement shall apply to all bargaining unit employees of such leased departments, except that if such leased department engages in a line of business which has not been historically and generally been of the type and kind engaged in by the Employer through its grocery, pro- duce, drug, delicatessen, general merchandise, bakery or liquor departments, then in such event, the Union and the operator of the leased department shall meet and negotiate appropriate wages for employees performing such work. If the Union and the operator of the leased department are unable to agree upon such appropriate wages, an arbitrator shall be selected to hear and determine the dispute with respect to such matter, in ac- cordance with Article 12 of this Agreement, notwithstanding in this situation any provisions to the contrary contained therein. The seniority of employees of leased departments shall be sep- arate from the seniority of employees of the Employer and the employees of other leased departments. The obligation of the Employer under this Agreement with respect to any leased department shall be limited to the foregoing, and the Employer shall not be liable for any breach of contract or failure of a leased department to abide by any provision of this Agreement; provided that the Employer shall furnish to the Union written evidence of its agreement with the operator of the leased de- partment that the operator of the leased department has as- sumed the obligations of this Agreement. With respect to leased departments which are in existence as of the effective date of this Agreement, this Paragraph 2 shall have no applica- tion to such leased departments and no claim of violation of this Agreement or any predecessor agreement shall be made or maintained with respect to any such leased departments in ex- istence as of the effective date of this Agreement. UNITED FOOD AND COMMERCIAL WORKERS UNION,LOCAL 135,AFL–CIO UNITED FOOD AND COMMERCIAL WORKERS UNION,LOCAL 324,AFL–CIO UNITED FOOD AND COMMERCIAL WORKERS UNION,LOCAL 770,AFL–CIO UNITED FOOD AND COMMERCIAL WORKERS UNION,LOCAL 1167,AFL–CIO UNITED FOOD AND COMMERCIAL WORKERS UNION,LOCAL 1428,AFL–CIO UNITED FOOD AND COMMERCIAL WORKERS UNION,LOCAL 1442,AFL–CIO UNITED FOOD AND COMMERCIAL WORKERS UNION,LOCAL 8-GOLDENSTATE,AFL–CIO The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/21-CE-300089 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.