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SCHAUFFLER EX REL. NLRB v. LOCAL 1357

June 26, 1961

Bennet F. SCHAUFFLER, Regional Director of the Fourth Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
LOCAL 1357, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFLCIO, Respondent



The opinion of the court was delivered by: DUSEN

The background of this suit is the acquisition by Food Fair Stores Inc. (a large chain of supermarkets) of all the stock of Best Markets, Inc. (operators of about 21 *fn1" stores in 1958) which became final in August 1960 as the result of the settlement in that month of litigation concerning such acquisition which commenced in 1958 or early 1959. Respondent had represented the employees of Food Fair Stores, Inc., other than those in the meat, seafood and delicatessen departments, for many years and Local 196 had represented the comparable employees of Best Markets, Inc. for many years. In 1959, respondent sought to have Best Markets, Inc. treat the employees covered by its collective bargaining contract with Local 196 (P-3 and its predecessor) as governed by the collective bargaining contract between Food Fair Stores, Inc. and respondent (P-2 and its predecessor). In spite of demands for arbitration of this issue (see R-1), respondent did not press the matter until some months after the August 1960 settlement, except that as certain stores formerly operated as Best Markets, Inc.'s stores were converted *fn2" into Food Fair Stores (see footnote 1), such employees were treated as covered under respondent's contract (P-2) and became members of respondent. Respondent's willingness to concentrate its activity on representation of the personnel of the converted stores and the closed stores is shown by the summary of decisions reached at the September 29, 1960, meeting of respondent and Food Fair representatives (P-7) which concerns such personnel (see pars. I and IV).

The employees of the nine stores still operated by Best Markets, Inc. (see par. 4(c) of Findings of Fact above) *fn3" are handled for personnel purposes by one personnel official in the Food Fair, Inc.'s administrative office and, as a general rule, there is no inter-changeability of this personnel belonging to Local 196 with the personnel in the stores operated as Food Fair Stores, including the above-described converted stores.

 The signs carried by the pickets read as follows (see P-1):

 'BEST MARKETS FOOD FAIR UNFAIR TO RETAIL CLERKS UNION LOCAL NO. 1357

 AFL-CIO'

 It is clear that at least one object of this picketing is to require that respondent be dealt with as the representative for labor problems, including grievances, of these employees (see testimony of Mr. McDavid). Under these circumstances, there has been an unfair labor practice by respondent under Section 8(b)(7)(C), 29 U.S.C.A. § 158(b)(7)(C), if this picketing 'has been conducted without a petition under section 9(c), 29 U.S.C.A. § 159(c), being filed within' thirty days from May 5, 1961. *fn4" See McLeod v. National Maritime Union of America, AFL-CIO, 157 F.Supp. 691, 694 (S.D.N.Y. 1957); Local Joint Executive Board of Hotel and Restaurant Employees, etc., 47 L.R.R.M. 1321, at 1322 (1961). In the McLeod case, supra, the court said at page 694 of 157 F.Supp:

 'The National Maritime Union, in seeking to enforce its contract on behalf of all unlicensed personnel employed by the company on vessels operating out of Atlantic and Gulf ports, is insisting that the personnel on the newly acquired Robin vessels are included within the unit for which it is the collective bargaining representative. Seen in this light, the dispute over the crucial issue of fact becomes one of semantics. There is certainly reasonable cause to believe that the picketing had for its objective the forcing of the National Maritime Union into the position of bargaining representative for the employees on the Robin vessels, * * *.'

 It is admitted that the picketing had been conducted for more than thirty (30) days without the filing of a petition under § 9(c) of the Act, 29 U.S.C.A. § 159(c) (see paragraph 5(h) of Petition and Answer). Neither the contract marked P-2 nor the contract marked P-3 prevented the respondent from filing a petition under § 9(c) of the Act, even if both such contracts applied to the employees of these nine stores:

 A. Under the doctrine of Pacific Coast Assn. of Pulp & Paper Mfgrs., etc., 121 N.L.R.B. 990, 992-3 (1958), the petition could have been filed from June 1 to 3, 1961, inclusive. *fn5"

 The record gives petitioner reasonable cause to believe that an object of the picketing is to require the employer and the employees to accept respondent as their representative, without an election, through forcing the application of respondent's contract P-2 to these employees. Since § 8(b)(7)(C), 29 U.S.C.A. § 158(b)(7)(C), was designed to prevent such picketing pressure to secure designation of a representative of employees by a union which is not currently certified and has not established that it represents a majority of the employees (see Local 840, etc. & C. A. Blinne Construction Co., 47 L.R.R.M. 1318 (1961)), petitioner is entitled to the injunctive relief sought under § 10(l) of the Act, 29 U.S.C.A. § 160(l). See Schauffler v. Local 1291, International Longshoremen's Union, 292 F.2d 182 (3rd Cir. No. 13,457), and cases there cited at pages 187-188. In this case, the court said at page 187:

 'Nor need the Board conclusively show the validity of the propositions of law underlying its charge but is required to demonstrate merely that the propositions of law which it has applied to the charge are substantial and not frivolous.'

 There is nothing in this record to indicate that petitioner did not consider respondent's argument that all employees working in its stores and those of its wholly-owned subsidiary, Best Markets, Inc., except employees in the meat, seafood and delicatessen departments, were in one appropriate unit and that the employees of these established Best Markets became subject to respondent's contract P-2 as of August 1960, when Best Markets, Inc. became definitely a wholly-owned subsidiary of Food Fair Stores, Inc. There is reasonable cause to ...


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