Certified Grocers Of Illinois, Inc.

National Labor Relations Board - Board Decisions

Jan 24, 1985

273 N.L.R.B. 1608 (N.L.R.B. 1985)

1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Certified Grocers of Illinois, Inc. and Timothy Cy-
bulski. Case 13-CA-23281
24 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by Timothy Cybulski, an In-
dividual, on 19 May 1983, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 13, issued a complaint
on 23 June 1983 against Respondent Certified Gro-
cers of Illinois, Inc. The complaint alleges that the
Respondent is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
On 18 November 1983 all parties to the proceed-
ing entered into a stipulation of facts and thereafter
filed a motion to transfer proceeding to the Nation-
al Labor Relations Board. The parties agreed
therein to waive a hearing before or decision by an
administrative law judge and to submit the case di-
rectly to the Board for findings of fact, conclusions
of law, and an order based on a stipulated record
consisting of the complaint and answer, other
formal Board documents, and stipulation of facts
with attached exhibits.
On 13 February 1984 the Board approved the
parties' stipulation and ordered that the proceed-
ings be transferred to the Board. The General
Counsel, the Charging Party, and the Respondent
filed briefs.
On the basis of the stipulation of facts, the briefs,
and the entire record in this proceeding, the Board
makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is an Illinois corporation with
offices and places of business in Chicago and
Hodgkins, Illinois, where it is engaged in the
wholesale grocery business. During the year pre-
ceding issuance of the complaint, the Respondent
purchased and received at its Illinois facilities
goods and materials valued in excess of $50,000 di-
rectly from points outside the State of Illinois. The
complaint alleges, the Respondent's answer admits,
and we find that the Respondent is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent's answer
admits, and we find that Grocery and Food Prod-
ucts, Processors, Canneries, Frozen Food Plants,
Sugar Processors, Confectionery and Candy Manu-
facturers and Distributors, Coffee Vending, Miscel-
laneous Drivers and Salesmen, Warehousemen and
Related Office Employees Union, Local 738, an af-
filiate of the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America (the Union) is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Respondent and the Union have had a col-
lective-bargaining relationship for many years. The
Union represents the Respondent's employees at
both its Chicago headquarters and at its Hodgkins
warehouse. At all relevant times there was a col-
lective-bargaining agreement in effect between the
Respondent and the Union which contained, inter
aim, a grievance procedure leading to binding arbi-
tration and a no-strike clause.
On 7 March 1983 the Respondent instituted new
production standards covering the so-called "order
pickers" at the Hodgkins warehouse. The new
standards included a five-step progressive discipli-
nary program for employees who failed to meet
the standards. Thereafter, several of the order pick-
ers filed a "group" grievance with the Union pro-
testing the implementation of the production stand-
ards and its disciplinary provisions. This grievance
was processed through the contractual grievance
procedure and, by 17 May 1984 and the com-
mencement of the picketing discussed infra, was
pending arbitration.'
Subsequently, between 9 and 17 May 1983, ap-
proximately 24 employees at the warehouse were
either terminated or notified that their termination
was pending for failure to meet the new production
standards. Grievances over these terminations were
filed by the employees with the Union which, as of
17 May 1983, the Union was also pursuing through
the contractual grievance procedure.
On their termination, several of the employees
chose to retain their own attorney. In a letter dated
16 May 1983, this attorney informed the Respond-
ent that she had "been retained by a group of em-
ployees of Certified . . . relating to their labor dis-
pute with Certified over recent changes in their
working conditions and resulting in disciplinary
action." The letter further advised the Respondent
that "in conjunction with the above labor dispute,
the Certified employees may prospectively engage
in picketing" and that the Respondent should con-
1 The Union requested arbitration of the grievance by letter dated 4
April 1983
273 NLRB No. 196
CERTIFIED GROCERS 1609
tact her office if it contemplated "any action"
which might "interfere with the rights of the em-
ployees to picket or air their grievances .
The following day, 17 May 1983, 16 of the ter-
minated employees commenced picketing in front
of the Respondent's Chicago headquarters. The
pickets carried signs stating "Certified Grocers
Unfair to Workers"; "Five Years Loyalty—now
fired"; "Immediate reinstatement until arbitration";
"Unfair work standards"; and "Cindy Saver isn't
doing any good." 2 Three of the pickets' signs also
stated "informational picket" in small print in the
lower corners of the signs.2
Shortly after it began, the picketing attracted
local news coverage and publicity. In a news arti-
cle dated 20 May 1983, picket Ray Ulrich was
quoted saying that "this is strictly an informational
picket; we are not encouraging anyone to stop
working, we are just trying to let people know
what is going on here." Ulrich was also quoted in
the article saying that he and the other pickets had
hired their own attorney because "we haven't been
satisfied with the Union's actions so far."4
Immediately upon the commencement of the
picketing, the Respondent sent a mailgram to the
Union informing it that picketing "by individuals
on whose behalf you have filed grievances" had
begun. The mailgram advised the Union that the
Respondent intended to hold the Union responsible
for all damages occasioned by the picketing "until
such time there is affirmative action on your part
to advise the pickets . . . that the picketing is not
condoned by your Union." The mailgram further
advised the Union that unless the pickets ceased
picketing immediately, "even if their grievances
were sustained, their unlawful picketing and viola-
tion of the contract" would be "independent
grounds for termination which would result in a
forfeiture of any right to reemployment." The same
day the Respondent also sent mailgrams to each of
the 16 pickets advising them that their conduct was
unlawful and a violation of the contract, that "the
matter of your termination is presently being pur-
sued through the contractual grievance machin-
ery," and that "unless you immediately cease pick-
eting, even if that grievance is sustained, your ac-
tions would be independent cause for your termina-
tion and would result in a forfeiture of any right
you have to reemployment."
The following day, 18 May [983, the Union noti-
fied the Respondent that the Union had not author-
2 "Cindy Saver" is the Respondent's logo girl
The parties stipulated that this small printing could not be seen from
the street and could only be read by someone close Sc' the person carry-
ing the sign
4 The parties stipulated that Ulrich was accurately quoted
ized the picketing and had told its members to ab-
solve themselves of any connection with the pick-
eting. Nevertheless, the picketing continued for
several days thereafter until 20 May 1983.
No employee was subsequently disciplined by
the Respondent for picketing, but were all reinstat-
ed on 23 May 1983 pursuant to an interim settle-
ment agreement between the Respondent and the
Union pending the resolution of the grievances.
The Respondent and the Union reached a final set-
tlement agreement on all grievances on 31 October
1983, which also provided for reinstatement of all
the pickets.
B. Contentions of the Parties
The General Counsel and the Charging Party
contend that the Respondent's 17 May 1983 mail-
grams in which it threatened to deny reemploy-
ment to its discharged employees unless they
ceased picketing violated Section 8(a)(1) of the
Act.
The Respondent contends that the picketing was
unprotected activity because its purpose was to
obtain direct negotiations with the Respondent
over the discharges in contravention of the con-
tractual grievance arbitration procedure, relying on
Emporium Capwell Co. v. Western Addition Commu-
nity Organization, 420 U.S. 50 (1975). 5 According-
ly, the Respondent argues, its threat to deny the
pickets reemployment did not violate the Act.
C. Analysis and Conclusions
In Emporium Capwell Co., supra, the Supreme
Court held that the exclusivity principle of Section
9(a) of the Act proscribes attempts by a minority of
employees to engage in separate bargaining with
their employer. The Court relied on the following
facts in concluding that the picketing employees in
that case were attempting to engage in separate
bargaining: The union had invoked the contractual
grievance procedure on behalf of the employees to
resolve their charges of racial discrimination. Sev-
eral of the employees expressed their view that the
contract procedures were inadequate to deal with
such charges and suggested that the union instead
begin picketing the employer. The union refused to
do so. Thereafter, several of these employees re-
fused to participate in the grievance procedure, an-
nounced their desire to deal directly with manage-
ment over minority employment conditions, and
began picketing the employer. The union at that
5 The Respondent alternatively contends that the picketing was unpro-
tected because it violated the contractual no-strike clause In light of our
finding, infra, that the picketing was unprotected under the rationale of
Emporium Capwell, supra, we need not address the merits of whether it
was unprotected on this basis as well
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time again requested that they rely on the griev-
ance process. The pickets, however, continued to
press their demand to deal directly with the com-
pany.
In agreement with the Respondent, we find that
the facts in the instant case compel the conclusion
that the pickets were attempting to deal directly
with the Respondent over their grievances. We
conclude this even though the parties stipulated
that the pickets never made a request to the Re-
spondent to meet with the pickets or their repre-
sentatives. As outlined above, the Union had filed
both a "group" grievance on behalf of the employ-
ees protesting the new production standard, and in-
dividual grievances over the subsequent discharges.
Nevertheless, several of the employees subsequent-
ly hired their own attorney in conjunction with
this dispute. It was this independently hired attor-
ney, not the Union, who then notified the Re-
spondent that the employees might picket over the
dispute. The attorney also indicated to the Re-
spondent that it should deal with her (not the
Union) with respect to any action it proposed that
might "restrain" the employees' ability to picket or
air their grievances.
Thereafter, the employees did indeed begin pick-
eting, but they did so at the Respondent's Chicago
headquarters facility. The employees never picket-
ed at their own place of employment. We infer that
the choice of location was an attempt to influence
the Respondent's higher authority to reinstate
them. That this was the main purpose in the picket-
ing is clear from the language of certain of the
signs which indicated, "Immediate reinstatement
until arbitration" and "Five Years Loyalty—now
fired." The language on these signs was in large
bold print that could be read from a distance. In
contrast, the wording "informational picket" was
carried on only a few of the signs in small print in
the lower corners of the signs. This printing could
not be seen from the street and could only be read
if someone was close to the person carrying the
sign.
Further, the Respondent immediately protested
the picketing to the Union and was subsequently
assured by the Union that it had not authorized the
picketing and, in fact, had told its members to ab-
solve themselves of any connection with the pick-
eting. Nonetheless, the picketing continued after
the time the Union indicated it had given its admo-
nition to the pickets to cease picketing.
Undoubtedly the General Counsel is correct in
the assertion that one purpose of the picketing was
informational, as evidenced, for example, by picket
Ulrich's quoted description of the picketing in the
local newspaper. We find, however, that the above
confluence of factors clearly indicates that an addi-
tional purpose of the picketing was to seek and
obtain direct negotiations with the Respondent.
This conclusion is underscored by picket Ulrich's
additional quoted statement that the employees had
hired their own attorney who would "look after
the employees' interests" because they "haven't
been satisfied with the Union's action so far." Ac-
cordingly, under Emporium Capwell the picketing
was unprotected.6
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent did not violate the Act by
threatening to deny reemployment to its discharged
employees unless they ceased picketing.
ORDER
The complaint is dismissed.
6 See also United Parcel Service, 205 NLRB 991, 997-998 (1973) Cases
cited by the General Counsel in which no such proscribed purpose was
found are distinguishable In Colonial Stores, 248 NLRB 1187 (1980), the
picketing was found to be in support of the union's actions Similarly, in
Roadway Express, 241 NLRB 397 (1979), there was no evidence that the
union objected to the conduct of the pickets Finally, in Dress & Krump
Mfg, 221 NLRB 309 (1975), the employee did not picket the employer,
but merely distributed leaflets to fellow employees advising them of his
grievance with the employer