Kentucky Skilled Craft Guild

National Labor Relations Board - Board Decisions

Nov 26, 1965

155 N.L.R.B. 1196 (N.L.R.B. 1965)

1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Locals 1358, 1360, 1371,
1262, 1349, Retail Clerks International Association, AFL-CIO, as the exclusive
representative of all the employees in the bargaining unit described below.
WE WILL NOT interfere with the effort of Locals 1.358, 1360, 1371, 1262, 1349,
Retail Clerks International Association, AFL-CIO, to negotiate for or represent
as exclusive bargaining agent all of the employees in the bargaining unit described
below.
WE WILL, upon request, bargain with the above-named union, as exclusive
representative of all the employees in the bargaining unit described below with
respect to rates of pay, wages, hours of employment, and other conditions of
employment, and if an understanding is reached, embody such an understanding
in a signed agreement.
The bargaining unit is:
All employees including store managers, regular and part-time employees
employed at the Employer's retail stores located in the States of New Jersey
and Delaware, excluding all office clerical employees, guards, and super-
visors as defined in the Act.
BURLINGTON FOOD STORES, INC., and
DELAWARE FOOD STORES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 1700
Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania,
Telephone No. 597-7601.
Kentucky Skilled Craft Guild and Kenneth Richard Lehring,
Charging Party and International Union of Electrical Workers,
Local Union No. 761, AFL-CIO, Party to the Dispute and Gen-
eral Electric Company, Party to the Dispute . Case No. 9-CD-
73. November 26, 1965
DECISION AND ORDER QUASHING
NOTICE OF HEARING
This is a proceeding under Section 10(k) of t:he; National Labor
Relations Act, as amended, following charges filed by Kenneth Lehr-
ing, an individual. The charge states that Kentucky Skilled Craft
Guild, herein called KSCG, has violated Section 8(b) (4) (i) and
(ii) (D) of the Act by engaging in a strike against: General Electric
Company, herein called the Compa.n_y, for the purpose of forcing or
requiring General Electric to assign certain wort; to employees rep-
resented by KSCG, rather than to employees represented by Inter-
155 NLRB No. 116.
KENTUCKY SKILLED CRAFT GUILD 1197
national Union of Electrical Workers, Local Union No. i 61, AFL-CIO,
herein called IUE. On April 23, 1964, the Regional Director for
Region 9 issued a notice of hearing upon said charge. The hearing
was heldon various dates between February 25,1965, and June 28,1965,
before- Hearing Officer Mark ill.-Reynolds. -All parties appeared at
the hearing and were afforded full opportunity- to be heard, to exam-
ine and cross-examine witnesses, and to adduce evidence bearing upon
the issues. The rulings of the Hearing Officer made at the hearing
are free from prejudicial error and are hereby- affirmed. Thereafter,
briefs were filed by KSCG, General Electric, and IUE.
Upon the entire. record in this case, the National Labor Relations
Board makes the following findings :
1. The General Electric Company is an Employer engaged in com-
merce within the meaning of the Act?
2. KSCG and ILTE are labor organizations within the meaning- of
the Act.
3. During the hearing, and again in their briefs to. the Board, the
Company and ME moved to quash the notice of hearing on the ground,
inter alia, that the Board should not proceed. to determine KSCG's
claim for the disputed work because Kenneth Lehring acted as an
agent or "front" for KSCG in filing the instant charge. For the
reasons stated below, we find merit in the position of the Com-
pany and IUE.
The undisputed facts show that Lehring, in filing the charge, was
acting in the interest and with full assistance and encouragement of
KSCG. Thus, on several occasions during the prepicketing grievance
discussions between KSCG and the- Company, concerning KSCG's
work assignment claims, KSCG President Shaughnessy asked Bal-
lance, General Electric's manager of labor relations at Appliance Park,
whether the Company would file 8(b) (4) (D) charges. Ballance
advised that the Company would not file such charges because it
opposed third party intervention in the dispute. About a week before.
the. picketing began, KSCG distributed a handbill to all employees at
Appliance Park, informing them in part that:
... THERE --NEED BE NO STRIKE over this controversy.
We have indicated to the company that there would be NONE
if the COMPANY WOULD ALLOW the National Labor
Relations Board as a disinterested third-party to decide the merits
of the dispute. THIS THE COMPANY REFUSES TO DO. -
i The parties stipulated and we find that General Electric, a New York corporation, has
a plant at Appliance Park, Louisville, Kentucky, and that, during the past 12 months, a
representative period, it shipped materials exceeding $50 ,000 in value directly from Louis-
ville, Kentucky, to points outside that State.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 21,1961V the night before the picketing commenced,
Lehring, the nominal Charging Party herein, a former steward and
member of KSCG's executive boa-rd, inquired of Shaughnessy whether
charges had been filed by either the Company or KSCG. When
Shaughnessy replied that the Company would not file charges, and
that in his opinion KSCG could not, Lehring asked if he personally
could do so. Shaughnessy, who admittedly was interested in getting
the strikers back to work, did not know whether Lehring could legally
file the charge and arranged for him to see KSCG's attorney, Isenberg.
The next day, April 22, Shaughnessy and a member of KSCG's
executive board accompanied Lehring to Isenberg's office, where
Lehring signed the charge drafted by Isenberg. Isenberg then mailed
the charge to the Regional Office. On April 23 Lehring took his
turn on the KSCG picket line. -
- At the hearing, Lehring, on advice of Isenberg, was represented by a
member of Isenberg's law firm. Lehring testified that the purpose
of the charge was to "have the NLRB come in and when they come
in they would order the people back to work," that General Electric's
assignment of changeover work was improper, and that KSCG's picket-
ing "was proper in trying to get the work bask."
From the foregoing, we are satisfied, and find, that Lehring, as the
IITE and Company contend, was fronting for the KSCG in filing
the charge herein. We are. persuaded that in view of this, and
under all the circumstances, the policies underlying Sections 10(k) 3
and 8(b) (4) (D) 4 will --rot be served by Board intervention in this
dispute.
Sections 10(k) and 8(b) (4) (D) were enacted to protect employers
and the general public from the wasteful consequences of jurisdic-
tional strikes.5 This was to be achieved through procedures designed
9 Unless otherwise indicated , all dates refer to 1964.
$ Section 10(k) establishes the special work assignment procedure , which must precede
the complaint stage under any 8(b) (4) (D ) charge, and provides as follows:
Whenever it is charged that any person has engaged in an unfair labor practice
within the meaning of paragraph (4) (D) of section 8(b), the Board is empowered
and directed to hear and determine the dispute out of which such unfair labor prac-
tice shall have arisen, unless,.. -the parties to such dispute submit to the Board
satisfactory evidence that they have adjusted , or agreed upon methods for the
voluntary adjustment of, the dispute . Upon compliance by the parties to the
dispute with the decision of the Board or upon such voluntary adjustment of the
dispute, such charge shall be dismissed.
4 Section 8(b) (4) (D ) makes it an unfair labor practice for a labor organization to use
proscribed pressures to force or require:
... any employer to assign particular work to employees in a particular labor orga-
nization or in a particular trade, craft , or class rather than to employees in another
labor organization or in another trade, craft, or class, unless such employer is failing
to conform to an order or certification of the Board determining the bargaining repre-
sentative for employees performing such work.
5 H.R. Rep. No . 245, 80th Gong., 1st sess . (1947), 1 Leg. Hist . 294-296, 314-315.
KENTUCKY SKILLED CRAFT GUILD- 1199
(1) to encourage -the settlement of jurisdictional differences without
Board intervention, (2) to empower the Board to -determine disputes
not resolved by private arbitrators, and (3} to -outlaw jurisdictional
strikes in the interest of neutral employers_t nd the public."
From the record, it is apparent that an assertion of 10(k) jurisdic-
tion herein, in the face of the IUE and company opposition thereto,
-cannot be predicated upon a need to protect them against economic
injury or interference with production. Thus, the picketing in the
instant case was confined to a 3-day period and was honored only by
employees represented by KSCG. There is no suggestion that KSCG's
conduct had any impact upon persons other than IUE and the Com-
pany, and those parties not only have failed to complain of KSCG's
activity but concur in actively opposing Board determination of the
instant dispute. To proceed. to a dispute determination solely upon
charges filed by the, claiming union in a context such as this, where
the impact of the dispute does not appear to be a matter of concern to
the employer or the rival union or to significantly affect the general
public, would be to convert Section 10(k) to a. compulsory arbitra-
tion procedure that is available without limitation to any labor orga-
nization contesting an employer's assignment of work. Such a view
is not supported by the legislative history or the statutory scheme,
would fail to promote- any statutory objective, and would have the
detrimental effect of encouraging jurisdictional claims, while at the
same. time discouraging resolution of such differences through volun-
tary methods of adjustment.
For these reasons, we find merit in the position of the Company
and IUE and, a-ccordingly, we shall quash the notice of hearing in
this case. We. wish to make clear, however, that we leave open the
question whether the Board will or will not under other conditions
proceed to a Section 10(k) determination on charges filed solely by
a respondent union. Our decision herein is based solely upon the
particular facts before us, including the limited impact of KSCG's
conduct, and our view that, in the circumstances, the ends to be attained
by Sections 10(k) and 8(b) (4) (D) will not be effectuated by a
determination of the instant controversy based on the charge filed on
behalf of KSCG.7
[The Board quashed the notice of hearing.]
MEMBER BROWN took no part in the consideration of the above Deci-
sion and Order Quashing -Notice of Hearing.
G 'Wood, Wire and Metal Lathers .£nternational Union;_ et at (Acoustical Contractors
Association of Cleveland), 119 NLRB 1345 , 1352-1353. .
7In the words of the Supreme- Court, - the Board ". . . is-not required by the statute to
move on every charge ; it is merely enabled to do so." N.L.R.B. v. Indiana c6 Michigan
Electric Companny, 318 U.S. 9, 18.