Local 212, Retail Clerks INT'L Association, ETC.

National Labor Relations Board - Board Decisions

Feb 13, 1963

140 N.L.R.B. 1258 (N.L.R.B. 1963)

1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 212, Retail Clerks International Association , AFL-CIO
and Retail Clerks International Association, AFL-CIO and
Maxam Buffalo, Inc., d/b/a Maxam Inc.
Local 212, Retail Clerks International Association , AFL-CIO
and Retail Clerks International Association, AFL-CIO and
Maxam Seneca, Inc., d /b/a Maxam Inc.
Local 212, Retail Clerks International Association , AFL-CIO
and Retail Clerks International Association, AFL-CIO and
Maxam Hertel , Inc., d/b/a Maxam Inc.
Local 212, Retail Clerks International Association , AFL-CIO
and Retail Clerks International Association , AFL-CIO and
Maxam Niagara , Inc., d/b/a Maxam Inc . Cases Nos. 3-CP-
30-1, 3-CP-30-2, 3-CP-30-3, and 3-CP-30-4. February 13, 1963
DECISION AND ORDER
On October 5, 1962, Trial Examiner Benjamin B. Lipton issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter, the Respondents filed exceptions
to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.'
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner with the following modifications :
(1) The following paragraph shall be substituted for paragraph
1(a) of the Recommended Order:
1. Cease and desist from :
(a) Picketing or causing to be picketed, or threatening to
picket or cause to be picketed, the premises of Maxam Buffalo,
Inc., Maxam Seneca, Inc., Maxam Hertel, Inc., and Maxam
1 The Board finds it unnecessary to pass upon or adopt footnote 13 of the Intermediate
Report.
140 NLRB No. 120.
LOCAL 212, RETAIL CLERKS INT'L ASSOCIATION, ETC. 1259
Niagara, Inc., all doing business as Maxam Inc., with an object
of forcing or requiring the aforesaid Company or Companies
to recognize or bargain with Local 212, Retail Clerks Interna-
tional Association, AFL-CIO, or with Retail Clerks Inter-
national Association, AFL-CIO, or forcing or requiring the
employees of the aforesaid Company or Companies to accept or
select either or both of the aforesaid labor organizations as their
collective-bargaining representative, in violation of Section
8(b) (7) (C) of the Act.
2. The following paragraph shall be substituted in the notice called
Appendix, for the paragraph beginning "WE WILL NOT" :
WE WILL NOT picket or cause to be picketed, or threaten to
picket or cause to be picketed, the premises of Maxam Buffalo,
Inc., Maxam Seneca, Inc., Maxam Hertel, Inc., and Maxam
Niagara, Inc., all doing business as Maxam Inc., with an object
of forcing or requiring the aforesaid Company or Companies to
recognize or bargain with Local 212, Retail Clerks International
Association, AFL-CIO, or with Retail Clerks International As-
sociation, AFL-CIO, or forcing or requiring the employees of the
aforesaid Company or Companies to accept or select either or
both of the aforesaid labor organizations as their collective-
bargaining representative, in violation of Section 8(b) (7) (C) of
the Act.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, which was heard before Trial Examiner Benjamin B. Lipton in
Buffalo, New York, on June 28 and 29, 1962, involves allegations by the General
Counsel that Respondents have engaged in picketing on and since February 12,
1962, in violation of Section 8(b)(7)(C) of the Act.' All parties were represented
and participated in the hearing and, at the close thereof, the General Counsel argued
orally on the record in lieu of filing a brief. Respondents filed a brief which I have
duly considered.
Upon the entire record in the case, and from my observation of the witnesses, 1
make the following.
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Maxam Buffalo, Inc., which has its office and place of business at Union Road,
Buffalo, New York; Maxam Seneca, Inc., which has its office and place of business
at Ridge Road, West Seneca, New York; Maxam Hertel, Inc., which has its office and
place of business at Hertel Avenue, Buffalo, New York; and Maxam Niagara, Inc,
which has its office and place of business in Niagara Falls, New York, are all New
York corporations and are wholly owned and controlled by Maxam Inc, a Dela-
ware corporation Each is engaged in the operation of a self-service discount de-
partment store. In the 12 months preceding issuance of the complaint, each such
company independently sold and distributed products valued in excess of $500,000
and received goods transported in interstate commerce valued in excess of $50,000.
It is admitted, and I find, that each of these companies is engaged in commerce
within the meaning of the Act. The four companies shall collectively be referred
to herein as the Company.
1 The original charge In each of the cases was filed on April 26, 1962, and a con-
solidated complaint was issued on May 17, 1962.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATIONS INVOLVED
Local 212, Retail Clerks International Association , AFL-CIO, herein called Local
212, and Retail Clerks International Association , AFL-CIO, herein called the
International , are labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Issues
Section 8 ( b) (7), violation of which is alleged herein , provides in essential part
that it is an unfair labor practice for a labor organization to picket any employer
where an object of the picketing is-
.. . forcing or requiring an employer to recognize or bargain with a labor
organization as the representative of his employees , or forcing or requiring
the employees of an employer to accept or select such labor organization as
their collective bargaining representative, unless such labor organization is cur-
rently certified as the representative of such employees:
(C) where such picketing has been conducted without a petition under section
9(c) being filed within a reasonable period of time not to exceed thirty days
from the commencement of such picketing: .. .
Local 212, but not the International, admits that since February 12, 1962, it caused
to be picketed and did picket the Company at each of its four stores in the Buffalo
area without having filed a petition under Section 9(c). Local 212 defends on the
grounds that the picketing had no organizational or recognitional purpose but was
solely in protest of alleged Section 8(a)(1) and (3) unfair labor practices by the
Company, and that even assuming an organizational or recognitional object, it did
not violate Section 8(b) (7) (C) by its failure to file a Section 9(c) petition because
such filing would have been meaningless in view of its unfair labor practice charges
on file which would have blocked the holding of an election. There is no contention
or issue that the picketing comes within the informational proviso of Section
8(b) (7) (C).2
The essential questions to be resolved are therefore:
(1) Whether the picketing , in whole or in part, had an objective of organization,
recognition, or bargaining.
(2) If so, whether Section 8(b) (7) (C) was violated by the failure to file a peti-
tion under Section 9(c), notwithstanding that there may have been a further object
of the picketing to protest Section 8(a)(1) and (3) unfair labor practices.
(3) If so, whether the International was jointly responsible with Local 212 for
the violation.
B. The organizational object
Respondent Local 212 admits that its organizational drive at the Company's four
stores in the Buffalo area, which has been in progress since about July 1961,3 was
not abandoned at any time during its picketing of these stores on and since Feb-
ruary X12, 1962.4
2 The parties stipulated that an effect of the picketing at the four Buffalo area stores
was to Induce Individuals employed by persons other than the Company in the course of
their employment not to pick pup or deliver goods from and to the Company. Respond-
ents, while admitting that the stoppages occurred , state that these facts are immaterial
inasmuch as the picketing does not fall within Section 8(b) (7), and the informational
proviso does not apply In the present case
'In the Intermediate Report Involving the Company in Cases Nos 3-CA-1809 and
3-CA-1809-2, issued on August 9, 1962 [139 NLRB 1040] ( see infra ), the Trial Ex-
aminer In that proceeding found that Local 212 commenced organizational efforts on
June 3, 1962
4 While it disputes that an object of the picketing was organizational , Local 212 argues
that the law does not require a union to cease organizing while it pickets in protest of
unfair labor practices Be that as it may, the simple answer lies in the positive terms
of Section 8(b)(7) which clearly provides that its sanctions are invoked where the
picketing has an object of organizing the employees See International Hod Carriers',
etc, Local 840 (Charles A. Blinne, d /b/a C A Blinne Construction Co ), 135 NLRB 1153,
at footnote 28 While not conclusive , a factor to be considered in determining the object
under Section 8 ( b)(7) is that organizational activities are being conducted concurrently
with the picketing.
LOCAL 212, RETAIL CLERKS INT'L ASSOCIATION, ETC. 1261
Truckdrivers for independent companies gave uncontradicted and credible testi-
mony in essence as follows:
Sometime in February 1962, Rubin Dubozin had a delivery to make at the
Niagara Falls store. When he drove up, he observed pickets outside the store carry-
ing placards bearing the legend "Unfair" in large letters. He stopped his truck and
asked one of the pickets "what was going on." The picket told him simply that
"they were trying to organize." Nothing was said about discharges by the Com-
pany or unfair labor practices. Dubozin made his delivery that day. Thereafter, he
delivered merchandise to the store almost every day, but did not stop or converse
with the pickets while the picket signs stated "Unfair." About 2 or 3 weeks later,
sometime in March, the picket signs were changed to read "Strike." He stopped at
the line and told the picket that he had a delivery to make. The picket said, "You
better not go in." He also spoke to Marvin Jaffe, an international representative of
Respondent International, who was sitting in an automobile at the site of the picket-
ing Dubozin told Jaffe that his employer was insistent that he make this delivery.
Jaffe said that Dubozin's local union was "recognizing the strike," and then drove
Dubozin to a gasoline station where Dubozin telephoned his local union to verify
Jaffe's information. Jaffe informed Dubozin that "they were trying to organize."
Dubozin did not go through the picket line on this occasion, and has made no further
deliveries.
On February 12, 1962, William Roneker similarly encountered pickets with signs
stating "Unfair," while making a delivery of freight to the Company's Hertel Avenue
store in Buffalo Two pickets came up to the truck and told him "they are trying
to organize the store and that they would like me not to go in and deliver, but they
were not telling me that I couldn't." The pickets had no handbills or leaflets and
said nothing about discharged employees.
In March 1962, Anthony Guarino drove up to the Niagara Falls store with a
delivery. The store was being picketed with signs stating "On strike" and "Local
212." A picket stood in front of the truck and stopped it. The pickets said "they
were trying to organize." They had no leaflets or handbills. Guarino took his truck
away without making the delivery. He returned with the truck the next day;
another man was driving and he was acting as helper. The same picket jumped
in front of the truck and tried to stop it. Guarino told him to get out of the
way or he would be run down. After the truck drove through, Guarino looked
back and saw the picket writing something down. As they were unloading at the
store, an automobile drove up. Its occupants were International Representative
Marvin Jaffe and an unidentified woman. Jaffe said "he was some kind of repre-
sentative of the union there that was doing the picketing and he was in charge of
it or something like that ." 5 Jaffe told them he had spoken that morning
to Stanley Clayton, the president of their local union, who promised him full co-
operation that they would not enter. Guarino challenged Jaffe's statement, pointing
out that Clayton was at a convention in Florida Guarino had given Jaffe his own
name but refused to divulge the name of the driver of the truck. Jaffe said the
"names and numbers" were going to be turned in 6
In refutation of the foregoing, Respondents offered only the testimony of Richard
D. Adams, secretary-treasurer of Local 212. Adams stated that the pickets were
employed by Local 212 and were given instructions that, if approached by anybody,
they were not to say what the picket line was for but merely to advise that the
Union be called for any information. He also testified that the pickets distributed
handbills, which in substance requested the recipients not to patronize the store
because the Company had discharged employees for seeking to better their working
conditions by joining Local 212. Adams was unsure in fixing the time during which
the handbills were distributed; he ultimately approximated the period from mid-
February until mid-March, when it was ceased, and thereafter, at an unspecified
date, was resumed until May 1962, when it was finally stopped.?
The uncorroborated testimony of Adams, in my opinion, can scarcely serve to
overcome the clear, direct, and disinterested testimony given by truckdrivers Du-
bozin, Roneker, and Guarino Respondents called none of the pickets to testify.
These were paid pickets, who were given instructions. In the described incidents oc-
s Guarino at first testified that Jaffe "introduced himself as a representative or some-
thing of Local 212 and they were trying to organize"
"Frederick Werts, employed as a receiver at the Niagara Palls store observed T iffe
and Miss D'Agostino then a former employee of the Company, parked in a car looking
at the back of a truck which was moving into the dock of the store to unload Jaffe had
a pencil and paper in his hand and appeared to be writing
7 As already indicated, the picketing was continuing as of the time of the hearing on
June 28 and 29, 1962
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
curring in February and March, the only indication of the purpose of the picketing
revealed by the pickets and by International Representative Jaffe was that "they were
trying to organize." Even assuming these pickets had the instructions as asserted
by Adams, it would show merely that they disobeyed their orders, but would not
detract from the truckdrivers' evidence indicating an organizational object. For
the purpose of determining the object of the picketing, the statements of the pickets
were sufficient to bind the Respondents 8 Moreover, the presence at the scene in
February and March of International Representative Jaffe, who was in charge of or
involved with the picketing, lends further authority to the statements of the purpose
which the pickets gave the truckdrivers. It is my finding, therefore, that the evi-
dence of the truckdrivers, taken in conjunction with Respondent's 'admission of the
continuation of its organizing drive during the period of the picketing, amply estab-
lishes that an object of the picketing was organizational.
Without more, and even assuming a concurrent object of a Section 8(a)(1) and
(3) unfair labor practice protest, it follows for the reasons stated in the Blinne case 9
that Respondent Local 212, by failing to file the timely representation petition re-
quired, has been picketing for a proscribed object in violation of Section 8(b) (7) (C)
of the Act.
C. Responsibility of the International
As already shown, Marvin Jaffe, an International representative, was present and
a participant in the activity at the Niagara Falls store while it was being picketed
at times in February and March 1962. He told a truckdriver, Guarino, that he was
in charge of the picketing "or something like that," and told truckdriver Dubozin
"they were trying to organize." Jaffe, who was present during the hearing, was not
called to testify. Adams, of Local 212, admitted that International Representatives
Jaffe, Sloan, and Steel have participated in the organizing activities at the Company,
that Sloan and Jaffe are still so engaged, and that these representatives were not
paid by Local 212. Adams testified that on February 12, 1962, before the picketing
was commenced, he informed Earl MacDavid, International vice president and di-
rector of organizing for the eastern division, and MacDavid gave his approval. If
MacDavid had disapproved, further consideration by the executive board of
Local 212 would have been necessary. Both Adams and MacDavid testified that
they were working together very closely with respect to the union activity at the
Company Local 212 requested and obtained the sanction of the International to
engage in the "strike." And finally, the record is replete with evidence of direct
and principal participation of MacDavid in numerous telephone calls and meetings
with representatives of the Company relating to the issues which gave rise to the
picketing. In the face of this array of evidence, it is difficult to see how Respondents
can seriously dispute that the International was directly involved and jointly re-
sponsible with Local 212 for the picketing. I find accordingly.
D. The object of recognition or bargaining
Much of the record testimony is devoted to the telephone conversations and
meetings between various representatives of Respondents and those of the Com-
pany covering a period from the latter part of 1961 until and beyond the commence-
ment of the picketing on February 12, 1962. It is unnecessary in this report to re-
count all the details of the discussions and resolve those subsidiary conflicts which
exist In significant areas the subiect matter discussed by these parties is not ma-
terially in dispute. The essential disagreement concerns the purpose of these discus-
sions This, however, is a conclusion to be drawn from all the circumstances
Respondents at no time made claim of majority representation 10 and preliminarily
stated in discussions with the Company that recognition was not requested. Mae-
8 Highway Truckdrivers and Helpers, Local No 107, et al (Riss & Company, Inc ), 130
NLRB 943, enfd. 300 F. 2d 317 (CA 3)
eInternational Hod Carriers', etc, Local 840 (Charles A Blinne, d/b/a C A Blinne
Construction Co ), 135 NLRB 1153. The essential holding was that the clear intent of
Congress required the filing of it Section 9(c) petition where the union was picketing for
a proscribed object, even though it was also protesting alleged Section 8(a) (1) and (3)
unfair labor practices as to which meritorious charges were filed The petition would be
held in abeyance pending the satisfactory resolution of the unfair labor practice charges,
but the absence of a timely petition would preclude disposition of the underlying question
concerning representation-an essential purpose of Section 8(b) (7)-even after the
Section 8(a) (1) and (3) charges were satisfactorily resolved
10 MacDavid testified that at the December 28, 1961, meeting (see infra), he said that
the Union represented a majority in one store but not in the other three stores in the
LOCAL 212, RETAIL CLERKS INT'L ASSOCIATION, ETC. 1263
David testified he made the first contact with the Company by calling Attorney New-
ton A. Lane in October 1961.11 He said he attempted to discuss with Lane the
interference by the store managers in the Union's organizing effort, e.g., "interrogat-
ing employees, swearing at them and making things difficult," and wanted to arrange
ground rules for future organizing that would obviate the necessity of unfair labor
practice picketing. As to the various conversations with the Company which fol-
lowed, Respondents' position is that the sole purpose was similarly an effort to
settle or protest the Company's alleged unfair labor practices. On the part of the
Company, the testimony is essentially that in the various conversations, Respondents
concentrated their efforts in defining specific contract terms and in attempting to ob-
tain the Company's agreement to a contract.
In assessing the evidence and the respective positions of each side, it is well to have
in consideration the circumstances which actually existed respecting the filing of
charges by Respondents alleging unfair labor practices by the Company. On
December 26, 1961, Respondent Local 212 filed with the Board its first and original
unfair labor practice charges against two of the Company's stores, alleging a Section
8(a)(3) violation in the discharge of one employee, together with a general Section
8(a) (1) allegation. The charge of discrimination against this one employee was
later withdrawn. On the basis of a second amended charge filed March 14, 1962,
a complaint was issued by the General Counsel alleging that 12 employees were
discriminatorily laid off beginning on January 10, 1962, and in addition that certain
Section 8(a)(1) violations were committed. Hearing was held on the latter com-
plaint, and on August 9, 1962, the Trial Examiner therein issued his Intermediate
Report,12 dismissing the allegations of discriminatory layoffs but finding the Section
8(a)(1) violations alleged which consisted of (a) threatening statements to em-
ployees by the manager of the Niagara Falls store that they would lose benefits if the
Union organized the store, made on June 6, 1961; (b) threats of a fine or discharge
if employees engaged in union activities during their nonworking time on company
premises, made by the same store manager on June 6, 1961; and (c) coercive inter-
rogation of one employee by a supervisor of the Niagara Falls store, occurring
on January 10, 1962.13
With the foregoing as background, the salient, material aspects of the discussions
between Respondents and the Company will be examined to determine whether a fur-
ther object of the picketing was recognition or bargaining.
(1) International Vice President MacDavid called on Attorney Lane in Boston
and had a brief meeting with him at Brigham's, an "ice cream parlor." (MacDavid
fixed the time in late November 1961, and Lane said it was early January 1962.)
Among other things, they discussed generally the procedure of a card check as a
means of recognition, although MacDavid made no request for recognition on such
basis. Lane indicated he was opposed to the card-check procedure except when
the union plainly represents an overwhelming majority, citing as an illustration the
Company's recognition by card check of another union at its discount department
store in Dayton, Ohio, where the union in question had produced signed cards from
99 percent of the employees.
(2) On December 28, 1961, MacDavid and Secretary-Treasurer Adams of Local
212 met with Attorney Leon Novak at the latter's hotel in Buffalo, New York.
MacDavid, after first announcing that the Union did not seek recognition, stated,
inter alia, that it would be advantageous to all concerned to discuss at that time
Buffalo area. Attorney Newton A. Lane, on cross-examination, indicated a similar ver-
sion which he received from MacDavid late in November 1961. Attorney Leon Novak
stated that MacDavid, at the December 28 meeting, claimed 75 percent representation in
one store and "probably" a majority in the other three stores
"Lane's testimony was that he recalled speaking to MacDavid for the first time about
December 20, 1961, but stated that MacDavid might have called him before such date
12 Maxam Buffalo, Inc, d/b/a Maxam, 139 NLRB 1040
131n the Blinne case, supra, a prerequisite for finding that picketing had an object of
protesting unfair labor practices is that meritorious charges be filed by the picketing
union It was there found that the issuance of a complaint by the General Counsel
established the meritorious character of the charges (at least while Board proceedings
were pending). The questions are open whether charges are to be deemed meritorious
for Section 8(b) (7) purposes (1) at a time when, as here, the allegations therein are
dismissed by a Trial Examiner, or (2) if and when dismissed by the Board Since the
test laid down by the Board appears to be the actual existence of meritorious charges,
rather than a bona fide protest by the picketing union against unfair labor practices
which it believes were committed, it would seem to follow that the charges continue to be
regarded as meritorious unless and until the Board dismisses the allegations.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the benefits of a contract. Novak expressed the position that the Company would
not recognize or deal with any union except upon certification after a Board election.
MacDavid said that his union does not go in for election among the retail discount
stores, that it would save a lot of unnecessary warfare if they sat down and talked
now because there was not going to be an election. Novak asked them to clarify
the contract terms, and MacDavid and Adams discussed the nature of contracts in
the discount field in relation to the wage structure of the Company. They told Novak
they were unable to indicate more specific contract terms then, but arranged for
Adams to telephone Novak at a later time with such information. Novak stated
that at the "tail end" of the discussion, MacDavid indicated that some employee had
been discharged for union activities. MacDavid and Adams testified concerning this
meeting and subsequent telephone calls that the subject of interference by store
managers with the Union's organizational movement was discussed, and Novak
promised to do something about it Thereafter, Adams called Novak and spelled
out in full the terms of a contract covering two other companies in the discount field.
Adams told Novak that the only possible problem for the Company lay in the health
and welfare provisions. MacDavid and Adams in these conversations expressed to
Novak the need for the Company to act quickly, that "time was running out " On
January 11 and 12, MacDavid telephoned Novak asserting that employees had been
fired for engaging in union activities.
(3) In conversations with Attorneys Lane and Novak, MacDavid had requested
a meeting with Paul Dichter, president of the Company. A meeting was arranged
and held in Boston on January 19, 1962 Present for the Company were Dichter,
Novak, and Attorney Paul Kendall, assistant to the president; appearing for Re-
spondents were MacDavid and Adams. Much of the conversation proceeded along
the same lines as above related respecting the December 28 meeting with Novak,
including the initial statement that recognition was not requested; the need to avoid
costly fighting and warfare by making a present arrangement for a contract; and,
without any specific offer being made, a general review of contract terms and what
it would cost the Company. When Dichter indicated he could not afford a contract
with the Union, MacDavid attempted to demonstrate that the expense to the Company
beyond its present costs would be negligible. MacDavid said he would not go in
for elections, particularly with the Company because it had discharged persons for
their union activities. He discussed the possibility of recognition by card check,
mentioning the Company's recognition of the Union on this basis at its Dayton, Ohio,
store. As to the Company's stated position that an election was desired, MacDavid
remarked that they were "getting technical," that if a contract was signed, the Union
would supply the cards to prove a majority. MacDavid emphasized the need to act
quickly. A further meeting was arranged to be held the next Monday, January 22,
for the purpose of giving the Company all the details and cost items of a contract
with the Union. At the end of the January 19 meeting, MacDavid produced two lists
of about 24 employees alleged to have been wrongfully discharged, and Novak took
copies of the lists to check into the matter. MacDavid testified that he told the
company representatives that the reason for their talks was to find some amicable
solution to settle the discrimination against employees without getting involved in
litigation, and that unless the Company reinstated these people, the Union was going
to advertise to the public by means of picket lines that several employees had been
fired for union activities.
(4) The January 22 meeting was held in Schenectady, New York, and was
attended for Respondents by Adams and Joseph Gotthelf, business agent of Local
212, and for the Company by Attorney Novak and William Geller, a district
manager. Adams said, "This is what we want," and asked Geller to write down
the contract terms. Adams proceeded to read the proposed contract provisions in
detail and Geller copied them down. Upon concluding, Adams said, "What about it?"
Geller replied that he would have to take the information back to Boston and refer
it to Dichter. Adams indicated surprise, stating that he thought Geller could make
the decision. Adams remarked on the need for haste, and said finally, "If we
don't get together, it will be very costly to you and to us." On January 24, Adams
telephoned Novak and asked, "What about it?" Novak answered that there would
be no contract except on the basis already stated, i.e., a Board election. On January 25
or 26, Gotthelf called Novak and requested that the decision not to enter into a
contract be suspended because the principals, Dichter and MacDavid, were both
away at the time. Novak replied that it may be so considered if that would be of
any help.
(5) Early in February 1962, MacDavid telephoned Attorney Lane. MacDavid
said he was trying to get an answer to a question put to the Company and he believed
he was getting a "runaround" from Novak. The question was, "What is the com-
pany's answer to the tentative proposals on economic issues?"
LOCAL 212, RETAIL CLERKS INT'L ASSOCIATION, ETC. 1265
(6) On March 7 or 8 , after the commencement of the picketing , Attorney Novak
attempted , unsuccessfully , to reach Adams or Gotthelf by telephone at the union hall
of Local 212 , and shortly thereafter , Gotthelf called him back. Novak asked the
Union to withdraw the picket lines. Gotthelf answered, "Sure we will if you sign
a contract." When Novak refused, Gotthelf proposed to withdraw the pickets if
the Company would "give us a complete run and freedom of your stores for a
period of twenty-four hours so that we can sign up your employees " Novak declined
but offered instead to permit the Union to organize the employees so long as it was
not done in the presence of, or caused any interference with, the customers . Gotthelf
said that was not good enough.14
No mention was made of discharges or of unfair labor practices in the various
conversations after the January 19 meeting.
The narration above is based upon a composite of undisputed evidence and of
credited testimony given by representatives of the Company Particularly regarding
the described events after the January 19 meeting , the testimony stands uncon-
troverted . 15 Respondents advance various arguments to rationalize the numerous
and detailed discussions concerning specific contract terms, e g , that they were
intended only to show .the exact nature of the cost items in the event the Union became
the employees ' representative ; or that Respondents merely sought to convince the
Company of the economic feasibility of dealing with the Union so that it would not
persist in its antiunion practices . Suffice it to say that I reject these arguments as
being unrealistic and unbelievable It might be added that such practices on the
part of a union admittedly lacking majority representation and not claiming the
right of recognition are highly questionable , if not perilous MacDavid 's preliminary
announcements at the meetings on December 28 and January 19 that the Union was
not claiming recognition would scarcely be conclusive of the question . The evidence,
largely uncontradicted , is that Respondents sought out the Company , and its president,
in -telephone conversations and meetings in an attempt to obtain agreement to specific
contract terms. Of necessity , such an agreement if entered into would entail recogni-
tion of the Union. To be sure, the Company for a time acquiesced in, and perhaps
encouraged , the contract talks, although I find the subject was initiated by Respond-
ents and pressure was exerted in the form of threats of "warfare " and repeated refer-
ences to the need for haste . In any event , on the evidence there is no mistaking the
Respondents' contract objective . In the sequence of the developments described
above, it appears that the picketing was begun on February 12, 1962 , after the
Company indicated its rejection of Respondents ' final contract proposals My con-
clusion is that a further object of the picketing , in addition to that of organizing the
employees , was to force or require the Company to recognize the Union or at least
to bargain with it on the terms of a contract , within the meaning of Section 8 ( b) (7).16
Accordingly , I find the violations of Section 8(b) (7) (C ) as alleged.
14 Gotthelf was not called to testify.
'5I do not accept MacDavid' s self-serving statements as to the purpose of Respondents'
discussions with the Company, and I do not credit MacDavid and Adams where their
testimony is in material conflict with that of the General Counsel 's witnesses
19 It may be observed , tinter aria, that from the time the alleged Section 8(a) (1) viola-
tions occurred on June 6, 1961, as above described , until sometime in or after October
1961 , when the initial contact was made with Attorney Lane, Respondents apparently
made no move to protest or rectify the asserted unfair labor practices The first charge
was not filed against the Company until December 26, 1961, and the discrimination there
alleged against one employee was later withdrawn During the discussions in early 1962,
the only reference by Respondents to unfair labor practices concerned the discharge or
layoff of employees The amended charges alleged discriminatory layofts made on and
after January 10, 1962 ; a Trial Examiner dismissed these allegations Adams' testimony
that handbills protesting discharges were distributed on the picket lines is uncorroborated
He did not say that he saw the handbills being passed out and he did not name any of
the pickets He was vague and uncertain as to the time the handbills were distributed,
although the handbills would appear to be the only overt showing of the alle_ed protest
picketing against unfair labor practices By Adams' own broad estimate , distribution of
the handbills ceased in mid-March and again after May 1962, so that the picketing was
conducted during these periods without any revelation of the Respondents ' alleged object
In the various incidents in February and March 1962, credibly described by certain wit-
nesses , no handbills were distributed by the pickets and nothing was otherwise said or
indicated to show any protest of unfair labor practices On Adams' testmony, the
pickets were Instructed not to say, when asked , what the picket line was for- it eutiouq
instruction I Adams impressed me as an unreliable witness, giving evasive and shifting
testimony Excepting his admissions , I do not credit his statements as to the instruc-
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The acts and conduct of Respondents set forth in section III, above , occurring in
connection with the operations of the Company here involved, set forth in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found Respondents in violation of Section 8(b) (7) (C) of the Act, I will
recommend that they cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
cases, I make the following:
CONCLUSIONS OF LAW
1. Maxam Buffalo, Inc., Maxam Seneca, Inc., Maxam Hertel, Inc., and Maxam
Niagara, Inc., all doing business as Maxam Inc., are each engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondents herein, Local 212 and the international, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. By picketing the Company at its four stores in the Buffalo, New York, area, on
and since February 12, 1962, with the objectives of organizing the Company's em-
ployees and of obtaining recognition or bargaining on the part of the Company,
without timely filing a petition under Section 9(c) of the Act, Respondents have
engaged in and are engaging in unfair labor practices within the meaning of Sec-
tion,8 (b) (7) (C) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the cases, it is recommended that the Respondents, Local
212, Retail Clerks International Association, AFL-CIO, and Retail Clerks Inter-
national Association, AFL-CIO, their officers, agents, representatives, successors, and
assigns, shall:
1. Cease and desist from:
(a) Picketing or causing to be picketed, or threatening to picket or cause to be
picketed, the premises of Maxam Buffalo, Inc., Maxam Seneca, Inc., Maxam Hertel,
Inc., and Maxam Niagara, Inc., all doing business as Maxam Inc, with an object
of forcing or requiring the aforesaid Company or Companies to recognize or bargain
with Local 212, Retail Clerks International Association, AFL-CIO, or with Retail
Clerks International Association, AFL-CIO, or forcing or requiring the employees
of the aforesaid Company or Companies to accept or select either or both of the
aforesaid labor organizations as their collective-bargaining representative, unless
and until such labor organization is certified as the representative pursuant to the
provisions of Section 9 of the Act.
2. Take the following affirmative action designed to effectuate the policies of
the Act-
(a) Post in conspicuous places in the Respondents' business offices, meeting halls,
and all places where notices to their members are customarily posted, copies of the
attached notice marked "Appendix." 17 Copies of said notice, to be furnished by
the Regional Director for the the Third Region, shall, after being duly signed by
official representatives of the Respondents, be posted by the Respondents immediately
upon receipt thereof and be maintained by them for 60 consecutive days thereafter.
tions and information given the pickets In these circumstances, it is questionable
whether the picketing also had, throughout the period of the picketing, a cognizable pur-
pose, more than merely incidental, of protesting alleged unfair labor practices However,
in view of the Blinne case, supra, I find It unnecessary to determine this question.
"'In the event that this Recommended Order be adopted by the Board the words "A De-
cision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order " shall be substituted for the words
"Pursuant to a Decision and Order."
HOUSTON CHRONICLE PUBLISHING COMPANY 1267
Reasonable steps shall be taken by the Respondents to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Third Region signed copies of the
aforementioned notice for posting by the Company at its four stores in the Buffalo,
New York, area, as described herein, the Company willing, in places where notices
to employees are customarily posted. Copies of said notice, to be furnished by the
Regional Director for the Third Region, shall, after being signed by the Respondents,
as indicated, be forthwith returned to the Regional Director for disposition by him.
(c) Notify the Regional Director for the Third Region, in writing, within 20 days
from the date of the receipt of this Intermediate Report, what steps the Respondents
have taken to comply herewith.ls
18 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondents have taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 212, RETAIL CLERKS INTERNATIONAL ASSOCIA-
TION, AFL-CIO, AND RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO
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 you that:
WE WILL NOT, under conditions prohibited by Section 8(b) (7) (C) of the
National Labor Relations Act, picket or cause to be picketed, or threaten to
picket or cause to be picketed, the premises of Maxam Buffalo, Inc., Maxam
Seneca, Inc., Maxam Hertel, Inc., and Maxam Niagara, Inc., all doing business
as Maxam Inc.
LOCAL 212, RETAIL CLERKS INTERNATIONAL ASSOCIATION,
AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO,
Labor Organization.
Dated------------------- By--------------- ---------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date of posting, and must not
be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 4th Floor,
The 120 Building, 120 Delaware Avenue, Buffalo 2, New York, Telephone No.
TL 6-1782, if they have any questions concerning this notice or compliance with its
provisions.
Houston Chronicle Publishing Company I and Houston News
Vendors Association , Petitioner . Case No. 23-RC-1985. Feb-
ruary 13, 1963
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William H. Helms, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
1 The Employer' s name appears as amended at the hearing.
140 NLRB No. 119.
681-492-63-vol . 140-81