Local Union 219

National Labor Relations Board - Board Decisions

Apr 1, 1958

120 N.L.R.B. 272 (N.L.R.B. 1958)

272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of certain employees of the Employer
within the meaning of Section 9 (c) (1) and Section 2 (6) and (7)
of the Act.
4. The parties stipulated that a production and maintenance unit
including warehouse employees was an appropriate unit. They
would exclude truckdrivers, office clerical employees, and salesmen
who are already bargained for in separate units. Under the existing
contract vintage season employees, who are hired in the fall and work
only from October into December, are defined as temporary or part-
time and are not required to become a member of the Union until
they have worked 60 days during the particular season. Employer
took no position as to their inclusion in the unit; Petitioner contends
that, in line with the contract, they should not be allowed to vote unless
they have been employed more than 60 days at the time of the election.
The record indicates that vintage season employees do not return
from year to year. On this record we find that the vintage season
employees are temporary employees with no reasonable expectation
of future employment, hence no substantial interest in employment
conditions at the plant.4 We shall exclude them from the unit.
We find that all production and maintenance employees of Em-
ployer at its Los Angeles, California, plant, including warehouse em-
ployees and checkers,5 but excluding vintage season employees, truck-
drivers, office clerical employees, salesmen, professional and technical
employees, guards, and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
[Text of Direction of Election 6 omitted from publication.]
4 Compare The Welch Grape Juice Company, 96 NLRB 214, 216, where the record showed
that many "nonregular" employees did have a reasonable expectation of substantial future
employment
5 The record indicates that Employer classifies checkers as warehouse employees.
If Local 56 of the Distillery Workers should achieve timely compliance with Sec-
tion 9 (f), (g), and (h), the International and/or its Local 56 may be placed on the
ballot upon application to the Regional Director within 10 days after the issuance of
this Decision and Direction.
Local Union 219, Retail Clerks International Association, AFL-
CIO and Carroll House of Belleville , Inc., J . J. Newberry
Company, W. T. Grant Company, J. C. Penney Company, and
S. S. Kresge Company . Cases Nos. 14-CB-450, 14-CB-451,
14-CB-453, 14-CB-454, and 14-CB-461. April 1, 1958
DECISION AND ORDER
On October 31, 1957, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above -entitled proceeding , finding that the
120 NLRB No. 48.
LOCAL UNION 219 273
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter the Respondent filed exceptions to
the Intermediate Report together with a supporting brief.'
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions, the brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the modification noted below'
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Local Union 219, Retail Clerks Inter-
national Association, AFL-CIO, its officers, representatives, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Downtown Retail Mer-
chants Association of Belleville, Illinois, for and in behalf of Carroll
House of Belleville, Inc., J. J. Newberry Company, W. T. Grant Com-
pany, J. C. Penney Company, S. S. Kresge Company, and any other
employer members of the Association, by failing to notify the Federal
Mediation and Conciliation Service and the appropriate State agency
of the existence of a dispute within 30 days after service of written
notice upon Downtown Retail Merchants Association of Belleville,
Illinois, for and on behalf of the above-named employers, of proposed
termination or modification of an existing collective bargaining con-
tract, provided no agreement has been reached by that time.
(b) Engaging in, or causing or instructing the employees of Carroll
House of Belleville, Inc., J. J. Newberry Company, W. T. Grant Com-
pany, J. C. Penney Company, S. S. Kresge Company, or any other em-
ployer member of the Association, to engage in, a strike, for the pur-
pose of modifying or terminating a collective-bargaining contract,
without first having complied with the requirements of Section 8 (d)
of the Act.
1 The Respondent also requested oral argument. The request is denied as the record
and brief adequately present the issues and the positions of the parties.
2 The Trial Examiner found that, by failing to comply with the requirements of Sec-
tion 8 (d) of the Act, the Respondent violated Section 8 (b) (1) (A) as well as Sec-
tion 8 ( b) (3). The Respondent has excepted . The Trial Examiner 's proposed remedy
,covers only the Section 8 (b) (3) violation The General Counsel has not excepted to this
limitation . The finding of a violation of Section 8 (b) (1) (A) is therefore essentially
redundant . In view of this circumstance , we find it unnecessary in this case to decide
whether by violating Section 8 ( b) (3), the Respondent also violated Section 8 (b) (1) (A)
The Trial Examiner 's finding of such violation is therefore not adopted.
483142-59-vol 120-19
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at the business offices of Local Union 219, Retail Clerks
International Association, AFL-CIO, copies of the notice attached
hereto as "Appendix." s Copies of said notice, to be furnished by the
Regional Director for the Fourteenth Region, shall, after being duly
signed by an official representative of the Respondent, be posted by the
Respondent immediately upon receipt thereof and be maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members of the Respondent are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Furnish to the said Regional Director signed copies of the
notice attached hereto marked "Appendix," for posting by Downtown
Retail Merchants Association of Belleville, Illinois, and the Charg-
ing Parties, the Association and the Charging Parties willing, at
places in the Belleville stores where notices to employees are
customarily posted. The notices shall remain posted for sixty (60)
consecutive days.
(c) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, as to the
steps it has taken to comply herewith.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order," the
words "Pursuant to a Decree of a United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL UNION 219, RETAIL CLERKS INTER-
NATIONAL ASSOCIATION, AFL-CIO; AND TO ALL EMPLOYEES OF
CARROLL HOUSE OF BELLEVILLE , INC., J. J. NEWBERRY COMPANY, W.
T. GRANT COMPANY, J. C. PENNEY COMPANY, AND S. S. KRESGE
COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby give notice that :
WE WILL NOT refuse to bargain collectively with Downtown
Retail Association of Belleville, Illinois, for and in behalf of
Carroll House of Belleville, Inc., J. J. Newberry Company, W. T.
Grant Company, J. C. Penney Company, S. S. Kresge Company,
and any other employer members of the Association, by failing
to notify the Federal Mediation and Conciliation Service and the
appropriate State agency of the existence of a dispute within 30
days after service of written notice upon Downtown Retail Mer-
LOCAL UNION 219 275
chants Association of Belleville, Illinois, for and on behalf of the
above-named employers, of proposed termination or modification
of an existing collective-bargaining contract, provided no agree-
ment has been reached by that time.
WE WILL NOT engage in, or cause or instruct the employees o
Carroll House of Belleville, Inc., J. J. Newberry Company,
W. T. Grant Company, J. C. Penney Company, S. S. Kresge Com-
pany, or any other employer member of the Association, to en-
gage in, a strike, for the purpose of modifying or terminating a
collective-bargaining contract without first having complied with
the requirements of Section 8 (d) of the Act.
LOCAL UNION 219, RETAIL CLERKS INTER-
NATIONAL ASSOCIATION, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10 (b) of the National Labor Relations Act,
as amended.'
These cases were consolidated and pursuant to notice came on for hearing before
the duly designated Trial Examiner at St . Louis, Missouri , on July 16, 1957. The
hearing was closed on the following day. The General Counsel of the National
Labor Relations Board and Local Union No. 219 , Retail Clerks International Asso-
ciation , AFL-CIO ( herein sometimes called the Union or Local 219) were repre-
sented by counsel . At the hearing, the amended consolidated complaint against
the Respondent, issued June 26, 1957, by the General Counsel on behalf of the
Board by the Regional Director for the Fourteenth Region , was again amended
in certain respects ' and as amended its paragraphs I through XIII were admitted by
the Union . The admissions of fact and stipulations entered into at the hearing in
substance show:
FINDINGS OF FACT
1. THE UNFAIR LABOR PRACTICES
Carroll House of Belleville , Inc., J . J. Newberry Company , W. T. Grant Com-
pany, J. S. Penney Company, and S. S. Kresge Company , the employers and
Charging Parties in this matter ,2 have bargained collectively with the union over
a period of years in an association unit known as the Downtown Retail Merchants
Association of Belleville , Illinois. A collective-bargaining agreement between the
Association and the Union expired on March 15, 1957.
On January 2, 1957, the Union had sent notices to each one of these employers
that it desired to amend or terminate the contract. Subsequently , on February 7,
1957, the parties met for the purposes of collective bargaining and met at various
times thereafter. On or about March 19, 1957, Local 219 mailed for the first
1 61 Stat . 136 ; 29 U S. Code , Sec 151 et seq , herein referred to as the Act
'Charges were filed by Carroll House of Belleville, Inc, on April 2, 1957. Case No
14-CB-450, by J J Newberry Company on April 3, 1957, Case No 14-CB-451, by
W. T' Grant Company on April 9, 1957, Case No 14-CB-453. by J C Penney Company
on April 12, 1957, Case No 14-CB-454 and S S Kresge Company on Juno 4, 1957,
Case No . 14-CB-461 These employers charged that Local 219 had refused to bargain
collectively within the meaning of Section 8 (b), subsection ( 3) and Section 8 (d), sub-
section (3) of the Act
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time notices of dispute to the Federal Mediation and Conciliation_ Service and
to the Illinois Department of Labor according to the requirements set forth in
Section 8 (d) (3) of the Act. Thereafter, on March 29, the Union engaged in a
strike and picketing at Carroll House and J. J. Newberry; on April 6, it' engaged
in a strike and picketing at the stores of W. T. Grant, J. C. Penney, and S. S. Kresge.
On April 11 an agreement was reached between Local 219 and these employers and
the strikes and picketing then ceased. It therefore is shown that the Union sent
the required 60-day notice several days prior to the reopening date of the contract
and that more than 2 months later, considerably after the 30-day period prescribed
by Section 8 (d) (3) of the Act, the first notices of dispute were sent to the
Federal Mediation and Conciliation Service and to the appropriate State agency;
and that within 1,0 days thereafter, a strike and picketing were conducted by the
Union at 2 of the stores involved and 8 days later a strike and picketing were
undertaken by the Union at 3 other stores.
The complaint alleges that the Union, by failing to comply with the requirements
of Section 8 (d) (3) was in violation of Section 8 (b) (3) and 8 (b) (1) (A) of
the Act.
The jurisdiction of the Board herein is established by agreement of the parties.
Carroll House of Belleville, Inc., an Illinois corporation, is a wholly owned sub-
sidiary of Interstate Stores, Inc., a Delaware corporation, which maintains and
operates eight department stores in the State of Illinois including the department
store at Belleville, Illinois, the facility here involved, which is operated by Carroll
House of Belleville, Inc. During the calendar year 1956, Interstate Stores, Inc.,
purchased and shipped goods valued in excess of $1,000,000 directly into the State
of Illinois from points outside the State of Illinois, and purchased goods valued in
excess of $2,000,000 within the State of Illinois, which goods originated outside
the State of Illinois.
J. J. Newberry Company, a New Jersey corporation with its principal office
located at 245 Fifth Avenue, New York 16, New York, owns and operates variety
stores in 46 States of the United States, including the variety store located at Belle-
ville, Illinois, the facility here involved. During the calendar year 1956, a repre-
sentative period, J. J. Newberry Company in the course and conduct of its operations
purchased and shipped or caused to be shipped, goods valued in excess of $10,000,000
directly from points in one State to points in other States where its respective retail
establishments are located.
W. T. Grant Company is ,a Delaware corporation with its principal office located
at 1441 Broadway, New York, New York, engaged in selling variety merchandise
at retail; it operates stores in 44 States of the United States, including two stores
located at Belleville, Illinois, the facility herein involved. During the calendar
year 1956, a representative period, W. T. Grant Company in the course and conduct
of its operations purchased and shipped or caused to be shipped, goods valued in
excess of $10,000,000 directly from points in one State to points in other States
where its respective retail establishments are located.
J. C. Penney Company, a Delaware corporation, with its principal office located
at 330 West 34th Street, New York, New York, owns and operates department
stores in 48 States of the United States, including a department store at Belleville,
Illinois, a facility here involved. During the calendar year 1956, a representative
period, J. C. Penney Company in the course and conduct of its operations pur-
chased and shipped or caused to be shipped, goods valued in excess of $10,000,000
directly from points in one State to points in other States where its respective retail
establishments are located.
S. S. Kresge Company is a Michigan corporation with its principal office located
at Detroit, Michigan; it owns and operates retail stores in 26 States and in the
District of Columbia. During the calendar year 1956, a representative period,
S. S. Kresge Company in the course and conduct of its operations purchased and
,shipped or caused to be shipped, goods valued in excess of $10,000.000 directly
from points in one State to points in other States where its respective retail
establishments are located.
On the basis of these facts, the Trial Examiner finds that each of these Companies
is engaged in commerce within the meaning of the Act.
It further is agreed between the parties that Local Union No. 219, Retail'Clerks
International Association, AFL-CIO, is a labor organization within the meaning
of Section 2, subsection (5) of the Act. The Trial Examiner so finds.
It is further stipulated that for many years, including negotiations in the year
1957, collective bargaining took place between representatives of the Downtown
Retail Merchants Association of Belleville, Illinois, on behalf of its members and
others who designated the Association as their bargaining unit; that the agreement
reached between the Association and the Union became the master contract and
LOCAL UNION 219 277
individual duplicates were executed between individual employers and the Union
upon proof that the, proffered contract was a duplicate of the agreement reached
between the Union and the Association, except that the 1957 contract agreed to
by the Association and the Union had not yet at the time of hearing been signed
off by all of the Belleville employers who usually sign such contracts, including
J. C. Penney Company; that a unit comprised of all employees of the employers of
Belleville, Illinois, including the employers who appear as charging parties herein
who bargain collectively with the Union through the Downtown Retail Merchants
Association of Belleville, Illinois, excluding guards, watchmen, professional, and
supervisory employees, constitutes a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9, subsection (b) of the Act. The 1956
agreement provided:
Article 12-Term of Agreement
This Agreement shall continue in effect from March 16, 1956, through March
15, 1957, and shall automatically be renewed from year to year unless either
party serves notice in writing to the other party sixty (60) days prior to the
Anniversary date, of a desire of termination of or changes in the Agreement.
The foregoing facts, on which the parties hereto seem to be in full agreement,
are now found by the Trial Examiner to constitute the essential facts in the case,
and lead to a necessary consideration of the merits of the allegations of contra-
ventions of the Act as set forth in the amended consolidated complaint.
Concluding Findings
The Respondent Union agrees that there can be little question that the Union,
by failing to send a notice required by Section 8 (d) (3) to the Federal Mediation
and Conciliation Service and to the appropriate State agency within the strict statu-
tory period, failed to comply with that provision of the Act, and was accordingly
in violation of Section 8 (b) (3) for refusal to bargain. The Union disagrees, how-
ever, with the assertion of the General Counsel that the calling of strikes by the
Union without sending the required 30-day notice was also a violation of Section
8 (b) (3). Thus, the question is raised as to whether the 30-day notice as required
by Section 8 (d) (3) when not timely sent becomes a violation of Section 8 (b) (3)
of the Act. The Union urges that past Board decisions 3 are in error, principally
because the Union contends that the Board considered the failure to send timely
notice and subsequent strike action as a combined issue, when in reality, they
should be considered as entirely separate matters. The Union contends that one
is covered by the statute, the other is not; that one is a violation which the Union
readily concedes, the other is not.
The Union states the question this way: Did the Union violate the law a second
time on March 29, 1957, when it began a strike against 2 employers, and again on
April 6, 1957, when it struck 3 others? These strikes began after the expiration
date of the collective agreement (March 15, 1957), and long after the 60-day period
of Section 8 (d) (1) had expired. In answering this question as posed by it, the
Union asserts that the statute makes no specific provision for outlawing a strike
after an untimely Section 8 (d) (3) notice; that there is no warrant whatever for
holding such a strike illegal when it occurs past the 60-day period, and that there
is not only no warrant for holding such a strike illegal , but other provisions of the
Act clearly indicate that such a drastic sanction as outlawing this kind of strike
cannot be justified within the provisions of the Act.
On this issue the General Counsel takes the position that he is not alleging that
the Respondent violated Section 8 (d) of the Act because the Union did not file
the required notice with the Mediation and Conciliation Service and the appropriate
State agency within 30 days; but that because the Union went out on strike within
30 days after giving that notice, the Union violated the Act. The Charging Parties,
as the Trial Examiner understands their position, say that this section of the Act
was violated because the Union did not file the appropriate notices within 30 days
from the original 60-day notice .4
8 Retail Clerks Local No. 1179 (J C Penney Company), 109 NLRB 754; DuQuoin
Packing Company. 117 NLRB 670; United Mine Workers, etc (TVest Virginia Pulp f
Paper Co ), 118 NLRB 220
* In argument at the close of the hearing, counsel for the General Counsel made the
following statement
Now. I admit that counsel is correct in saying that that position which I stated is
the only interpretation, we are not going as far as he is In other words, General
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While frankly conceding that the Union was in contravention of the Act through
its refusal to bargain within the meaning of Section 8 (b) (3) of the Act, the
Union asserts that strikes do not necessarily follow the untimely sending of notices
and that in these instant cases the strikes conducted by the Union on March 29
and April 6 , were not illegal strikes; conceding that here the Union had violated
the Act when it failed to send its Section 8 (d) (3) notice 30 days after the
sending of the required 60-day notification and that since the notice of termination
was sent on January 2 , the Section 8 (d) (3) notice was due no later than Febru-
ary 1 , and that when that period went by without sending a notice, the Union
violated the law "irrespective of any subsequent conduct." The Union force-
fully contends that the Act makes no specific provision for outlawing a strike
after an untimely Section 8 (d) (3) notice ; that there is no warrant whatever
for holding such a strike illegal when it occurs past the 60-day period; that not
only is there no warrant for holding such a strike illegal , but other provisions of
the Act clearly indicate that such drastic sanction as outlawing this kind of strike
cannot be justified within the terms of the Act. On behalf of the Union, it is
said that with no statutory language whatever to support the stringent position it
has assumed , the Board must necessarily fall back upon a construction of the
Act to justify the result it reached in J. C. Penney and subsequent cases; it is said
that quite obviously the 8 ( d) (3) notice is mandatory because it is in the law, but
that what the remedy may be for , failure to observe the strictness of the statute in'
another matter should be limited to the "statute of transgressions "; and it strongly
contends that a failure to comply with the mandatory requirements of an 8 (d) (3)
notice is a matter separate and apart from a later strike "and when other pro-
visions of the statute are construed , it ought to be readily recognized that to find a
violation of the law in a strike after an untimely 8 ( d) (3) notice is an egregious
restriction on the statutory rights of employees ." The statutory provisions relied
upon by the Union in support of this position are as follows:
1. Congress provided for restricting strikes following a Sec . 8 (d) (1)
notice , but did not do so after and 8 (d) (3) notice . Expressio unius est
exclusio alterius.
In order to insure that a union could not go on strike during the period
covered by the 60-day notice , Congress enacted Sec . 8 (d) (4) which pro-
vides that a party must continue in full force and effect without resorting to
strike, the terms and conditions of the existing contract for a period of sixty
days after such notice is given or until the expiration date of such contract.
Let us assume that Congress had not enacted Sec . 8 (d) (4). The Board's
interpretation that the language of 8 (d ) ( 3) is mandatory would apply
just as well to the language of 8 (d) (1) which provides for the 60 -day notice,
and to be consistent , the Board would also have to hold that a strike after a
failure to send an 8 (d ) ( 1) notice would be illegal also.
Counsel is not applying the language of the statute as literally as he interprets it.
I am not saying that is an incorrect position The General Counsel takes the posi-
tion that the spirit of the law has been violated by not permitting 30 days since
the [services of the] Mediation Service [were ] available or could be obtained.
Counsel for J. C. Penney , in brief, refers to an administrative decision of the General
Counsel wherein the General Counsel said in part-
legislative history supports the conclusion that the statutory purpose was
effectuated here . . . ( by) . . . granting time and opportunity tor the Mediation
Agency to function for at least 30 days. No . K-285, 37 LRRM 1436.
Although in the case considered by the General Counsel the Union did not serve Sec-
tion 8 (d) (3) notices on the governmental agencies until 2 months after the Union
served its Section 8 ( d) (1) notice , nevertheless the Union did not strike until 2 months
after service of the 8 ( d) (3) notice and after the expiration of the contract . Counsel for
this employer states that the employer feels that the General Counsel used the statute
less strictly than is required , but that it should be noted that the employer 's and General
Counsel's interpretations of Section 8 (d) are not necessarily inconsistent . Counsel cor-
rectly states :
The Union did not give notice to the Mediation Agencies within 30 days after the
giving of the 60-day notice . . . ( and) it engaged in strike action before a 30-day
period had expired from the time of the notice actually given to the Mediation
Agencies,
and argues that this certainly prevented the Mediation Agencies from offering their aid for
an effectual period , and thus prevent industrial strife, as is the intent of the statute
LOCAL UNION 219 279
But yet Congress specifically wrote in 8 (d) (4). To accept the Board's
interpretation that an untimely 8 (d) (3) notice prohibits a strike even though
there is no further statutory sanction , one would have to conclude that 8 (d)
(1), absent statutory sanction , would also prohibit a strike after an untimely
notice. Therefore to follow the Board's reasoning, the inclusion of 8 (d) (4)
was a totally useless and unnecessary act on the part of Congress. We re-
spectfully submit that this is not reasonable, that Congress enacted Sec. 8
(d) (4) for a valid purpose, and that Congress, had it intended to have out-
lawed a strike after an untimely 8 (d) (3) notice, could easily have used
language to attain its purpose.
2. The second statutory provision which enhances the Union's position here is
Sec. 13 which states: "Nothing in this Act, except as specifically provided
for herein, shall be construed so as to either interfere with or impede or
diminish in any way the right to strike, or to affect the limitations or quali-,
fications on that right."
It is impossible to ignore the force of Sec. 13. Nothing'except as specifi-
cally provided for shall be construed so as to interfere with or impede or
diminish in any way the right to strike. Now, there is rather obviously no
specific limitation in Sec. 8 (d) on the right to strike because of a failure to
send a timely notice under 8 (d) (3). The Board can only rely on inter-
pretation to reach its result, and Sec. 13 says as plainly as the English language
can say that this must not be done. We respectfully submit that the Board's
past rulings have wrongfully ignored the forthright command of Sec. 13,
and that it ought to be recognized that the time has come to accept the
force of this statutory provision.
In the brief filed on behalf of J. J. Newberry Company, Counsel takes a position
similar to that taken on behalf of J. C. Penney Company. Here Counsel asserts
that there is a very sound and logical reason for the provision in Section 8 (d) (3)
requiring that notice to the agencies be given 30 days after the 60-day notice. It
is said that Section 8 (d) contemplates the minimum 60-day notice being given by
a party exactly 60 days prior to the expiration date of the contract, and that for
this reason and to enable the governmental agencies 30 days to help the parties, Sec-
tion 8 (d) (3) was drafted so as to provide for the notice to such agencies 30 days
after the 60-day notice. It is said further that Section 8 (d) (4) "then falls exactly
in line with the preceding subparagraph" so that, the parties having had 60 days to
settle and the services of the governmental agencies having been available for 30 of
those 60 days, the union or employer may then resort to strike or lockout. It is
argued that there is no need for a reference in Section 8 (d) (4) to the 30-day
notice because the reference to the 60-day notice by force also covers the 30-day
notice and accordingly, failure to give the 30-day notice prior to expiration acts as a
bar to strike and picketing activity on the part of the union ; furthermore, that strike
and picketing activity by the union within 30 days after the giving of such notice
(even though after the expiration date of the contract) is illegal because it does not
give the governmental agencies ample time to assist the parties in arriving at a settle-
ment and acts as an interference and obstruction of commerce.
The pertinent provisions of Section 8 (d) of the Act provide:
Provided, That where there is in effect a collective-bargaining contract
covering employees in an industry affecting commerce, the duty to bargain
collectively shall also mean that no party to such contract shall terminate or
modify such contract, unless the party desiring such termination or
modification-
(1) serves a written notice upon the other party to the contract of the pro-
posed termination or modification sixty days prior to the expiration date there-
of, or in the event such contract contains no expiration date, sixty days prior
to the time it is proposed to make such termination or modification;
(3) notifies the Federal Mediation and Conciliation Service within thirty days
after such notice of the existence of a dispute, . . . provided no agreement has
been reached by that time; and
(4) continues in full force and effect, without resorting to strike or lockout,
all the terms and conditions of the existing contract for a period of sixty days
after such notice is given or until the expiration date of such contract, which-
ever occurs later:
The facts in the instant proceeding closely parallel the facts in Retail Clerks Inter-
national Association, Local 1179 (1. C. Penney Company), 109 NLRB 754. The
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
difference between the factual situation in J. C. Penney and here is that in J. C.
Penney, a 30-day notice was given a little more than 1 month after the start of the
strike and something over 3 months after the giving of a 60-day notice, while here
the Union sent the required 60-day notice several days prior to the reopening date
of the contract and more than 2 months later, and long after the 30-day period
prescribed by Section (d) (3) of the Act the first notices of dispute were sent to
the Federal and State agencies involved; and that within 10 days thereafter a strike
and picketing occurred. (It has been noted that the contract termination date here
was March 15; that the Union mailed its notice of dispute to Federal and State
agencies on March 19, and thereafter, on March 29, the Union engaged in a strike
and picketing at 2 stores and subsequently on April 6, at 3 other stores in Belle-
ville. On April 11, agreement between the Employers and the Union was reached
and the strikes and picketing ceased.) This difference, however, would seem not
to vitiate the application of the principle enunciated in J. C. Penney Company, supra,
to the facts in the instant case.5 A situation analogous to the instant case was
passed upon by the Board in United Mine Workers of America, District 50, etc.
(West Virginia Pulp & Paper Co.) 118 NLRB 220 (June 19, 1957) where the Board
adopted the findings, conclusions, and recommendations of the Trial Examiner. In
his Intermediate Report, the Trial Examiner there wrote in part:
The second contention of Respondents, that compliance with the provisions
for notification of the Mediation authorities as prescribed by (3) of Section
8 (d) is not a condition to a valid strike, was considered by the Board in [J. C.
Penney Company], and explicitly rejected. There, after noting that the pro-
vision in question was "an integral part of the scheme evolved by Congress
for achieving a higher degree of stability in collective bargaining," the Board
stated: "Section 8 (d), by its plain language and intent, made it unlawful for
the Respondent Union to strike . . . without first serving notice of the dispute,
with the Company upon the Federal Mediation Service."
The variant here is that Respondent struck, not before giving any but only,
before giving timely notification to the Mediation authorities. But unless the.
30-day time limit set by Section 8 (d) (3) for that purpose is to be regarded'
as a nullity, it must follow that the legal consequences of a tardy notification,
are no better than an omitted one-in the circumstances of this case at least.
The strike on July 27, assuming it to have occurred following compliance;
with the 60-day waiting period prescribed by Section 8 (d) (4), nevertheless,
took place after an interval of substantially less than the minimum of 30 days
which would have elapsed had Respondent's notification been timely.6
It is requested on the part of the Union that the Trial Examiner restudy the
language and meaning of Section 8 (d) (3), give full effect to the statute " in all`
its commanding terms," including Section 13, and hold that past Board rulings are
in error. This the Trial Examiner cannot do. In the absence of higher compelling
authority, the Trial Examiner is bound to follow prior decisions of the Board inso-
far as they bear directly on the issues herein.
In J. C. Penney the Board said (p 759) :
The fact that the Union withheld strike action for more than 60 days after advising
the Company of its desire to modify the contract could in no way relieve it of the
statutory duty to call in the Mediation Service. That notice, as the statute provides,
must be served "within 30 days" after notice to the Company In this case, no
service was made upon the Mediation Service and therefore the strike was unlawful
'from its inception Accordingly, we find that the Respondent Union unlawfully re-
fused to bargain, in violation of Section 8 (b) (3) of the Act, both by its failure to
serve notice of a labor dispute upon the Federal Mediation and Conciliation Service
and by engaging in strike action before properly serving such notice
In United Mine Workers, supra, 118 NLRB 220, Trial Examiner Somers noted, among
other decided cases, Wilson & Co. V. N. L. R. B., 210 F. 2d 325 (C. A. 8), cert. denied,
348 U. S. 822; International Union of Operatsng Engineers v. Dahlem Construction Co.,
193 F. 2d 470 (C. A. 6) ; Lion Ott Co v N. L. R, B., 221 F 2d 231 (C. A. 8), and other
cases This Trial Examiner agrees with the application of the principles in those cases,
as stated by the Trial Examiner Since the issuance of the Trial Examiner's report in
United Mine Workers, the Supreme Court of the United States has passed upon the ques-
tions presented by the Board in Lion Oil Co., reversing the circuit court and remanding
the case. 352 U S 282.
LOCAL UNION 219 281
The provisions of Section 13 of the Act are not applicable here, since that sec-
tion provides protection to the right to strike only to a legal strike. The Trial
Examiner will find that the strikes called on March 29 and April 6, were illegal
strikes and therefore the provisions of Section 13 are inapplicable?
Another point raised on behalf of the Union is to the effect that the complaint
is vague as to the party or parties with whom the Union had a dispute and that in
such respect the complaint is deficient. It is said that the complaint should have
spelled out or named the parties to the dispute but that the several charges filed
are predicated on the fact that the Union was in dispute with Carroll House, New-
berry, Grant, J. C. Penney, and S. S. Kresge; therefore, it is argued, since the
'bargaining is on an association basis, that if there was a dispute, it was a dispute with
the Association and not a dispute with any of the individual charging parties. The
Union questions whether or'not the mere opening of a collective bargaining agree-
ment creates a "dispute"; it says that if there was a dispute within the meaning of
Section 8 (d) this dispute was with the Association and not with the charging
parties and therefore, there is no remediable injury to the Employers due to the
Union's failure to file timely notice of dispute with the appropriate agencies as
required by Section 8 (d) (3) of the Act.
The Board has long held that the complaint in any case need not be limited to
the allegations contained in a charge or charges filed, but may include any other
alleged violations discovered during the course of the investigatory process, and
that any variances which occur between the essential allegations of the charge and
the eventual allegations of the complaint are not fatal. The charge is merely the
vehicle which sets in motion the investigatory process and in no sense is a plead-
ing which may result in the framing of issues in a particular case. Cathey, Lumber
Company, 86 NLRB 157, 159; Knickerbocker Manufacturing Company, Inc., 109
NLRB 1195, 1197; R. H. Osbrink, et al., 104 NLRB 42, 43.
Upon the foregoing findings of fact, and on the record as a whole, the Trial
Examiner hereby makes the following:
CONCLUSIONS OF LAW
1. Local Union No. 219, Retail Clerks International Association, AFL-CIO, is
a labor organization within the meaning of the Act.
2. The said Local Union No. 219 at all times material herein, has been and is
the exclusive collective bargaining representative, within the meaning of Section
9 (a) of the Act, of the following employees of Carroll House of Belleville, Inc.,
J. J. Newberry Company, W. T. Grant Company, J. C. Penney Company and S. S.
Kresge Company at their stores in Belleville , Illinois, in collective -bargaining units
as follows: All employees of each of the named employers who bargain collectively
with the said Local Union No. 219 through the Downtown Retail Merchants Asso-
ciation of Belleville, Illinois , excluding guards, watchmen, professional and super-
visory 'employees.
3. By striking to effectuate a change in contract terms despite failure to notify
the Federal Mediation and Conciliation Service and the appropriate State Media-
tion authority within 30 days after service of its 60-day notice, as prescribed by
Section 8 (d) said Respondent Local Union No. 219 violated its duty to bargain
collectively within the meaning of Section 8 (b) (3) of the Act, and thereby en-
gaged in and is engaging in an unfair labor practice within the meaning of said
section of the Act. By refusing to bargain collectively with each of these em-
ployers, the said Union engaged in and is engaging in an unfair labor practice
.within the meaning of Section 8 (b) (3) of the Act, and by such refusal to bargain
and by striking to effectuate a change in contract terms despite failure to notify
the Federal Mediation and Conciliation Service and the appropriate State Media-
.tion authority within 30 days after the service of a 60-day modification notice, as
prescribed by Section 8 (d) said Union engaged in and is engaged in an unfair
labor practice within the meaning of Section 8 (b) (1) (A) of the Act.
4. The said unfair labor practices are unfair labor practices affecting commerce
within the meaning of the Act.
[Recommendations omitted from publication.]
7 Section 13 provides : "SEC. 13. Nothing in this Act, except as specifically provided for
herein, shall be construed so as either to interfere with or impede or diminish in any
way the right to strike, or to affect the limitations or qualifications on that right."