Martino's Complete Home Furnishings

National Labor Relations Board - Board Decisions

Dec 24, 1963

145 N.L.R.B. 604 (N.L.R.B. 1963)

604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martino 's Complete Home Furnishings , Employer-Petitioner and
Retail Store Employees ' Union, Local No. 428, Retail Clerks
International Association , AFL-CIO. Case No. 20-RM-510.
December 24, 1963
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act,' a hearing was held before Hearing Officer James S.
Jenson. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act Y
2. Retail Store Employees' Union, Local No. 428, Retail Clerks
International Association, AFL-CIO, is a labor organization within
the meaning of the Act.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Sections
9(c) (1) and 2(6) and (7) of the Act for the following reasons:
On March 23, 1963, the Employer filed the instant petition alleging
that the Union had presented it with a claim for recognition as the
representative of eight selling and nonselling employees 3
To understand the circumstances which gave rise to this proceeding,
it should be noted initially that the relationship between Martino's
and the Union dates back to 1957 and has been the subject of two
recent Board decisions 4 In April of 1957, the newly formed Retail
Furniture Council of Santa Barbara, a multiemployer association of
retail merchants including Martino's, entered into a collective-
bargaining contract, through its authorized Representative Moore,
I On March 22, 1963, the California Association of Employers, hereinafter referred to as
CAE, filed the instant petition On April 5, CAE notified the Board that the petition had
been filed "for and on behalf of Martino's Complete Home Furnishings " We find no merit
in the Union's motion to dismiss the petition on the ground that it was not filed by a
proper party
z The Employer, a California corporation hereinafter referred to as Martino's, owns and
operates two stores in San Jose, California, engaged in the retail sale of furniture, appli-
ances, and home furnishings. During 1961 the Employer purchased and received $80,000
worth of goods directly from points outside the State of California and received a gross
revenue from sales in excess of $500,000 On these facts, the Board recently asserted
jurisdiction over the Employer's operations (Martino's Complete Home Furnishings, 141
NLRB 503) and we shall again do so herein Siemens Mailing Service, 122 NLRB 81.
3 The two Martino's stores currently employ 13 persons. In addition to the eight afore-
mentioned selling and nonselling employees, there are five other nonselling employees (a
driver, driver's helper, driver's helper-drapery man, shipping clerk, and one man who
services the appliances sold by the Employer) , of these five employees, all but the
serviceman are currently covered by a contract with the Teamsters
4 Goldeen's, Inc., 134 NLRB 770, and Martino's Complete Home Furnishings, supra For
purposes of this proceeding, we shall take official notice of the records therein.
145 NLRB No. 66.
MARTINO'S COMPLETE HOME FURNISHINGS 605
with the Union. The contract was effective until July 1960, and
contained an annual reopening provision.
In summary form, the pertinent events subsequently unfolded as
follows : Pursuant to the reopening provision, negotiations were
conducted at the Union's behest in 1958, and culminated in a new
contract entered into in January 1959, effective until July 30, 19615
The council members, including Martino's, later terminated their
authorization to Moore in March 1960. They thereupon joined the
California Association of Employers, a large multiemployer organiza-
tion and authorized CAE, in writing, to represent them for purposes
of collective bargaining.6 On May 26, 1960, the Union notified the
CAE of its desire to reopen the contract. Negotiations followed and
on July 28, 1960, the parties executed an amendment thereto.
On March 30, 1961, 4 months before the amended contract was to
expire, the council members, including Martino's, voted to dissolve
their organization and thus to terminate group bargaining. In lieu
of their existing arrangement, they requested the CAE to represent
them separately on an individual-store basis. The Union was apprised
of this latter development by the CAE on May 2; 3 weeks later the
Union was also informed by the CAE that its individual employer-
members, including Martino's, desired to terminate their contract as
of the July 31 expiration date.
The Union thereupon filed an RC petition on May 26, 1961, request-
ing an election in the multiemployer unit. The Union also wrote
two letters to Martino's (in May and June 1961) which evidenced
a desire to negotiate a contract on an individual employer basis. In
the meantime, some of Martino's employees petitioned the Board on
May 19 to decertify the Union as the bargaining representative 7
A consolidated hearing was held on all the petitions and the Board,
on November 27, 1961, dismissed the Union's representation petition 8
and all the decertification petitions .9
5 The agreement also contained an annual reopening provision . Pursuant thereto, nego-
tiations were conducted in the summer and fall of 1959 with reference to a health and
welfare plan , these negotiations resulted in an amendment to the contract in January 1960
6 As the Board indicated previously , "Although the Council members . . . joined CAE,
it is clear from the record and actions that Council continued to exist as a body
within CAE and that CAE was merely substituted for Moore as the bargaining representa-
tive of Council ." See Goldeen's, Inc., 134 NLRB 770, 773.
'Numerous other decertification petitions were filed in April and May 1961, by em-
ployees of other former employer-members of the council.
s The Board found that the individual members of the CAE, including Martino's, had
communicated to the Union an unequivocal intent to abandon multieuiployer bargaining
As such action was timely taken , the Board concluded that the multiemployer unit re-
quested by the petitioning Union was no longer in existence . See Goldecn's, Inc, 134
NLRB 770, 775.
9 Each of the several decertification petitions sought elections in single -employer units
The Board dismissed these petitions , since the Union was not then currently " certified"
or recognized in single -employer units. See Goldeen's, Inc ., 134 NLRB 770 , 775-776.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 7, 1961, approximately 1 week thereafter, the Union
began to picket Martino's two retail stores with signs addressed to
the public reading :
Please
Do Not Shop
At
Martino's
x x x x x
Retail Store Employees Union
Local 428, AFL-CIO
Picketing took place in front of the consumer entrances to the stores
during the normal hours when they were open to the public. The
pickets also distributed leaflets to the public which stated that
Martino's had no contract with the Union, Martino's employees did
not enjoy union wages and conditions of employment, the public was
undermining the position of union members at other stores by shop-
ping at Martino's, and the purpose of the leaflet was not to make
demands upon Martino's but rather solely to urge the public to with-
hold patronage from Martino's.
On January 8, 1962, Martino's filed an unfair labor practice charge
alleging that the Union's picketing violated Section 8(b) (7) (C) of
the Act.10 On March 14, 1963, the Board" dismissed the complaint
on the grounds that the picketing, although in furtherance of recog-
nitional and organizational objects, was conducted for informational
purposes, and, therefore, in the absence of any proscribed statutory
"effect," fell within the protection of the second proviso to Section
8(b) (7) (C).la
Eight days later Martino's filed the instant petition. Shortly there-
after, on March 29, the Union filed a written "Answer to Petition"
denying that it represents any of Martino's employees, has any interest
in representing them, or has requested recognition or a contract from
Martino's within the past 12 months. At the hearing in the instant
proceeding on April 22, the Union repeated its denial of any claim
to representation. The Union's aforedescribed picketing and leaflet
distribution continued as of the date of the hearing in this proceeding.
The sole issue now before the Board is whether the Employer has
been presented by the Union with "a claim to be recognized as the
representative defined in Section 9 (a) " of the Act as prescribed by
Section 9 (c) (1) (B). As set forth more fully below, we are not
"The United States District Court (N.D. Calif.) denied a temporary injunction in this
matter. Roy 0. Hoffman, Reg. Dir. v. Retail Store Employees Union, Local No. 428
( Martino's Complete Home Furnishings ), 206 F. Supp. 271.
U Martino's Complete Home Furnishing , supra ( Members Rodgers and Leedom
dissenting).
' Id. at 504 . Parenthetically , it should be noted that there is no evidence that the
Union 's picketing and leaflet activities caused any delivery or work stoppages at Martino's
within the past year.
MARTINO'S COMPLETE HOME FURNISHINGS 607
satisfied on the record before us that any present claim for recognition
exists which would support the Employer's petition for an election
herein.
It is undisputed that, as of the date of the hearing, almost 2 years
had elapsed since the Union last communicated with the Employer in
June 1961. It is likewise undisputed that, throughout this extensive
period, the Union did not directly convey to the Employer any claim,
written or oral, that it represented his employees or desired recogni-
tion or a contract.13 Rather, as noted previously, the Union con-
tinually disclaimed any present recognitional objective in its leaflets
to the public and throughout both the instant representation hearing
and the earlier complaint case.14
Moreover, contrary to the contentions of the Employer-Petitioner,
we are not persuaded that there is any other evidence upon which to
predicate a finding that a present claim for recognition exists. It is
true that the Union has been picketing and distributing leaflets at
Martino's customer entrances from December 1961, to the present, and
that the leaflets made incidental reference to the fact that Martino's
does not have a contract with the Union. But it seems clear from
the tenor of the Union's message and the manner in which it was trans-
mitted that the main thrust of this appeal was directed at commu-
nicating with the public for the legitimate purpose of persuading
potential consumers not to shop at Martino's which, in the circum-
stances, we do not construe as a demand for immediate recognition.
That the Union has not contacted Martino's since it began picketing
in December 1961, and that its leaflet also expressly declared, "We
make no demands of any kind upon Martino's," serves to emphasize
this point. Accordingly, in light of all the circumstances, we do not
agree with the Employer's contention that the picketing was tanta-
mount to a present demand for recognition.15
Evidence that a union is engaged in publicity picketing for an
ultimate recognitional objective may in certain circumstances bring
into play Section 8(b) (7)'s ban on recognitional picketing." But
such evidence does not provide a basis for processing a petition under
13 It also appears that since November 1951 , the Union has not contacted Martino's
employees for organizational purposes
14 See footnotes 19 and 20, antra.
15 Cf. Andes Candies, Inc ., 133 NLRB 758 ; Miratti's, Inc., 132 NLRB 599 ; Martino's
Complete Home Furnishings , supra.
In so finding , we do not agree with our dissenting colleague 's assertion that the second
Crown Cafeteria decision ( 135 NLRB 1183 ) stands for the proposition that all publicity
picketing within the meaning of the proviso to 8(b ) ( 7) (C) automatically evinces a p,ese+it
recognitional objective . Indeed, in the recent Bartlett and Company, Grain case (141
NLRB 974) the Board cited Crown Cafeteria for a more limited principle , namely, that
proviso language on picket signs "may constitute evidence of an organization or recogni-
tion objective "
16 Picketing for an ultimate recognitional objective could furnish the basis for finding
a violation in the circumstances described in subsections ( A) and ( B) of that section, or
in subsection (C) thereof where the picketing produces delivery or service stoppages.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 9 that is designed to resolve a currently existing question con-
cerning representation. The dissent evidently fails to recognize this
vital distinction which is essential in harmonizing the second proviso
to Section 8(b) (7) (C) and Section 9. We would open a ready avenue
for evading the immunity granted publicity picketing for an ultimate
recognitional objective under the second proviso to Section 8(b) (7)
(C) " were we to hold that such picketing provides a basis for en-
tertaining a representation petition even though no current question
concerning representation exists. For this would allow an Employer
via the route of a regular RM petition and a subsequent 8(b) (7) (B)
charge to accomplish indirectly what could not be accomplished di-
rectly under Section 8(b) (7) (C)-namely, put an end to otherwise
lawful publicity picketing.
Finally, we do not believe that either a union-sponsored announce-
ment which appeared for only 1 day in a local San Jose newspaper 8
months prior to the filing of the instant petition 18 or the testimony
of Union representatives at this hearing 19 and/or the recent 8 (b) (7)
(C) case involving Martino's 20 evince a present demand for recogni-
tion inconsistent with the Union's written disclaimers.
In sum, we are confronted in this case with a situation where the
facts clearly show that the Union does not presently claim recogni-
tion as bargaining representative of the Employer's employees. Nor
17 See Department d Specialty Store Employees ' Union, Local 1265 , AFL-CIO ( Oakland
G R Kinney Company, Inc ), 136 NLRB 325 (Member Leedom , dissenting) and Retail
Clerks International Association , Local 57, AFL-CIO ( Hested Stores Company ), 138 NLRB
498 (Members Rodgers and Leedom , dissenting).
is On July 8, 1962 , the Union inserted a two column announcement which generally took
issue with Mr Joe Martino 's alleged statement that the NLRB had upheld his charges
against the Union It further pointed out that Martino was actually referring to an
Intermediate Report of a Trial Examiner , and that the Board had not yet iuled on the
case The Union expressed the opinion that the Board would follow the district court
ruling ( see footnote 10, supoa ), which upheld the Union ' s right to distribute leaflets in-
forming the public that Martino ' s was nonunion.
The final paragraph of the announcement read as follows.
Martino's has been one of the most active in a group of furniture stores which has
sought to get rid of union contract obligations in recent months Perhaps Joe
Martino's failure to "learn" the facts , results from his opposition to the Union
agreement Whatever the reasons PLEASE Don ' t Shop at Martino's.
19 The testimony of John Blalotta , the Union 's field representative , indicated , in essence,
that the Union does not now claim to represent any of Martino ' s employees and that the
Union would reject a contract if offered to it now
20 At the hearing in the unfair labor practice case on May 31, 1962 , the Union's
secretary-treasurer , James McLaughlin , testified on direct examination that the Union
did not represent Martino ' s and consequently the Union would not now sign a contract or
bargain with Martino ' s even if requested to by the Employer On cross-examination
McLaughlin was repeatedly asked whether the Union would cease picketing and dis-
tributing leaflets if Martino's signed a contract McLaughlin replied that Martino was
not going to sign any contract, the employees did not want a contract, and there is not
going to be a contract. McLaughlin finally acknowledged that, "if you are presuming
that if at some future date, say 10 or 15 years, that we go to the employees, and go to
Martino 's and ask him to sign an agreement , yes, the agreement would undoubtedly be
signed " and in that event the picket line would be removed On redirect examination,
McLaughlin again testified that the Union would not now sign a contract with Martino's
MARTINO'S COMPLETE HOME FURNISHINGS 609
has the Union engaged in any activity inconsistent with its disclaimer
of a present desire to be recognized. In such circumstances, as the
Board recently had occasion to point out,
... there is no warrant for the needless expenditure of Board
time, energy, personnel, or funds which could be directed else-
where better to discharge Board responsibilities than in con-
ducting an unnecessary election. Moreover, the mere holding of
such an election would operate unfairly to deprive employees of
the opportunity of choosing a representative in a Board-conducted
election for a period of 12 months thereafter.21
Accordingly, in view of all the foregoing, we find that no question
concerning representation of the Employer's employees presently ex-
ists, and we shall therefore dismiss the instant petition.
[The Board dismissed the petition.]
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
MEMBER LEEDOM, dissenting :
I am at a loss to understand my colleagues' conclusion that the
current picketing of Martino's evinces no present demand for recog-
nition inconsistent with the union's disclaimer.
My colleagues and I are in agreement that union conduct incon-
sistent with a disclaimer destroys the effectiveness of the disclaimer.
I thought that they really had no choice but to hold the picketing
here inconsistent with the disclaimer, in view of a finding they made
in a recent case involving this very picketing.22 Although my col-
leagues dismissed the Section 8(b) (7) (C) complaint in that case on
the ground that the picketing fell within the exemption of the second
proviso to Section 8(b) (7) (C), they were careful to point out that
the "Respondent's picketing which commenced on December 7, 1961,
at Martino's was in furtherance of recognitional and organizational
objects." [Emphasis supplied.] 23 If the picketing, which has con-
tinued without change, had a recognitional object in the 8(b) (7) (C)
case, there would appear to be no tenable basis for finding other than
a recognitional object in this routine 9(c) representation case. In
fact my colleagues have so indicated in the reconsidered Crown
Cafeteria decision, 135 NLRB 1183. After pointing out in that case
=Franz Food Products of Green Forest , Inc, 137 NLRB 340, 341 (Chairman McCulloch
concurring separately and Members Rodgers and Leedom , dissenting)
Retail Store Employees ' Union, Local No. 428, Retail Clerks International Associa.
tion, AFL-CIO (Marttino's Complete Home Furnishings ), 141 NLRB 503.
23 Member Rodgers and I dissented as to the dismissal but joined our colleagues in this
finding as to recognitional object.
734-070-64-val. 145-40
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that a picket sign which proclaims that an employer "[does not] have
a contract with" a union "clearly implies a recognition . . . object,"
they added significantly that :
We might note in passing, however, that while proviso picketing
precludes the holding of an expedited election, nevertheless, if
the proviso picketing is for recognition or bargaining, as distin-
guished from organization, a routine 9 (c) representation peti-
tion would, if other necessary preconditions were satisfied, be
entertained 24
Strangely, however, my colleagues seem to have now evolved two rules
of law, one for 8 (b) (7) cases and another for 9 (c) cases, that is, in
the former, all "no contract" picketing is for recognition, while in
the latter all "no contract" picketing is not necessarily for recog-
nition. This inconsistency defies explanation. It profits my col-
leagues very little to seek to rationalize their position by asserting that
the Union does not seek present recognition. For, in the second
Crown Cafeteria case, the majority recognized that proviso picketing
of the "no contract" type, as here, embraced a present object of recog-
nition25 There, they rejected a view, attributed to the dissenters,
that the "publicity" proviso immunizes picketing only "where the sole
object is dissemination of information divorced from a present object
of recognition." [Emphasis supplied.] My colleagues said:
This narrow interpretation made the proviso a contradiction
in terms, for the express words of the proviso make it clear that
the proviso applies where organization, recognition, or bargain-
ing is an object. Thus, "does not employ members of" clearly
imports a present object of organization, and "[does not] have
a contract with" just as clearly implies a recognition and bargain-
ing object. [Emphasis supplied.]
As the pickets continue, as formerly, to distribute leaflets stating
that Martino's has no contract and that Martino's employees do not
enjoy union wages and conditions of employment, the picketing is
clearly recognitional picketing 26 and is inconsistent with the Union's
24 In the instant case , the Union concedes that it had not sought to recruit any mem-
bers at Martino 's. Neither the picket signs nor the accompanying leaflets address any
appeal to Martino ' s employees as such. Thus , the picketing ,here did not have organiza-
tion as an object.
25 My colleagues rely on Bartlett to support the proposition that publicity picketing does
not necessarily evince a present recogmtional object . As I did not agree with the
rationale of Chairman McCulloch and Member Fanning in that case, I joined Member
Rodgers in a concurring opinion Moreover , there is no indication therein that it was
the intent of the Chairman and Member Fanning in Bartlett to limit the applicability of
the second Crown Cafeteria decision.
2s See the dissenting opinion in Houston Building and Construction Trades Council
( Claude Everett Construction Company ), 136 NLRB 321.
COCKATOO, INC. 611
disclaimer of a desire to represent the employees of Martino's 21 I
would find that a question concerning their representation exists and
would entertain the Employer's petition for an election .21
27 Contrary to my colleagues , further evidence that the picketing had a recognitional
-object appears ( 1) in the admission of the Union 's secretary-treasurer that the pickets
would be removed upon Martino's execution of a contract , and (2 ) in the Union 's news-
paper advertisement calling attention to Martino 's efforts "to get rid of union contract
obligations" and its "opposition to the Union agreement."
2a Since, in my view, there exists a question concerning representation , there is no
room for the Employer to achieve indirectly what could not be accomplished directly, as
.my colleagues suggest . Indeed , an election here would be consistent with the congressional
purpose to resolve representation disputes by the holding of an election and thereby to
.eliminate picketing as an industrial irritant whenever possible . To refuse to hold an elec-
tion , as my colleagues do, is to allow the already prolonged picketing to continue in-
^ definitely on the present basis.
Cockatoo, Inc.,' Employer-Petitioner and Culinary Workers &
Bartenders Union , Local 814, Hotel and Restaurant Employees
and Bartenders International Union , AFL-CIO, Union
'The Cockatoo Hotel ,2 Employer-Petitioner and Culinary Work-
ers & Bartenders Union , Local 814, Hotel and Restaurant
Employees and Bartenders International Union , AFL-CIO,
Union. Cases Nos. 21-RM-832 and 21-ISM-873. December 24,
1963
DECISION AND ORDER
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer Carl Abrams.
The Hearing Officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.'
Upon the entire record in this case, the Board finds :
1. Cockatoo, Inc., which operates the Restaurant, is a corporation
wholly owned by Andrew Lococo and his wife. The adjacent Hotel
is also owned by Lococo and his wife in joint tenancy. Lococo testified
that during its last fiscal year the Restaurant grossed in excess of
$1,000,000 and that it purchased goods exceeding $100,000 in value
from distributors who received these commodities directly from out-
side the State. He further testified that during its current fiscal
year the Hotel will gross $310,000 to $330,000 and that for its pre-
vious fiscal year it grossed less than $500,000. The Hotel's indirect
annual purchases from outside the State exceed $50,000 in value.
"Hereinafter referred to as "Restaurant."
2 Hereinafter referred to as "Hotel."
a The Union subpenaed the records of both Restaurant and Hotel . A request to quash
that subpena was granted by the Hearing Officer and the Union's motion to strike testi-
mony by Lococo , president of both Hotel and Restaurant , as to commerce facts, was denied.
Due to the nature of our decision herein, we find it unnecessary to rule on the Union's
exceptions to these rulings.
145 NLRB No. 67.