Retail Clerks Union Local 770

National Labor Relations Board - Board Decisions

Jun 19, 1975

218 N.L.R.B. 680 (N.L.R.B. 1975)

680 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
Retail Clerks Union Local 770 , chartered by Retail
Clerks International Association, AFL-CIO
(Hughes Markets, Inc., and Saba Prescription
Pharmacy) and Food , Employers Council, Inc.
Cases 31-CE-55, 31-CB-1671, and 31-CC-538
June 19, 1975
DECISION AND ORDER.
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Upon charges filed on September 27 and Novem-
ber 4, 1974, by Food Employers Council, Inc., herein
called the Charging Party, which were amended on
November 14 and December 30, 1974, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 31, issued a
consolidated complaint on December 31, 1974,
alleging that Retail Clerks Union Local 770, char-
tered by Retail Clerks International Association,
AFL-CIO, herein called Respondent, had violated
Section 8(e), 8(b)(4)(ii)(A), and 8(b)(1)(A) of the
National Labor Relations Act, as amended, by
certain conduct. Copies of the charges, amended
charges, consolidated complaint, and notice of
hearing were duly served on the parties to this
proceeding. On January 9, 1975, Respondent filed its
answer admitting various allegations of the consoli-
dated complaint but denying that its conduct
violated the Act.
On February 18, 1975, General Counsel, Respon-
dent, and Charging Party jointly filed a motion to
transfer proceedings to the Board and a stipulation
of facts entered into by the parties on February 14,
1975, by which the parties waived a hearing before
an Administrative Law Judge and the issuance of an
Administrative Law Judge's Decision and recom-
mended Order and agreed to submit the case to the
Board for findings of fact, conclusions of law, and an
order, based on a record consisting of the stipulation
of facts and the exhibits attached thereto.
On February 19, 1975, the Board, by its Associate
Executive Secretary, approved the stipulation of the
parties and ordered the case transferred to the Board,
granting permission for the filing of briefs. There-
after, General Counsel, Respondent,' and Charging
Party filed briefs.
On March 31, 1975, the Charging Party filed a
second amended charge in Case 31-CC-538 to delete
or withdraw all allegations therein relating to Ralph's
Grocery Company and Taft Pharmacy and a request
to withdraw the charge in Case 31-CE--59 relating to
Ralph's Grocery Company and Taft Pharmacy.
Thereafter, on April 14, -1975, General Counsel,
Respondent, and Charging Party jointly filed a
motion to 'amend charges;, partially withdraw
charges; amend consolidated complaint and answer;
and substitute amended stipulation of facts. As the
parties are in agreement, we hereby grant the motion
in all respects.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the basis of the amended stipulation, the
briefs, and the entire record in this proceeding, the
Board makes the following:
FINDINGS OF FACT
1. JURISDICTION
The Charging Party is now, and has been at all
times material herein, a multiemployer association
whose membership consists of various employers
engaged in the retail grocery business in and around
Los Angeles, California, including Hughes Markets,
Inc., herein called Hughes, involved herein. It was
formed and exists for the purpose, among others, of
negotiating and administering multiemployer collec-
tive-bargaining agreements and of representing its
employer-members in collective bargaining with
labor organizations.
Hughes is a California corporation headquartered
in Los Angeles, California, where it operates a chain
of stores in and around Los Angeles, which are
engaged in the retail sale of groceries. During its past
fiscal year or calendar year, Hughes' total volume of
business exceeded $1 million and during the same
period it purchased products from sources outside
the State of California valued in excess of $50,000.
The parties stipulated, and we find, that Hughes is
an employer within the meaning of Section 2(2) of
the Act, and is, and at all times material herein has
been, engaged in commerce and in operations
affecting commerce within the meaning of Section
2(6) and (7) of the Act. Accordingly, we find that it
will effectuate the policies of the Act to assert
jurisdiction herein.
U. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we fmd, that Respon-
dent is a labor organization within the meaning of
Section 2(5) of the Act.
1 Respondent 's motion and request for oral argument is hereby denied as forth the issues and positions of the parties.
the stipulation , briefs, and entire record in this proceeding adequately set
218 NLRB No. 84
RETAIL CLERKS UNION LOCAL 770 681
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The underlying issue in this proceeding is whether
article 1,A,3, of Respondent's "Retail Food, Bakery,
Candy, and General Merchandising Agreement,"
which requires,• essentially, that signatory employers
must exercise full control over the terms and
conditions of employment of employees performing
bargaining unit work in their establishments, includ-
ing employees of lessees, and must provide Respon-
dent with written evidence that the lessees have
agreed to abide by the wages, hours, and working
conditions set forth in Respondent's agreement,
violates Section 8(e) of the Act. Ancillary issues
involve Respondent's conduct vis-a-vis Hughes, a
member of the Charging Party, which is signatory to
the aforesaid 'agreement: whether Respondent's
seeking judicial enforcement of an arbitration award,
requiring Hughes to apply all the terms of its
collective-bargaining agreement with Respondent to
employees of its nonsignatory employer-lessee, Saba
Prescription -Pharmacy, herein called Saba, violates
Section 8(b)(4)(ii)(A) and 8(b)(1)(A) of the Act.
Finally, there is a question of whether the arbitration
award meets the standards of Spielberg Manufactur-
ing Company, 112 NLRB 1080 (1955).
B. Facts
From March 1952 to July 1971, Coldwater Phar-
macy, a prescription pharmacy, did business in a
building located at the corner of Coldwater Canyon
and Ventura Boulevard in North Hollywood, Cali-
fornia. During the same period, Hughes operated a
retail grocery store at the same intersection in a
building adjacent to the pharmacy.2 In July 1971,
both of these structures were demolished, and a new
facility was constructed. On February 18, 1972,
Hughes subleased about 11,000 square feet on the
east side of the new facility to Saba, and on May 9,
1972, both Hughes and Saba commenced doing
business in this location.3
Customers enter the facility, which has a common
roof, through a common door, and once inside the
building enter Saba through an 8--foot sliding door.
The remaining portion of Saba's facility is physically
separated from Hughes' portion by a floor-to-ceiling
wall. There are signs identifying Saba on the outside
of the building as well as inside the market over
Saha's entryway. A third sign identifying Saba is at
the comer of the parking lot.
2 At no time before July 1971 did Hughes operate or house a prescription
pharmacy in its original facility.
3 Other than the standard provisions requiring Saba to conduct its
While the sublease requires Saba to operate on
days that Hughes is opened, Saba operates on a
different schedule than does Hughes: The hours of
operation for Hughes are 9 a.m. to 12 midnight, 7
days a week; the hours for Saba are 9 a.m. to 9 p.m.,
Monday through Saturday, and 9 a.m. to 6 p.m. on
Sundays. -
Although Saba and Hughes both sell nonprescrip-
tion drugs, health and beauty aids, school supplies,
cosmetic items, vitamins, and greeting cards, Saba
purchases all of its merchandise directly from
suppliers and does not purchase any merchandise
from Hughes. In addition, Saba conducts its own
advertising campaigns, including the use of direct
mailing to its customers of promotional advertise-
ments.
Saba maintains a burglar alarm system separate
from that of Hughes, as well as separate telephones,
timeclocks, insurance, accounting systems, book-
keeping, and a separate loading zone in the rear of
the store.
Saba employs about 6 employees while Hughes
employs about, 80. The Hughes employees wear a
white uniform with the name tag reading "Hughes
Market" While Saba's female clerks . also wear
uniforms, these uniforms identify the clerks as
employees of Saba.
All hiring, firing, and disciplining of Saba's
employees is done by Don Saba, the owner. In
addition, Don Saba establishes the wages and fringe
benefits for his employees without the interference of
Hughes, and he exclusively directs his employees'
work duties. There is no physical interchange of
employees between Hughes and Saba, and employ-
ees of one do not work in the area of-the other. No
individual in Hughes supervises any of Saba's
employees and, likewise, no individuals employed by
Saba supervise any of Hughes' employees.
By virtue of its membership in the Charging Party,
Hughes is a party to the collective-bargaining
agreement which Respondent has with the Charging
Party, which covers the period April 1, 1972, to July
27, 1975, as extended. In addition to containing a
provision relating to binding arbitration, this collec-
tive-bargaining agreement contains, inter alia, the
following two provisions particularly relevant to this
proceeding:
ARTICLE 1
RECOGNITION OF THE UNION
A. BARGAINING UNIT.
business in a manner so that it would not become a nuisance or interfere
with the other tenants, the sublease does not reserve to Hughes any control
over Saba's employees.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. -The Employer agrees that any employees
performing bargaining unit work set forth in this
Agreement, within its establishments, including
employees of lessees, licensees, and concession-
aires shall be members of a single, overall unit,
and the Employer will, at all times exercise and
retain full control of the terms and conditions of
employment within its establishments of all, such
employees pursuant to this Agreement, and shall
not enter into or maintain and enforce any lease
or other agreement inconsistent with the provi-
sions hereof. The Employer's obligation with
respect to operators of leased departments is
limited to that set forth above, provided that the
Employer shall furnish to the. Union written
evidence that the operator of the leased depart-
ment has assumed such obligation... .
ARTICLE II
A. UNION SHOP. All employees shall as a
condition of employment, become members of
the Union not later than the thirty-first (31st)' day
following the date of their employment by the
Employer who is signatory to this Agreement, or
not later than the thirty-first (31st) day following
the effective date of this Agreement, or the date of
signature , whichever is later. Such employees
shall remain members of the Union during the
period of such employment.
Beginning in June 1972, Respondent asserted and
maintained to Hughes' representatives that, article
1,A,3, required that the work done at Saba must be
performed by an employer bound by all the terms
and conditions of the contract, and, upon Hughes'
refusal to so comply, Respondent filed a formal
grievance . On October 11 and November 7, 1973, the
matter was submitted to an arbitrator, and on
August 30, 1974, the arbitrator issued his decision
fmding, inter alit, that Hughes violated article 1,A,3,
by its failure to apply the provisions and terms of the
collective-bargaining agreement to the employees of
Saba . The arbitrator, to remedy such alleged contract
violation, ordered Hughes -to take the following
action:
received from the employees in the pharmacy had
such employees been included in the appropriate
bargaining unit represented by [Respondent].
When Hughes failed to comply with the award,
Respondent, on October 4, 1974, filed a petition to
confirm the award of the arbitrator in the Superior
Court of the State of California for the county of Los
Angeles. On, October 17, 1974, the matter was
removed to the United States District Court for the
Central District of California, and 'on December 3,
1974, the court placed the matter in abeyance
pending litigation of the instant dispute by the
Board.
C. Contentions of the Parties
Respondent contends that article 1,A,3, is a lawful
primary work preservation provision of the type
upheld in National Woodwork Manufacturers Associa-
tion, 386 U.S. 612 (1967), as it seeks only to preserve
for unit employees work traditionally done by them.
Respondent further asserts that the Board should
defer to the arbitration award. Finally, it argues that
inclusion of Saba's employees in the overall unit is
not violative of the Act.
General Counsel and Charging Party, on the other
hand, contend that the disputed clause is an unlawful
work acquisition provision as it covers work not now
or previously performed by employees in the bar-
gaining unit. They also argue that Respondent's
attempt to enforce the arbitration award violates
Section 8(b)(4)(ii)(A) as by maintaining its lawsuit
Respondent is attempting to restrain and coerce
Hughes to acquiesce in an agreement which on its
face violates Section 8(e) of the Act. In addition, they
assert that Respondent's action in attempting by
court action to confirm the arbitrator's award,
making Saba's employees members of the unit and
the Respondent, denies these employees the rights
guaranteed by Section 7 of the Act, and, therefore
violates Section 8(bxl)(A). Finally, they urge that
deferral to the award of the arbitrator Js not
appropriate in this case.
D. Conclusion
(a) [Hughes] is hereby directed to apply the terms
and provisions of the Agreement in all aspects as
they relate to [Hughes'] relationship with Saba's
Prescription Pharmacy and the employees em-
ployed therein.
(b) [Hughes ] is directed to pay over to
[Respondent] an amount equivalent to such
initiation fees and dues as the Union would have
1. The 8(e) issue
It is well established that Section 8(e) of the Act
was not intended to, and does not, outlaw contract
provisions or conduct which seek to preserve for
employees in the bargaining unit work which they
have traditionally performed .4 This section also does
not proscribe agreements or conduct aimed at
recapturing or reclaiming for unit employees work
4 National Woodwork, supra.
RETAIL CLERKS UNION LOCAL 770
which they previously performed or which otherwise
constitutes "fairly claimable" work.5 However, it is
equally well settled that agreements and conduct
intended to protect, preserve, acquire, ' or reclaim
work for union members generally, i.e., outside the
immediate bargaining unit, violates Section 8(e) of
the Act on the theory that they exceed the legitimate
interests of the unit employees vis-a-vis their own
employer and are therefore tactically calculated to
satisfy union objectives elsewhere.6 Article 1,A,3, in
our opinion, falls within the latter category.
Hughes' employees do not now perform, and have
not previously performed, the pharmacy work which
Respondent assertedly seeks to safeguard for them.?
Nor do the facts, as stated above, establish that
Hughes is a single employer with Saba, or a joint
employer of Saba's employees.8 Therefore, we find
that the disputed clause here is unlike that in
National Woodwork, supra, where the union's sole
objective was the protection of traditional unit work
of unit employees from diminution as the result of
changes in technology. It is also clear, and we find,
that the clause was not intended to recapture or
reacquire work which the unit employees had
actually performed in the past .9 Nor can we conclude
from the facts that the work is "fairly claimable" by
the unit employees since it is not similar to, nor does
it require skills like, the work which unit employees
now and traditionally perform. Rather, we find that
the clause was intended to benefit Respondent's
members generally by expanding work opportunities
for them within the overall geographic area of its
jurisdiction. For the requirement that the, signatory
employer must apply to the employees of his lessee
all contract terms, rather than merely the economic
benefits, contained in the signatory employer's
contract with Respondent demonstrates that Re-
spondent was interested not so much in expanding
the work of unit employees as in making sure lessees
employ Respondent's members.'° In these circum-
stances it cannot be found that the clause was
addressed to the labor relations of the contracting
5 Meat and Highway Drivers, Dockmer, Helpers and Miscellaneous Truck
Terminal Employees, Local Union No. 710, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America [Wilson &
Co.] v. N.L.R.B, 335 F.2d 709 (C.A.D.C., 1964); Retail Clerks' Union, Local
No. 648, Retail Clerks International Association, AFL-CIO (Brentwood
Markets, Inc), 171 NLRB 1018 (1968).
s Sheet Metal Workers Unto, Local 216, Sheet Metal Workers'
International Association, AFL-CIO (Associated Pipe and Fitting Manufactur-
ers), 172 NLRB 35 (1968); Local Union No. 98, of the Sheet Metal Workers'
International Association (Cincinnati Sheet Metal & Roofing Company), 174
NLRB 104, enfd. 433 F.2d 1189 (C.A.D.C., 1969).
7 In these circumstances arts. 1,D, and XXII referring to "Drug Stores"
or "Drug Department (s)" are not dispositive.
s Disco Fair Stores, Inc., 189 NLRB 456, 459 (1974).
Cf. Department Store Employees Umon, Local 1100, Retail Clerks
International Association, AFL-CIO (White Front San Francisco, Inc., and
Esgro, Inc.), 203 NLRB 548 (1973), where the work performed by employees
of the licensee had been performed by the licensor 's employees prior to the
683
employers vis-a-vis their own employees, but rather
was tactically calculated to achieve union objectives
elsewhere. Accordingly, we find that the clause in the
circumstances here is an unlawful "work acquisition"
provision and therefore violates Section 8(e) of the
Act.1
2. The 8(b)(4)(ii)(A) and 8(b)(1)(A) issues
In United Aircraft Corporation (Pratt and Whitney
Division), 192 NLRB 382, 384 (1971), the Board
stated:
In the Clyde Taylor case, the Board held that,
while "the making of a threat by an employer to
resort to the civil courts as a tactic calculated to
restrain employees in, the exercise of rights
guaranteed by the Act" was a violation of Section
8(a)(1), an actual suit was not similarly unlawful.
In justification of the latter position the Board
majority reasoned that "the Board should accom-
modate its enforcement of the Act to the right of
all persons to litigate their claims in court, rather
than condemn the exercise of such right as an
unfair labor practice." Since the Taylor case, the
Board has consistently held that the filing of a
civil suit cannot be found to be an unfair labor
practice. [Citations omitted.]
Relying on this case, we conclude that Respon-
dent's conduct in resorting to the courts to confirm
the arbitrator's award was done in good faith to
enforce a colorable contract right and was not the
kind of tactic calculated to restrain employees or
employers in the exercise of rights guaranteed by the
Act. Accordingly, we shall dismiss the 8(b)(4)(ii)(A)
and 8(b)(1)(A) allegations of the complaint.
3. Deferral to arbitration issue
The arbitrator's award in this case ordered Hughes
to "apply the terms and provisions of the Agreement
in all aspects as they relate to the employer's
[Hughes'] relationship with Saba's Prescription Phar-
license agreement.
10 Retail Clerks Umor, Local No, 1428 (Jones and Jones, Inc.), 155 NLRB
656 (1965), involving an almost identical clause to the one herein; Retail
Clerks International Association, Local Union No. 1288, AFL-CIO (Nickel's
Pay-Less Stores of Tulare County, Incorporated), 163 NLRB 817 (1967).
11 Although the contract was originally "entered into" outside the 10(b)
period and is not unlawful on its face , the contract, as interpreted by the
arbitrator, who found it was a legitimate work preservation clause, and for
the reasons set forth above, is violative of Sec. 8(e). Therefore, the
arbitrator's award, which was issued within the 10(b) period and by virtue of
art. XIV,C,4, of the contract is binding on both parties, amounts to a
"reentering into" of the contract within the 10(b) period, and constitutes a
violation of Sec. 8(e). International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers & Helpers (Bigge Drayage Company), 197
NLRB 281 (1972); District No. 9, International Association of Machinists,
AFL-CIO (Greater St. Louis Automotive Trimmers and Upholsterers
Association, Inc.), 134 NLRB 1354 (1961).
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
macy and the employees employed therein." Al-
though it is affected by the award, Saba took no part
in the arbitration proceeding. Saba's nonparty status
is sufficient of itself to find that this case is not a
proper one for deferral to the award of the arbitrator
under the standards set forth in Spielberg, supra.12 In
addition, the standards established in Spielberg,
supra, permit deferral only when the arbitration
award is not repugnant to the purposes and policies
of the Act. For the reasons set forth above, article
1,A,3, as interpreted by the arbitrator and in the
circumstances here, violates Section 8(e) of the Act.
We therefore find that the award is repugnant to the
purposes and policies of the Act and deferral in this
case would be contrary to those principles an-
nounced in Spielberg, supra. 13
CONCLUSIONS OF LAW
1. Hughes is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By entering into, maintaining, enforcing, or
giving effect to article 1,A,3, of the "Retail Food,
Bakery , Candy, and General Merchandise Agree-
ment, April 1, 1972-March 31 , 1975," as extended,
to the extent said article has been found to be
unlawful herein , Respondent violated Section 8(e) of
the Act for the reasons set forth herein.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices in violation of Section 8(e) of
the Act, we shall order that Respondent cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Angeles, California, its officers, agents, and repre-
sentatives, shall:
1. Cease and desist from entering into, maintain-
ing, enforcing, or giving effect to article 1,A,3, of its
current "Retail Food, Bakery, Candy, and General
Merchandise Agreement, April 1, 1972-March 31,
1975," as extended, with the Food Employers
Council, Inc., and its member-employers, and with
any other employers or employer associations who
have become party to such agreement to the extent
said article is found to be unlawful herein.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix." 14
Copies of said notice, on forms provided by the
Regional Director for Region 31, after being duly
signed by Respondent's representative, shall be
posted by said Union immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Furnish said Regional Director with signed
copies of the aforesaid notice for posting by Food
Employers Council, Inc., and its member-employers,
or such of said employers as may be willing, at all
places where notices to their respective employees or
members are customarily posted.
(c) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed as to all other allegations not
found specifically to be violations herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
'Relations Board hereby orders that the Respondent,
Retail Clerks Union Local 770, chartered by Retail
Clerks International Association, AFL-CIO, Los
12 Department Store Employees Umoi, Local 1100 (White Front San
Francisco, Inc.) supra, 549, fn 2.
13 International Union of Operating Engineers, Local No. 701, AFL-CIO
(Oregon-Columbia Chapter, The Associated General Contractors of America,
Inc.), 216 NLRB No. 45 (1975).
14 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Reâations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
RETAIL CLERKS UNION LOCAL 770 685
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT enter into , maintain, enforce, or
give effect to article 1,A,3, of our current "Retail
Food, Bakery, Candy, and General Merchandise
Agreement, April 1, 1972-March 31 , 1975," as
extended, with the Food Employers Council, Inc.,
and its member-employers , and with any other
employers or employer associations who have
become party to such agreement, insofar as said
article has been interpreted by the National
Labor Relations Board as being violative of
Section 8(e) of the National Labor Relations Act,
as amended.
RETAIL CLERKS UNION
LOCAL 770 , CHARTERED
BY RETAIL CLERKS
INTERNATIONAL
ASSOCIATION, AFL-CIO