Retail Clerks Union, Local 648

National Labor Relations Board - Board Decisions

Aug 26, 1968

172 N.L.R.B. 1711 (N.L.R.B. 1968)

RETAIL CLERKS UNION, LOCAL 648 1711
Retail Clerks Union , Local 648, Retail Clerks Inter-
national Association , AFL-CIO; Cala Foods, Inc.;
Pacific Markets and Retail Delivery Drivers,
Driver Salesmen , Produce Workers and Helpers
of Alameda County , Local No. 588 , International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America and West
Bay Association of Food Industries , Inc. Party to
the Contract . Case 20-CE-50
August 26, 1968
DECISION AND ORDER
On February 28, 1968, Trial Examiner Maurice
Alexandre issued his Decision in the above-entitled
proceeding, finding that Respondents had
not engaged in unfair labor practices as alleged
in the complaint and recommending that the com-
plaint be dismissed in its entirety, as set forth in the
attached Trial Examiner's Decision. Thereafter,
General Counsel filed exceptions to the Trial Ex-
aminer 's Decision and a supporting brief, Respon-
dent Retail Clerks Union, Local 648 and Intervenor
Retail Clerks International Association, AFL-CIO,
filed an Answering Brief, and the American
Research Merchandising Institute, amicus curiae,
filed a brief in support of the General Counsel's ex-
ceptions.'
The National Labor Relations 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 Trial Examiner's Deci-
sion , the exceptions and briefs, and the entire
record in this case, and hereby adopts the Trial Ex-
aminer's findings, conclusions, and recommenda-
tions, with the following modifications:
In accord with our recent decision in Brentwood
Markets,' we agree with the Trial Examiner that the
General Counsel has failed to establish the 8(e)
violation alleged. Thus the facts, as more fully set
forth in the Trial Examiner's Decision, indicate that
the Clerks agreements with Cala Foods and Pacific
Markets were not "tactically calculated to satisfy
union objectives"3 at rack jobber Norcal, but rather
had the object of preserving unit work for the
grocery clerks of Cala Foods and Pacific Markets.
As detailed in Brentwood Markets and by the
Trial Examiner in this case, there is an historical
background which lends support to the Clerks
claim to the in-store stocking and servicing work on
grocery merchandise sold to grocers for resale
to the public. This generic claim, as it evolved
from area practices in the grocery industry,
was not limited to work on goods of a par-
ticular type or supplier, and was relaxed as ex-
plained by the Trial Examiner. It underlay the
negotiation of section 1(b) of the Clerks agree-
ments. And the context of section 1(b )'s negotia-
tion supports the reasonableness of the Clerks in-
terpretation of section 1(b) and its invocation to
justify its actions herein, all consistent with its long-
standing position that the in-store work in question
belonged to the grocery store unit.' As in Brent-
wood Markets, our conclusion is that the Clerks was
enforcing a claim against employers with whom it
was in contractual relationship which was designed
to preserve job opportunities of employees covered
by the contract.5
Accordingly, we shall dismiss the complaint. In
view thereof, we deem it unnecessary to pass upon
the Trial Examiner's more generalized discussion of
"work acquisition" as distinguished from "work
preservation. "6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
be, and it hereby is, dismissed in its entirety.
172 NLRB No 200 B-6
Respondent Cala Foods, Inc , participated in the hearing but did not
file exceptions or a brief Respondent Pacific Markets filed an answer to
the complaint, but did not otherwise participate in the proceeding
Retail Clerk's Union, Local No 648, Retail C(e,As International Assocta-
non, AFL-CIO (Brentst ood Markets), 171 NLRB No 142
National Woodnor, Manufacturers Association v NLRB , 386 U S
612,644
It is unnecessary to ascertain the parties' intent is to the precise boun-
dary of section i(b)'s allocation of work between unit clerks and outside
"driver salesmen" or to make any assumptions on that score . For, our ap-
proach here is neither a definitive resolution of conflicting contract in-
terpretations nor a determination of competing jurisdictional claims We
hold only that Clerks has not violated Section 8(e) by advancing this work
claim reasonably within its contractual unit work coverage
s While the Trial Examiner appears somewhat restrictive in failing to
consider industry practices herein, we agree with his conclusion that the
work involved was protectable unit work
We also agree with the Trial Examiner that "the validity of an agree-
ment is determined by its objectives rather than by its consequences," and
that any disruption of Norcal's operations was but the "incidental con-
sequence" of the Clerks lawful work preservation effort
Nor need we pass upon the Trial Examiner's apparent view that non-
performance of"unit work" may never he relevant in determining primary
versus secondary objectives
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE, Trial Examiner: This case
was heard in San Francisco, California, on Sep-
tember 15, 1967, upon a complaint issued on
February 28, 1967,1 alleging that Respondents had
Based upon charges filed on December 8, 1966, and February 13
1967, by Retail Delivery Drivers, Driver Salesmen, Produce Workers and
Helpers of Alameda County, Local No 588, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereafter
called Teamsters Local 588)
172 NLRB No. 200
1712 DECISIONS OF NATIONAL
violated Section 8(e) of the National Labor Rela-
tions Act, as amended. In their answers, Respon-
dent Local 648 (hereafter called the Union) and
Respondent Pacific denied the commission of any
unfair labor practices a
Upon the entire record,' my observation of the
witnesses and consideration of the brief filed by the
General Counsel and the joint brief filed by the
Union and the Intervenor, I make the following:
FINDINGS AND CONCLUSIONS"'
THE UNFAIR LABOR PRACTICES
A. Introduction
For many years, locals of the International Retail
Clerks Union and of the Teamsters Union have
been engaged in a struggle over either or both of
two matters. One has been the right to represent
the employees of so-called rack jobbers, i e ,
wholesalers who supply various types of food and
nonfood merchandise to supermarkets and other
retail grocery stores and who use their own em-
ployees to "rack" such merchandise, i.e., price-
mark, shelve, and display the merchandise in the
retailers' stores. The other matter has involved the
right to perform the work of racking. This struggle
has resulted in a number of Board and court deci-
sions involving parties in Southern California.' The
instant case involves parties in the San Francisco
area.
Respondent Cala and Pacific operate retail su-
permarkets and employ clerks represented by the
Union Norcal is a rack jobber which has supplied
merchandise and racking service to certain stores
owned and operated by Cala and Pacific, and which
employs several categories of employees
represented by Teamsters Local 588, the Charging
Party.
During 1966, Cala and Pacific were each bound
by collective-bargaining agreements with the Union
which, in general, required that the racking of
merchandise sold in their stores shall be performed
by the store clerks except when sold and delivered
by so-called "driver-salesmen." On November 30
` The hearing was commenced on April I X, 1967, by another Trial Ex-
aminer, who granted Respondent Local 64X's motion to dismiss the com-
plaint on the ground that the conduct committed by. and the remedy
requested against, the said Local were no different from those then under
consideration by another Trial Examiner in Retail Clerks Unutn, Lo(a! 648
(Brentwood Markets), Cases 20-CC-593 and 20-CE-43 (hereafter
referred to as the Brentiood case) On appeal by the General Counsel, the
Board, on July 29, 1967, issued an order resersing the dismissal and re-
manding the instant proceeding to the Regional Director for further hear-
ing The Trial Examiner was thereafter duly designated to conduct the
hearing on remand
`Neither Respondent Pacific nor West Bay (part) to the contract) ap-
peared at the initial hearing or at the hearing on remand Respondent Cala
did not file an answer but did appear at both hearings Retail Clerks Inter-
LABOR RELATIONS BOARD
and December 9, 1966, the Union informed Cala
and Pacific that a Norcal employee could not rack
the merchandise which he had delivered to their
stores because he was not a driver-salesmen within
the meaning of the collective-bargaining agreement
as interpreted by the Union, and that that merchan-
dise could be racked only by store clerks. Cala and
Pacific each acquiesced. The issue here presented
is whether or not the Union, Cala, and Pacific vio-
lated Section 8(e) of the Act by maintaining and
enforcing the collective-bargaining agreement in
accordance with the interpretation given thereto by
the Union.
B. The Evidence
1. Racking practices prior to 1945
The material facts are not in dispute. Since at
least 1926, retail grocery stores in the San Fran-
cisco area have sold both food and nonfood
merchandise. Gradually, additional nonfoods were
added so that the stores sold a large variety of
merchandise. Some of the food products were
purchased directly from the manufacturers; others
are purchased from food wholesalers who sold the
merchandise of several manufacturers. Originally,
such merchandise, both food and nonfood, was
delivered by the seller in trucks driven by members
of the Teamsters Union, who moved it to the truck
tailgate. The store clerks, members of the Retail
Clerks Union, carted the merchandise from that
position to the stores, inspected it, removed
damaged goods, price-marked the merchandise,
and then replenished the store shelves from the
remainder of the merchandise received. In addition
to these duties, the clerks checked out customers'
purchases, i.e., placed the purchased goods in bags
and received payment therefor.
For many years, the employees of the suppliers
did not handle the merchandise beyond the truck
tailgate Later, suppliers of certain perishable
merchandise, such as bread, mayonnaise, and
potato chips, expressed a desire that their em-
ployees perform the function of placing such
national Association was gn en permission to inters ene and tile a brief
4 By stipulation , the exhibits received at the hearing in the Brentwood
Case were made a part of the record herein The parties also stipulated
that if called as witnesses in the instant proceeding , the witnesses in the
Brentwood case would repeat the testimony which they gave in that case
No issue of commerce is presented Based on the answers filed herein,
the stipulations recened, and the testimony adduced, 1 find that Norcal
Products Co , Cala Foods, Inc . and Pacific Markets are, and at all times
materials hake been, employers engaged in commerce ,mil in operations af-
fecting commerce within the meaning of the Act I further find that the
Union and Teamsters Local 589 are labor org.ini7ahons within the meaning
of the Act
' Retail Clerks Umoii, Lora! No 1428 (hood Eniplnteis' Countil), 155
NLRB 656, and cases cited therein in fn 3
RETAIL CLERKS UNION, LOCAL 648 1713
merchandise on the display racks or on the store
shelves. As a result of an informal understanding
between the Retail Clerks Union and the Teamsters
Union, the employees of some suppliers began to
do a certain amount of racking. Thereafter, some of
the larger suppliers of certain merchandise adopted
the practice of selling through driver-salesmen-
employees who drove trucks containing merchan-
dise to the retail store, wrote out orders for
merchandise, and filled the orders from the
merchandise on the trucks. In some cases, the store
clerks placed all of such merchandise on the store
shelves; in other cases, the merchandise was
shelved by the driver-salesmen; and in still other
situations, the latter shelved some of the merchan-
dise, but the clerks subsequently replenished the
shelves. Thereafter, suppliers of other products also
began using the driver-salesman method.
2. The advent of the rack jobber
About 1945, suppliers known as rack jobbers
began doing business in the San Francisco area.
Whereas other suppliers sold only certain catego-
ries of merchandise and some sold only the
merchandise which they manufactured, rack job-
bers sold an assortment of food and/or nonfood
items, including items then sold by supermarkets
and other retailers. Some rack jobbers used ad-
vance salesmen to write orders for merchandise,
which was later delivered either by the salesman or
by a driver. On the other hand, Norcal, the rack
jobber involved in this case, used advance salesmen
to obtain some orders prior to 1963, but customari-
ly sold its products through driver-salesmen. The
latter normally wrote the orders, immediately filled
the orders from merchandise in their trucks,
checked it into the retail stores, and displayed it for
sale on shelves or on racks, some of which Norcal
furnished to the stores. However, in at least one su-
permarket, Wissman's Store, Norcal's employees,
as late as August 1951, racked some of the
merchandise, but the store clerks racked the
balance.
3. The 1955 work allocation agreement
As a consequence of the advent of the rack
jobber in the San Francisco area, the Union
became concerned about protecting the work of its
members, and took up the problem of work ju-
risdiction with the Retail Grocers Association of
San Francisco, with which it had an industrywide
contract.' A bulletin issued by that Association on
' The Union's secretary-treasurer, Jmkerson, testified that the Union «as
"trying to get hack our contract coserage which had been a little hit eroded
February 14, 1946, to advise its employer -members
of a forthcoming association meeting , contained the
following statement:
MANUFACTURERS AND WHOLESALE
SALESMEN PERFORMING
WORK OF GROCERY CLERKS
During the war, due to the shortage of help,
the Grocery Clerks Union did not try to keep
the salesmen of manufacturers or wholesalers
from helping grocers stock shelves and other
duties that rightfully belong to a clerk in a
store.
Now that the war is over and the union has
quite a number of unemployed clerks seeking
jobs, they feel the time opportune to call to the
attention of retail grocers, manufacturers and
wholesalers that the stocking of merchandise
upon the shelves of grocery stores definitely
belongs to the clerks and any work of this kind
performed by a salesman calling on the
grocers, going into the grocer's back room,
opening cases and filling the shelves, is
theoretically taking their jobs. They do not ob-
ject to window and floor displays being made
by salesmen but the actual servicing and filling
of shelves is part of their job and they hope it
will be so recognized by retailers as well as the
representatives of wholesalers and manufac-
turers.
Shortly thereafter, the Union also sent form let-
ters to its members and to retail food stores with
which it had contracts but which were not members
of the Retail Grocers Association. The form read as
follows:
We wish to call to your attention an Agree-
ment that exists between the retail Grocers of
this City and the Grocery Clerks' Union re-
garding ... the stocking of shelves by
salesmen.
For many years now the Grocer Association
and Local 648 have agreed that work in Food
Stores rightfully belongs to Grocery Clerks.
The agreement ... provides that Salesmen will
be restricted to just promotional work such as
building window or floor displays in conjunc-
tion with a drive or advertising campaign.
A copy of a bullentin sent out by ... the
Retail Grocers Association dated February 14,
1946, sets out the rule the industry is following
and is enclosed herewith.
It has been reported to this Union that
representatives of: are stocking shelves in
during the war time because of the lack of manpower."
1714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grocery Stores We hope that we may have
your cooperation in the future and that any
stocking of your items on the Grocers' shelves
will be done by Grocery Clerks.
In addition, the Union inserted, in the blank spaces
of other copies of the form, the names of stores
which were believed to have violated their con-
tracts with the Union, and sent such copies to such
stores.
On April 24, 1947, the Union sent a letter to
Rawson Drug & Sundry Co., a rack jobber, con-
taining the same language as that used in the said
form, except that it pointed out that Rawson em-
ployees were stocking shelves of grocery stores On
May 15, 1947, following a conversation between
representatives of Rawson and the Union, the latter
sent the following letter to Rawson:
Unanimous action was taken by the Execu-
tive Board of this Local on May 8th in opposi-
tion to recommending to the membership any
change in the policy concerning wholesale
salesmen stocking shelves.
This would in no way interfere with the
Rawson's present practice of stocking the dis-
play on the original order or their present
system of marking the merchandise, or any
practice of inspecting, or the re-alignment of
merchandise when salesmen call at the store.
The practice of stocking the shelves on re-or-
ders is, however, in conflict with the policy ap-
proved by the Union and the Retail Grocers
Association and it is our sincere hope that we
may have the co-operation of the Rawson
Company in the enforcement of such policy.
The master collective-bargaining contract
between the Union and the food industry, effective
from 1950 through 1954, did not contain a work al-
location clause and did not define clerk's work.
During negotiations for a new contract with the
Retail Grocers Association in November 1954, the
Union proposed that all the racking work be per-
formed by clerks. At the same time , the Union sent
its member a report which discussed clerk's work as
follows:
The union's proposal on the definition of
clerk's work, too, grows out of the industry's
own practices. Over some 17 years of collec-
tive bargaining , a fairly clear understanding has
grown up of where a clerk's job starts and
ends. The union has fought continuously to
protect its members' jobs from the competition
of free labor offered employers as inducements
for stocking or promoting certain products or
certain brands or on a variety of pretexts. The
industry has come to recognize that free help
cannot-and should not-be used to displace
clerks
But this understanding at best is an informal
and casual one, there is no guarantee, no
safeguard until it is put in writing. To avoid
confusion, to confirm the accepted un-
derstanding developed over the years, the
union has proposed a simple answer.
The union's proposal states simply that the
contract covers all employees within the ju-
risdiction of the union. Meat cutters, ap-
prentices and meat wrappers are excepted as
are store managers and others who are deemed
to be supervisors within the meaning of the
Taft-Hartley law. The union's proposal goes on
to say that all work connected with the opera-
tion of the employer 's retail establishment shall
be performed by the employees who come
under the contract . Excepted from this defini-
tion are the preparations and sales of fresh
meat and work, agreed to by the industry and
the union , that falls within accepted methods
of "distribution."
On December 10, 1954, the Union sent to its
members a second report which contained the fol-
lowing:
Then again-in a local super market, one
clerk had the job of stocking the drug and
hardware shelves. The store bought its own
stock, operated its own department. But one
day, the market signed up with a distributor,
turned over the drug and hardware shelves to
him. Now, the clerk who used to stock those
shelves is wondering when the ax will fall on
him. And some of the other clerks, too, are
wondering if maybe they won't be the one to
go.
These are a few of the practices that are
responsible for Local 648's proposal that a
definition of clerk's work be written into the
new contract and that the employers assure the
union that only employees covered by the con-
tract will perform that work.
Our concern with this situation is simple: We
want to preserve for the clerk as much of the
work that is properly his as possible. And we
are especially concerned that it be protected
against free or underpaid labor.
* * * * *
If the general practice, as recognized by
most of the industry, were allowed to govern,
there might be no problem. In the course of
some 17 years, a clear understanding among
many employers has grown up of what a clerk's
work is. Industry practices confirm this.
But some employers won't accept the
generally accepted interpretation. Some em-
RETAIL CLERKS UNION , LOCAL 648 1715
ployers are always willing to cut a corner if
there's nothing in the contract, in plain black
and white, that says he can't. The instances we
cited in the beginning are samples of what can
happen and what does happen.
When the union protests such practices as
these, many employers simply say "you're
right" and that's that. Other employers want to
fight about it.
That's why, after all these years, we want to
write that definition in the contract and why
we want the employers' assurance that only
employees covered by the clerks' agreement
will perform the work covered by the defini-
tion.
* * * *
Because the Retail Grocers Association did not
wish to agree to a work allocation provision without
agreement by the Teamsters Union and other af-
fected unions, the Union met with representatives
of those unions, and contract language was agreed
upon. Thereafter, on March 18, 1955, the Associa-
tion and the Union entered into a master agree-
ment, effective January 2, 1955, through January 1,
1957. Paragraph 1(b) of the agreement contained
the following work allocation provision:
All work and services (not defined as super-
visory under Section 2(11), N.L.R.A.) con-
nected with or incidental to the handling or
selling of all merchandise offered for sale to
the public in the Employer's retail establish-
ment shall be performed only by employees
within the appropriate unit as defined in this
agreement; ... and except such work as is per-
formed under prevailing practices in San Fran-
cisco at the point of delivery by a driver-
salesman engaged in servicing the retail mar-
kets with merchandise directly from a delivery
vehicle.
4. The Union's attempts to police the agreement
On May 13, 1955, the Union sent bulletins to its
members explaining the terms of the agreement.
Among other things, the bulletin explained the
driver-salesman exception in Section 1(b) as fol-
lows:
1. The driver-salesman who serves the store
direct from his truck will go right on doing any
necessary work at the point of delivery-that
is, the bread shelves or refrigerator. This is in
keeping with established practice in San Fran-
cisco.
In letters accompanying the bulletins, the Union
stated that because its business agents were unable
to make frequent visits to the 1,200 stores of signa-
tory employers, the employee-members were
responsible for insisting upon observation of the
contract terms protecting clerk's work.
During 1956 or 1957, representatives of the
Union, of Teamsters Local 278, and of Kraft Foods
met to discuss the Union's objection to the stocking
of the shelves by Kraft's "advance salesmen" in
grocery stores. According to the undisputed
testimony of Jinkerson, secretary-treasurer of the
Union, the Teamsters Local 278 representatives
stated:
No, we did not organize advance salesmen for
the purpose of going in and trying to take work
away from Grocery Clerks. They cannot work
in grocery stores.
Thereafter, the Kraft salesmen discontinued
stocking the store shelves.
On January 9, 1962, the Union sent the following
letter to Respondent Cala:
Business Representatives of this Local Union
report that at the Cala Store., 1095 Hyde
Street, San Francisco, merchandise is being
stocked by persons not members of this Local
Union-Montex Manufacturing Company em-
ployees are stocking a soft goods line of boys'
shirts, pants, socks, sport shirts, etc.; meat or
delicatessen suppliers, namely Bob Ostrow,
Morrell and Gallo, are stocking cold cuts and
cheese items.
The position of this Local Union is that Sec-
tion 1(b) of the contract in effect between us
covers this matter and provides that such
handling, stocking and price marking should be
done by members within the appropriate bar-
gaining unit -i.e., members of Local 648.
We respectfully request that if upon in-
vestigation this complaint is found to be cor-
rect, such work as outlined above be assigned
to Grocery Clerk members, and the items in-
volved to be stocked and price marked by
members of this Local Union.
On February 7, 1962, West Bay Association of
Food Industries sent the following letter to Cala:
In reference to the letter you received from
C.H. Jinkerson, Secretary, Retail Clerks
Union, Local 648 on January 9, 1962-1 have
researched the situation and feel it advisable to
answer as follows:
The agreement the Union, both by contract
and implied interpretation, stipulate that if
items delivered and stocked were by a single
driver-salesman were the practice pre-1955
then this practice could continue throughout
the industry whether that particular firm were
so doing or not.
As to the case of "soft goods" I have not been
able to find anyone who would be willing to
1716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testify that they were being distributed and
stocked by driver-salesmen prior to 1955.
Therefore, unless you can come up with some
organization that was doing this in this manner
I would have to agree with the Union that
these items would have to be stocked by Retail
Clerks.
As for the situation of the Bob Ostrow and
other meat companies stocking delicatessen
items it is my contention that it would be easy
to establish that these were being stocked
directly from a driver vehicle by a driver-
salesman prior to 1955 and therefore would
appear to be in order. There is some clouding
on this issue , however, due to some agreements
between various meat companies and various
Union locals in the areas . However, on this
item I do not feel that you are in violation of
the spirit or intent of the contract at least until
you hear to the contrary from me and, there-
fore it would be my advice that you may con-
tinue by having driver-salesmen stock
delicatessen items directly from a driver vehi-
cle into your case.
5. The change in Norcal 's method of doing
business
By 1963, Norcal had increased the variety of its
merchandise and the number of its customers to a
point where it was impossible for its driver-
salesmen to stock all items in sufficient quantities in
its trucks." Accordingly, in that year Norcal aban-
doned the driver-salesmen method of operation and
redistributed the sales and delivery functions
among its employees. Thereafter, advance salesmen
or sales supervisors obtained the orders from food
stores, and drivers later delivered and racked the
merchandise. A number of the items supplied by
Norcal were displayed in retail stores alongside or
near similar or identical products bearing other
brand names, all of which had been obtained by the
stores from other. suppliers and had been racked by
clerks.
6. The practices at Cala's and Pacific's stores in
Pacifica
For a number of years, including 1966, Norcal
has supplied Cala's store in Pacifica, California,
with food items bearing the Durkee label, General
Electric light bulbs, candy, and candles. Several
times a year since 1963, i.e., during Halloween,
Thanksgiving, and Christmas, and during special
sales, Norcal has also supplied the store with cer-
tain items, such as mincemeat, condiments, Christ-
mas cards, and Durkee mayonnaise. In addition to
stocking these items, the store also stocked candy
and other brands of mayonnaise obtained from a
source other than Norcal. Norcal furnished the
Cala store with display racks for the candles, light
bulbs, and Christmas cards, but Cala used its own
racks for all the candy, including Norcal's.
For a number of years, including 1966, Norcal
has supplied Pacific Market's store in Pacifica with
dietetic candy, cake mix and toppings, and
packaged toasted breat items. As in the case of
Cala's store, several times a year Norcal has sup-
plied the Pacific store with special merchandise, in-
cluding mayonnaise and other items bearing the
Durkee label, certain Christmas merchandise not
identified by the record, and products bearing the
Crosse and Blackwell label, Pacific has also stocked
candy obtained from other sources. All the candy,
including that supplied by Norcal, has been dis-
played on racks owned by Pacific.
Prior to November 1966, when certain incidents
described below occurred, Norcal employees nor-
mally racked the merchandise which they delivered
to the Cala and Pacific stores, and the store clerks
shelved and displayed the merchandise obtained
from other sources. However, in the case of the
seasonal or special merchandise supplied by Nor-
cal, the latter's employees racked some and placed
the excess in the backroom of the store, but
thereafter such excess was racked only by Cala and
Pacific employees.
7. The renewal of the work allocation agreement
Since the 1955 master agreement , there has been
no change in the language of Section 1(b) in any of
the collective-bargaining agreements executed by
the Union, including those which bound Cala and
Pacific during 1966. The agreement which bound
Cala during the latter year was a multiemployer
agreement entered into by West Bay Association of
Food Industries , Inc., for the period from January
1, 1964, through December 3 1, 1966, and Cala was
bound by reason of its membership in that associa-
tion.' The Pacific contract in effect in 1966 was
" Norcal's merchandise consists principally of condiments, salad
dressings, margarine, candy and snack items, crisp bread and cracker
items , cake mixes , mayonn.use, dietetic candy and cookies, and certain
nonfood items such as greeting cards, candles, electric light bulbs, and
nylon stockings
"Section I (a) of the 1964-66 agreement provided for recognition of the
Union "as the sole collectisc- bargaining agency for an appropriate unit
consisting of all employees working for the Employer within the jurisdic-
tion of the Union," except for certain categories of employees not mate-
nal here . Section 2(e) of that agreement provided for recognition of West
Bay Association "as the sole collective -bargaining agency for a multi-
employer unit consisting of those employers who had authorized West
Bay "to negotiate and execute" the agreement or who participated in the
negotiations and signified their intention "to be bound by the results of
said negotiations "
RETAIL CLERKS UNION , LOCAL 648 1717
made directly with the Union, was for the same
period, and contained identical language.
Pacific's store and have not racked it since
November 30, 1966.1"
8. The events of November 30 and December 9,
1966
During the morning of November 30, 1966, two
business representatives of the Union, Lyons and
Savin, went to the Cala store in Pacifica and, during
a discussion with the store manager, Karppi, ad-
vised him that Norcal employees were not "driver-
salesmen" within the meaning of the contract
between Cala and the Union, and stated that such
employees accordingly could not rack merchandise
supplied by Norcal to Cala. Karppi replied that he
thought that it was not a violation of the agreement
for Norcal employees to rack the merchandise,
because he thought that they were members of the
Teamsters Union and that "a hearing" had been
held regarding the matter. Later that day, when a
Norcal driver, Tyrell, arrived at Cala's store to
deliver an order, Karppi informed him that
representatives of the Union had visited him, had
stated that Norcal employees were not driver-
salesmen , and had claimed that racking work was
clerk's work. Karppi further told Tyrell that he
could not rack the merchandise and instructed him
to put it in the back room. Tyrell complied and left.
On the same day, Lyons and Savin held a conver-
sation with Baughn, manager of Pacific's store in
Pacifica. Lyons asked how the merchandise of Nor-
cal and another supplier was ordered, delivered,
and racked, and whether Baughn thought that Nor-
cal sales employees were driver-salesmen. Baughn
expressed the opinion that they were. Shortly
thereafter, Baughn observed Norcal driver Tyrell
racking cookie wafers and cake toppings, told him
(truthfully) that Savin and Lyons were then in a
coffeeshop adjacent to the store, and in order to
avoid trouble instructed Tyrell to discontinue
racking the merchandise and to put in the back
room. Tyrell complied. On December 9, 1966,
Lyons again visited the Pacific store, told Baughn
that sales employees of Norcal and another supplier
were not driver-salesmen because they took the
order on one day and delivered it on another, and
stated that such employees could not rack
merchandise in that store. Baughn replied that they
would henceforth do the racking. Pacific has con-
tiued to purchase merchandise from Norcal, but the
latter's employees have left it in the back room of
"' In 1966, Cala became a member of Food Employers Labor Relations
Associates, Inc , which negotiated a master agreement with the Union, but
Cali and other members of Food Employers each signed individual con-
tracts for the period January I through December 31, 1967 Pacific also
entered into an identical contract with the Union for the same period
" National Wooduor, Maw(fa( tu,et s 4ssn N L R B 386 U S 612
C. Applicable Principles
It is now well settled that despite its broad lan-
guage, Section 8(e) of the Act does not prohibit a
union-employer agreement merely because it
results in a cessation of business between the signa-
tory employer and another employer. Distinctions
must be drawn between the objectives and the con-
sequences of the agreement and between a primary
and a secondary objective. Thus, the Supreme
Court held in National Woodwork" that Section
8(e) prohibits only a secondary agreement designed
to exert pressure on the signatory employer with
whom the union has no dispute, in order to force
him to cease dealing with another employer with
whom the union does have a dispute, but that Sec-
tion 8(e) does not prohibit a primary agreement,
such as a work preservation contract, designed to
protect the jobs of the employees covered by such
agreement. As stated by the Court:
Although the language of § 8(e) is sweeping, it
closely tracks that of § 8(b)(4)(A), and just as
the latter and its successor § 8(b)(4)(B) did
not reach employees' activity to pressure their
employer to preserve for themselves work
traditionally done by them, Section 8(e) does
not prohibit agreements made and maintained
for that purpose.
"The touchstone," said the Court, "is whether the
agreement or its maintenance is addressed to the
labor relations of the contracting employer vis-a-vis
his own employees," or "whether the agreements
and boycott were tactically calculated to satisfy ob-
jectives elsewhere."
Moreover, the validity of such an agreement is
determind by its objectives rather than by its con-
sequences. For, although the incidental effect of
such an agreement may be to curtail business rela-
tions between the signatory employer and another
employer, this does not convert an otherwise pri-
mary objective into a secondary one.' In the Wil-
son case, the court said:
Incidental secondary effects of such activity
and agreement do not render them illegal.
Thus the "cease doing business" language in §
8(e) cannot be read literally because inherent
in all subcontracting clauses, even those admit-
tedly primary, is refusal to deal with at least
"Retail Clerks Duunatunal.4svt , Loud Union No 1288. et( (NoAil's
Pas less and Mead's MaiAet) N N L R B , 390 F 2d 858 (C A D C ). bnala-
tion Contractors v N L R 13 , 357 F 2d 182 (C A 5), res in part on other
grounds 386 U S 664, Meat and /-1iglrnas 1) inei, , Lo(al 7/0'. N L R B
(Wilson&Co ), 335 F 2d 709 (C A DC )
1718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some contractors [ Footnotes omitted. ]
Finally, although a contract does not on its face
violate Section 8(e), the parties may so interpret
and apply it so as, in effect, to "enter into" a new
ad hoc contract which does violate that section."
D Contentions of the Parties
There is no claim that Section I ( b) of the agree-
ments which bound the Union , Cala, and Pacific in
1966 was per se violative of Section 8(e) of the Act.
Rather , the General Counsel contends that properly
construed , Section I ( b) permits employees of rack
jobbers like Norcal to rack the merchandise which
they deliver to Cala, Pacific , and other signatory
employers ; that the Union demanded that that
provision be given a different interpretation em-
bodying a secondary objective, that Cala and
Pacific yielded to the Union 's demands ; and that
the parties thus violated Section 8(e). More specifi-
cally, the General Counsel argues that the Union
interpreted Section I ( b) as permitting a rack
jobber employee to rack the merchandise only if he
was a driver -salesman within the Union 's definition
of that term , i.e., only if the employee obtains the
order therefor , immediately fills the order from
merchandise then on his truck, and personally
delivers it to the store , that on November 30 and
December 9, 1966, Union Agents Lyons and Savin
exerted pressure on Cala and Pacific to prohibit
Tyrell, a Norcal employee, from racking merchan-
dise in their stores in Pacifica because he did not
satisfy that definition; and that on those dates,
Karppi , the manager of the Cala store , and Baughn,
the manager of the Pacific store , each instructed
Tyrell to refrain from racking merchandise which
he was delivering . According to the General Coun-
sel, the secondary objective of such contract was to
compel Cala and Pacific to cease doing business
with Norcal in order to change the latter 's method
of doing business with them , and to regulate the
terms of employment and working conditions of
Norcal employees . The General Counsel further
contends that even if it were assumed that the sole
objective of the conduct was protection of clerk's
work at the Cala and Pacific stores, such objective
involved , not "work retention " or "work recap-
ture ," but unlawful " work acquisition ," since Nor-
cal employees have traditionally racked the
merchandise which they deliver to these stores.
The Union insists that Section 1(b) was intended
by the contracting parties to permit racking of
merchandise only by driver-salesmen as defined by
the Union, that when Cala and Pacific permitted
Norcal employee Tyrell, who was not such a driver-
salesman, to rack merchandise, their clerks were
deprived of work to which they were contractually
entitled; and that when the Union demanded that
Cala and Pacific prohibit Tyrell from racking, it
merely pursued the primary objective of protecting
the clerks' fobs. The Union further argues that even
if the General Counsel's interpretation of the provi-
sion were correct, the conduct in question did not
violate Section 8(e) because the record establishes
that the sole objective thereof was work recapture
or work acquisition, both which assertedly con-
stitute primary objectices
E. Concluding Findings
In N.L.R.B. v. Retail Clerks Union, Local 648
(Safeway Stores ), 243 F 2d 777, 780 footnote 5,14
the Ninth Circuit , referring to the language of sec-
tion 1(b ) of the agreement herein , stated that
neither such language nor the testimony relating
thereto enabled one to "put his finger " on what was
intended to be the work of clerks vis -a-vis super-
visors. In the instant case, it is similarly difficult to
ascertain what the parties agreed to with respect to
the allocation of racking work as between store
clerks and rack jobber employees . However, it is
unnecessary to resolve the issue , 15 inasmuch as I
find that even if the General Counsel's interpreta-
tion of section 1(b) is the correct one, the Respon-
dents nevertheless did not violate Section 8(e). For
even assuming , as I do the ensuing discussion, that
the Union 's interpretation of section 1(b) of the
agreement is wrong, the implementation of that in-
terpretation resulted in ad hoc contracts entered
into by the Union with Cala and with Pacific which
had as their sole purpose the protection of unit
work, and that purpose constituted a primary ob-
jective not proscribed by Section 8(e).11
1. In support of his assertion that the Union had
a secondary objective, the General Counsel argues
that if Norcal were to change its method of opera-
tions so as to utilize driver -salesmen as the Union
interprets that term, the Union would not object to
racking of merchandise by such driver-salesmen;
and that since such a change would not produce
" United A+ux,anu,i (f Pipe (liters Lot al L'nuni Siu 455 etc ( St Paul
Asin of Pleanhu,e, Heunne and Sle(ham(at C(urauuri), 167 NLRB 602,
Mill Driers' U4uon, Lot al 753, et( (Moe Wilk 4iin ) 141 NLRN 1237,
affd 335 F 2d 326 (C A 7), Retail C/etA, U,uon, Local 770, et( (Frito
Cu ), 118 NLRB 244, remanded on procedural grounds 310 F 2d 458
(CA 9)
"The issue in that case was whether the union had complied with a
decree ordering it to cease its efforts to bargain with Safeway Stores for
certain store employees who had been found to he supervisors
But cf the Trial Examiner's decision in the Brenh(oud case, in which
the unin 's interpretation was rejected 1 find that the Union. whether
rightly or wrongly, believed that its interpretation was correct
"' I find that the Union. Cala, and Paufic are responsible for the conduct
of their respective agents, Union Representatives Savinand Lyons, Cala
Manager Karppi. and Pacific Manager Baughn, and hence that Respon-
dents are hound by the said ad lux contracts
RETAIL CLERKS UNION , LOCAL 648 1719
more work for the clerks at the Cala or Pacific
stores, it must be concluded that the Union is not
genuinely concerned with protecting work for the
clerks. This argument is without merit. If, as is
claimed, the Union wanted Norcal or any other
rack jobber to change its method of operation so as
to utilize only driver-salesmen, it must have had
some reason for that desire. I have no basis for as-
suming that the Union wanted the change for its
own sake. Yet no reason has been suggested. If
anything, the fact that such a change would not
have produced more work for clerks tends to show
that the Union was not interested in the change.
Although it is true that the Union does not object
to racking by driver-salesmen, that fact does not
mean that the Union wants them to do the racking.
It simply constitutes a recognition by the Union of
what it conceives to be a contractual requirement-
that racking work was allocated to driver-salesmen
by section 1(b).
2. The General Counsel further argues that the
objective of the ad hoc contracts was to regulate
and establish working conditions for employees of
Norcal, which does not have a contract with the
Union. According to the General Counsel, such a
secondary objective was the same as the one which
lay behind the Union's ad hoc contracts in the
Brentwood case,'7 in which Trial Examiner Karasick
made the following findings:
Here, the interpretation placed upon the con-
tracts by the Respondents was not addressed to
the labor relations of the contracting em-
ployers in regard to their own employees but
was instead addressed to the employees of
Rawson and Norcal, employers who were not
parties to the contracts. Thus, even if the jobs
in question were fairly claimable unit work,
"Section 8(e) would not permit Respondents to
regulate the terms of employment and working
conditions of employees" of Rawson and Nor-
cal "who are not in fact properly part of the
bargaining unit."
The contractual provision in question as en-
forced by the Respondents was designed to
control the employment practices of Norcal
and Rawson and to aid members of Respon-
dents Clerks generally rather than to preserve
the jobs of the food market clerks in the bar-
gaining unit. [Footnotes omitted.]
The General Counsel asserts that this proceeding is
merely another in a series of cases in which locals
of the International Retail Clerks Union, the Inter-
venor herein, are attempting to oust the Teamsters
Union and to acquire all the work in every retail
food store for clerks represented by "some" local
of the International. In this connection, the General
Counsel points to testimony, given in another
proceeding," that Sol Lippman, general counsel for
the International, had stated to an employer that it
was the position of the International that all work
performed in a retail market had to be done by an
employee represented by some local of the Interna-
tional.
I must disagree with my brother, Karasick, as
well as with the General Counsel. Testimony given
in another case is, of course, not part of the record
in the instant proceeding and cannot be considered.
Moreover, the series of cases referred to by the
General Counsel are inapposite.'' In those cases,
which all involved locals in the Los Angeles area,
the Board found that the locals had entered into
contracts with retailers designed to accomplish an
illegal, secondary objective-to compel the rack
jobbers which supplied such retailers to recognize
the locals as the representatives of the rack jobbers'
employees. Here, there is no evidence that the
Union ever sought to organize the employees of
Norcal or any other rack jobber in the San Fran-
cisco area, or ever requested any such rack jobber
to recognize the Union as the collective-bargaining
representative of their employees. Indeed, the
evidence is to the contrary.20 Although the ad hoc
contracts did effect Norcal's employees, I find that
that was only an incidental consequence, not the
purpose, of the contracts.
3. The General Counsel also points to the ad-
monition of the Supreme Court in National Wood-
work that the objective of a work allocation con-
tract cannot be ascertained without an inquiry into
all the surrounding circumstances, 21 and contends
that such circumstances establish the Union's
secondary objectives in entering into the ad hoc
contracts with Cala and Pacific.
a. One such consideration advanced by the
General Counsel is that "the threat of displacement
in this case is nonexistent" for several reasons: Nor-
cal employees spend only 15 minutes once every 2
weeks racking merchandise in Pacific's store; since
" See to 2, supra The evidence in that case , which was made a part of
the record herein , shows that the Union entered into ad hoc contracts with
Pacific and certain other food retailers , as a result of which employees of
Norcal and another rack jobber were prevented from racking merchandise
at the retailers ' stores
" Retail ClerAs Intelnational Amts , etc., Lcxal 770 (Food Enip/mere
Coucil , hie ),127 NLRB 1522, modified in 145 NLRB 307
"'See fn 6, supra
Based on the testimony ofJmkerson, secretary-treasurer of the Union
In National WoodnorA, the Supreme Court stated (86 U S at 644 fn
38) "As a general proposition, such circumstances might include the
remoteness of the threat of displacement by the banned product or ser-
vices, the history of labor relations between the union and the employers
who would he boycotted, and the economic personality of the industry See
Comment, 62 Mich L Rev 1176, 1 185 et seq ( 1964) "
1720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1963, when it began its present method of opera-
tion, Norcal has hired no additional employees and
hence it cannot be said that Teamsters Local 588,
which represents Norcal's employees, is gaining
employees at the expense of the Union's members;
and the evidence fails to show that there are any
fewer clerks now than formerly, but on the contrary
establishes that the Union's membership has in-
creased significantly over the years.
The increase in the Union's membership may be
attributable to its amalgamation with other locals
representing employees not employed in the food
industry.22 In addition, the record establishes that
Norcal has supplied very little merchandise to
Pacific; that if Pacific were to purchase a full line of
Norcal merchandise in place of that racked by
Pacific clerks, the latter would be deprived of 4 to
5 hours of worktime, presumably per day; and that
they would lose additional worktime if Pacific were
to purchase other merchandise from other rack job-
bers.` Since Norcal has supplied only a portion of
the merchandise sold by Cala, the latter's clerks
would similarly lose worktime if the merchandise
which they rack were replaced by items supplied by
Norcal or another rack jobber. In view of the large
increase in the variety and volume of merchandise
which food stores like Cala and Pacific can obtain
from rack jobbers'24 there can be little doubt, and I
find, that the danger to the jobs of the Cala and
Pacific clerks is far from remote.
b. Referring to the "economic personality of the
industry," another factor mentioned by the
Supreme Court, the General Counsel asserts that
because of special training, employees of rack job-
bers like Norcal are experts at displaying goods for
maximum sales to the stores; and that Norcal
customers return a significant portion of purchased
goods.25 From these facts, the General Counsel ar-
gues that Norcal and other rack jobbers furnish to
retail food stores a "very useful service" which has
become "traditional," and that the ad hoc contracts
are violative of Section 8(e) because they would
disrupt this traditional economic relationship.
Although I have no doubt that Norcal's method
of doing business with Cala and Pacific has resulted
in a mutually beneficial relationship,26 I fail to per-
ceive how the mere existence of that relationship
shows that its destruction was an objective rather
than an incidental consequences of the ad hoc con-
tracts. On the other hand, the record contains
ample evidence that the sole objective of the con-
tracts was protection of clerks' jobs. Thus, long be-
fore the advent of the rack jobbers in the San Fran-
cisco area, clerks historically racked merchandise
which was similar to, and even identical with, items
now supplied by Norcal and other rack jobbers.
During World War II, apparently because of lack of
manpower, the Union acquiesced in requests by
some wholesalers that their employees be per-
mitted to rack perishable products. With the advent
of rack jobbers at about the time war ended, the
Union expressed its concern over the situation to
the Retail Grocers Association of San Francisco,
which recognized in a 1946 bulletin to its members
that many clerks were unemployed, and that the
Union felt that racking was clerk's work. Also in
that year and in 1947, the Union reminded con-
tracting employers who were not association mem-
bers, and particularly those who were permitting
nonclerks to rack merchandise, that racking was
clerk's work. During negotiations for a new con-
tract with the Association in November 1954, the
Union advised its members of its concern over the
threat to clerk's jobs because more and more
merchandise was being racked by others, sought a
provision allocating all the racking work to clerks,
but finally agreed to the exception set forth in sec-
tion 1(b). Shortly thereafter, the Union requested
its members to insist upon observation of the provi-
sion protecting clerk's work. In 1956 and 1957, the
Union raised objections to the fact that members of
the Teamsters Union were racking merchandise
supplied to retail stores by Kraft. In 1962, the
Union complained to Cala that although section
1(b) of their contract allocated racking work to the
latter's clerks, the racking at one of Cala's stores
was being performed by employees not within the
bargaining unit . In 1965, the Union entered into the
ad hoc contracts involved in the Brentwood case,
and in 1966, the Union entered into the ad hoc con-
tracts involved in the instant proceeding.
This recital leaves no doubt that the Union has
been concerned for many years about the gradual
loss of the racking work by clerks employed at
retail food stores with which the Union has had col-
lective-bargaining agreements , and that it finally
entered into the ad hoc contracts because it felt that
it could no longer permit that situation to continue.
Based on the testimony of Jinkerson
Based on the testimony of Baughn , former manager of Pacific's store
24 Norcal changed its method of operation in 1963 because of such in-
crease In addition , President Kane of Rawson Drug and Sundry Co , a rack
jobber, testified that that company now carries 8,000 items as compared
with 150 in 1946, that it supplies an average of 100 new items to retail
stores each month, and that whereas the company's nonfood sales to super-
markets in San Francisco amounted to about one-half of I percent of total
food sales by the markets in 1947, the percentage is now between 5 and 10
percent
" Norcal President Peterson testified that returns account for 5 percent
of total sales, and that 5 to 10 percent of seasonal goods are returned
S° In this connection , I note that the Union 's master agreement required
that clerks shall receive training in shelf stocking, and that, according to
Jinkerson's undisputed testimony, suppliers other than rack jobber', permit
food stores to return merchandise for credit
RETAIL CLERKS UNION, LOCAL 648 1721
Nothing in the record shows that the contracts
"were tactically calculated to satisfy union objec-
tives elsewhere." National Woodwork, supra. I ac-
cordingly find that the sole objective of such con-
tracts was protection of clerks' jobs.
c. Referring to the third factor mentioned by the
Supreme Court, the General Counsel contends that
the history of the Union's relationship with Norcal
discloses no evidence that the Union raised any ob-
jection prior to October 1965 to the racking work
performed by Norcal employees;27 and that having
permitted Norcal employees to perform such work
"for so long a time," the Union may not now claim
the work. I disagree. Prior to 1963, Norcal sold its
merchandise primarily through driver-salesman
method of doing business . Thus, the Union failed to
object to Norcal 's methods for some 2 years. The
General Counsel has suggested , and I am aware of,
no reason why the Union must henceforth be
estopped from attempting to prevent a further loss
of work by clerks merely because it waited for 2
years before taking steps to correct the situation.
Indeed, the doctrine of estoppel is not relevant here
irrespective of how long the Union waited . National
Woodwork holds that Section 8 ( e) does not apply to
a contract which has only a primary objective.
Thus , the issue is not whether it is inequitable to
permit a primary contract to result in disruption of
a well-established business relationship between the
signatory and a secondary employer . That is a
problem which should be presented to Congress.28
The issue here is whether the Union 's inaction
shows that it had a secondary objective when it
finally objected to racking by Norcal employees. I
find that it did not.
4. The General Counsel contends that the ad hoc
contracts are unlawful for the further reason that
they involved work acquisition, i.e., racking of Nor-
cal products which had not been historically and
traditionally racked by employees of either Cala or
Pacific, except on a few occasions. According to
the General Counsel, the historical and prevailing
practices of other rack jobbers at other retail food
stores are not relevant here; but even if they were,
such practives have not been substantially different
from those followed by Norcal employees at Cala
and Pacific. The Union takes the position that the
relevant practices are those which have prevailed in
the industry as a whole, that long before rack job-
bers came into the San Francisco area, clerks
racked the same merchandise as that now supplied
by Norcal and other rack jobbers; that clerks, in-
cluding those at Cala and Pacific, currently rack
merchandise closely related to that supplied by
such rack jobbers, e.g., merchandise bearing com-
peting brand names; and that in fact, Cala and
Pacific clerks at times rack Norcal merchandise it-
self. In essence , the Union contends that the clerks
in the retail food industry should be regarded as
comprising a single industrywide bargaining unit in
which clerks have always performed the racking
function, and hence that the ad hoc contracts in-
volved, not acquisition of new work, but rather the
lawful recapture of the portion of a traditional
function that had been lost to the employees or
rack jobbers.
a. Work protection constitutes a lawful, primary
objective, but only if it seeks to protect unit em-
ployees rather than members of an union
generally.29 Accordingly, it is necessary to deter-
mine the scope of the unit or units which govern
here. The record shows that the pattern of bargain-
ing in the retail food industry has been conducted
on a separate basis by various associations and in-
dividual food stores. Accordingly, I reject the
Union's claim that there is a single industrywide
unit.:30
On the other hand, the collective-bargaining
agreement between the Union and Pacific and the
one that bound the Union with Cala during 1966,
the year in which their ad hoc contracts were made,
provided for a single-employer and a multiemployer
unit , respectively. Since these are appropriate units
for collective-bargaining purposes, the historical
practices in such units are the relevant ones for
determining the validity of the ad hoc contracts.
Although the record discloses the practices at only
one store in the Pacific unit , such practices will suf-
fice for purposes of determining the validity of the
Union's ad hoc contract with Pacific. And although
the record does not disclose the practices at the
stores of the other employers in the said multiem-
ployer unit or at Cala's stores other than the one
located in Pacifica, the practices at that store will
similarly be sufficient for the purposes of determin-
ing the validity of the Union's ad hoc contract with
Cala.
It appears from an examination of the practices
at the said Cala and Pacific stores that their clerks
have never regularly racked Norcal merchandise.
'7 In that month , the Union objected to racking of merchandise at a
Brentwood store by a Norcal employee
=" But cf Trial Examiner Karasick 's decision in Sheet Metal [Voi/eis
Union, Lota! 216 (Associated Pipe and fitting Manufcntill el s), Cases
20-CE-49 and 20-CE-5 I, issued December 15, 1967
"' United Association of Pipe fitters, Local Union No 455 , etc (St Pau!
Association of Plumbin g, Heating and Me(haiwa! C'onttwtors , /nc ), 167
NLRB 602, /ntemationa l Unioti United Mine lVosAess ( Bitanunous Coal
Opessuors 4svt ). 165 NLRB 467, Seiiue and Maintenance Fntploiees'
Upton, Local No 399 (Supenoi Sotnenii BooA Co ), 148 NLRB 1033,
Ran mond O Len is, et a! , agents ( U M IV ), 148 NLRB 249
hateinanonal Union , United Mule IVoi/en of 4sswit(a (Bitiuiunous
Coal Opeiato)% 4ssti I. fn 29 , supsa
354-126 O-LT - 73 - pt. 2 - 37
1722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, such practices also show that the clerks
rack much if not most of the merchandise sold at
these stores, that they have traditionally racked
merchandise closely related to that supplied to the
stores by Norcal, that they have continued to rack
some merchandise, e.g., mayonnaise, which differs
from Norcal merchandise only in brand name, and
that at times, they rack Norcal merchandise itself
In the light of this history, I am unable to find that
the Union attempted through the ad hoc contracts
to reach out and acquire new job tasks .H Rather, I
find that it sought merely to enable the clerks to
perform their normal racking functions with respect
to all the merchandise sold on the premises where
they are employed. Although such an objective
does not, strictly speaking, involve work recap-
ture,''2 the Cala and Pacific clerks had a legitimate
primary interest in the work claimed. It was work
for which they had the necessary skills and ex-
perience. It was performed at the locations where
they were employed. It was bargainable work. And
any increase in merchandise obtained from Norcal
or any other rack jobber would cause a correspond-
ing decrease in the amount of work available to the
clerks. Accordingly, I find that the Cala and Pacific
clerks had a sufficiently direct and necessary in-
terest in the work to make it unit work which they
could properly claim and, therefore, that the objec-
tive of the ad hoc contracts were primary."
b. In any event, even if the ad hoc contracts were
regarded as attempts to reach out and acquire new
job tasks, I am not persuaded that this would in-
volve an illegal objective. It is true that in the past,
the Board has held that work acquisition constitutes
an illegal objective.:i4 However, more recently the
Board has implied that such an objective may not
be unlawful. Thus in the Nickel's Pay-less case,"' the
Board, in holding that the contract provisions vio-
lated Section 8(e), stated that they "do not seek to
retain or secure work for unit employees." (Empha-
sis supplied ) In International Union, United Mine
Workers (Bituminous Coal Operators Ass/t.)'{1, the
Board cited with approval the court's decision in
the Wilson case, :1 in which the Court of Appeals
stated:
It has been said "that a union has always been
free to bargain for the expansion of the em-
ployment opportunities within the bargaining
unit " Comment, 62 Mich. L. Rev. 1176, 1 190
( 1964) The work here claimed is of a type
which the men in the bargaining unit have the
skills and experience to do. It would be dif-
ficult to deny that "[a] clause covering non-
traditional work may be just as consecrated to
the primary objective of bettering the lot of the
bargaining unit employees and just as foreign
to the congressional purpose for section 8(e)
as those clauses involving only the work tradi-
tionally done within the bargaining unit." Id. at
1189.
And recently, in Local Union No. 26 of Sheet Metal
Workers' International Assn. (Reno Employers
Council), 168 NLRB 893, footnote 1, the Board
found it unnecessary to pass on the Trial Ex-
aminer's views as to "the [il]legality of clauses
aimed bona fide at 'unit [work] acquisition.' "
Nevertheless, it may be significant that it refrained
from reiterating its earlier view that work acquisi-
tion constitutes an unlawful objective.
In principle, a work acquisition contract covering
unit employees involves a primary rather than a
secondary objective, since it is addressed only to
the labor relations of the contracting employer vis-
a-vis his own employees If it has the incidental
consequence of disrupting a business relationship
between that employer and another employer, such
consequence is no different from that which
resulted from the agreement held to be lawful in
National Woodwork. Here, as in that case, the
Union sought to protect only unit employees.
Moreover, to conclude, at least in the circum-
stances of this case, that work acquisition is illegal
" In Aauonal B'ood"oiL the Supreme Court found it unnece,sars to de-
cide the legalit of questions which might arise "here employee, ' reach
out to acquire new job tasks when their own jobs are not
threatened
Held to he t la" tul objecus e in St Patt/, fn 29, utpta
",bleat and llivhuat I)tnett, Lot a/ 710 s ,V L R B ( Wilson, tupta
Htq/mar liacA 1)inus and Helprtt Local /07, ett ( S d L MtCotatiA
Ili( I. 159 NLRB 84, reser,cd stilt nom 4 Date Piles A L R B , 181 F 2d
772 (C A 1) In reserving the Board in the latter case the court did not re-
ject the principle that "here a contract allocates to unit emploNees work in
which they h.ise i legitimate interest, it uisolses t pnmar> objecttse
rhere, the contract between the union and certain motor carriers required
the dnver -operators of trucks leased to the carriers to become employees
of the carriers and members of the union, if they wished to dns e the truck,
The court held that the contract had the secondary ohjectise of coercing
the owner-operators to unionve According to the court, there "as nothing
to show that the interest, of the barga ining unit (consisting of the carriers'
emploNees) would not he fullN protected by prostsions requiring the main-
tenance of union standards without affecting the labor practices of the
ow tier-operators Here, the sole purpose of the ad hoc contract, was to pro-
tect unit employees Accordingly, the General Counsel's position is not
supported by the court's decision Nor is that position supported by Retail
CletAs Intonational 4%%n , Lot a! Ununt No 1288 (Ntcbe!'t Pat-less Stores
of Tulaa• Counts, lot ), 161 NLRB 817, enfd in part 390 F 2d 858
(C A D C ). sapid, 12 there, the contract between the union and certain
retail stores had the effect of requiring the stores to cease doing business
uith certain suppliers which had sent demonstrators to work at the stores,
unless the demonstrators worked under all the terms of the contract, in-
cluding the prosision requiring union membership The Board and the
court agreed that application of the union security provision to the demon-
strators constituted secondary conduct since, unlike the ad hot contracts
here such conduct affected the working conditions of employees not in the
bargaining unit
" Retail C/et/s Umon, Ltxal 770, etc (food F-niploitis (ouncil),
NLRB 107
'-' Fn 11, supra
Fit 29, supra
Fit 13, Sit Pitt
145
RETAIL CLERKS UNION , LOCAL 648
would lead to incongruous results. For example,
such a conclusion would prevent Cala clerks who
rack mayonnaise bearing other labels from claiming
the work of racking mayonnaise bearing the Dur-
kee label simply because the latter brand had nor-
mally been racked in the past by Norcal employees
For the same reason , Pacific clerks could not claim
the work of racking Norcal candy even though they
rack candy obtained from other sources. Similarly,
if none of the clerks in any of the stores covered by
the multiemployer unit in question had ever racked
General Electric bulbs, which are supplied by Nor-
cal to Cala's store in Pacifica, the Union could not
claim such work for the clerks in that store. The
Union could claim such work only if a clerk in
some store in that unit had racked such bulbs. As a
result , to determine whether the clerks in the Cala
store could lawfully claim that work , it would be
necessary to make a thorough investigation to
ascertain who had racked General Electric bulbs in
the past in each of the stores in the multiemployer
1723
unit . I do not believe that Section 8(e) contem-
plates such anomalous consequences.
CONCLUSIONS OF LAW
On the basis of the foregoing findings of fact, and
upon the entire record of this case , I make the fol-
lowing conclusions of law:
1. Respondent Cala Foods , Inc., and Respondent
Pacific Markets are employers engaged in com-
merce and in operations affecting commerce within
the meaning of Section 2(6) and ( 7) of the Act.
2. Respondent Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. The allegations of the complaint that the
Respondents have engaged in unfair labor practices
within the meaning of Section 8(e) of the Act have
not been sustained.
RECOMMENDED ORDER
It is recommended that the complaint be
dismissed in its entirety.