The Boy's Markets, Inc.

National Labor Relations Board - Board Decisions

Dec 17, 1965

156 N.L.R.B. 105 (N.L.R.B. 1965)

THE BOY'S MARKET, INC., ETC. 105
The Boy's Markets, Inc. and Food Employers Council , Inc. and
Retail Clerks Union , Local 770, Retail Clerks International
Association and Los Angeles Joint Executive Board of Hotel
and Restaurant Employees and Bartenders Unions, AFL-CIO,
Party to the Contract
Von's Grocery Co. and Food Employers Council, Inc. and Retail
Clerks Union , Local 770, Retail Clerks International Associ-
ation and Los Angeles Joint Executive Board of Hotel and
Restaurant Employees and Bartenders Unions , AFL-CIO, Party
to the Contract . Cases Nos. 01-CA-5891 and 01-CA-5913. De-
cegnber 17, 1965
DECISION AND ORDER
On June 18, 1965, Trial Examiner Howard Myers issued his Deci-
sion in the above-entitled proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor practices within
the meaning of Section 8(a) (2) and (1) of the National Labor Rela-
tions Act, as amended, and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Examiner made no
findings as to whether the Respondents violated Section 8(a) (3), as
alleged in the complaint. Thereafter, the Los Angeles Joint Executive
Board of Hotel and Restaurant Employees and Bartenders Unions,
AFL-CIO, Party to the Contracts, herein called the Joint Board, filed
exceptions to the Trial Examiner's Decision and a brief in support
thereof. The General Counsel filed cross-exceptions, limited to the
failure of the Trial Examiner to find that the Respondents violated
Section 8(a) (3), accompanied by a brief.
The National Labor Relations Board 1 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 Decision, the exceptions and
briefs, and the entire record in this case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner only to
the extent that they are consistent with our Decision and Order herein.
The Respondents, The Boy's Markets, herein called Boy's, and Vol-i's
Grocery Co., herein called Von's, are Los Angeles area retail grocery
chains, members of the Respondent, Food Employers' Council, herein
called the Council, which on behalf of its members had, at all times
material herein, a contract with the Retail Clerks Union, Local 770,
' Member Brown is not participating.
156 NLRB No. 6.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Clerks International Association , herein called Clerks. This
contract ran from January 1, 1959, through March 31, 1964 , and cov-
ered all retail clerks engaged in "retail food, bakery, candy and general
merchandise" operations . At the time of the execution of this contract,
the members of the Council did not have snackbars and thus did not
employ any snackbar employees . However, sometime in 1962, when
the Clerks noticed snackbars in supermarkets in the Los Angeles area,
the Clerks requested the Council to include in forthcoming negotia-
tions for a new multiemployer contract the establishment of wage clas-
sifications for all the then unrepresented snackbar employees of its
members, and the Council agreed. As more fully set forth in the Trial
Examiner 's Decision , the negotiations for a new multiemployer con-
tract began in January 1963 and culminated in a new agreement on
March 14, 1964.
On February 1, 1964, while the Council and the Clerks were thus
engaged, inter alia, in negotiating wage rates for the unrepresented
snackbar employees on a multiemployer basis, the Joint Board, on
behalf of affiliated unions representing culinary workers in the Los
Angeles area , entered into an exclusive bargaining contract with Boy's
covering all snackbar workers of Boy's in four stores in Los Angeles
County. On March 2, 1964, the Joint Board entered into a similar
contract with Von's covering all snackbar employees of Von's in its
four stores in Los Angeles County. These Joint Board contracts were
entered into after the Joint Board had organized the snackbar employ-
ees of Boy's and Von 's, each on a multistore basis, and had established,
on the basis of reliable card checks , that the Joint Board represented
a majority of the snackbar employees covered by each contract.
Prior to the execution of the Joint Board contracts, the Clerks had
obtained authorization cards from snackbar employees at one of Boy's
stores-the Crenshaw store--and , in December 1963, had asserted a
representative claim for snackbar employees of Boy's by virtue of its
multiemployer contract and its card showing in the Crenshaw snack-
bar department. Boy's refused recognition, contending that the snack-
bar employees at all four of its stores should first be recognized; how-
ever, Boy's also had informed the Clerks that Boy's would not enter
into a contract with the Joint Board pending conclusion of the Coun-
cil's current negotiations with the Clerks . Earlier, in November 1962,
the Clerks had also made a demand of Von's that Von's recognize the
Clerks as the representative of Von's snackbar employees based on the
existing multiemployer contract , but Von's rejected that demand in
December 1962.
The Trial Examiner found, as the amended consolidated complaint
alleged, that Boy's and Von's violated Section 8(a) (2) and (1) by
entering into the exclusive bargaining contracts with the Joint Board
THE BOY'S MARKET, INC., ETC. 107
covering snackbar employees at a time when real questions concerning
representation were pending, arising from the Clerk's requests to rep-
resent such employees.
In support of his conclusion, the Trial Examiner relied on the fact
that the Clerks had claimed recognition as the representative of Von's
snackbar employees in November 1962. He reasoned that such demand
was a continuing one and also that its vitality was maintained by virtue
of the Clerks' subsequent demand in its negotiations with the Council,
which represented Boy's and Von's, among others, that its multi-
employer agreement under consideration cover such snackbar employ-
ees. The Trial Examiner also relied on the fact that, late in 1963, the
Clerks had informed Boy's that the Clerks represented a majority of
Boy's snackbar employees at its Crenshaw store. He further reasoned
that, even if the Clerks did not make a formal. request of the Council
for recognition as a representative of snackbar employees, the Clerks'
request to negotiate a contract covering the snackbar employees "was
tantamount to a demand for recognition," and that the Council's par-
ticipation on behalf of Boy's and Von's in the negotiations with the
Clerks, coupled with Boy's agreement to abide by the outcome of the
negotiations between the Council and the Clerks, established that the
"Respondent" actually recognized the Clerks' claim of representation.
For these reasons, the Trial Examiner concluded that, in the absence
of a Board determination that the Joint Board was entitled to recogni-
tion as exclusive representative of their snackbar employees, Von's
and Boy's were precluded from entering into the contracts with the
Joint Board, and by so doing, these Respondents rendered unlawful
assistance to the Joint Board in violation of Section 8(a) (2) and (1).
We do not agree.
We recognize, as did the Trial Examiner, that, under the Board's
doctrine established in Midwest Piping c6 Supply Co., Inc., 63 NLRB
1060, an employer faced with conflicting claims of two or more rival
unions which give rise to a real question concerning representation
may not recognize or enter into a contract with one of these unions
until its right to be recognized has finally been determined under the
special procedures provided in the Act. However, it is also established
law that an employer does not violate the Act by extending recognition
to one of the competing unions where the rival union's claim is clearly
unsupportable or specious, or otherwise not a colorable claim. In such
circumstances, there is no real question concerning representation of
employees 2
We agree with the Joint Board's contention that the Clerks' claim
to represent the snackbar employees did not give rise to a genuine
2 See e.g. William Penn Broadcasting Company, 93 NLRB 1104, where the Board dis-
missed an 8(a) (2) complaint based on the Midwest Piping doctrine because the General
Counsel failed to show that the rival claim was in an appropriate unit.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question concerning representation. In our opinion, that claim was
clearly unsupportable and not cognizable as a colorable claim. Except
for Boy's snackbar employees at its Crenshaw store, the Clerks did not
have authorization cards from any of the snackbar employees, and
the Clerks never professed that it had. The Clerks' claim, made both
upon Von's and the Council, rested essentially on its multiemployer
contract with the Council. That multiemployer contract, however, did
not cover any snackbar employees, as was expressly determined by the
Board iri a case issued in September 1963, several months before the
execution of the Joint Board's contracts, the validity of which are in
issue in this case .3
Moreover, with respect to the Council's so-called recognition of the
Clerks for snackbar employees, it does not affirmatively appear that
the Council was authorized by Boy's or Von's to represent them in bar-
gaining for such employees. We also note that, although the Council
entered into a contract with the Clerks covering snackbar employees,
the contract expressly excluded from coverage the snackbar employees
of Boy's and Von's.
As for the Clerks' alleged separate claim to represent the snackbar
employees at Boy's Crenshaw store, this claim must be viewed in the
light of the Clerks' admittedly larger and encompassing claim to rep-
resent all the snackbar employees on a multiemployer basis. We find
that the lesser claim was but part of the larger claim; that the Clerks
did not assert the lesser claim as a separate independent claim, and
that Boy's so understood.
With respect to Boy's assurance to the Clerks that it would not enter
into a contract with the Joint Board pending conclusion of the current
negotiations between the Clerks and the Council, we hold that Boy's
was imder no legal obligation to withhold recognition from the Joint
Board once that Union had established its majority, absent a rival
claim which would itself raise a real question concerning representa-
tion. And, as already indicated above, the Clerks never did raise such
a question.
For all the foregoing reasons, we find, contrary to the Trial Exam-
iner, that the Clerks did not by any of their claims raise a real question
concerning representation sufficient to preclude Boy's and Von's from
entering into the contracts with the Joint Board. Accordingly, we
shall dismiss the 8(a) (2) allegation of the complaint.
As the remaining 8 (a) (3) and (1) allegations depend upon a find-
ing that there was an 8(a) (2) violation, a finding which we are not
making, we shall dismiss the complaint in its entirety.
S See Piggly Wiggly California Company, 144 NLRB 708. There, the Board held that
the identical multiemployer contract involved in the instant case did not cover snackbar
employees and thus was not a bar to a petition of the Culinary Workers Union seeking
a unit limited to snackbar employees at one of two retail supermarkets of the individual
employer involved who was a member of the Council.
THE BOY'S MARKET, INC., ETC . 109
[The Board dismissed the complaint.]
ME31BER BROWN took no part in the consideration of the above Deci-
sion and Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed in Case No . 21-CA-5891 on
April 14 and 21, 1964, respectively, by Retail Clerks Union, Local 770, Retail Clerks
International Association , herein called Local 770, and upon a charge and an amended
charge in Case No. 21-CA-5913 duly filed by Local 770 on April 21 and Septem-
ber 21 , respectively , the General Counsel of the National Labor Relations Board,
herein respectively called the General Counsel 1 and the Board, through the Regional
Director for Region 21 (Los Angeles, California ), issued a consolidated complaint,
dated September 24, 1964 ,2 against The Boy's Markets , Inc. (herein called Boy's),
Von's Grocery Co. (herein called Von's), and Food Employers Council , Inc. (herein
called the Council ),3 alleging that Respondent has engaged in and is engaging in
unfair labor practices affecting commerce within the meaning of Section 8(a) (1), (2),
and (3 ) and Section 2(6) and ( 7) of the National Labor Relations Act, as amended
from time to time , 61 Stat . 136, herein called the Act.
Copies of the charges , the order of consolidation , the consolidated complaint, and
notice of hearing were duly served upon Boy's , Von's, the Council , and upon Los
Angeles Joint Executive Board of Hotel and Restaurant Employees and Bartenders
Union , AFL-CIO ( herein called Joint Board ), a party to certain written collective-
bargaining contracts . Copies of the order of consolidation, consolidated complaint,
and notice of hearing were duly served upon Local 770.
On October 6, 1964 , the Joint Board duly filed an answer; on the same day Boy's,
Von's, and the Council duly filed a joint answer . Each answer denied the commis-
sion of the unfair labor practices alleged.
Pursuant to due notice a hearing was held from November 24 through 27, 1964, at
Los Angeles , California , before Trial Examiner Howard Myers. Each party was
represented by counsel and participated in the hearing . Full and complete oppor-
tunity was afforded the parties to be heard , to examine and cross -examine witnesses,
to introduce evidence pertinent to the issues , to-argue orally on the record at the con-
clusion of the taking of the evidence, and to file briefs on or before December 21,
1964 .4 Each party filed a brief and each brief has been carefully considered.
Upon the entire record in the case and from his observation of the witnesses, I make
the following:
FINDINGS OF FACT
I. RESPONDENT 'S BUSINESS OPERATIONS
Boy's, a California corporation , has its principal offices in Pasadena , California, and
is engaged in the operation of a chain of retail stores and supermarkets in Los Angeles
County, California . Boy's annual sales exceed $500,000 and its annual out-of-State
purchases of goods and products exceed $50,000.
Von's, a California corporation , has its principal offices in El Monte, California, and
is engaged in the operation of a chain of retail stores and supermarkets in Los Angeles
County, California. Von's annual gross sales exceed $500 ,000 and its annual out-of-
State purchases of goods and products exceed $50,000.
The Council is a nonprofit California corporation composed of employer-members
engaged in the retail food market business in southern California. Since about 1941,
the Council has bargained collectively for its members and has negotiated master
collective -bargaining agreements with Local 770. Members of the Council annually
purchase goods and products valued in excess of $2 million from points located out-
side the State of California.
Boy's and Von 's are , and during all times material were, members of the Council.
' This term specifically includes counsel for the General Counsel appearing at the
hearing.
2 On the same day, the said Regional , Director issued an order consolidating , for the
purposes of hearing, the above -numbered cases. .
2 Conjointly , Boy's, Von's , and the Council are referred to herein as Respondent.
4 At the request of counsel the time to file briefs was extended to January 25, 1965.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing facts, it is found, in line with established Board
authority, that Boy's, Von's, and the Council are engaged in, and during all times
material were engaged in, business affecting commerce within the meaning of Section
2(6) and (7) of the Act and that their business operations meet the standards fixed
by the Board for the assertion of jurisdiction.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 770 and the Joint Board are labor organizations admitting to membership
employees of Boy's, Von's, and of the employer-members of the Council.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory statement
At all times material Boy's and Von's have been, and still are, members of the
Council, an association of employers who are engaged in the retail food market
business in southern California.
Since about 1941, the Council has negotiated, on behalf of certain of its members,
master collective-bargaining agreements with Local 770; one such agreement was in
effect from January 1, 1959, through March 31, 1964. Although said 1959-64 agree-
ment contained no specific classification of "snack-bar employees" or "take-out food
employees," it contained a provision covering all retail clerks engaged in "retail food,
bakery, candy and general merchandise" operations.
In recent years, various supermarkets in the Los Angeles area have established in
their stores counters which sell, at retail, food which is designed for consumption
either at or soon after the time of purchase. In certain cases, the consumption of
food takes place within the store itself or right outside the store in a patio area. In
other cases the food is cooked or prepared at the counters and wrapped for customers
who take it from the premises for consumption elsewhere. In either event, the food
appears to be intended for consumption sooner than the other items sold at the
supermarket.
The employers and union representatives who are involved in this controversy have
established a certain parlance in describing the aforesaid operations. Thus, an opera-
tion which handles food for consumption on the premises of the supermarket is called
a "snack bar," and an operation which handles food for consumption off the premises
of the supermarket is called a "take-out food" operation or "prepared food" operation
and an operation which prepares both types of food is called a "combination"
operation.
Early in 1962 when Lois McKinstry, executive administrator of Local 770, first
noticed prepared takeout food sections in supermarkets in the Los Angeles area and
that the employees there involved were not members of any labor organization, she
immediately contacted Robert Giesick, business manager of the Joint Board, in an
attempt to conduct an organizational drive among those employees to be conducted
jointly by the Joint Board and Local 770.
In furtherance of her attempt to organize the aforesaid snackbar employees,
McKinstry met on several occasions with Giesick and with other union officials not
connected with the Joint Board in an effort to work out the details with respect to
which group of employees should ultimately be represented by Local 770 and which
should ultimately be represented by the proper affiliate of the Joint Board. When the
Culinary Union, an affiliate of the Joint Board, took the position that if any person
employed at the snackbars "sold any food for consumption on the premises-even a
cup of coffee," it was going to assert jurisdiction over those employees, Local 707
abandoned all thought of conducting a joint campaign with the Joint Board.5
Late in 1962 McKinstry noticed that in various Von's markets there had been
established prepared-food sections in conjunction with the snackbars. At that time
Local 707 was in discussion with top officials of the Council preparatory to entering
into negotiations looking toward a new bargaining contract. During said discussions
the snackbar problem at Von's "was brought up and it was determined to hold up any
decision with respect to this matter in abeyance until the parties got into bargaining
negotiation sessions."
5 It was Local 770's contention that those employees who handled takeout food were
within Its jurisdiction. This contention was based on the fact that "this type of mer-
chandise was handled by delicatessen clerks" who were covered by the then-existing
Local 770 contract with the Council.
THE BOY'S MARKET, INC., ETC. 111
Under date of November 23, 1962, Local 770 wrote Von's as follows:
It has been called to our attention that certain employees working in the pre-
pared foods take-out bar at several of your locations have failed to become
Local 770 members within the required time, in accordance with our agreement.
Since the employees sell food for consumption off the premises, they are
entitled to be paid according to the Retail Food Agreement.
If any of the employees working in the above-mentioned department handle
only food for consumption on the premises, we will be pleased to discuss this
matter with you.
Under date of December 4, Von's replied to the aforesaid Local 770 letter as
follows:
This letter is to acknowledge receipt of your letter of November 23; at the same
time, it is also intended to inform you that we are in total disagreement with the
contents therein.
The functions and duties of our Fountian and Snack Bar employees do not
now, nor have they at any other time, come under the terms or the jurisdiction of
the Retail Clerks Food Agreement.
Commencing in January 1963 and ending in March 1964, the Council and Local
770 held 79 bargaining sessions which culminated in a 5-year contract between the
parties.
The meetings which were held between January and August 1 were sporadic in
nature. At these meetings some discussion was had regarding whether snackbar
employees should be covered by any agreement which might be entered into. The
Council took the position that those employees should not be covered and Local 770
took the contrary position. In fact, Local 770 claimed "wall-to-wall and ceiling-to-
floor jurisdiction in the stores."
Commencing with the August 1 meeting more detailed discussions took place at the
bargaining conferences concerning snackbar and takeout operations.C It was at this
meeting that De Silva submitted a written proposed recognition clause which indicated
that Local 770 was seeking to have covered in any contract which may be reached,
all nonsupervisory personnel of the stores represented by the Council, save those
persons covered by the then-existing contract between the Culinary Workers Union 7
and the employers in question. Fox rejected the proposal, stating that the employers
could not pay snackbar employees the rate of pay Local 770 was demanding. De Silva
replied that he was willing to negotiate a wage scale commensurate with the Culinary
contract. Thereupon discussion turned to other contractual matters.
On August 3 the parties again met at which time Local 770 presented a revised
recognition clause for the Council's consideration. The parties were apparently in
agreement that the snack or takeout food employees were to be covered by any agree-
ment reached by the Council and Local 770. The discussion at this meeting relating
to said employees centered around the rate of pay they should receive and how the
unit should be defined insofar as it affected those employees who handle food which
might conceivably be ordered for on-the-premises consumption and/or be consumed
off the premises. Local 770 took the position that it had jurisdiction of all employees
handling food for off-premises consumption and offered to exclude from coverage
in any agreement reached those employees who were then covered by the Culinary
Workers' contract.
At the August 3 meeting, referred to immediately above, De Silva dictated, in the
presence of the Council's representatives, the following memorandum:
Persons employed in snack bars who are engaged in any combination of
preparation and sale of food for on and off premises consumption shall become
members of the bargaining unit, and the wage rate for such employees, whose
work is primarily in the preparation and sale of food for on-premises consump-
tion , shall be covered by the terms and conditions of the collective bargaining
agreement with the undersigned Union and the wage rate shall be negotiated
between the parties. Failure of the parties to arrive at a mutually agreeable
9 The Council was generally represented at the bargaining meetings by Robert K. Fox,
its president, John Bacon and Joseph McLaughlin, its legal counsel ; the Union by
Joseph De Silva, its president, Lois McKinstry, its executive administrator, as well as
De Silva's assistant, Hugo Morris, its research director, and Kenneth Al. Schwartz, its
legal counsel. From time to time other persons implemented the foregoing named in-
dividuals. De Silva was the spokesman for Local 770 and Fox was the spokesman for
the Council.
7 The affiliate of the Joint Board directly involved in this proceeding.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage rate shall entitle either party to request the matter to be submitted to arbi•
tration under Article __ for the purpose of establishing the appropriate wage
rate and the decision of the arbitrator shall be binding.
After the above had been transcribed, copies thereof were handed to the Council's
representatives and discussion then was had with respect thereto. No agreement,
however, was reached.
Three days later, on August 6, the parties again met. At this meeting, Local 770
submitted a revised proposed recognition clause. The provision excluding from the
coverage of any contract reached reads:
Persons for the period they are covered by an existing or successor contract
between the undersigned Employer and the Culinary Workers Union, who per-
form in snack bars services exclusively relating to on-premises consumption of
food and beverages.
According to the credited testimony of Hugo Morris, research director of Local
770, the following took place with respect to the recognition clause proposed by
Local 770 at the August 6 meeting:
There was a discussion about the August 6th document which was given out at
the beginning of the meeting, and Fox made comments about various aspects of
it not relating to the issue here, and then, toward the end of the negotiations,
Mr. DeSilva said that with regard to snack bars, et cetera, he would negotiate a
rate for a combination take-out and snack bar work. There had been discussions,
as I mentioned, through this whole period-and I think on this day as well-
about how you might draw a line of demarcation between take-out foods and
snack bar, purely snack bar operations, and it was in the connection that this
discussion took place about negotiating new rates for this kind of work.
At the meeting held on August 8, Fox, in the presence of the representatives of
Local 770, dictated to his secretary a two-page memorandum of his understanding
of what the parties had agreed upon up to that date. The parties, after copies of Fox's
memorandum had been given those attending the meeting, discussed the contents
thereof at length. The discussion mainly centered around the line of demarcation
to be established regarding the inclusions and exclusions of employees handling on-
premises food consumption and those handling off-premises food consumption.
At the next meeting, held on August 14, De Silva dictated to the secretary attending
the meeting , and in the presence of the Council's representative, a short memorandum
reflecting his understanding of what the parties had agreed upon. The memorandum
reads as follows:
Culinary workers who handle items for on-the-premises consumption only and
employees of culinary departments handling items of a supplementary nature to
be consumed [off premises] in conjunction with such snack bar items as sand-
wiches, hot dogs, doughnuts, and other snack bar items, provided that where
such departments have an off-sale section where the sale of such items is desig-
nated for off-the-premises consumption, the employees of said department shall
be paid the delicatessen rate as outlined in this contract, or, where warranted, a
combination rate, and in that event said employees shall be members of the bar-
gaining unit.
The above-quoted clause, after such discussion had been had and some revisions
made ,8 was accepted by the parties.
At the August 15 meeting, the Council presented a two-page "typed-up result of
[the parties'] negotiations to date." Paragraph 3 thereof, which defines, the persons
not to be covered by any agreement reached, reads as follows:
Culinary Workers who handle items for on-the-premises consumption only,
and also employees of culinary departments handling items of a supplementary
nature to be consumed off the premises, in conjunction with such snack bar
items as sandwiches, hot dogs, doughnuts, and other snack bar items, provided
that where such departments have an off-sale section where the preparation
of such items is primarily intended for off the premises consumption, the employ-
ees of said section shall be members of the bargaining unit and shall be paid the
delicatessen rate as outlined in this contract, or where warranted, a combination
rate and different hours shall be negotiated or arbitrated, if necessary, under the
arbitration provisions of this agreement.
8 The modifications of De Silva's original memorandum are indicated on General Coun-
sel's Exhibit No. 19.
THE BOY'S MARKET, INC., ETC. 113
Although the parties met, from time to time, between August 15 and October 15,
negotiations regarding the matter respecting the snackbar takeout food operations was
very rarely discussed. In fact, the other provisions of a new collective-bargaining
agreement were the main topic of discussion at the meetings held between the afore-
mentioned dates. At the meeting held on the latter day, Fox, according to Morris'
credited testimony, made the following comments relative to the snackbar takeout
food operations:
Mr. Fox said that the language was really inadequate because it presented
certain problems for the employers because of the lines of demarcation that
were drawn; that the employers needed greater flexibility in having people not
be restricted in the handling of merchandise so that the employers could be free
to sell all kinds of merchandise in all ways and there was-
TRIAL EXAMINER: Do you mean in the snack bar?
The WITNESS: Snack bar, take-out food, and who would handle which.
TRIAL EXAMINER: In other words, Mr. Fox took the position that the employers
thought that they couldn't have one group of employees just handling on-premises
merchandise and another group handling off-premises merchandise?
No lengthy discussion relative to the snackbar takeout food operations was engaged
in at any of the numerous meetings of the parties held between October 15 and
January 27.
At the January 27 meeting, lengthy discussion was had relative to De Silva's pro-
posal "that all of the employees be in the Retail Clerks' unit so that there would not
be the problem of drawing such a line [of demarcation]" and with De Silva's further
suggestion that the parties agree to pay the snackbar takeout food operators the rate
of pay they were receiving under the then existing Culinary Workers' contract plus
whatever fringe benefits the employees would receive under the contract which may
be reached by the Council and Local 770.
According to Morris' credited testimony, the following also took place at the meet-
ing referred to immediately above:
we talked about the Culinary Union contracts and snack bars further, and Fox
said something about the Culinary Workers having fifteen cents over the past
five years in wage increases and about a similar amount in fringe benefit increases
over the same five-year period, and he said something to the effect that DeSilva
couldn't exist-couldn't stand to negotiate conditions on that level, and Mr.
DeSilva said something-to the effect that he was prepared to negotiate rates for
snack bars which were competitive and, again, asked for copies of the Culinary
Workers' contracts so that they could be analyzed.so that we'd know exactly
what Fox was talking about when he talked about the conditions.
At the meeting held on the following day, January 28, Fox handed Morris five
Culinary Workers Union contracts pursuant to De Silva's January 27 request.
De Silva, in Fox's presence, then instructed Morris to analyze the cost factors of said
contracts. According to Morris' credited testimony, the following then ensued:
... Mr. DeSilva said at that time something to Fox to the effect of, "Now, don't
go out and sign up all the unsigned snack bars of the Culinary Workers while
we're here talking about conditions for them... And Fox said something to the
effect of, "Don't be silly," or, "Don't worry," or something like that.
Between the January 28 meeting and the next one, held on February 14, Morris
sought the aid of John Bacon, Fox's assistant, "in pinning the figures down to precise
amounts that could be looked at in chart form to evaluate the cost elements in the
Culinary Workers' contracts."
On February 14, Morris, Bacon, and some other negotiators met with De Silva and
prepared a chart which depicted the cost factors contained in the aforesaid Culinary
Workers contracts .9
At the February 24 meeting, the following proposal was submitted 10 and discussed:
SNACK BAR OPERATIONS
A. Where the employer has a snack bar serving on-premises food only it shall
be exempt from the Agreement.
B. In instances where the employer offers food for off -premises consumption
for sale, and where the cash value of such off-premises merchandise that is sold
is equal to, or greater than the value of on-premises merchandise, the contract
shall apply to the entire operation and a combination rate shall be negotiated.
6 This chart was originally prepared by Morris but "amended by suggestions from Mr.
Bacon as to where it might be in error."
10 The record does not indicate who submitted this proposal.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Where the employer offers for sale hot foods for off-premises consumption
(as distinguished from a standard service delicatessen operation) the contract
shall apply and the general merchandise rates will be in effect.
D. The Food Clerk rate shall apply to what is generally recognized as standard
service delicatessens, as distinguished from so-called hot food operations. (See
above.)
Either on February 26 or 27 Fox submitted to De Silva the following memorandum
dated February 26:
To: Joe DeSilva
From: R. K. Fox
Re: Take-Out Food Problem
1. Other than those currently under a labor contract, union jurisdiction shall
be extended to snack bars operating solely as such, as well as to snack bars com-
bined with take-out food operations, and take-out food operations operating
solely as such.
2. For employees employed exclusively in snack bars, the box boy rates shall
apply. The only fringe benefits that shall be applicable to such employees are
the medical and hospitalization plan and the dental plan. Split shifts and short
shifts shall be permissible, and holiday, Sunday and night premiums shall not be
applicable.
3. Where a take-out food operation is combined with a snack bar as an adjunct,
or secondary to the snack bar, and where employees work in both the take-out
food and snack bar, a combination rate 12th ¢ above that of the box boy shall
apply to such combination workers. As in # 2, above, split and short shifts shall
be allowed and night, holiday, and Sunday premiums shall not be applicable.
4. Where an employee works exclusively in a take-out food operation handling
and selling nonpackaged foods, whether hot or cold, the new general merchandise
rate shall apply to such employees as well as all other terms and conditions of
the food agreement.
A collective-bargaining agreement was finally arrived at after the following, accord-
ing to Morris' credited testimony, has transpired:
On March the 3rd there was an extensive discussion, a full negotiation session,
concerning this matter in an attempt to determine what rates of pay and fringe
benefits should be paid to employees of these various operations, and at that
point discussions took place about three kinds of operations, about a purely
snack bar operations, a combination snack bar and take-out food operation, and
a take-out food operation and delicatessen combined, and I recall a chart on the
board and attempts to delineate the types of food handled by each; even when
the jurisdictional problem was solved at that point and they were regotiating
for all of these people under the Retail Clerks' contract, there still remained the
problem of determining the wage rate to be applied to the different kinds of
work that were to be performed, and that was discussed extensively on March 3rd
and all day on March 9th-at least part of the day-and, finally, on March 9th
after, I think, five or six drafts of language, language was completed which
appeared in the March 14th, 1964, document that was signed by the parties.
The collective-bargaining agreement ultimately agreed to by the parties contains
the following language:
Article I. B. Food Markets Segment Exclusions:
Excluded from the segment for food markets are:
3. Persons presently under a collective bargaining agreement with Culinary
Workers Union, or persons employed in a complete restaurant.
Article VI. Wages
T.1. Where a snack bar is exclusively a snack bar the box boy rates shall
apply. The box boy rates shall also apply where there is a combined snack bar
and take-out food operation, provided that the monthly sales volume of the
take-out food operation does not exceed two times the monthly sales volume of
the snack bar ....
2. Where there is a combined snack bar and take-out food operation, and
where the monthly sales volume of the take-out food operation exceeds two
times the monthly sales volume of the snack bar, a combination rate of $2.25
shall apply ....
THE BOY'S MARKET, INC., ETC. 115
3. The new general merchandise rate shall be applicable when the Employer
operates a service delicatessen, a take-out food operation alone, or a combina-
tion service delicatessen and take-out food operation . . . . It is intended that
Paragraph 2 shall apply to what is a combination snack bar take-out food opera-
tion, and Paragraph 3 to what is either a service delicatessen, take-out food
operation alone, or a combination service delicatessen and take-out food
operation .... _
B. The pertinent facts relative to Boy's
Boy's operates snackbars at some of its markets which sell food for on-premises
and off-premises consumption. One such snackbar is located in Boy's 3670 Crenshaw
Boulevard, Los Angeles, store."
In either September or October 1963, Paul Meister, a Culinary Workers organizer,
and another Culinary representative called upon Ida Freed, Boy's personnel manager,
and informed her that the Culinary Workers represented "a great portion" of Boy's
"snack bar and take-out foods" employees. Freed replied that the Culinary Workers
"would have to have all of them before `she' could discuss [any negotiations] with
them."
In November 1963 Meister informed Freed that he had all the snackbar employees
signed up.
Later that month Meister went to Freed's office, accompanied by the same repre-
sentative who had been with him at the September or October 1963 meeting with
Freed, and again informed Freed that the Culinary Workers represented all the
Boy's snackbar takeout food employees and that he would like her to sign a contract.
When Freed replied, "There would have to be a card check to prove that [the Culinary
Workers] had all of the people," Meister said that was "fine." 12
While the foregoing Meister-Freed meetings were taking place, not only were the
above-described Council-Local 770 negotiating meetings taking, place, but Local 770
was openly soliciting the Boy's Crenshaw store snackbar employees to join that orga-
nization; viz, in late September or early October 1963, C. Gus De Silva, the general
representative of Local 770 and a brother of Joseph De Silva,13 together with
Robert L. Madray, a Local 770 field representative, went to the Crenshaw store,
because the snackbar had been remodeled and as a consequence thereof some mem-
bers of Local 770 had been laid off and were replaced by nonmembers. While at
the store, Gus De Silva and Madray asked the girls who were operating the snackbar
if they wanted to join Local 770.
In the latter part of November or the forepart of December 1963, Gus De Silva
and Madray met with Freed in her office. Madray testified that: He and De Silva
each told Freed that Boy's Crenshaw store's snackbar employees were covered by
the then existing Local 770 contract; in addition, Local 770 had obtained signed
membership applications from all the snackbar employees of that store; 14 he and
De Silva were there to negotiate a contract; Boy's should "not sign a contract with
anybody [else] because we have the people"; Boy's and Local 770 had always enjoyed
good, friendly relations and hence he did not believe an election was necessary to
establish Local 770's majority status; and Freed replied that she would report the
matter to her superiors and would then advise him and De Silva what decision, if
any, was reached regarding Local 770's claim of majority status.
Regarding the meeting referred to immediately above, Gus De Silva testified,
"Ida Freed agreed with us that she would permit or allow one or two employees that
was handling the chickens and spare ribs to come into our jurisdiction until such
time as a new contract was negotiated or concluded, because [the Council and Local
"The employees of this snackbar are the only Boy's employees here involved.
12At that time Boy's employed about eight snackbar operators at its Crenshaw store.
There were received in evidence five cards expressly designating the Joint Board (the
Culinary Workers is an affiliate of the Joint Board ) to represent the signers thereof for
the purposes of collective bargaining . Claire Aubry's (nee Mercadel ) card is dated Sep-
tember 13, 1963; Karal Coon's is dated September 14, 1963; S. E. Thompson's is dated
September 18, 1963; Amelia Marsh's is dated September 23, 1963; and Jeanette Hill's
( nee Howell ) is dated December 13, 1963.
Is For the purpose of brevity, Joseph De Silva will be referred to herein as De Silva
and his brother as Gus De Silva.
14 There were received in evidence five cards expressly designating Local 770 to represent
the signers thereof for the purposes of collective bargaining . Thompson 's, Marsh's, and
Aubry's cards are dated October 2, 1963, and Hill's and Coon's are dated October 3.
217-919-66-vol. 156-9
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
770] would negotiate some kind of a wage scale for this type of work"; that Freed
also agreed to leave the other snackbar employees "alone until we concluded the
food industry contract"; and that after a Council-Local 770 contract had been
arrived at the parties "would get together and see what they had negotiated with
the Food Employers Council."
Lois McKinstry, executive administrator of Local 770 and De Silva's assistant,
testified that: She supervises the field agents and department heads, attends nego-
tiating meetings, interprets contracts, handles contract disputes and grievances; in
either November or December 1963, as a result of a telephone call she had received
from a Boy's Crenshaw store's snackbar employee informing her that "the Culinary
Workers Union was in the store," she telephoned Freed and reminded her that nego-
tiations were then in progress between the Council and Local 770 and with respect
to Boy's Crenshaw store's snackbar employees; she then told Freed, "We represented
the employees and that we would present out representation," and Freed replied that
she would wait until the conclusion of the Council-Local 770 negotiations before
proceeding further and hence it was not necessary for Local 770 to present proof of
its majority status at that time; then Freed, to quote from McKinstry's testimony,
"agreed that, while the Culinary had contacted the people, there would be no con-
tract signed since we were in negotiations and her company was being represented
by the Food Employers Council." McKinstry further testified that a Boy's Cren-
shaw store snackbar employee telephoned her in or about March 1964, and informed
her that Freed had indicated to the snackbar employees that Boy's had signed a
contract with the Culinary Workers Union covering the snackbar employees; and
she instructed Gus De Silva and Madray to see Freed immediately and ascertain
whether her telephone report was correct and when Gus De Silva and Madray
reported that such a contract was in existence, she telephoned Freed and the follow-
ing conversation was had:
I said to Mrs. Freed that she had agreed not to sign a contract with the Culinary
Workers Union inasmuch as we were in negotiations. She said to me that she
was not the employer, that she did not sign the contract personally, and I said,
"Mrs. Freed, when I talked to you you represented the company and I took you
at your word."
Freed testified that in the forepart of September 1963, Gus De Silva and Madray
called upon her regarding the discharge of Neal Nutzman, a Crenshaw store snack-
bar operator and a Local 770 member, that after the nutman had been disposed of
Gus De Silva and Madray "mentioned that they had given some cards to the
employees and talked to them, but they did not tell me that they had them signed
and all of the people signed them"; and that at no time prior to April 1964 did
McKinstry tell her that Local 770 had received signed authorization cards from any
snackbar employee.
In the light of my observation of the conduct and deportment of Freed, Madray,
McKinstry, and Gus De Silva while they were on the witness stand, ' and after a
very careful scrutiny of their testimony, I find Madray's, McKinstry's, and Gus De
Silva's versions of their respective conversations with Freed, as epitomized above, to
be substantially in accord with the facts. This finding is based mainly, but not
entirely, on the fact that Madray, McKinstry, and Gus De Silva each impressed me
as being one who is careful with the truth and meticulous in not enlarging his or her
testimony beyond his or her actual memory of what was said and what was done.
On the other hand, Freed gave me the distinct impression that she was studiously
attempting to conform her testimony to what she considered to be in the best inter-
ests of Boy's and the other Respondents.15
Under date of January 8 the Joint Board wrote Boy's that it represented "the
majority of the unrepresented employees employed in the snack bar of The Boy's
Markets, Inc., located within Southern California." The letter concluded with a
request for recognition as the collective-bargaining representative of the employees
in the above-mentioned unit and for a meeting for the purpose of negotiating a
bargaining contract.
After the receipt of the forementioned Joint Board letter, Boy's hired the account-
ing firm of J. R. McKnight & Associates to conduct a card check.
3s This is not to say that at times Madray, McKinstry, and Gus De Silva were not con-
fused on certain matters or that there were not variations in their objectivity and con-
vincingness . But it also should be noted that the candor with which each of them
admitted , during their searching examinations , that they could not be certain as to dates,
times, or the exact words used , only serves to add credence to what a careful study of
their testimony shows what they honestly believed to be the facts.
THE BOY'S MARKET, INC., ETC. 117
Under date of January 14, 1964, Winston R. Grein of the McKnight firm wrote
Boy's as follows: 16
In response to your request I arrived at your office at 10:00 a.m. this morning
to perform a card check. You gave me a sheet of paper with twenty one names
typed thereon. Mr. Meister of the Los Angeles Joint Executive Board of Hotel
and Restaurant Employees and Bartenders Unions, AFL-CIO, gave me a group
of cards which represented requests by certain of your employees to join his
union and designate it as their collective bargaining representative.
I went into an adjoining room and compared the names on the cards with the
names appearing on your list and found that seventeen of the twenty-one employ-
ees listed had asked to have the Los Angeles Joint Board AFL-CIO Hotel and
Restaurant Employees and Bartenders Union of Los Angeles designated as their
collective bargaining representative.
The signatures appearing on the cards presented by the Union were compared
with the signatures appearing on the employees W-4s and found to be the same.
Please let me know if I can be of further assistance in this matter.
A 5-year union-security collective-bargaining agreement, effective as of February 1,
1964, was entered into by Boy's and the Joint Board covering the snackbar operators
within the jurisdictional areas of the various organizations comprising the Joint
Board.
Sometime in February 1964 a representative of the Culinary Workers telephoned
Freed and informed her that the employees covered by the foregoing Joint Board-Boy's
contract had not paid their dues and asked her what she intended to do about it.
Freed replied that was a matter the Culinary Workers had to take care of.
In the forepart of April 1964 Freed informed Boy's Crenshaw store snackbar
employees Lee, Hill, Aubry, and Coward that they were, as of February 1, in the
Culinary Union. When the employees asked Freed whether the contract provided
for a pay raise she replied that she had not read the contract thoroughly but a rep-
resentative of the Culinary Workers would come to the store soon and explain the
terms of the contract to them. Lola Lee then asked Freed "if we hadn't signed
a card, would we still be in [the Culinary Union]," Freed replied in the affirmative,
adding that all the snackbar employees were in the Culinary Workers because a
majority of those employees had signed Culinary Workers membership application
cards.
About 2 weeks after the conversation between Freed and the snackbar employees,
referred to immediately above, Meister and a female representative of the Culinary
Workers appeared at the Boy's Crenshaw store and the female representative told
Lee, Hill, and Aubry, to quote from Lee's credible and undenied testimony, "It
would only be $5.00 to join the Culinary if we all go in as a group, but if we wait
until later, it would be more, and. . . that Mrs. Freed had given her the authority
to give us termination papers if we didn't sign." 17
C. The Joint Board's claim of majority status at Von's
As shown above, Local 770, under date of November 23, 1962, wrote Von's
regarding the failure of certain employees working at various Von's prepared food
takeout snackbars to become Local 770 members in accordance with the then-
existing Council-Local 770 contract. In its reply, dated December 4, 1962, Von's took
the position that "the functions and duties of our Fountain and Snack Bar employees
do not now, nor have they at any other time, come under the terms or the jurisdiction
of Retail Clerks Food Agreement."
During all times material, Von's has had four Los Angeles area stores operating
snack or takeout food bars covered by the geographical jurisdiction of both the Joint
Board and Local 770. These are: store number 4, located in Monterey Park; and
stores numbers 10, 15, and 18, located in the city of Los Angeles. The Monterey
16A copy of this letter was forwarded to Meister of the Culinary Workers.
14 As far as the record discloses , the only snackbar employee who paid any money to the
Joint Board was Aubry. At the time the Joint Board contract was entered into, five
of the eight Boy's Crenshaw store snackbar employees had signed Local 770 authorization
cards. In addition, Faustina Brinson, the girl who handled the barbecued chicken opera-
tion and who, pursuant to the September or October 19G3 verbal agreement between
Freed, Gus De Silva, and Madray, was put under the then existing Council-Local 770
bargaining agreement, was a member in good standing in Local 770 at the time of the
execution of the Joint Board-Boy's contract of February 1, 1964.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
store and the Los Angeles store number 15 always have operated snackbars which
serve prepared food exclusively for on-the-premises consumption, whereas store
number 18 always has operated a combination on-premises and off-premises snackbar.
Von's snackbar employees work exclusively behind the snackbars and other store
employees very rarely-in fact, only in cases of emergency-perform any snackbar
operations.
Von's snackbar employees receive a lower rate of pay than other store employees
and, except for holiday premium pay, they receive different fringe bentfits.
Under date of January 10,1964, the Joint Board wrote Von's as follows:
You are hereby advised that the Los Angeles Joint Executive Board of Hotel
and Restaurant Employees and Bartenders Unions, AFL-CIO represents the
majority of the snack bar employees employed in Von's Markets within the
jurisdiction of the Los Angeles Joint Executive Board.
We request a meeting be scheduled for the purpose of negotiating an
agreement.
Upon receipt of the above-quoted letter, Kenneth L. Doyle, Von's director of
industrial relations and personnel, forwarded it to the Council for handling. The
Council then requested Charles L. Lang, a public accountant, to conduct a card check.
Under date of January 22, 1964, Lang wrote the Council as follows:
At the request of the Food Employers Council, Inc. we have made an exam-
ination of a list of employees and authorization cards of the Von's Grocery Co.,
snack bars.
We submit the following as a result of our examination:
1. Vons Grocery Co., submitted a list of twenty-three employees.
2. Los Angeles Joint Executive Board of Hotel and Restaurant Employees
and Bartenders Unions AFL-CIO submitted seventeen authorization cards.
3. There were thirteen authorization cards verified to the list of
employees
4. The total verified authorization cards submitted was 56.5% of the
employees list.
Under separate cover we are returning your list of employees.
Upon the receipt of Lang's letter, Melvin Dauber, a labor relations associate in
the Council's employ, notified Doyle that the "Local Joint Board had a majority rep-
resentation of [Von's] culinary employees and that we ought to enter into negotia-
tions with them." Thereupon, negotiations were entered into which were concluded
by the execution of a union-security clause collective-bargaining agreement, dated
March 2, 1964. Said agreement, like the Boy's-Joint Board agreement, dated Febru-
ary 1, 1964, covers "all culinary operations now or hereafter owned and operated by
the Employers which are within the jurisdiction of the Unions."
D. Concluding findings
It is well-established Board law, under the Midwest Piping doctrine,18 as reiterated
in Novak Logging Company, 119 NLRB 1573, 1574, that:
an employer faced with conflicting claims of two or more rival unions
which give rise to a real question concerning representation may not recognize
or enter into a contract with one of these unions until its right to be recognized
has finally been determined under the special procedures provided in the Act 19
Accordingly, the question here is whether, at the time of Boy's and Von's recognized
the Joint Board as the collective-bargaining representative of their respective snack-
bar takeout food employees, there existed a real question concerning the representa-
tion of such employees between the Joint Board and Local 770. The credited evi-
dence, as epitomized above, clearly establishes that such a question existed and, hence,
by recognizing the Joint Board as the exclusive collective-bargaining representative
of the employees involved, Respondent accorded the Joint Board unwarranted pres-
tige and rendered said organization unlawful assistance within the meaning of Sec-
tion 8 (a) (2) and (1) of the Act.
Local 770 first claimed recognition as the bargaining representative of Von's
snackbar takeout.food employees on November 23, 1962. The fact that Local 770
never abandoned its attempts to secure such recognition is evidenced by Local 770's
1e Midwest Piping & Supply Co., Inc., 63 NLRB 1060.
19 See also G. W. Hume Company and California Processors & Growers, Inc., 71 NLRB
533,559-562.
THE BOY'S MARKET, INC., ETC. 119
demands during the 1963-64 negotiating meetings with the Council , which, during all
times material , represented Von's, Boy's, and other supermarkets , for the purposes of
collective bargaining with Local 770 and other labor organizations , that the agree-
ment then under consideration was to cover said employees.
Furthermore, according to the credible testimony of Gus De Silva, Madray, and
McKinstry , it appears that commencing late in 1963 , Local 770 informed Freed that
it represented a majority of Boy's Crenshaw store takeout food employees. The
fact that Local 770 did not then make a formal written request for recognition or
for a card check does not avail Boy's or Von's a valid defense to the unfair labor
practices charges now under consideration . This finding is supported mainly, but
not entirely , on (1) Freed 's agreement not to sign a contract with any other union,
to put one of the snackbar employees under the then-existing Council-Local 770
agreement and to wait the outcome of the negotiations between the Council and
Local 770 before deciding how to treat the other snackbar employees; and (2) the
repeated demands at the 1963 -64 negotiation meetings between the Council and
Local 770 where Local 770 claimed to represent the snackbar takeout food employees
and the employees engaged in combination operations.
In addition , the agreement consummated as the result of the 1963-64 negotiations
covered all the employees of the members of the Council , including all snackbar take-
out food employees, excluding those "presently under a Culinary Workers Union
agreement." The fact that the Joint Board's contracts with Boy's and Von's removed
snackbar takeout food employees coverage from the Council-Local 770 1964 agree-
ment cannot obscure the fact that until the respective dates of the execution of said
Boy's and Von 's contracts and thereafter such snackbar takeout food employees were
the subject of negotiations between the Council and Local 770.
It is thus clear that at the time Boy's and Von's executed their respective agree-
ments with the Joint Board they were, and each was, faced with an active and con-
tinuing claim by Local 770 for their respective culinary employees. Even if Local
770 did not, in so many words, make a formal request for recognition in the traditional
sense , its request to negotiate a contract covering the snackbar takeout food employees
was tantamount to a demand for recognition . Moreover , the Council 's participation
in collective bargaining on behalf of Boy's, Von's, and other supermarkets con-
cerning wages and other terms and conditions of employment for the snackbar take-
out food employees , coupled with Freed's aforementioned agreement on behalf of
Boy's, to abide by the outcome of the Local 770-Council 1963-64 negotiations, estab-
lishes beyond any doubt that Respondent actually recognized Local 770's claim of
representation.
I have carefully considered the various other defenses raised by Respondent and
the Joint Board. It would serve no useful purpose to set forth here , at length, any
discussion with respect to them for I find each of them to be without merit.
Since the Council, at Von's request, conducted the card check of January 1964 and
as a result of said check advised Von's to enter into a bargaining contract with the
Joint Board, which Von's did on March 2, 1964, the Council clearly acted as Von's
agent at the critical times in this case. Although the Council was not aware of the
Joint Board's demand for recognition , of the card check, or of the execution of the
Joint Board's Boy's February 1, 1964, contract until after they had taken place, the
Council, the credited evidence discloses , subsequently ratified said action. Accord-
ingly, I find that by said conduct the Council acted as a bargaining representative both
for Boy's and Von's and as their "agent " within the meaning of Section 2 (2) of the
Act and hence , for the purposes of this case , the Council is found to be an employer
within the meaning of the Act solely for remedial purposes.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in connec-
tion with the operations of Boy's and Von's described in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States, and such of them as have been found to be unfair labor practices, tend to lead
to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Boy's and Von's each has engaged in unfair labor practices, I
will recommend that each cease and desist therefrom and take the following affirma-%
tive action which it is found will effectuate the policies of the Act.
Since it has been found that the execution of the Joint Board-Boy 's contract dated
February 1, 1964, and the Joint Board-Von's contract, dated March 2, 1964, con-
stitute unfair labor practices on the part of both Boy's and Von's, I will recommend
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Boy's and Von's each be ordered to withdraw and to withhold recognition from
the Joint Board as the exclusive collective-bargaining representative of any of their
respective employees and to cease and desist from giving effect to said contracts,
and any other such contracts, understandings, supplements, extensions, or other
agreements as may have been related thereto, provided, however, in so doing neither
Boy's nor Von's shall not be required or permitted to vary those provisions of such
contracts, understandings, supplements, extensions or other agreements which estab-
lish wages, hours of employment, rates of pay, seniority, or other substantial rights
of their respective snackbar takeout food employees,20 until such time as new con-
tracts are entered into with an exclusive collective-bargaining representative of their
respective snackbar takeout food employees 21 duly certified as such representative
by the Board.
I will further recommend that Boy's be ordered to reimburse its Crenshaw store
snackbar takeout food employees for any initiation fees, dues, or other moneys paid
by them pursuant to the aforesaid Boy's-Joint Board February 1, 1964, agreement.
It is further recommended that Council, who, acting directly and indirectly in the in-
terest of Von's and Boy's, aided and assisted in interfering with the self-organization
of the employees of Von's and Boy's by, in the case of Von's, conducting the
aforementioned card check and then advising Von's to abide by the results thereof
and to enter into a bargaining contract with the Joint Board while it was negotiating,
as the representative of certain Von's snackbar takeout food employees at a time when
it, as an agent of Von's, was bargaining with Local 770 for the same unit employees
and, in the case of Boy's, ratifying Boy's illegal conduct of conducting a card check
and thereafter recognizing, bargaining, and executing a bargaining contract with the
Joint Board as the representative of Boy's Crenshaw store snackbar takeout food
employees at a time when it, as an agent of Boy's, was bargaining with Local 770 for
the same unit employees, be ordered to cease and desist from such conduct and from
the conduct which brought about the concerted violations.
Upon the basis of the foregoing. findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Boy's and Von's each is engaged in, and during all times material was engaged
in, commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Council is an employer association, some of whose members are engaged
in, and during all times material were engaged in, commerce, within the meaning of
Section 2(6) and (7) of the Act.
3. The Council, as agent for Von's and Boy's, is an employer, for the purposes of
this proceeding, of the employees here involved within the meaning of Section 2(2)
of the Act.
4. The Joint Board and Local 770 are, and during all times material were, labor
organizations within the meaning of Section 2(5) of the Act.
5. By contributing assistance and support to the Joint Board, through the medium
of the illegal February 1, 1964, contract with the Joint Board, thereby encouraging
membership in Local 770, Boy's has engaged in and is engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a) (2) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Boy's has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
7. By contributing assistance and support to the Joint Board, through the medium
of the illegal March 2, 1964, contract with the Joint Board, thereby encouraging
membership in the Joint Board and discouraging membership in Local 770, Von's
has engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8(a)(2) of the Act.
8. By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, Von's has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (1) of the Act.
9. By illegally assisting Boy's and Von's, as their agent, to encourage Boy's and
Von's respective employees to join and assist the Joint Board and to refrain from
joining or assisting Local 770, the Council has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
20 This recommendation is confined to Boy's Crenshaw store and to Von's stores num-
bers 4 , 10, 15, and 18.
21 JbJ&
LIZ OF RUTLAND, INC . 121
10. By assisting Boy's, as its agent, illegally to encourage Boy's employees to join
and assist the Joint Board and to refrain from assisting and joining Local 770, the
Council has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
11. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication.]
Liz of Rutland, Inc. and Upstate New York & Vermont District
Council , International Ladies' Garment Workers Union, AFL-
CIO. Case No. 1-CA-4907. December 17,1965
DECISION AND ORDER
On September 15, 1965, Trial Examiner Thomas A. Ricci issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent and the Charging Party filed excep-
tions to the Trial Examiner's Decision, and the Respondent filed a brief
in support thereof. The General Counsel filed a brief in support of
the Trial Examiner's Decision.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this proceeding, and hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
'The Trial Examiner found that in preemployment interviews with prospective em-
ployees in July 1964 , the Respondent stated that he was going to open a nonunion plant
and asked prospective employees if they had any objection to working in a nonunion plant.
The Trial Examiner found that Respondent had thereby conditioned employment upon
the employees' agreement not to seek representation through a union and had violated
Section 8(a) (1) of the Act. We do not adopt such finding inasmuch as the conduct
occurred more than 6 months prior to the filing of the charge on March 1, 1965, and is
therefore barred from consideration as an unfair labor practice by Section 10(b) of
the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A hearing in the above-entitled proceeding was held before Trial Examiner
Thomas A. Ricci from May 24 through June 3, 1965, at Rutland, Vermont, on com-
156 NLRB No. 12.