The Topeka Grocers Management Association

National Labor Relations Board - Board Decisions

Nov 16, 1965

155 N.L.R.B. 961 (N.L.R.B. 1965)

THE TOPEKA GROCERS MANAGEMENT ASSN., ETC. 961
The General Counsel (presumably granting, for the sake of argument, that the
Association was so organized as to have the right to use a lockout) contends that
the lockout was used unnecessarily (and therefore not within the scope of the Buf-
falo Linen doctrine) and that this is demonstrated by the fact that the lockout was
terminated on August 7, 1963, before the end of the strike. i have not seen any
authority which holds that the use of a defensive lockout is illegal if there, is any
other pressure tactic to which members of an employers' association might legally
resort in combatting a selective strike. Even if the Association might, at the outset
of the lockout, have instead threatened unilateral institution of the Association's last
offer, such threat, at that time, might have been of little effect. Conditions in bar-
gaining had changed by August 4. The Association had offered enough highe[
increases by that time to make the threat unilaterally to put such increases into effect
more potent. I find that the termination of the lockout before the end of the strike
does not prove that the Association resorted unnecessarily, or other than defensively,
to the use of a lockout at the outset.
The entire picture presented by the evidence in this case is one of two colossi (the
Association on one side, the two unions on the other) engaged in a great tug of war,
with each using as much weight and force as was available but with each cognizant
of the rules of the game and attempting to stay within them. On the entire evidence,
I conclude and find that the Respondents did not make illegal use of a lockout but
confined its use to that sanctioned by the Board in its decision in Buffalo Linen Sup-
ply Company, et al., 109 NLRB 447, 448, where the Board said:
... we think the more reasonable inference is that, although not specifically
announced by the Union, the strike against the one employer necessarily car-
ried with it an implicit threat of future strike action against any or all of the
other members of the Association. For, the Union's action represents a simi-
lar technique of exerting economic pressure to atomize the employer solidarity
which is the fundamental aim of the multiemployer bargaining relationship.
The calculated purpose of maintaining a strike against one employer and threat-
ening to strike others in the employer group at future times is to cause succes-
sive and individual employer capitulations. Therefore, and in the absence of
any independent evidence of antiunion motivation, we find that the Respond-
ents' action in shutting their plants until termination of the strike at Frontier
was defensive and privileged in nature, rather than retaliatory and unlawful.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, I recommend that the
complaint be dismissed in its entirety.
The Topeka Grocers Management Association, Harry's IGA Food
Center, Butner IGA Foodliner, Falley's Market, Inc ., Russ's
Market, Dibble's Grocery Co., Dibble's Fairlawn Plaza , and Dib-
ble's Holiday Square Supermarket and Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO,
Local Union 576. Case No. 17-CA-391. November 16, 1965
SUPPLEMENTAL DECISION AND ORDER
On January 13, 1_965, the Nationa l Labor Relations Board issued
its Decision and Order in this case .' The Board adopted the Trial
Examiner's findings, conclusions , and recommendations , but disavow^'d
any reliance upon the Trial Examiner 's rationale based upon Jo/?n
Brown, et al. d/b/a Brown Food Store,- at that time pending in the
1150 NLRB 938.
9137 NLRB 73, enforcement denied 319 F. 2d 7 (C.A. 10), afd. 380 U.S. 278.
155 NLRB No. 79.
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supreme Court of the United States . The Board 's Order dismissed
as to all Respondents but Falley's Market, Inc., which was required
to cease and desist from the unfair labor practices found, and to take
certain affirmative action designed to remedy the unfair labor prac-
tices ." On June 16 , 1965 , the United States Court of Appeals for the
Tenth Circuit, acting upon a motion of the Board to remand the case
for the purpose of considering the impact of the Supreme Court deci-
sions in N.L.R.B. v. Brown Food Store 4 and American Ship Building
Co. V. N.L.R.B.15 remanded this case to the Board . Thereafter, the
Board, on August 10, 1965, issued a notice to show cause. stating that
it had reconsidered the matter in the light of the above decisions of
the Supreme Court, and proposed to issue a Supplemental Decision
and Order dismissing the complaint , subject to the pan ties showing
why such action should not be taken. Thereafter the Respondent,
Falley 's Market, Inc ., the General Counsel, and the Charging Party
filed responses to the notice.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three -member panel [ Chairman McCul-
loch and Members Fanning and Jenkins].
1. The Board now holds , upon reconsideration , that the action taken
by the Respondents other than Falley's herein, which it previously
found permissible solely upon the basis of Betts Cadillac Olds, Inc.,
et al.,° is also permissible under the rationale explicated in the deci-
sion of the Supreme Court in Brown Food Store.
2. With respect to Respondent Falley, the Board is now of the view
that that aspect of the complaint should be dismissed.
The Trial Examiner , in reaching a contrary result, relied upon two
factors : (1) that Falley told his employees that his action was "retali-
atory," and (2) that he discriminated among his employees on the
basis of union membership in the reduction of hours during the strike.
We do not agree that Falley did in fact discriminate among his
employees on the basis of union membership . The two employees
who are alleged to have been more favorably treated are truckdrivers
who are not established to have been in the unit, who are not shown
to have done unit work, and who are clearly excluded from the cover-
age of the contract . In these circumstances , we are not satisfied that
$ Affirmatively, the Board ' s Order required Respondent Palley to make certain employees
whole for any loss of pay they suffered by reason of the reduction in their hours of work
in the period from February 21, 1964, to May 3,1964
A Supra.
5 380 U.S 300.
6 96 NLRB 268.
CHICAGO TYPOGRAPHICAL UNION NO. 16, AFL-CIO 963
it has been shown that Falley's action varied from that of the other
Respondents , which has previously been found permissible . Nor does
Falley 's use of the word "retaliatory " to describe his action change
the character of that action.?
Accordingly , we shall dismiss the complaint.
[The Board dismissed the complaint.]
4 Cf. Safeway Stores. Incorporated , 148 NLRB 660 , where the Board held that threats
violative of Section 8(a) (1) did not change the defensive character of a lockout.
Chicago Typographical Union No. 16, AFL-CIO and Neely Print-
ing Company, Inc., Case No. 13-CD-156. November 16, 1965
DF.C I `ION AND ORDER QUASHING NOTICE
OF HEARING
This is a proceeding under Section 10(k) of the National Labor
Relations Act, as ;upended, following a charge filed by Neely Print-
ing Company, Inc., herein called the Company, on December 28, 1964,
alleging that ('ltica gt-o Typographical Union No. 16, AFL-CIO, herein
called the Respondent Union, had violated Section 8(b) (4) (d) of the
Act by engaging in certain proscribed activity with an object of forc-
ing or requiring the Company to assign certain offset preparatory
work to employees represented by the Respondent Union rather than
to employees represented by Franklin Union No. 4. affiliated with the
International Printing Pressmen and Assistants' Union of North
America, AFL--CIO, herein called Franklin Union. Pursuant to,
notice, a hearing was held before Hearing Officer Robert P. Hender-
son froin June 11 through 17, 1965. Franklin Union was permitted
to intervene in the proceeding. All parties appeared at the hearing
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing upon the issues.
The rulings of the Hearing Officer made at the hearing are free from
prejudicial error and are hereby affirmed. All parties filed briefs and
they have been duly considered.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and .Jenkins].
1 The name of the Company appears in the caption as amended at the hearing.
155 NLRB No. 98.
212-809-66-col. 155-62