National Labor Rel. Bd. v. RETAIL CLERKS INTER. ASS'N

• Decision Date: 06 August 1956
• Docket Number: No. 12434.,12434.
• Citation: 243 F.2d 777
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RETAIL CLERKS INTERNATIONAL ASSOCIATION, A.F.L., RETAIL CLERKS UNION, LOCAL 648, et al., Respondents.
• Court: U.S. Court of Appeals — Ninth Circuit

243 F.2d 777 (1956)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RETAIL CLERKS INTERNATIONAL ASSOCIATION, A.F.L., RETAIL CLERKS UNION, LOCAL 648, et al., Respondents.

No. 12434.

United States Court of Appeals Ninth Circuit.

August 6, 1956.

Theophil C. Kamholz, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Frederick U. Reel, Robert G. Johnson, Attys., N.L.R.B., Washington, D. C., Louis S. Penfield, San Francisco, Cal., Albert M. Dreyer, Attys., N.L.R.B., Washington, D. C., for petitioner.

Roland C. Davis, J. D. Burdick, Carroll, Davis & Freidenrich, San Francisco, Cal., S. G. Lippman, Gen. Counsel, Retail Clerk's Internat. Assn., Chicago, Ill., James F. Galliano, Oakland, Cal., for respondents.

Elisha Hanson, Washington, D. C., Willard S. Johnston, George H. Johnston, Orrick, Dahlquist, Herrington & Sutcliffe, San Francisco, Cal., for Safeway Stores, Inc., amici curiae.

Before BONE, ORR and POPE, Circuit Judges.

BONE, Circuit Judge.

The sequence of events occurring in this long drawn-out litigation (up to April 2, 1954) are outlined in our opinion of that date which is reported in 211 F.2d 759. In this opinion, as in our still earlier opinion, 1953, 203 F.2d 165, this Court entered a decree in which respondents, hereafter referred to as "Clerks," were held in civil contempt of the decree entered by this Court on January 14, 1950, which enforced an order of the National Labor Relations Board, hereafter called "Board." Clerks were found in civil contempt for refusing to bargain collectively with Safeway Stores, Inc., hereafter referred to as "Safeway," except on condition that Safeway would bargain with Clerks for "location managers" (supervisory personnel) employed by Safeway.

Our adjudication of contempt rested on the fact that Clerks were demanding a clause (herein referred to as "clerks' work clause") which sought, in substance, to provide that no location managers were to perform the work of grocery clerks. In our 1953 opinion, we noted, 203 F.2d at page 169, that in the circumstances of the case there was "* * * no question that Local and International did impose as a condition to their bargaining on behalf of clerks the bargaining by Safeway for location managers."

Our 1954 opinion held clerks in civil contempt of this Court's enforcement decree of January 14, 1950. In substance, our order was that Clerks purge themselves of contempt by, among other things, withdrawing the demand that while bargaining with Clerks as to the conditions of Clerks' employment, Safeway must also bargain for the conditions of employment of the location managers. The gist of our holding was that while Clerks may bargain for themselves they cannot attach conditions thereto that Safeway shall bargain for supervisory employees. The four demands of Clerks coming under the ban of this decision are referred to and discussed on pages 762, 763 in our opinion reported in 211 F.2d 759. A petition for certiorari was denied, 348 U.S. 839, 75 S.Ct. 47, 99 L.Ed. 662.

On December 10, 1954, Clerks filed a response to our order concerning the aforesaid demands. In this order we had directed them to make a "satisfactory showing to this court that the demands which we have held to constitute a violation of the decree of this court of January 14, 1950, have been withdrawn." 211 F.2d 759, at page 765. This response includes exhibits, one of which is a copy of a communication dated December 7, 1954, addressed to Safeway Stores, Inc., and signed by Clerks and/or their duly authorized representatives. This letter withdrew the demands¹ heretofore pressed upon Safeway by Clerks. Clerks contend that by such act of withdrawal they have purged themselves and are now entitled to an order discharging them from the judgment of civil contempt of this Court's decree of January 14, 1950.

On March 8, 1955, Safeway filed a brief in opposition to Clerks' response of December 10, 1954. It alleges that though the specific demands (footnote 1, supra) were ostensibly withdrawn, the present "clerks' work" demand "is identical in meaning and effect with the former one."

On August 8, 1955, Board filed a memorandum advising this Court of its position with respect to the then status of compliance by Union (Clerks) in connection with the decree entered by this Court, 211 F.2d 759, adjudging them in contempt for failing to obey the enforcement decree of the Court entered January 14, 1950. With the issues thus formulated the case was submitted for decision.

Safeway's position appears to be that the decree of January 14, 1950, (as interpreted by this Court's opinions in finding Clerks in contempt) forbids, in and of itself, the "clerks' work" clause. We do not believe that the opinions interpreting the decree of January 14, 1950 go so far as to hold that a "clerks' work" provision is invalid per se. Invalidity of such a clause must depend upon the circumstances of the case.

In our opinion reported in 211 F.2d 759, at page 762, we quoted from our earlier opinion in 203 F.2d 165, at page 169, wherein we said: "The effect of our decree 1950 decree enforcing Board's order was to prohibit all attempts of respondents clerks to exact concessions from Safeway as to supervisory employees as the price of reaching an agreement as to the terms and conditions of employment."

Board views the 1950 decree (as interpreted by our opinions) to forbid a "clerks' work" provision when advanced by Clerks as a device to compel Safeway to recognize and bargain with the Clerks for supervisors, or when advanced with a purpose substantially to regulate the working conditions of supervisors, and that in the particular circumstances of this case, the "clerks' work" clause had previously been advanced in bad faith, in that sense.²

However, the records now before us (including the voluminous transcript of negotiations and bargaining proceedings between Clerks and Safeway which followed our opinion of 1954)³ present the controversy in a posture where it clearly appears that Clerks have specifically withdrawn any and all claims to the right to speak for, or represent, supervisors. (See footnote 4.) As to this specific issue (the chief stumbling block in negotiations for some sort of a contract) it can no longer be said that Clerks are continuing to refuse to "bargain in good faith."

As just above noted, while the question of compliance with the decree of this Court was pending, Safeway and Clerks proceeded to engage in further negotiations which extended over a period of several months and these operations resulted in a collective bargaining agreement in August, 1955 under which agreement the parties appear to be presently working. This agreement covers the San Francisco "area" here involved and it contains a "clerks' work" clause. Pertinent parts of the provisions in this agreement are set out in the margin.⁴

The contract just above referred to excludes "managers * * * and other persons classified by the employer as supervisors under the law" from the bargaining unit. The contract reserves "all work and services (not defined as supervisory under Section 2(11) National Labor Relations Act, 29 U.S.C.A. § 152(11)) connected with or incidental to the handling or selling of all merchandise offered for sale to the public in the Employer's retail establishment" to "employees within the appropriate unit as defined in this agreement," except that the "over-all supervisory location manager" is not affected by section 1, subsection (b) of the agreement, and may perform "clerks' work"⁵ in accordance with "existing company policy."⁶ Safeway is to provide the Union "with an up-to-date list of the names of supervisors excluded thereunder."

The transcript of negotiations filed with us shows that throughout these proceedings, while insisting on a satisfactory "clerks' work" provision, Clerks consistently maintained that they were not representing, and would not represent, supervisory employees in the area, and at no time during the negotiations did Clerks suggest that Safeway execute a contract covering supervisors as an alternative to the "clerks' work" proposal.

As further evidence that Clerks were not bargaining across the table for supervisors is that though Safeway did not expressly designate its so-called "second managers" as supervisory employees (though in fact and under the law they are such) so that they could perform "clerks' work" under the contract (thereby, apparently, subjecting these supervisors to the provisions of the contract), Clerks informed Safeway⁷ in a communication dated October 7, 1955, that these "second managers," as supervisors, were excluded from coverage under the contract; that their union membership was being cancelled; and that they could not perform clerks' work by reason of the "clerks' work" clause. Clerks also requested that in the future Safeway itself should not breach the contract and place Clerks in violation of any law by presenting to it an incomplete list of supervisors.

From this evidence of the negotiations, Board, on August 4, 1955, tendered to us its memorandum opinion that "the evidence is not clear and convincing that respondents made the demand for the `clerks' work' provisions to compel Safeway to bargain for supervisors, or for the purpose of substantially regulating the terms and conditions of supervisors' employment." Board expressed the view that Clerks did not condition the bargaining for respondent Clerks upon Safeway's bargaining for supervisors; that the Clerks' conduct during recent negotiations with Safeway, or the contract entered into with Safeway, is not "inconsistent with respondents' obligation under the decree and the Court's decisions herein. The Board, therefore, is of the opinion that respondents have purged themselves of contempt."

From a reading of the transcript of the negotiations, the many exhibits tendered by both parties, and the arguments and briefs, we are of the...