NLRB v. Shop Rite Foods, Inc., 28244.

Decision Date21 August 1970
Docket NumberNo. 28244.,28244.
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. SHOP RITE FOODS, INC., Respondent.
CourtU.S. Court of Appeals — Fifth Circuit

Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Elliott Moore & Janet McCaa, Washington, D. C., Elmer P. Davis, Region 16, N. L. R. B., Fort Worth, Tex., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, N.L.R.B. for petitioner.

J. A. Gooch, Edward L. Kemble, Cantey, Hanger, Gooch, Cravens & Munn, Fort Worth, Tex., for respondent.

Before GODBOLD, SIMPSON and MORGAN, Circuit Judges.

GODBOLD, Circuit Judge:

Enforcement of the Board's order is granted insofar as it directs Shop Rite to cease and desist from interrogation, threats of discharge and surveillance.1

The remaining issue in the case poses once again the conflict between the right of employees to engage in concerted activities protected by Section 7 of the National Labor Relations Act, 29 U.S.C. § 157,2 and their duty to present grievances through their duly certified bargaining agent under Section 9(a), 29 U.S.C. § 159(a).3

In September, 1966, after a Board election, the United Packinghouse, Food and Allied Workers was certified as the exclusive bargaining representative for an appropriate unit of employees at Shop Rite's warehouse in Lubbock, Texas. There were approximately 130 employees in the unit at the time of the events in question. The union set up a local, and officers were chosen.

In late November negotiations for a collective bargaining agreement began. There were monthly meetings in November, December and January, three meetings in February, and five in March — March 1, 15, 16, 28 and 29. The company made written counterproposals on March 15 and 28, and what it described as its final offer was mailed to the union on March 31. Thus, when the walkout here in issue occurred — on March 31 — the company had made what it termed a final offer, and the next thing to be done was acceptance or rejection by the union.4

Beginning in late February and continuing into March, Warehouse Superintendent Belcher and Warehouse Manager Probasco noted a significant increase in the amount of damaged merchandise in the warehouse. They concluded that the damage was being intentionally caused by dissident employees as a pressure tactic to secure concessions from the company in the collective bargaining negotiations. Probasco told employee Hawkland, president of the local, that he regarded the increase in damage as deliberate. He requested Hawkland use his influence to control the damage, and told him damage tactics would not affect the bargaining negotiations. Hawkland, while denying knowledge of unusual damage, agreed to convey the request to union members. The damage, according to management, continued to be excessive. For three days off-duty policemen were hired to stand guard in the warehouse. They were dismissed at Hawkland's request. Excess damage stopped for ten days until March 30, when 29 sacks of dog food were found cut. Wenk, a vice-president of the company, conferred with President Hawkland, Chief Union Steward Lee, and Committeeman Ivey and asked their help so that it would not be necessary to recall the guards.

On the morning of March 31, a Friday, Superintendent Belcher observed employee Bownds in the flour section, where he had no business to be, making quick motions with his hands. He went to the place at once and found several bags of flour had been cut, apparently with a sharp instrument. Superintendent Belcher reported to Manager Probasco and Vice-President Wenk that he had seen Bownds cut sacks of flour. Wenk instructed that Bownds be discharged. Bownds was called to the office and told he was being fired for intentionally cutting sacks of flour.5

On his way out of the warehouse Bownds told President Hawkland of his discharge. Hawkland and Chief Union Steward Lee went to the flour section and found Manager Probasco and Vice-President Wenk there. Lee stated that "Bownds hadn't done this, that we the company were asking for trouble." Wenk told Lee that "this wasn't the time to discuss it" and to return to his work or he would be fired.

Approximately half an hour later, during their coffee break, Hawkland, Lee and Ivey, accompanied by about 10 other employees, came into Probasco's office where Wenk was also. One or more of the officers demanded proof of why Bownds was fired. Wenk told them that this was not the time or place to discuss it, that he was not obligated to prove it, and that unless they left the office at once and returned to work he would fire them for insubordination. They threatened to walk out, and Wenk told them if they did so they were quitting.

Hawkland and Ivey solicited and led an immediate walkout of about 30 employees. Eight more joined it later that day or the next morning.

Immediately after the walkout began the participants went to the union hall and told Ramon, the field representative of the international union, what had transpired. He told them he would get in touch with George Thomas, the union's district director at Fort Worth, Texas, to get authorization for the strike and to "go on and picket." Picketing commenced about 11:30 a. m. of that day. Mauser, the field representative of the international union who had been the union negotiator in the bargaining sessions, was in Fort Worth. On Friday, Raman notified him of the walkout. Mauser took no action until Monday. On the morning of that day he told Shop Rite's attorney in Fort Worth in person that the strike was unauthorized. He telephoned Hawkland that the union would not authorize the strike and wired Hawkland that the strike was unauthorized and members were to return to work. He wired the company attorney that the "wildcat strike"6 had been terminated and the participants ordered back to work.7

Picketing continued until Monday noon, by which time employer and local union officials and members had been told the strike was unauthorized. Beginning Monday afternoon most of the strikers applied for reinstatement, but none was rehired although the evidence amply establishes that they had not been replaced.8 Eighteen days after the strike began the international granted a strike authorization to permit the workers to obtain strike benefits.

The Board found that the employees were discharged as of the day they walked out. This finding is supported by substantial evidence, including that of threats of immediate discharge and the immediate termination of insurance benefits. The Board also found that the strike was for two purposes which were inextricably mixed, to protest both the discharge of Bownds and the company's refusal to discuss the discharge with the group which came into Probasco's office.9

This leads us to consideration, in the situation where there is a bargaining representative, of the principles governing exercise by employees of Section 7 rights independently of the union.10

In NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967), the Supreme Court held that it was not an unfair labor practice under Section 8(b) (1) (A) for a union to impose and judicially enforce fines against union members who crossed a picket line. There, as here, it was argued that the employees were protected by their Section 7 right to engage in concerted activities. The Court found authority for the union's action in the proviso to 8(b) (1) (A), protecting "the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein."

On the way to this result, the Court made clear that the national labor policy

extinguishes the individual employee\'s power to order his own relations with his employer and creates a power vested in the chosen representative to act in the interests of all employees.

388 U.S. at 180, 87 S.Ct. at 2006, 18 L.Ed. 2d at 1127. An employee in effect pledges when he joins a union that he will exercise some of his Section 7 rights only in accordance with the majority choice of his union. Allis-Chalmers is reinforced by the subsequent decision of Scofield v. NLRB, 394 U.S. 423, 89 S.Ct. 1154, 22 L.Ed.2d 385 (1969).

The extent to which any individual employee's Section 7 rights will be held limited by the needs of his collective bargaining unit has been the subject of case by case development. Allis-Chalmers limits those rights at least vis-a-vis the member's union in picketing situations. By the proviso to Section 9(a), the Act indicates a preference for collective as opposed to individual action in negotiating with the employer. That section allows an employee, or group of employees, to adjust grievances with the employer even though a bargaining representative has been chosen (so long as not inconsistent with an agreement in effect), provided the bargaining representative has an opportunity to be present. A major reason for this preference is to protect the ultimate goal of labor adjustment:

Since the employer is required to bargain with the representatives of the worker, it must have some assurance, first, as to the identity of that agent. More important, however, it must be able to deal with that agent as the responsible spokesman for the employees of the unit. There cannot be bargaining in any real sense if the employer has to deal with individuals or splinter groups.

NLRB v. R.C. Can Co., 328 F.2d 974 at 978 (5th Cir. 1964). In Allis-Chalmers, as showing that recourse to the union before engaging in concerted activity is both necessary and effective, the Supreme Court noted the need to preserve the union as exclusive bargaining agent, the Landrum-Griffin Act as a means to protect the speech and voting rights of members, and the judicially expanded duty of fair representation.

NLRB v. Draper Corp., 145 F.2d 199 (4th Cir. 1944), relied upon by the respondent, concerned a strike by a minority when the certified union was bargaining for a new...

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