Cox's Food Center, Inc. v. Retail Clerks Union, Local No. 1653

Decision Date25 November 1966
Docket NumberR,J,AFL-CIO,AFL-CI,No. 1439,No. 9622,1439,9622
Citation420 P.2d 645,91 Idaho 274
PartiesCOX'S FOOD CENTER, INC., a corporation, Plaintiff, Appellant and Cross-Respondent, v. RETAIL CLERKS UNION, LOCAL NO. 1653, Retail Clerks Union, Localetail Clerks International Association,, an international union, Manley McDonald, Jack Hamilton and Dannie O'Brien, representatives of Retail Clerks International Association,, James Potts, Marvin Averill and John Doe, Pickets, and any other pickets whose names are unknown, Defendants, Respondents and Cross-Appellants.
CourtIdaho Supreme Court

Weston & Weston, Boise, for appellant.

Brauner & Fuller, Caldwell, Bassett, Donaldson & Hafer, Seattle, Wash., for respondents.

SMITH, Justice.

Appellant and cross-respondent is herein sometimes referred to as appellant or the store, and respondents and cross-appellants sometimes as respondents or the union.

This appeal is designed to test the correctness of the district court's order dissolving a temporary injunction enjoining respondents from picketing appellant's place of business; and of an order dismissing appellant's action seeking injunctive relief, and general and punitive damages.

Respondents' cross-appeal is designed to test the correctness of the trial court's order denying to respondents an award of damages in the nature of attorney's fees and expenses upon dissolution of the temporary injunction. Appellant is a corporation, owned by the Jack Cox family, and the corporation's store is operated by Jack Cox. The store is situate in Lewiston Orchards in Nez Perce County some 5 miles from Lewiston.

Respondents, Retail Clerks Locals 1653 and 1439 and Retail Clerks International Association, AFL-CIO, are labor organizations, the former being associated with the latter. Respondents, Jack Hamilton, Dannie O'Brien and Manley McDonald are representatives of the Retail Clerks International. The two locals are operated under the direction and control of these three individuals. Respondents, James Potts and Marvin Averill, allegedly picketed the store.

On March 24, 1961, appellant entered into a contract with respondent, Retail Clerks Union Local No. 1653, whereby the latter was recognized as the sole bargaining agent for appellant's employees. The contract contained the usual union security and union shop clauses. It was to continue until October 1, 1961, and be automatically renewed from year to year without notice; but either party on notice given 60 days prior to any anniversary date could reopen it for revision discussion.

Shortly before October 1, 1961, two employees inquired of Jack Cox how they could get out of the union, and about two weeks later, two more employees made the same inquiry. Mr. Cox suggested that they should seek an election through Idaho's Commissioner of Labor. About that time the union, through Mr. McDonald, presented to appellant a new three-year union contract.

On February 8, 1962, the union again, this time through Mr. Hamilton, requested appellant to sign the contract. Mr. Cox advised Mr. Hamilton of the store employees' desire to leave the union and the suggested course of action to accomplish the same. Hamilton then told Cox that the employees' request for withdrawal would not be granted and gave appellant until the following Monday or Tuesday to sign the proposed new contract. Mr. Cox, on appellant's behalf, refused to sign the contract because of the desire of four of appellant's five employees to leave the union. On February 16th, without further negotiation, the union placed pickets in front of the store with signs which read: 'For information only-Cox's Food Store is non-union. Retail Clerk's Union, Local 1439. AFL-CIO.' On February 22nd the union distributed to the store's customers a letter (not in the record) headed 'Get a Clear Picture', which stated that Cox had refused to sign the contract, that such refusal was an unfair labor practice, and requested customers not to patronize the store.

Idaho's Commissioner of Labor, at the request of the employees, scheduled an election for February 28, 1962. On that day, however, he received from the Officer in Charge, National Labor Relations Board (hereinafter referred to as NLRB), in Portland, Oregon, the following telegram:

'Responding to your request for telegraphic advice as to whether this agency will assert jurisdiction over Cox's Food Center, Inc., this is to advise that Cox reports total sales in excess of Five Hundred Thousand Dollars during the past calendar year or fiscal year and purchases in excess of Fifty Thousand Dollars during the same year from firms which in turn purchased those goods outside Idaho. You may anticipate that this agency has asserted jurisdiction over Cox's Food Center, Inc. on the basis of Cox's report since the figures he reports are in excess of the minimum required for an assertion of federal jurisdiction under established criteria.'

The telegram resulted in cancellation of the scheduled election.

Previous to such telegram, Local 1439 had filed with the NLRB an unfair labor practice charge against the store-Case No. 19-CA-2386. That case was dismissed and the decision was sustained on appeal.

On March 16, 1962, appellant filed a petition, Case No. 19-RM-380, with the NLRB requesting it to proceed under its proper authority and alleged: that the labor organization had presented a claim to be recognized as the representative of the employees; that no strike was involved; that picketing was being carried on by Retail Clerks Union, Local No. 1439, but that no employees were picketing; that the recognized bargaining agent was Retail Clerks Union, Local No. 1653; that the date of recognition (date of the contract) was March 21, 1961, and the expiration date was October 1, 1961. On April 5, 1962, Local Union No. 1439 by letter to the NLRB concerning Cases No. 19-RM-380 and No. 19-CA-2386 disclaimed any interest in representing the employees in connection with any decertification election.

On May 9, 1962, four of appellant's employees signed a statement wherein they stated in substance that they did not wish union representation by any union; that they were satisfied with hours, wages and working conditions and had no dispute with their employer. On May 25th appellant instituted this action seeking injunctive relief against the picketing, and general and punitive damages because of loss of business which appellant alleged was attributable to the picketing. On July 26, 1962, Idaho's Commissioner of Labor informed the NLRB of the store's claim and that it had again sought an election. In its reply of July 31st, a representative of the Board stated that final determination on the question of jurisdiction of the NLRB in Case No. 19-CA-2386 was not made as the same was dismissed on the basis of lack of merit of the alleged unfair labor practices charged. The director suggested that an advisory opinion of the Board as to its jurisdiction, should be obtained.

On November 2, 1962, the store filed a petition with the NLRB, Case No. 19-RM-429, for the purpose of obtaining a determination of the question of its jurisdiction. The petition again alleged that the union had presented a claim for recognition as bargaining representative of appellant's employees and that the request for recognition as bargaining representative was made on or about February 15, 1962, and on that date the employer had declined recognition.

On November 7, 1962, the NLRB, by a letter of a field examiner to appellant's attorney, indicated that in Case No. 19-RM-429, 'before jurisdictional determination can be made,' the employer, appellant, should submit a certified statement showing its gross sales for each month during 1961 and 1962 and the source from which the monthly sales were obtained. This request, according to the Board's letter, was made necessary because of the information which appellant submitted November 2, 1962, in Case No. 19-RM-429, that 'the total dollar volume of sales for the preceding 12 months is below $500,000, * * *'; whereas, the employer, appellant, '* * * in Case No. 19-RM-380 indicated that the total annual volume of sales was in excess of $500,000 * * *.' The Board closed its letter by stating that 'With the above information, the determination which you are seeking by the filing of the petition will be made without further delay.'

On November 28, 1962, the Seattle regional director of the Board advised appellant's counsel that the petition (Case No. 19-RM-429) had been dismissed because the union no longer claimed to represent a majority of appellant's employees.

On April 11, 1963, the district court, after finding the facts, ruled that it had jurisdiction under the facts and issued the temporary injunction.

On November 12, 1963, the union answered the complaint asserting that the picketing was peaceful and conducted for the sole purpose of advising the public that appellant's store was operated under nonunion conditions; that the picketing constituted an exercise of free speech and hence was lawful; that appellant's gross business was in excess of $500,000 a year with substantial purchases and sales in interstate commerce, and that exclusive jurisdiction in the premises was vested in the NLRB. The union denied any unlawful acts on its part.

During January 1964 the deposition of Mr. Jurgens, an accountant, was taken. The deposition had to do with the appellant's annual volume of sales for the years 1960, 1961 and 1962. During February 1964, the deposition of Jack Cox was taken.

On April 2, 1964, respondents filed a motion to dissolve the temporary injunction, and a motion for summary judgment 'in accordance with the provisions of Rule 56(b) and (c) of the Idaho Rules of Civil Procedure,' alleging that the depositions of Jurgens and Cox, and the exhibits attached, showed exclusive jurisdiction of the subject matter in NLRB.

On September 4, 1964, the district court denied res...

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5 cases
  • Simpkins v. Southwestern Idaho Painters Dist. Council No. 57
    • United States
    • Idaho Supreme Court
    • January 2, 1973
    ...No. 1416, AFL-CIO v. Ariadne Shipping Co., 397 U.S. 195, 90 S.Ct. 872, 25 L.Ed.2d 218 (1970); Cox's Food Center, Inc. v. Retail Clerks Union, Local No. 1653, 91 Idaho 274, 420 P.2d 645 (1966).7 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228 (1953).8 Cf. Elec. Ry. & Motor Coach Employees of Americ......
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    ...Ass'n etc. Iron Workers v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646 (1963); Cox's Food Center, Inc. v. Retail Clerks U. Loc. No. 1653, 91 Idaho 274, 420 P.2d 645 (1966); and Day v. Northwest Division 1055, et al., 238 Or. 624, 389 P.2d 42 (1964). It is the opinion of this court th......
  • Lay Faculty Ass'n of Regional Secondary Schools of Archdiocese of Newark v. Roman Catholic Archdiocese of Newark
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    • New Jersey Superior Court — Appellate Division
    • February 2, 1973
    ...the appellate level affords no reason for not seeking an advisory opinion from the Board. See Cox's Food Center, Inc. v. Retail Clerks U., Loc. No. 1653, 91 Idaho 274, 420 P.2d 645, 655 (1966). The Board's regulations permit the filing of the petition at any stage of a judicial While the co......
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    • January 6, 1982
    ...primary jurisdiction of the NLRB, have directed the referral of the matter to that agency. See Cox's Food Center, Inc. v. Retail Clerks Union, Local No. 1653, 91 Idaho 274, 420 P.2d 645 (1966); Lay Faculty Association v. Roman Catholic Archdiocese, 122 N.J.Superior Ct. 260, 300 A.2d 173 (19......
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