Food Store Emp. U., Loc. No. 347 Amal. Meat Cut. v. NLRB

• Decision Date: 21 March 1973
• Docket Number: No. 71-1550.,71-1550.
• Citation: 476 F.2d 546
• Parties: FOOD STORE EMPLOYEES UNION, LOCAL NO. 347 AMALGAMATED MEAT CUTTERS and Butcher Workmen of North America, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

476 F.2d 546 (1973)

FOOD STORE EMPLOYEES UNION, LOCAL NO. 347 AMALGAMATED MEAT CUTTERS and Butcher Workmen of North America, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 71-1550.

United States Court of Appeals, District of Columbia Circuit.

Argued April 17, 1972.

Decided March 21, 1973.

As Amended April 3, 1973.

Rehearing Denied May 18, 1973.

Mozart G. Ratner, Washington, D. C., and Judith A. Lonnquist, Chicago, Ill., with whom Albert Gore, Chicago, Ill., was on the brief, for petitioner.

Robert E. Williams, Atty., N. L. R. B., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of court, with whom Marcel Mallet-Prevost, Asst. Gen. Counsel, and Steven R. Semler, Atty., N. L. R. B., were on the brief, for respondent.

Before BAZELON, Chief Judge, and McGOWAN and LEVENTHAL, Circuit Judges.

McGOWAN, Circuit Judge:

In this direct review proceeding under the National Labor Relations Act, we are concerned only with remedies. The wrongs—consisting of Section 8(a) (1) and (5) violations—were before us in Food Stores Employees Union, Local 347 v. NLRB, 139 U.S.App.D.C. 383, 433 F. 2d 541 (1970). We there granted enforcement of the Board's order, but, in response to the Union's contention that the Board should have gone further in providing adequate relief, we remanded the case to the Board for reconsideration of the Union's requests in this regard. Although the Board has increased somewhat the range of the relief granted by it initially, the Union has renewed its complaint to this court that the Board has fallen short of proper effectuation of the policies of the Act. To the limited extent hereinafter indicated, we find this to be true; and we enlarge the remedies accordingly.

I

The employing company, Heck's Incorporated, is not a stranger to the processes of the Board. Operating a chain of discount stores in the Southeast, this is the eleventh time that its resistance of union organization has embroiled it in Board proceedings.¹ In none has it prevailed at the Board level, and its fortunes in the Courts of Appeals have been only marginally better.² In its first opinion in this case, the Board characterized Heck's as having "a labor policy in all of its stores that is opposed to the policies of the Act." In its Supplemental Decision following upon our remand, the Board asserts that "it is by now clear that Heck's conduct here is but part of a pattern of unlawful antiunion conduct engaged in by Heck's top officials throughout its entire operations for the purpose of denying to all of its employees the exercise of those rights guaranteed the employees by Section 7 of the Act;" and, viewing Heck's conduct not "in isolation" but "in the total context," the Board characterized Heck's unfair labor practices as "clearly aggravated and pervasive."

The unfair labor practices involved in this case grew out of the Union's effort to organize the employees of Heck's store in Clarksburg, West Virginia. The 8(a)(1) violation was found by the Board to reside in unlawful questioning and threatening of employees, and management polling by nonsecret ballot to ascertain the degree of employee support for the Union. The 8(a)(5) dereliction consisted of a refusal to bargain despite the existence of cards showing a majority in favor of the Union. The remedies initially afforded by the Board included a bargaining order, and the conventional command that the employer cease and desist from interfering with Section 7 rights. Appropriate notices of the relief given were directed to be posted at all of Heck's stores.

The Union's requests for additional relief at issue on the remand were as follows:

1. A copy of the notices ordered to be posted should also be sent to the home of each Heck\'s employee, and the president and vice-president of Heck\'s should be required to read the notices to employees at all Heck\'s locations.

2. To facilitate Union access to employees, Heck\'s should (a) provide the union with a list of names and addresses of all its employees; (b) afford the Union access to company bulletin boards and other posting places; (c) permit Union use of employer facilities in non-working parts of the stores during non-working hours; and (d) permit the Union to call a meeting in each store on company time in facilities customarily used for employee meetings.

3. Heck\'s should be ordered to bargain with the Union on a companywide basis, i. e., the Board should recognize a bargaining unit encompassing all the stores in the Heck\'s chain.

4. The General Counsel should be ordered to seek injunctions under § 10(j) of the Act whenever a complaint issues against Heck\'s.³

5. Heck\'s should be ordered to reimburse employees for the loss of wages and fringe benefits that would have obtained if it had not flagrantly violated § 8(a)(5) by refusing to bargain about a contract.

6. Heck\'s should be ordered (a) to pay the Union the amount of dues and fees which would have been paid by the employees of the Clarksburg store during the period of Heck\'s refusal to bargain; and (b) to compensate the Union for its litigation expenses, including reasonable attorney\'s fees, and for excess organization expenses caused by the unfair labor practices to which it was subjected.

The proceedings upon remand consisted of the receipt by the Board of statements of position from the General Counsel, the Union, and Heck's. After consideration of these statements, the Board issued a Supplemental Decision and Amended Order, which enlarged the remedies in the following respects:

1. The notices required to be posted at all of Heck\'s stores are also required to be mailed to each employee at his home.

2. The Union is to be afforded access for a one-year period to Heck\'s bulletin boards, and other places where notices to employees are customarily posted, for the posting of Union notices, bulletins, and other organizational literature.

3. The Union is to be furnished by Heck\'s with a list of all of its employees\' names and addresses, such list to be kept current for a one-year period.

Dissatisfied with the degree to which the Board thus moved in the direction of meeting its requests, the Union petitioned for review in this court. The Board has responded in defense of its actions, but Heck's, although its position on remand was that no additional relief was in order, has not intervened and is not now before us.

II

We turn first to the controversies that remain with respect to nonmonetary relief. All of the additional relief given on remand was of that character, and it is now unchallenged. The Union does not appear to press its contention that the notices—now required to be mailed as well as posted—also be read by the company officers; and we do not, in any event, disturb this exercise of the Board's discretion. The union does complain of the failure to give it access to the employees on company property. The Board was of the view that this privilege was not demonstrably necessary to the effectiveness of the Union's organizing efforts, especially in the train of the Board's action in requiring that the Union be furnished with the list of employees' names and addresses. Until this latter expedient had been tried and found wanting, the Board thought that the problems inevitably attendant upon Union activity on company property need not be anticipated. This is an exercise of judgment which we are not disposed to overturn.

The Union also persists in its assertion that the bargaining order, which presently embraces only the unit at the Clarksburg location, should be made company-wide. The Board, emphasizing that the Union's organizing campaign has been, as in the case of Clarksburg, conducted on a store-by-store basis, and that there is no claim that the Union represents a majority of all the employees or a majority in any location other than those presently covered by bargaining orders,⁴ alludes to the novelty of this kind of relief, especially in the light of Section 7's explicit guarantee of the right of employees to refrain from representational bargaining.

Despite the unrelieved history of the omission of this device from the Board's remedial arsenal, the Board has purported to consider the proposal on its merits. Its conclusion was that the Union's very success in gaining majorities in a number of single locations indicates that its potential for successful organization elsewhere is substantial—a potential which, indeed, has been presumably increased by the enlarged relief currently being given. Under these circumstances, the Board thought it both unnecessary and unwise to risk trenching upon the policies of Section 7 in the absence of proof that the Union would be helpless without this extraordinary relief. These considerations seem to us rational in nature and well within the range of respect traditionally to be accorded by us to the Board's determinations.⁵

III

The remaining components of the Union's prayer for additional relief involve monetary compensation. They are four in number.

1. Legal Fees and Litigation Expenses.

It is the Union's submission that, where it is necessary to exhaust legal procedures in order to attain rights accorded it by the Act, it should be reimbursed for its counsel fees and other litigation expenses, at least in respect of an employer who, like Heck's, has been found by the Board to have engaged in a deliberate "pattern of unlawful antiunion conduct." The Board, however, stressed the fact that the Act assigns the laboring oar to the General Counsel in the prosecution of an unfair labor practice charge, and that the participation of the charging party is not central to the public purposes of the statute but, rather, incidental to that party's efforts to assure protection of its own private interests. With this statutory framework, said the Board, "the public interest in allowing the Charging Party to recover the costs of its participation in this litigation does not...