Graham v. RETAIL CLERKS INTERNAT'L ASS'N, LOCAL NO. 57

• Decision Date: 25 October 1960
• Docket Number: Civ. No. 2141.
• Citation: 188 F. Supp. 847
• Parties: Thomas P. GRAHAM, Jr., Regional Director of the Nineteenth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL NO. 57, AFL-CIO, Respondent.
• Court: U.S. District Court — District of Montana

188 F. Supp. 847

Thomas P. GRAHAM, Jr., Regional Director of the Nineteenth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL NO. 57, AFL-CIO, Respondent.

Civ. No. 2141.

United States District Court D. Montana, Great Falls Division.

October 25, 1960.

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Stuart Rothman, Dominick L. Manoli, Winthrop A. Johns, Washington, D. C., Patrick H. Walker, Seattle, Wash., Walter N. Moldawer, Washington, D. C., and Melton Boyd, National Labor Relations Board, for petitioner.

Leo C. Graybill, Jr., Great Falls, Mont., for respondent.

JAMESON, District Judge.

This proceeding comes before the court upon a petition filed by the Regional Director of the National Labor Relations Board pursuant to section 10(l) of the National Labor Relations Act, as amended, 61 Stat. 149; 73 Stat. 544; 29 U.S. C.A. § 160(l) (hereinafter referred to as the "Act"), for a temporary injunction pending a final adjudication by the Board of a charge filed with it by Hested Stores Company (hereinafter referred to as "Hested"). The charge alleges that the respondent is engaged in an unfair labor practice within the meaning of section 8(b) (7) (B) of the Act, which proscribes recognitional and organizational picketing where a valid election under section 9(c), 29 U.S.C.A. § 159(c), has been conducted within the preceding twelve months.¹ The petition is predicated upon the conclusion of the Regional Director that there is reasonable cause to believe that the respondent has engaged in the unfair labor practice charged and that a complaint of the Board based upon the charge should issue.²

Hested, a corporation with its principal office and place of business at Fairbury, Nebraska, is engaged in the sale of variety merchandise to the public, through a chain of retail outlets in a nine-state area with an annual gross volume in excess of $10,000,000. Hested annually receives at its Great Falls, Montana, store, goods and commodities for resale valued in excess of $50,000 which are shipped to it directly from sources outside the State of Montana.

Respondent Retail Clerks International Association, Local 57, AFL-CIO (hereinafter referred to as "Local 57" or as "respondent") is a labor organization³ which maintains its principal office at Great Falls, Montana, and at all times material herein has been engaged within this judicial district in transacting business and in promoting and protecting the interests of its employee-members.⁴

In January, 1960, Hested was planning to open its Great Falls store. On January 9, Joe Meyer, the business agent of Local 57, submitted a proposed bargaining contract to Stewart Pascoe, Hested's Great Falls store manager. Between that date and February 10 there were numerous conferences, personal and by telephone, between representatives of Hested and Local 57, which will be discussed later herein.

On February 9, 1960, Local 57 commenced picketing Hested. The picket sign read as follows:

This Hested Store Has No Clerk's Union Contract And Non-Union Clerks. Patronize Union Clerks

On March 1, 1960, Hested filed an amended representation petition pursuant to section 9(c) of the Act, wherein it was stated that Local 57 claimed to be the representative of its employees. On the same day, Hested filed an unfair practice charge against Local 57, claiming a violation of section 8(b) (7) (C). After investigation by the Board, an election was directed by the Regional Director and the charge dismissed, pursuant to Section 102.81, Rules and Regulations of the Board. Local 57 filed objections to the election, a request for postponement, and a request for an order directing Hested to furnish it with a list of employees. All were refused, and Local 57 filed with the Board a request to appeal from the order directing the election and the dismissal of Hested's unfair labor practice charge. The Board denied the request to appeal.

On March 18, 1960, a representation election was conducted by the Board at which Hested's employees voted unanimously against representation by Local 57. The picketing ceased until May 3, 1960, when it was resumed and has continued to the present. On June 8, 1960, Hested filed this unfair labor practice charge against Local 57, under section 8(b) (7) (B) of the Act. The substance of the charge is that Local 57 is picketing Hested with an object of forcing or requiring Hested to recognize or bargain with Local 57 as the representative of Hested's employees, or of forcing or requiring Hested's employees to accept or select Local 57 as their collective bargaining representative, notwithstanding that Local 57 is not currently certified as the bargaining representative of the employees and a valid election has been conducted by the Board within the preceding twelve months at which the employees voted against being represented by Local 57.

No charge has been filed with the Board that Hested has unlawfully recognized or assisted any labor organization in violation of section 8(a) (2) of the Act.

Having concluded that there is reasonable cause to believe that the charge filed June 8, 1960, is true, the Regional Director petitioned this court for an injunction pending final adjudication of the charge before the Board. In opposition to the Board's petition, respondent argues: (1) the March 18 representation election was invalid, therefore section 8 (b) (7) (B) does not apply; (2) there is no evidence in the original picketing, prior to the election, that Local 57 attempted to force or require Hested to grant recognition; and (3) in any event, the present picketing is merely informational in nature and allowed by section 8(b) (7) (C).

A hearing was held July 21, 1960, at which testimony and exhibits were offered by both parties. While much of the evidence is undisputed, there is a conflict in the testimony regarding what was said by representatives of the respective parties in the personal and telephone conferences, both with respect to the precise language used and inferences to be drawn therefrom.

At the outset, it should be made clear that the function of this court upon presentation of a petition for injunction pursuant to section 10(l) of the Act is to ascertain whether the Board had "reasonable cause to believe" that the charge was true. Douds v. Milk Drivers and Dairy Employees Union, 2 Cir., 1957, 248 F.2d 534, 538; Alpert v. Truck Drivers, D.C.Me.1958, 161 F.Supp. 86; McLeod v. Local 239, International Brotherhood of Teamsters, D.C.E.D.N.Y. 1960, 179 F.Supp. 481. It is not necessary to find that the charges are true and that there has been a violation of the Act in order to grant relief; nor is a denial of relief here a judicial indication that the charges filed are untrue. McLeod v. Local 239, supra, and cases therein cited. Nor is it the function of this court to resolve conflicts in the testimony or any reasonable inferences which may be drawn therefrom.

Respondent contends that the election was invalid because (1) it lacked due process, and (2) was conducted unfairly and "without giving the parties equal opportunity to present the matter to the employees before the vote". An expedited election was held pursuant to the provisions of section 8(b) (7) (C) of the Act and section 102.77(b) of the Rules and Regulations of the National Labor Relations Board. The Director determined that a hearing prior to election was not required. The Board denied respondent's petition to appeal from the Director's direction of the election. The procedure followed was in all respects consistent with the provisions of the Act and the rules and regulations and statements of procedures of the Board. Did it violate due process in holding an election without first according respondent an opportunity to be heard? Due process does not require a pre-election hearing. Inland Empire District Council, etc., v. Millis, 1945, 325 U.S. 697, 65 S.Ct. 1316, 89 L.Ed. 1877.⁵

The validity of the election and procedures followed by the Board are not proper subjects for inquiry here. The validity of the election goes to the substance of the unfair practice charge. The resolution of this charge is within the exclusive jurisdiction of the Board. Respondent will have an opportunity to present to the Board any evidence in support of its contention that the election is invalid. The Act provides specifically for judicial review from the final order of the Board. Section 10(e) and (f). See also Biazevich v. Becker, D.C.S.D.Cal. 1958, 161 F.Supp. 261. The election proceedings are not reviewable in this injunction proceeding. Elliot v. Dallas General Drivers, N.D.Texas 1959, 38 CCH L.C. para. 65,988. That a representation election was conducted by the Board, and that respondent was not certified as the representative of the employees of Hested by virtue of that election, preclude any further inquiry here as to whether the Board had "reasonable cause to believe" that an election was held within twelve months prior to the alleged charge.

The question to be decided here is whether petitioner had reasonable cause to believe that the picketing carried on by respondent had as an object to force or require Hested to recognize or bargain with it as the representative of Hested's employees, or to force or require the employees to accept or select respondent as their collective bargaining representative. In my opinion the Board clearly had reasonable cause to believe that an object of the initial picketing between February 9 and March 18, when the representation election was held, was to force and require recognition and organization.

It is undisputed that on January 9, 1960, the business agent of Local 57 presented a contract to Hested's store manager, and urged immediate acceptance, and that from time to time the business agent and counsel for Local 57 requested Hested to furnish them with a list of...