N.L.R.B. v. Schwab Foods, Inc.
| Decision Date | 06 October 1988 |
| Docket Number | No. 87-2510,87-2510 |
| Citation | 858 F.2d 1285 |
| Parties | 129 L.R.R.M. (BNA) 2601, 57 USLW 2292, 110 Lab.Cas. P 10,755 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SCHWAB FOODS, INC., d/b/a Mooresville IGA Foodliner, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Collis Suzanne Stocking, N.L.R.B., Washington, D.C., for petitioner.
Larry R. Downs, Kahn Dees Donovan & Kahn, Evansville, Ind., for respondent.
Before WOOD, Jr. and KANNE, Circuit Judges, and REYNOLDS, Senior District Judge. *
This case is before us on application by the National Labor Relations Board (NLRB or Board) for enforcement of its order, issued July 17, 1987, against Schwab Foods, Inc., doing business as the Mooresville IGA Foodliner (the company). The order provided that the company shall cease and desist from restraining its employees from picketing or handbilling on its premises, assisting a company-sponsored alternative labor organization, and refusing to bargain collectively and in good faith with the union. The order required the company to affirmatively bargain in good faith with the union, withdraw recognition from the company-sponsored labor organization, and post a notice of employees' rights at its store. Schwab Foods, Inc., 125 L.R.R.M. (BNA) 1225 (1987). The case originated more than ten years ago when complaints were issued on December 19, 1977, February 17, 1978, and March 31, 1978. These complaints were consolidated on May 31, 1978, and a hearing was held January 15-18, 1979. The administrative law judge rendered his decision September 28, 1979, and the case was brought before the Board on October 30, 1979. We grant the Board's application for enforcement.
The company operates four grocery stores in Indiana. Two are in Martinsville, one is in Mooresville, and one is in Morgantown. This case is the third to arise from the efforts of some of the company's employees to exercise their right to union representation. In 1971, the Meat Cutters & Packinghouse Workers, Local 167 sought to organize the meat department employees at one of the Martinsville stores. In a decision and order issued in 1972, the Board found that the company had committed unfair labor practices in response to the employees' efforts to organize, and ordered it to bargain with the union based on the strength of the representation cards collected from a majority of the meat department employees. Schwab's Foods, Inc., 197 N.L.R.B. 1068 (1972). In 1974, the Retail Clerks International Association, AFL-CIO began organizing employees at the company's Mooresville store. In 1976, the Board issued a decision and order finding that the company had again engaged in unfair labor practices. The Board issued a bargaining order based on the union's representation card majority and this court enforced the order. Schwab Foods, Inc., 223 N.L.R.B. 394 (1976), enforced, 549 F.2d 805 (7th Cir.1977).
Three months after the Board issued its order in the second case, the company created a Store Representative-Management Conference Committee (committee) consisting of two representatives elected by employees at each of the company's four stores. The committee met once or twice a month and discussed various issues of concern to the company's employees. After each meeting, the company published and distributed to all employees a newsletter entitled "Crax and Fax" which included the minutes of the committee meetings. According to Crax and Fax, the committee's purpose was "to establish an effective means of communication between store employees and management ... create better working conditions ... discover new ideas, and knit together effective store teams." The newsletter printed articles critical of the union. The company maintained its relationship with the committee, which it advocated as a viable alternative to union representation.
On June 20, 1977, Retail Clerks International 1 Local President Charlie Mercer presented company attorney Arthur Donovan with the union's initial contract proposal. The first bargaining session was held on August 4, 1977. Between that date and June 5, 1978, the parties met nineteen times, exchanging written communications both at and away from the bargaining table. The negotiations did not result in a contract, although the parties agreed on some subjects, including lunch hours, funeral leave, jury duty, night shift premiums, grievance procedure, union steward, union representative access, display of the union store card, and seniority. The issues left unresolved included wages, no strike/no lockout, contract term, union security, and dues checkoff.
On December 1, 1977, after thirteen meetings, the union struck. The union picketed the company's Mooresville store, for which it held bargaining rights, and the company's other three stores in Martinsville and Morgantown. Negotiations continued during the strike with meetings held almost monthly until the union called off the strike on June 8, 1978.
Because the location of the picketing is an issue in this case, we describe it in some detail.
The Mooresville store covers 15,000 square feet and is located in the same building as a small drugstore. The two stores share a common site and are jointly responsible for building and parking lot maintenance, but are not commonly owned and do not advertise jointly. The company and the drugstore lease their shares of the building and parking lot from a third party. The two stores share a common entrance area, opening off of a twenty-by-twenty foot vestibule.
The parking area and the stores are separated by a canopied concrete walkway that abuts the vestibule. The company stores its extra shopping carts on the walkway and sells bulky seasonal merchandise from this area. The parking lot extends about 150 feet from the vestibule to the street. The lot has two entrances separated by a grassy strip.
On December 1, several pickets initially established a line near the parking lot entrances. Three pickets, including union representative Ed Stahl, later began to picket and handbill on the walkway near the vestibule. Soon after the pickets moved to the walkway, a company official told the pickets that they should not picket in front of the store. The pickets continued in place. Shortly thereafter, a police officer arrived and told Stahl that a complaint had been received from the drugstore, and the pickets should move to the front of the company store only. They complied with the request, but the company official again appeared and told them that if they did not leave, he would call the police. After a police car arrived, the pickets moved to the parking lot entrance. On February 17, a similar incident occurred, with picketing and handbilling in the walkway and vestibule of the store. Again, the company official threatened to have the pickets arrested unless they moved to the parking lot entrance.
The Martinsville store and its adjacent parking lot are owned by the company. The parking lot has an entrance on one street and an exit on another. On December 15, 1977, three union representatives and three striking employees picketed at the Martinsville store. The pickets initially established their line near the parking lot entrance and exit. Soon thereafter, the Chief of Police arrived and informed the picketers that they could not walk on city property, but that if they were peaceful, they could walk on the sidewalks. The nearest sidewalk was across the street from the company's property. The union and the city attorney entered into an agreement that day permitting the picketers to picket on an easement on the store's property.
Based on the foregoing facts, the Board found, in agreement with the administrative law judge, that the company violated sections 8(a)(1) and (2) of the National Labor Relations Act (the Act) by unlawfully assisting the committee. 29 U.S.C. Sec. 158(a)(1), (2). The Board also found that the company violated sections 8(a)(1) and (5) of the Act by bargaining with the union without the requisite good faith and with no intention of entering into a final or binding collective bargaining agreement. 29 U.S.C. Sec. 158(a)(1), (5). Finally, the Board found that the company violated section 8(a)(1) of the Act by threatening employees with arrest because of their picketing and handbilling although these activities were protected by section 7 of the Act, 29 U.S.C. Sec. 157.
The company raises the following issues. It first argues that the Board applied an inappropriate test that failed to accommodate the company's private property rights as well as the picketers' section 7 rights. The company also argues that it bargained in good faith, as evidenced by its agreement with the union on most issues and the fact that it was able to withstand a strike. Third, the company argues that the remedial order is improper because of changed circumstances during the Board's eight-year delay in deciding the case and because the company lacked fair notice that the Board would rule on its "proclivity to violate the Act." 2
The company argues that the Board did not correctly weigh the relative rights of the company and the picketers in deciding that the picketers' rights were more compelling than the employer's. It argues that the Board should have considered whether the picketers had available alternative means of communication.
Before we consider this argument, we note that "our review of NLRB decisions is limited with few exceptions." Kankakee-Iroquois County Employers' Ass'n v. NLRB, 825 F.2d 1091, 1093 (7th Cir.1987). The Board has the "special function of applying the general provisions of the Act to the complexities of industrial life." NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, 83 S.Ct. 1139, 1150, 10 L.Ed.2d 308 (1963). We must, however, consider the record as a whole to determine...
To continue reading
Request your trial
-
U.S. Marine Corp. v. N.L.R.B.
...for the complaint to spell out the details of the relief to be requested if it is found that the Act has been violated.' " 858 F.2d 1285, 1294 (7th Cir.1988) (quoting NLRB v. Winchester Elecs., Inc., 295 F.2d 288, 292 (2d Cir.1961)). 25 Moreover, U.S. Marine has failed to show that it was p......
-
Queen v. Queen
...D.H. Overmyer Co., Inc. v. Frick Company, 405 U.S. 174, 185, 92 S.Ct. 775, 782, 31 L.Ed.2d 124, 133-34 (1972); N.L.R.B. v. Schwab Foods, Inc., 858 F.2d 1285, 1294 (7th Cir.1988); Thompkins v. Stuttgart School District No. 22, 787 F.2d 439, 440-41 n. 1 (8th Cir.1986). An analogous example is......
-
N.L.R.B. v. Emsing's Supermarket, Inc.
...that ... [the] General Counsel's complaint must give a respondent fair notice of the violations charged...." NLRB v. Schwab Foods, Inc., 858 F.2d 1285, 1294 (7th Cir.1988). Although the Board's complaint did not allege specifically that meaningful bargaining was precluded by inadequate noti......
-
G. Heileman Brewing Co., Inc. v. N.L.R.B.
...that Heileman did not engage in, or offer to engage in, good faith bargaining as required by the NLRA. See NLRB v. Schwab Foods, Inc., 858 F.2d 1285, 1292-93 (7th Cir.1988) (finding that the company failed to bargain in good faith based on the totality of the ...