National Labor Rel. Bd. v. Retail Clerks Inter. Ass'n

• Decision Date: 02 April 1954
• Docket Number: No. 12434.,12434.
• Citation: 211 F.2d 759
• Parties: NATIONAL LABOR RELATIONS BOARD v. RETAIL CLERKS INTERNATIONAL ASS'N, A. F. L. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

211 F.2d 759 (1954)

NATIONAL LABOR RELATIONS BOARD v. RETAIL CLERKS INTERNATIONAL ASS'N, A. F. L. et al.

No. 12434.

United States Court of Appeals Ninth Circuit.

April 2, 1954.

George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Frederick U. Reel, Robert G. Johnson, Attys., N. L. R. B., Washington, D. C., Louis S. Penfield, Albert M. Dryer, Attys., N. L. R. B., San Francisco, Cal., for petitioner.

Roland C. Davis, J. D. Burdick, Carroll, Davis & Freidenrich, San Francisco, Cal., S. G. Lippman, Gen. Counsel, Retail Clerk's International Ass'n, Chicago, Ill., James F. Galliano, Oakland, Cal., for respondents.

Elisha Hanson, Washington, D. C., Willard S. Johnston, George H. Johnston, Orrick, Dahlquist, Herrington & Sutcliffe, San Francisco, Cal., for Safeway Stores, Inc., amici curiae.

Before BONE, ORR and POPE, Circuit Judges.

POPE, Circuit Judge.

Respondents are Retail Clerks International Association, AFL (herein "International"), Retail Clerks' Union Local 648, AFL (herein "Local"), which is an affiliate of International, and certain officials of those labor organizations. From 1937 until 1948 Local held collective bargaining contracts with Safeway and most of the other retail grocery store operators in San Francisco County. Local represented and its contracts covered all the employees in these stores with the exception of butchers. In the summer of 1948, during the course of negotiations with Local for renewal of the existing bargaining agreement, Safeway for the first time sought to have its "location managers" excluded from the coverage of the new agreement. There was one location manager in charge of each of Safeway's stores. He was the sole representative of management in the store and as such had supervisory powers and duties, but he also performed, along with the rank and file food clerks (herein "clerks"), many nonsupervisory tasks as a routine part of his work day.

When Local refused to assent to the exclusion of location managers from the new collective bargaining agreement, Safeway on December 31, 1948, filed unfair labor practice charges with the National Labor Relations Board against Local and International. The Board issued a complaint charging Local and International with refusing to bargain collectively, in violation of § 8(b) (3) of the National Labor Relations Act, as amended.¹ On September 29, 1949, after the hearing on the complaint had begun, a settlement was negotiated by and between Local, International, Safeway, and General Counsel for the Board.² As a part of this settlement the parties entered into a stipulation which, so far as here material, provided as follows:

"All employees in the grocery departments of the 71 Safeway Stores in San Francisco County, excluding location managers and any other supervisory employees as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Said employees are, and have been since before 1948, represented exclusively for collective bargaining by Respondent International and its agent, Respondent Local, both of whom are labor organizations within the meaning of Section 2(5) of the Act."

As a part of the same settlement the Board issued an order, with the consent of all parties, which provided in pertinent part as follows:

"Retail Clerks International Association, AFL, and Retail Clerks Union Local 648

"1. Shall not:

* * * * *

(b) Refuse to bargain collectively with Safeway for the employees in the unit described in paragraph IV of the stipulation above quoted by insisting or demanding as a condition to such bargaining that Safeway bargain collectively for supervisory employees within the meaning of Section 2(11) of the Act."

The Board subsequently petitioned for enforcement of its order and on January 14, 1950 this court, with the consent of International and Local, entered an enforcement decree.

Thereafter and on May 19, 1950 the Board petitioned this court to adjudge respondents in civil contempt on the ground that they had refused to bargain for clerks by demanding as a condition to such bargaining that Safeway bargain collectively for its location managers. After our remand of the cause to the Board for findings on the question whether location managers were "supervisory employees" within the meaning of the Act, see 186 F.2d 371, the case was returned to this court in October of 1952. Thereafter (on March 31, 1953), we handed down our opinion and entered a decree on the same date holding respondents in contempt. See 203 F.2d 165. We granted a rehearing, limited to the questions which are here discussed.³ In our previous opinion we disposed of certain procedural problems which had arisen and we also sustained the Board's finding that location managers are "supervisory employees" within the meaning of the Act. Those questions will not be reconsidered in this opinion.

Respondents made the following demands in the course of bargaining for a clerks' contract:

1. That the agreement, if it did not cover all employees who performed clerks' work, should not contain a nostrike clause, unless such a clause contained suitable guarantees protecting clerks from loss of work or "against encroachments and abuses of union conditions on the job;"

2. That the agreement contain a clause requiring Safeway to fill vacancies in location managers' positions from the ranks of the clerks;⁴

3. That the agreement contain a clause providing that no location manager or any other supervisor employee should perform clerks' work under terms and conditions of employment less favorable to the union than those provided in the clerks' contract; or, in the alternative,

4. That the agreement contain a clause providing that no location manager or any other supervisory employee should perform clerks' work.⁵

In our former opinion, 203 F. 2d at page 169, we said: "There is no question that Local and International did impose as a condition to their bargaining on behalf of clerks the bargaining by Safeway for location managers. Respondents have admitted to demanding freedom on the part of the clerks to strike if location managers are not provided for in the bargaining agreement; that persons doing the work of clerks (which would include location managers for part of their work day) should have the benefit of any collective bargaining agreement that should be entered into, or in the alternative that location managers should not do the work of clerks; and that location managers should be selected from among the clerks. And it is further admitted that respondents called a strike when its demands were not met. It will not do to say that the demands made were solely in the interests of the clerks in the appropriate bargaining unit. The effect of our decree was to prohibit all attempts of respondents to exact concessions from Safeway as to supervisory employees as the price of reaching an agreement as to the terms and conditions of employment of clerks. We think it too plain for argument that respondents' demands flew directly in the face of this prohibition." We think that what we there said was correct, and this for several reasons.

First of all, there is the plain language of the decree. By that decree it was directed that the respondent unions should not "refuse to bargain collectively with Safeway for the employees in the unit described * * * by insisting or demanding as a condition of such bargaining, that Safeway bargain collectively for supervisory employees. * * *" The position which the unions have taken upon the rehearing of this matter discloses a misapprehension as to what the quoted paragraph says: The unions say in effect "Our demands do not constitute bargaining by us for location managers or any effort at such bargaining but they represent bargaining solely in the interest of the clerks." Indeed, they say, "we are not only willing but, frankly, somewhat eager to relinquish bargaining for Safeway location managers altogether and under all circumstances."

What the quoted paragraph says is plainly enough that the unions shall not when bargaining with Safeway as to the conditions of employment of the clerks demand that Safeway bargain for the conditions of employment of the location managers. In other words, the unions may bargain for the clerks but they cannot attach as a condition thereto that Safeway shall bargain for the supervisory employees.

The four demands of the unions above listed require Safeway to enter into certain bargains for the supervisory employees and relating to conditions of their employment. On the face of the decree such demands are in violation of the decree. They are demands covering a great range of the supervisors' employment and working conditions. They relate to who may be employed as supervisors; they relate to the conditions under which the supervisors shall work, and they relate to what work the supervisors may do. That is calling for bargaining by Safeway for its supervisory employees.

A second reason why we adhere to our first decision is that it interprets the Board's order in a manner calculated to effect the policies which Congress had in view in enacting the Act, 29 U.S. C.A. § 151 et seq. Where possible the Board's order should always be so construed, for the Board, constituted for that very purpose, has presumably sought to accomplish those objectives. When the Act's objectives as respects supervisory employees are examined, particularly in the light of its legislative history, there can be no doubt at what the Board was aiming in the prosecution of its complaint against these unions and in the procuring of the Board's order and the court's decree. Both were phrased in the language of the complaint.

A primary objective of § 2(11) of the Act, to which reference is made in this paragraph of the decree, was to assure to the employer his right to procure the loyalty and efficiency...