NLRB v. Food Fair Stores, Inc.

• Decision Date: 06 August 1962
• Docket Number: No. 13716.,13716.
• Citation: 307 F.2d 3
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FOOD FAIR STORES, INC., and Retail Food Clerks Union, Local 1245, Retail Clerks International Association, AFL-CIO, Respondents.
• Court: U.S. Court of Appeals — Third Circuit

307 F.2d 3 (1962)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FOOD FAIR STORES, INC., and Retail Food Clerks Union, Local 1245, Retail Clerks International Association, AFL-CIO, Respondents.

No. 13716.

United States Court of Appeals Third Circuit.

Argued April 24, 1962.

Decided August 6, 1962.

Samuel M. Singer, Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Earle W. Putnam, Attys., N. L. R. B., on the brief), for petitioner.

Stephen C. Vladeck, New York City (Vladeck & Elias, New York City, on the brief), for respondents Retail Food Clerks Union, Local 1245, Retail Clerks International Ass'n, AFL-CIO.

Warren J. Kaps, Jersey City, N. J. (Stein, Kripke & Rosen, Jersey City, N. J., on the brief), for respondent Food Fair Stores, Inc.

Before HASTIE, FORMAN and SMITH, Circuit Judges.

FORMAN, Circuit Judge.

The National Labor Relations Board (Board) has petitioned for enforcement of its order, issued May 24, 1961, against Food Fair Stores, Inc. (Company) and Retail Food Clerks Union, Local 1245, Retail Clerks International Association, AFL-CIO (Union).¹

A brief statement of facts is as follows: The Company is comprised of a chain of retail stores or supermarkets in various states, including New Jersey, where its sales exceed $3,000,000 and the inflow of products from out of the state exceeds $50,000 per year. The Union includes in its membership employees in the 58 stores of the Company in Northern New Jersey, known as Branch 6. The charging parties are sisters, Florence and Elizabeth Brooks, who are "front end clerks" at the Company's Bergenfield and Teaneck stores respectively. All parties concede that a collective bargaining contract was in effect between the Company and the Union in which Union membership was a condition of employment and that it provided for a checkoff of union dues, although the contract, itself, was never produced in evidence.

On April 6, 1959, the Union met and, by a majority of its members present, voted a special assessment amounting to $15.00 to be paid by every member to aid the striking employees of another chain of food stores. Most of the employees paid the assessment directly to the Union. Shortly thereafter the Union requested the Company to check off the assessment from the wages of those who had not paid. At first the Company declined, taking the position that it was not a legitimate subject of checkoff under the contract with the Union. The Union threatened to compel arbitration of the issue. After several months of negotiations and upon the advice of its counsel that the demand for the checkoff was proper, the Company agreed. Its acquiescence was evidenced by a notification to the managers of each store from John Borland, Jr., the personnel manager of Branch 6, stating that the Company had agreed to the checkoff and that arrangements therefor would be made in the near future.²

The Trial Examiner found that within the period of six months prior to the filing of the complaint the officers of the Union threatened individual employees of the two stores aforementioned with discharge if they did not pay the assessment. He also found that the memorandum of the personnel manager, Mr. Borland, was a "pervasive" threat to the employees of all 58 stores and that he and the managers of the Bergenfield and Teaneck stores also informed certain employees that failure to pay the assessment would result in the loss of their jobs. Eleven employees in the Bergenfield store and ten in Teaneck were delinquent in paying any or all of the assessment on January 15, 1960. On January 19 and 23, 1960, collections were made in these respective stores from all.^2a Accordingly the Examiner concluded that:

"1. By threatening employees with discharge if they did not pay the strike assessment and by exacting payment thereof pursuant thereto, the Employer discriminated against employees in violation of Section 8(a) (3) and interfered with, restrained and coerced employees in the exercise of their statutory rights in violation of Section 8(a) (1) of the Act.

"2. By causing and attempting to cause the Employer to discriminate against employees in the manner aforesaid, the Union engaged and is engaging in an unfair labor practice in violation of Section 8(b) (2) of the Act. Thereby, and also by itself threatening employees with discharge if they did not pay the assessment the Union restrained and coerced employees in the exercise of their statutory rights, thus engaging in an unfair labor practice within the meaning of Section 8(b) (1) (A) of the Act."³

The Examiner also held that the circumstances surrounding the receipt of the memorandum of November 3, 1959 at the Bergenfield and Teaneck stores were typical of the conditions prevailing in all of the other stores. He recommended that all of the employees of Branch 6 who paid part or all of the assessment after the latter date should be jointly and severally reimbursed by the Company and the Union for such payments. He also recommended that the Company and the Union implement the decision with advice to the employees that failure to pay the assessment will not be the cause of discharge and other pertinent information to be accomplished by the posting of the usual notices.

Two of the three members of the National Labor Relations Board panel adopted the Examiner's findings, conclusions and recommendations with only slight modification. The third member dissented.

The legal issue revolves around the question of whether the assessment in this case is to be construed as within the term "periodic dues" as used in Sections 8(a) (3) and 8(b) (2) of the National Labor Relations Act (Act). Section 8 (a) (3) makes it an unfair labor practice for an employer in a union shop to discriminate against an employee for nonmembership in a labor organization "(B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employees to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership; * * *." (Emphasis added.)

Section 8(b) (2) makes it an unfair labor practice for a union to attempt to cause "an employer to discriminate against an employee in violation of subsection (a) (3) * * * on some ground other than his failure to tender the periodic dues and initiation fees uniformly required * * *." (Emphasis added.)

The Board contends that the assessment is not within the definition of "periodic dues", ergo the alleged threats to have employees discharged are violations of the above sections.

Both the Union and the Company take exception to the fact finding of the Examiner and the Board that threats of discharge were made by their officials to the employees.

The Examiner found that Mr. Borland, the personnel manager, conveyed to employees the information that once the Company decided that the assessment was a proper subject of checkoff it would have no alternative but to discharge the employees for failure to pay the assessment if requested by the Union and that his notification of November 3, 1959 was a declaration that the Company would apply the same sanction of discharge as it would to nonpayment of dues.

Mr. Borland testified that he "believed" that Richard L. Johnston, the Acting Secretary-Treasurer of the Union told him in October or November 1959 that he would request the discharge of employees who did not pay the assessment.

The Examiner concluded that the Union caused the Company to make the "threat" which he found inherent in the memorandum of November 3, 1959, and that this alone would support the charge that both the Union and the Company had violated the Act as charged in the complaint. However, he took cognizance of other testimony implicating officials of the Company and the Union in making specific threats to some employees who did not pay the assessment.

The Misses Brooks testified that Mr. Johnston stated to them in April of 1959⁴ that if they did not pay the assessment they would lose their jobs. In addition Florence Brooks stated that Mr. Johnston repeated the threat to her in June or July of 1959. Florence Falasca, an employee of the Bergenfield store, gave similar testimony concerning Mr. Johnston without being specific as to the date of their conversation.

Gene Mulvihill, Business Agent and First Vice President of the Union, was taxed with similarly informing the following employees: Florence Brooks in June or July 1959 and January 1960, Elizabeth Brooks in August 1959, John Harley of the Bergenfield store in January 1960, and Florence Falasca, also of the Bergenfield store, in November of 1959.

Frank De Vito, Acting President and Business Agent of the Union, also was said to have insisted upon payment of the assessment under pain of discharge to Florence Brooks in January 1960 and Florence Falasca in November 1959.

The following officials of the Company were implicated in conveying information directly to employees to the effect that if they did not pay the assessment they would lose their jobs. In the case of Mr. Borland, Elizabeth Brooks testified that shortly after he had sent out his letter of November 3rd to the store managers, she had a conversation with him in which he said: "* * * he would have to go along with the agreement with the union, that he would have to take the money out of our pay or we would be discharged." The same Elizabeth Brooks testified that William Sisti, the manager of the Teaneck store, actually took the amount of the assessment, $15.00, out of her pay envelope on January 19, 1960 over her objection, with the statement that rather than see her lose her job he was taking the assessment out of her pay. Mr. Sisti substantially corroborated Miss Brooks. Irving Ring, manager of the Bergenfield store, was said by Florence Brooks to have acted similarly to Mr. Sisti, taking the amount of the...