Retail Clerks Union, Local 770 v. NLRB, 20655.

• Citation: 370 F.2d 205
• Decision Date: 19 December 1966
• Docket Number: No. 20655.,20655.
• Parties: RETAIL CLERKS UNION, LOCAL 770, Affiliated with Retail Clerks International Association, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Los Angeles Joint Executive Board of Hotel & Restaurant Employees & Bartenders Union, AFL-CIO, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

370 F.2d 205 (1966)

RETAIL CLERKS UNION, LOCAL 770, Affiliated with Retail Clerks International Association, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Los Angeles Joint Executive Board of Hotel & Restaurant Employees & Bartenders Union, AFL-CIO, Intervenor.

No. 20655.

United States Court of Appeals Ninth Circuit.

December 19, 1966.

Kenneth M. Schwartz, Robert M. Dohrmann, of Arnold, Smith & Schwartz, Los Angeles, Cal., for petitioner.

Arnold Ordman, General Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Glen M. Bendixsen, Atty., William J. Avrutis, Atty., N.L.R.B., Washington, D. C., Ralph Kennedy, Director, N.L.R.B., Los Angeles, Cal., for respondent, N.L.R.B.

George E. Bodle, Daniel Fogel, Stephen Reinhardt, Loren R. Rothschild, of Bodle & Fogel, Los Angeles, Cal., for intervenor, L. A. Joint Exec. Board of Hotel & Restaurant Employees and Bartenders Union, AFL-CIO.

Before BARNES and KOELSCH, Circuit Judges, and THOMPSON, District Judge.

THOMPSON, District Judge:

This is a petition for review of a decision and order of the National Labor Relations Board (156 NLRB No. 6) dismissing a consolidated complaint filed by the General Counsel pursuant to amended charges filed by Retail Clerks Union, Local 770 Retail Clerks against Boy's Markets, Inc., Von's Grocery Company and Food Employers Council, Inc. The Los Angeles Joint Executive Board of Hotel & Restaurant Employees & Bartenders Union, AFL-CIO Joint Board is an Intervenor on the petition for review before this Court and was a party below.

The consolidated complaint charged that the employers, Boy's Markets, Inc. and Von's Grocery Company, and their bargaining representative, Food Employers Council, Inc., had engaged in unfair labor practices by rendering unlawful assistance and support to the Joint Board in violation of Section 8(a) (2) of the Act, by interfering and restraining employees in the exercise of rights guaranteed by Section 7 of the Act in violation of Section 8(a) (1) of the Act and by discriminating to discourage membership in the Retail Clerks and encourage membership in the Joint Board in violation of Section 8(a) (3) of the Act.

Petitioner does not attack the findings of fact upon which the Board based its decision. The Specifications of Error,¹ although phrased in part in terms of an attack on factual findings, are in substance protests against the conclusions drawn by the Board from the facts established by the evidence. We, therefore, adopt the facts as found by the Board in its Decision and Order, as follows:

"The Respondents, The Boy\'s Markets, herein called Boy\'s and Von\'s Grocery Co., herein called Von\'s, are Los Angeles area retail grocery chains, members of the Respondent, Food Employers\' Council, herein called the Council, which on behalf of its members had, at all times material herein, a contract with the Retail Clerks Union, Local 770, Retail Clerks International Association, herein called Clerks. This contract ran from January 1, 1959, through March 31, 1964, and covered all retail clerks engaged in `retail food, bakery, candy and general merchandise\' operations. At the time of the execution of this contract, the members of the Council did not have snackbars and thus did not employ any snackbar employees. However, sometime in 1962, when the Clerks noticed snackbars in supermarkets in the Los Angeles area, the Clerks requested the Council to include in forthcoming negotiations for a new multiemployer contract the establishment of wage classifications for all the then unrepresented snackbar employees of its members, and the Council agreed. As more fully set forth in the Trial Examiner\'s Decision, the negotiations for a new multiemployer contract began in January 1963, and culminated in a new agreement on March 14, 1964.

"On February 1, 1964, while the Council and the Clerks were thus engaged, inter alia, in negotiating wage rates for the unrepresented snackbar employees on a multiemployer basis, the Joint Board, on behalf of affiliated unions representing culinary workers in the Los Angeles area, entered into an exclusive bargaining contract with Boy\'s covering all snackbar workers of Boy\'s in four stores in Los Angeles County. On March 2, 1964, the Joint Board entered into a similar contract with Von\'s covering all snackbar employees of Von\'s in its four stores in Los Angeles County. These Joint Board contracts were entered into after the Joint Board had organized the snackbar employees of Boy\'s and Von\'s, each on a multistore basis, and had established, on the basis of reliable card checks, that the Joint Board represented a majority of the snackbar employees covered by each contract.

"Prior to the execution of the Joint Board contracts, the Clerks had obtained authorization cards from snackbar employees at one of Boy\'s stores — the Crenshaw store — and, in December, 1963, had asserted a representative claim for snackbar employees of Boy\'s by virtue of its multiemployer contract and its card showing in the Crenshaw snackbar department. Boy\'s refused recognition, contending that the snackbar employees at all four of its stores should first be recognized; however, Boy\'s also had informed the Clerks that Boy\'s would not enter into a contract with the Joint Board pending conclusion of the Council\'s current negotiations with the Clerks. Earlier, in November, 1962, the Clerks had also made a demand of Von\'s that Von\'s recognize the Clerks as the representative of Von\'s snackbar employees based on the existing multiemployer contract, but Von\'s rejected that demand in December 1962."

The Board correctly concluded that the doctrine established in Mid-West Piping, 63 N.L.R.B. 1060 (that an employer faced with conflicting claims of two or more rival unions which give rise to a real question concerning representation may not recognize or enter into a contract with one of these unions until its right to be recognized has finally been determined under the special procedures provided by the Act) did not justify a holding here that the employers had rendered unlawful assistance to the Joint Board by contracting with it. The Mid-West Piping doctrine recently received thorough consideration by the Third...