Retail Clerks Union Local 770 v. NLRB, 15862.
| Decision Date | 06 July 1961 |
| Docket Number | No. 15862.,15862. |
| Citation | 111 US App. DC 246,296 F.2d 368 |
| Parties | RETAIL CLERKS UNION LOCAL 770, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. United States Hardware and Paper Company, Wesco Merchandise Company, and Food Employers Council, Inc., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Tim L. Bornstein, Washington, D. C., with whom Mr. S. G. Lippman, Washington, D. C., was on the brief, for petitioner.
Mr. Melvin J. Welles, Washington, D. C., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr. Stuart Rothman, Gen. Counsel, N. L. R. B., Mr. Dominick L. Manoli, Associate Gen. Counsel, N. L. R. B., and Mr. Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., were on the brief, for respondent. Mr. Melvin Pollack, Atty., N. L. R. B., also entered an appearance for respondent.
Miss Helen F. Humphrey, Washington, D. C., for intervenors United States Hardware and Paper Co. and Wesco Merchandise Co.
Mr. Joseph C. Wells, Washington, D. C., for intervenor Food Employers Council, Inc. Messrs. Gerard D. Reilly and Lawrence T. Zimmerman, Washington, D. C., were on the brief for intervenor Food Employers Council, Inc.
Messrs. David E. Feller and Jerry D. Anker, Washington, D. C., filed a brief on behalf of The Industrial Union Department, AFL-CIO, as amicus curiae.
Before Mr. Justice REED, retired,* and PRETTYMAN and BAZELON, Circuit Judges.
This case is before us on a petition by Retail Clerks Union Local 770 to review an order of the National Labor Relations Board and on a cross-petition by the Board for enforcement of that order. The Board found that certain work stoppages by members of the Union violated both clause (A) and clause (B) of Section 8(b) (4) of the National Labor Relations Act.1
Local 770 is the bargaining representative for the clerks in a number of retail food markets in southern California. It had a collective agreement with Food Employers Council, Inc. (hereinafter "Council"), an association of market employers. Certain wholesale distributors, known in the trade as "rack-jobbers", who handle chiefly non-food or specialty items, not only sell their products to the markets but also provide "driver-salesmen", or "roving clerks", to arrange their wares on the market shelves and to rotate, replenish and clean the displays. The Union claims that this work done in the markets by these employees of the rack-jobbers belongs to the Retail Clerks and it is a violation of the collective bargaining agreement for the employers to permit others to perform it.
One work stoppage occurred when two agents of the Union called out the clerks employed at Hughes Market in Hollywood. The clerks were not permitted to return to work until merchandise supplied by U. S. Hardware & Paper Co., a rack-jobber, was removed from the market's shelves or covered with paper. A similar incident occurred at Boys' Market in Pasadena. The employees of U. S. Hardware were not represented by the Retail Clerks Union.
The Board held that the work stoppages violated Section 8(b) (4) (A) and (B) of the Act because objects of the stoppages were (1) to force the markets to cease doing business with U. S. Hardware and (2) to force U. S. Hardware to recognize Local 770 as the bargaining agent for its employees.
The collective bargaining agreement between Local 770 and the Council contains two clauses relevant to this litigation:
The Union argues that the sole object of the work stoppages was to force the markets to comply with B, the "clerks' work" clause, and to preserve the work in question for members of the bargaining unit. Thus considered, the Union says, the strikes would be legal. The Board argues here, however, that the real object of the stoppages was to insure that this work was done by employees who were members of the Union, regardless of whether they were employees of the markets. The Board points to C, which allows the markets to subcontract under certain circumstances, and to the fact that the Union raised no objection when Council members did business with rack-jobbers who were organized by the Retail Clerks Union. Thus considered, the Board says, the strikes would be illegal.
While there may be arguments as to the precise meaning of the contract clauses above quoted, certain things are clear. First, it is clear the Union had a dispute with the market owners; the subject of the dispute was the employment rights of Retail Clerks Union members in the markets; it was in support of this dispute that the Union called work stoppages; the stoppages were at the markets. These basic facts pose difficult problems of inference. Second, the contract must be read as a whole, and the final "except" clause in section C is an effective exception to the right of the employees in the bargaining unit to certain work. The "except" clause indicates quite clearly that the employers may sub-contract work (i. e., whatever "such work" in the contract means) to another employer if the latter has an agreement with this Union. The argument that section B, giving the market clerks the right to this work, can be read and enforced separately from all else in the contract, and thus independently of the "except" clause, is untenable. Third, in dealing with their employers the market employees who engaged in the work stoppages did not claim for themselves an absolute and unqualified right to the work being performed in the markets by employees of the rack-jobbers. Neither did the Union claim such an exclusive right for its members who were employed by the markets. The Union made clear throughout its dispute with the markets, and makes clear here, that its claims would have been satisfied by (1) an arrangement whereby the delivery personnel of the rack-jobbers would leave their wares at the receiving decks of the markets or (2) an arrangement whereby employees of the rack-jobbers who delivered to the market shelves, cared for the delivered goods, etc., would be members of the Retail Clerks Union. The claim was, in essence, that this work belonged to the market employees unless it were performed by employees of rack-jobbers who were under contract with the Retail Clerks Union. To put it in other words, the work was being claimed for members of the Union in general and not merely for those employed by the markets. This view of the Union's claim in the dispute with the employers was the conclusion reached by the Examiner and adopted by the Board, and it was clearly supported by substantial evidence.
As we have said, the Board concluded that the Union violated both clause (A) and clause (B) of Section 8 (b) (4) of the statute.2 Each of these clauses is descriptive of "an object" which renders it illegal to induce employees of any employer to engage in a concerted refusal to handle goods or to perform services. But the clauses are quite different. The "object" here pertinent described in clause (A) is the forcing of any person to cease doing business with any other person. The "object" described in clause (B) is the forcing of any other employer to recognize an uncertified representative of his employees. The crucial question with respect to the violation of clause (A), as found by the Board, is whether "an object" of the stoppages was to force the market owners to stop doing business with the rack-jobbers.
It is clear, from what we have said of the Union's demands and of the provisions of the contract, that compliance with those demands did not necessitate discontinuance of seller-purchaser relationships between the market-owners and the rack-jobbers who had not been organized by this Union. There were apparently three alternative moves by which the markets could have been relieved from the pressure exerted by the Union: (1) let the rack-jobbers leave their goods at the delivery decks; (2) the rack-jobbers to recognize and bargain with the Union; or (3) the markets and rack-jobbers to cease doing business with each other. A discontinuance of the business was at most an alternative that may possibly have satisfied the Union.
We are unable to determine from the Board's opinion the reasoning it followed in reaching its conclusion that an object of the strikes was to force the market owners to cease doing business with the rack-jobbers. The Board had this to say by way of explanation of its conclusion:
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