Safeway Stores, Inc. v. Retail Clerks Intern. Ass'n

• Citation: 41 Cal.2d 567,261 P.2d 721
• Court: United States State Supreme Court (California)
• Decision Date: 16 October 1953
• Parties: , 33 L.R.R.M. (BNA) 2049, 24 Lab.Cas. P 67,889 SAFEWAY STORES, Inc. v. RETAIL CLERKS INTERNATIONAL ASS'N et al. S. F. 18481

Page 721

261 P.2d 721

41 Cal.2d 567, 33 L.R.R.M. (BNA) 2049, 24 Lab.Cas. P 67,889

SAFEWAY STORES, Inc. v. RETAIL CLERKS INTERNATIONAL ASS'N et al.

S. F. 18481.

Oct. 16, 1953.

James F. Galliano, C. Paul Paduck, Oakland, Benjamin Dreyfus, San Francisco, and Alexander H. Schullman, Los Angeles, for appellants.

Roland C. Davis, J. D. Burdick, Carroll, Davis & Freidenrich, San Francisoco, amici curiae on behalf of appellants.

Mitchell T. Neff, Willard S. Johnston, B. H. Parkinson, Jr., Orrick, Dahlquist, Herrington & Sutcliffe, San Francisco, John B. Rosson, Oakland, Brown, Rosson & Berry and Edward E. Mitchell, San Francisco, for respondent.

Iddings, Jeffrey, Weisman & Rogers, Dayton, Ohio, and Pillsbury, Madison and Sutro, San Francisco, amici curiae on behalf of respondent.

SHENK, Justice.

This is an action to enjoin strike activities of the defendant unions. A preliminary injunction issued. The defendants have appealed.

The controversy leading to the commencement of the action arose after the enactment of the Labor Management Relations Act in 1947, 61 Stats. 136, sec. 101, amending the National Labor Relations Act of 1935, 29 U.S.C.A. §§ 151-167, and removing supervisors from the classification of employees as defined in the act. The problem concerns the effect of the Labor Management Relations Act on the right of the defendant local unions to recognition as the bargaining agents for the plaintiff's local store managers for the purpose of coercing the inclusion of store managers in the retail clerks' collective bargaining contract with the employer.

The plaintiff, herein referred to as Safeway, is a corporation engaged in the business of owning and operating retail food stores throughout the United States. For the purposes of this case it is engaged in interstate commerce. The defendants are the Retail Clerks International Association, an unincorporated association, the affiliated state association, and the local clerks' unions of Alameda and Contra Costa counties in this state.

Seventy-six of Safeway's stores are located in the counties mentioned. In each store a manager and from four to twenty-three clerks and butchers are employed. Each store stocks some 1800 different food and household items and daily sales run from $700 to $3,000. The clerks belong to their retail clerks local unions. The butchers belong to their separate union. In addition other employees, such as deliverymen, belong to their own union. Each store is separate geographically from the others and each has its individual store manager.

Beginning in 1937 and until September 19, 1949, clerks and store managers were members of the defendant local unions under current labor contracts. It is assumed that prior to the present controversy the unions were the certified bargaining representatives of the store managers and clerks under the National Labor Relations Act. Before the expiration of the last contract on the above date in 1949 certain wage increases were demanded. During the course of the negotiations the plaintiff announced that local store managers would no longer be included in the labor contract. On September 19, 1949, one of the defendant local unions instituted a strike and began picketing. Wage increases for store managers and clerks were settled on October 19th and were put into effect by Safeway on October 26th. Upon the refusal of Safeway to include store managers in the contract or to recognize the clerks' unions as the representatives of the store managers, the other union then struck. The strike and picketing continued until the commencement of this action in November 1949. A hearing on the order to show cause was had on the verified complaint, numerous affidavits, and oral testimony. It consumed seventy-six court days and resulted in the issuance of the preliminary injunction on March 22, 1950.

As material here the trial court's order enjoined the defendants from engaging in concerted activities to induce or compel the plaintiff to require union membership of its store managers in the local unions or to bargain to that end with the store managers or with the unions on their behalf. These provisions of the order are based on the facts disclosed at the hearing and the conclusions of the court drawn therefrom that the store managers are supervisors within the meaning of the Labor Management Relations Act of 1947. The propriety of that conclusion and of the action of the trial court on the record are the questions presented.

There are, of course, no findings as such at this stage of the proceeding. They follow appropriately after the trial of the action. The facts, for present purposes, are disclosed by the allegations of the verified complaint, the averments of numerous affidavits, other documentary evidence, and the oral testimony. It was for the trial court to resolve any conflicts in the evidence.

In the opinion of the trial court which has been made a part of the record, Rule 5(a) of Rules on Appeal, it is stated: (1) that the store managers (referred to generally by the plaintiff as location managers, and by the defendants as managing clerks), are supervisory employees who act as agents of management entrusted with the formulation and execution on behalf of management of substantial matters involving judgment and policy; (2) that no issue was presented concerning the wages, hours or working conditions of the clerks or the store managers; (3) that the object of the strike was to compel Safeway to bargain and contract with the clerks' union concerning membership of its store managers in the defendant local unions; (4) that the strike was not a jurisdictional strike as contended by Safeway and as denounced by section 1118 of the Labor Code of this state; (5) that the by-laws of the local unions provide that 'only members not having the right to hire or fire shall be eligible to, or shall hold, office'; that 'any member who is guilty of improper conduct * * * shall be fined, suspended or expelled'; (6) that the executive boards of the two local unions are vested with the 'power to * * * discipline any member by fine, removal from employment or other penalty * * * for conduct which tends to undermine the purposes for which the union is formed'; (7) that the constitution of the Retail Clerks' International Association contains substantially the same provisions and in addition provides that 'it shall be the duty of members of every local union individually and collectively to do all in their power to advance the cause of organized labor * * *'; (8) that each store manager has the final decision as to whether clerks shall be employed to work or shall continue to work in the store of which he is manager; (9) that violence, intimidation and coercion on the part of pickets of defendant local unions have occurred in such a way as to indicate their recurrence unless restrained by an appropriate order; (10) that the purpose of the picketing is to further an objective which is contrary to the public policy of the state and therefore unlawful; and (11) that the plaintiff is suffering serious damage as a result of the defendants' activities. There is an abundance of evidence to support the foregoing statements of fact and conclusions.

It is contended by the defendants that the trial court had no jurisdiction to act on the subject matter of the complaint and that exclusive jurisdiction was vested in the National Labor Relations Board. The history of the federal legislation on the subject may be resorted to in considering the effect of the changes in the law. It may be assumed that before the enactments of 1947 the subject matter of the controversy was within the exclusive jurisdiction of the National Labor Relations Board. But the changes compel an opposite conclusion.

Section 2(3) of the act of 1947 excludes from the definition of 'employee' 'any individual employed as a supervisor'. Section 2(11) states that 'the term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.'

The evidence is overwhelming to the effect that the local store managers have authority in the interest of their employer to direct the activities of employees under their supervision, to effectively make recommendations in disciplinary matters and to hire and discharge the clerks. Both sides concede that store managers perform the duties of clerks when necessary or in their spare time. The record, however, supports the conclusion that the store managers act as agents of management in substantial and important matters of judgment and policy. The inclusion of detailed evidentiary matter in this respect is unnecessary in view of decisions of the National Labor Relations Board in similar cases that such store managers are supervisors. National Tea Co., 89 N.L.R.B. No. 148, N.L.R.B. Decisions (CCH), par. 9922, 1950; Re Safeway Stores, Inc., 59 N.L.R.B. 936, 938 (1944). In November 1949, in related cases involving Safeway in neighboring counties the National Labor Relations Board ordered the clerks' unions not to bargain collectively with Safeway by demanding as a condition the inclusion of store managers. That order implies a holding that the store managers are supervisors. In Ohio Power Co. v. N. L. R. B., 6 Cir., 1949, 176 F.2d 385, 388, 11 A.L.R.2d 243, it was said that § 2(11) covers any individual having authority responsibly to direct; that it 'does not require the exercise of the power described for all or any definite part of the employee's time. It is the existence of the power which determines the classification.' In that case the court...