National Labor Relations Board v. Retail Clerks International Ass'n, A.F.L.

211 F.2d 759, 33 L.R.R.M. (BNA) 2825, 1954 U.S. App. LEXIS 3768

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 2, 1954
• Docket: 12434_1
• Status: Published

Opinions

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 non-supervisory 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:

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(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 no-strike 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

“1. The demand that a no-strike clause be eliminated from the proposed bargaining contract.

“2. The demand that no location manager shall perform the same work as that performed by the employees in the above stated bargaining unit, sometimes called ‘clerks’ work’, under terms and conditions of employment less favorable than those provided in a bargaining contract covering those within the said unit; or, in the alternative, that no location manager shall perform ‘clerks’ work’.

“3. The demand that location managers shall be selected from among the employees in the said bargaining unit.”

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 of his supervisors and managers. The reports which accompanied the legislative bill which Congress enacted into the Labor Management Relations Act of 1947, made this abundantly clear.⁶ The re-ports were specific as to certain evils which the congressional committees thought they could avoid by excluding foremen and other supervisors from the operation of the Labor Act. Much emphasis was laid upon the desirability of assuring their independence of unions of the rank-and-file. It was noted that what had been happening in respect to unionizing of foremen under the former Act was “bad for output” and hurt the free flow of commerce which the Act was intended to promote.⁷ The committees noted the tendency to subservience by the foremen and their associations to unions of the rank-and-file, and how as a practical matter the rank-and-file unions were dictating what the foremen might or might not do.⁸

The conduct of the unions here furnishes a fair illustration of the sort of thing Congress was trying to get away from when it made these amendments with respect to supervisors. It may fairly be said that an employer would be sharply restricted in his opportunity to obtain loyal and efficient supervisors if he is to be limited to selecting them from a rankrand-file union whose mem'bers, by habit and training, may have acquired an anti-employer bias. Here the union proposes to dictate, through its bargaining, what the supervisors may or may not do. Congress took note (see, note 8, supra) of how some foremen had adopted a policy of refusing to enter and protect the struck plants of their employers. Here the prohibition against a supervisor doing clerk’s work would, if enforced, serve to close a store up tight in case of a strike. Congress obviously did not contemplate that a union should be able to exercise that much power. In view of the legislative history of the present Act we must construe the consent decree as having been framed with a view to avoiding just this sort of encroachment upon the rights of an employer to select and control his supervisors and to obtain their loyalty and cooperation.

Finally, we cannot close our eyes to the realities of the food store business. It is but common knowledge that what is proposed here is no way to run a grocery store. We know judicially that in every store, large or small, all the clerks may be busy when another customer walks in. If at that moment the manager approaches the customer with an inquiry as to what the customer requires, has the manager performed clerk’s work? No matter how many pages in the union’s contract are filled with definitions of “clerk’s work”, in the practical operation of a grocery store there would be hourly occasions for dispute as to the meaning of the term, from what words the manager may address to a customer, to where he may stand, or what he may do in or about the merchandise.

Again, Safeway cannot operate its stores without regard to its competitors. If its competitors are permitted to operate their stores in the good old fashioned way, whereby the owner or his representative steps forward and waits on trade during busy periods, Safeway cannot without great loss to itself agree to the restrictions upon management here demanded. The record shows that many of its stores are relatively small with no more than three employees, one of whom is a butcher. The proposal is no more than a demand for a most inefficient system of limiting the manager to duties which he can probably perform in a couple of hours each day with enforced idleness for the remainder of the time. The whole proposal seems so impracticable and so unreasonable that it demonstrates a refusal to conform to the provisions of the consent decree.

As we previously said, it will not do to say that the demands were made solely in the interests of the clerks. It is apparent that a union acting in the interests of its own members could undertake to meddle in matters properly belonging to management in a multitude of ways; but the fact that the union is doing so in its own interest does not excuse it from a charge of refusal to bargain in good faith or a charge of violation of a decree of this character.

We therefore hold respondents in civil contempt of this court. A decree will be entered adjudging respondents in contempt and allowing them 60 days in which to purge themselves of their contempt by making a satisfactory showing to this court that the demands which we have held to constitute a violation of the decree of this court of January 14, 1950, have been withdrawn. Upon receipt of such showing, or upon expiration of the time granted therefor, the’ court will enter such further order as may then be appropriate.

1 . § 8(b) (3) of tbe Act reads as follows: “(b) It shall be an unfair labor practice for a labor organization or its agents-

“(3) To refuse to bargain collectively with an employer, provided it is the representative of his employees subject to the provisions of section 9(a)”. 29 IT.S.C.A. § 158(b) (3).

2 . The Board proceeding involved several other local retail dorks’ unions in northern California, who were also parties to the settlement. The other unions are not, however, involved in this contempt proceeding.

3 . “The rehearing shall be limited to the questions whether the following demands, made by respondents subsequent to the enforcement decree of this Court of January 14, 1950, and in the course of negotiation for a bargaining contract covering the employees in the bargaining unit described in paragraph IV of the stipulation in case No. 20-CB-43, constitute violations of the said decree of this Court:

4 . There was some argument between the parties on rehearing as to whether this demand was ever in fact made. The demand admitted by respondents was in these words: “In each grocery store or department tffere shall be one clerk designated as a manager.” The Board and Safeway took the position that this required Safeway to select its managers from the ranks of clerks. In an affidavit filed herein, O. H. Jinkerson, Secretary-Treasurer of Local and one of the respondents, similarly interpreted this demand.

5 . On rehearing respondents argued that this fourth demand was put forth as a substitute for, and not as an alternative to, their third demand. We think the record shows that it was made as an alternative. The question cannot affect the decision in the case in any event.

6 . “Management, like labor, must have faithful agents. — If wo are to produce goods competitively and in such large quantities that many can buy them at low cost, then, just as there are people on labor’s side to say what workers want and have a right to expect, there must be in management and loyal to it persons not subject to influence or control of unions, not only to assign people to their work, to see that they keep at their work and do it well, to correct them when they ■ire at fault, and to settle their complaints and grievances, but to determine how much work employees should do, what pay they should receive for it, and to carry on the whole of labor relations.

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“Supervisors are management people. They have distinguished themselves in their work. They have demonstrated their ability to take care of themselves without depending upon the pressure of collective action. No one forced them to become supervisors. They abandoned the ‘collective security’ of the rank and file voluntarily, because they believed the opportunities thus opened to them to be more valuable to them than such ‘security’. It, seems wrong, and it is wrong, to subject people of this kind, who have demonstrated their initiative, their ambition and their ability to get ahead, to the leveling processes of seniority, uni- . fortuity and standardization that the Supreme Court recognizes as being fundamental principles of unionism. (J. I. Case Co. v. National Labor Relations Board, 1944, 321 U.S. 332 [64 S.Ct. 576, 88 L.Ed. 762], It is wrong for the foremen, for it discourages the things in them that made -them foremen in the first place. For the same reason, that it discourages those best qualified to get ahead, it is wrong for industry and particularly for the future ‘strength and productivity of our country.” House Report No. 245, on H.R. 3020, Legislative History of the Labor Management Relations Act, 1947, Vol. 1, p. 307.

7 . “If management is to be free to manage American industry as in the past and to produce the goods on which depends, our strength in war and our standard of living always, then Congress must exclude foremen from the operation of the Labor Act. * * * ” Legislative History, supra, p. 306.

8 . The House Report alluded to documentary evidence which showed “a sub- ■ servience of the association to unions of the rank and file that is rare among unions.” It stated: “The evidence shows that foremen’s unions are, and must be, wholly dependent upon rank- and-file unions and under constant obligations to them. * * * The [foremen’s] association has adopted a formal ‘policy’ forbidding.its members, when the rank-,' and-file unions strike, to enter the struck plants and protect and maintain them without the consent of the rank-and-file unions.”'. Legislative History, supra, pp. 308, 307. The Senate Report stated: “Disciplinary slips issued by the underground supervisors in these mines have fallen off by two-thirds and the accident rate in each mine has doubled.” Legiskc-tive History, supra, p. 410. /