Retail Store Employees Local 322

National Labor Relations Board - Board Decisions

Mar 1, 1979

240 N.L.R.B. 1109 (N.L.R.B. 1979)

RETAIL STORE EMPLOYEES LOCAL 322 1109
Retail Store Employees Local 322 and Jack F. Gray
and Glen Conyers, agents thereof and Wilhow Cor-
poration, d/b/a Town & Country Supermarkets.
Case 17-CB-1812
March 1, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY. AND TRUESD[)AL.
On December 8, 1977, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed
a brief in support of the Administrative Law Judge's
Decision and in opposition to exceptions of Respon-
dent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions ' and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Retail Store Employees
Local Union 322 and Jack F. Gray and Glen Co-
nyers, agents thereof, its officers. agents, and repre-
sentatives, shall take the action set forth in the said
recommended Order.
IThe Charging Parts's motion to strike exceptlons on the ground that
the) lack specificit within Sec. 102.46(h) of the Board's Rules and Regula-
tions. Series 8. as amended, is hereb' denied as lacking in merit
DECISION
STATEMENT OF THE CASE
JAMES L ROSE. Administrative Law Judge: This matter
was heard before me at Baxter Springs, Kansas, on Octo-
ber 25, 1977. The General Counsel alleged that by engag-
ing in a strike of the Charging Party, the Respondent had
violated Section 8(b)(3) of the National Labor Relations
Act, as amended, 29 U.S.C., §151. et seq., because it had
failed to give notice to the appropriate state agency as re-
quired by Section 8(d) of the Act.
240 NLRB No. 145
While admitting the strike and failure to give notice to
any agency of the State of Kansas, the Respondent con-
tends that no agency exists in Kansas to which notice un-
der Section 8(d) is required to be given. Accordingly, the
Respondent contends that the strike is not unlawful.
Based on the record as a whole, including briefs and
arguments of counsel, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
L JURISDICTION
The Charging Party herein, Wilhow Corporation, d/b/a
Town & Country Supermarkets (herein the Employer), is a
Kansas corporation engaged in retail sale and distribution
of groceries and related products at various facilities in-
cluding the one in Baxter Springs, Kansas. The Employer's
annual gross volume of business in the State of Kansas
exceeds $500,000, and it annually purchases directly from
points outside the State of Kansas goods, products, and
materials valued in excess of $10,000 for use in its Kansas
facilities. The Respondent admits, and I find, that the Em-
ployer is engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent, Retail Store Employees Local 322
(herein the Union or the Respondent), is admitted to be,
and I find is, a labor organization within the meaning of
Section 2(5) of the Act.
It is also admitted, and I find, that the Union's president,
Jack F. Gray, and its business representative, Glenn Con-
yers, are agents of the Respondent within the meaning of
Section 2(13) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The essentially undisputed facts establish that the Union
has represented employees of the Employer, and they have
had collective-bargaining agreements, the most recent of
which expired on August 3, 1977.1
On May 4, the Union sent a notice to the Employer
indicating that it sought to negotiate modifications and
changes in the collective-bargaining agreement. Notice on
an appropriate form was simultaneously sent to the Feder-
al Mediation and Conciliation Service. The Respondent
admits that no notice of any type was sent to any agency of
the State of Kansas concerning this matter until August 24.
Following the May notice, representatives of the Union
and the Employer met on five occasions to negotiate a
successor collective-bargaining agreement. The parties
were unable to reach final agreement and on August 12 the
Union struck the Employer.
IAll dates are in 1977. unless otherwise indicated.
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llo0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Issue
As framed by the Union in its brief, the principal issue in
this matter is:
Whether the Kansas Department of Human Re-
sources is an agency to which notice must be given
under Section 8(d) of the National Labor Relations
Act.
C. A nal.sis and Conclusions
In brief, the General Counsel and the Charging Party
contend that the Kansas Department of Human Resources
is a state agency within the meaning of Section 8(d)13) to
which notice is required to be given and that, by failing to
give it notice before engaging in a strike, the Union com-
mitted an unfair labor practice within the meaning of Sec-
tion 8(d)(3), citing Amalgamated Meatcutters and Butcher
Workmen of North America, Local # 576 (Kansas City Chip
Steak Co., Inc.), 140 NLRB 876 (1963).
The Union, on the other hand, contends that "The pres-
ent Kansas agency has not, for at least seven years, exer-
cised any authority to mediate disputes, does not view its
function as including mediation of contract negotiations
and has no funds earmarked for mediation. Accordingly.
this agency should be found not to meet the statutory defi-
nition of Section 8(d)(3)." Thus, failure to give notice to an
effectively nonexistent state agency does not vitiate its
otherwise lawful strike, citing Brotherhood of Locomotive
Firemen and Enginemen and Brotherhood of Railroad Train-
men lPhelps-Dodge Corp. v. N.L.R.B., 302 F.2d 198 (9th
Cir. 1962), modifying in part 130 NLRB 1147 (1961).
This case is essentially identical to the Kansas City Chip
Steak matter except in two respects, neither of which I
consider sufficient to alter the outcome.
First, the state agency under consideration in 1963 was
the Kansas State Labor Commissioner. In 1976 the Kansas
Legislature reorganized the government and created cabi-
net departments. Thus the functions formerly performed
by the Labor Commissioner are now being performed, in-
sofar as is material here, by the Department of Human
Resources. However, the statute material to the issue in-
volved here is essentially unchanged and reads as follows:
K.S.A. 44-817. Mediators: appointments; functions:
compensation. The secretary of human resources [state
labor commissioner ] shall have the power to appoint
any competent, impartial, disinterested person to act
as mediator in any labor dispute either upon his own
initiative or upon the request of one of the parties to
the dispute. It shall be the function of such mediator
to bring the parties together voluntarily under such fa-
vorable auspices as will tend to effectuate settlement
of the dispute, but neither the mediator nor the secre-
tary of human resources [state labor commissioner
shall have any power of compulsion in mediation pro-
ceedings. The secretary of human resources [state labor
commissioner ] shall provide necessary expenses for
such mediators as [he ] may he appointed [appoint ,
under [order ] reasonable compensation not exceeding
fifty dollars ($50) per day for each such mediator, and
prescribe reasonable rules of procedures for such med-
iators. (Changes in K.S.A. 44-817 are indicated by un-
derlining the additions, and putting the deletions in
brackets.)
The second factual distinction between this matter and
that considered by the Board in Kansas City Chip Steak
concerns the extent to which the state agency has in fact
functioned in performing mediation services. Thus in Kan-
sa.s City Chip Steak, the parties stipulated that between
1956 and 1958 three disputes were formerly mediated by
the Kansas State Labor Commissioner, and that he or his
assistant had engaged in "informal" mediation of a large
number of cases each year.
Thus in distinguishing Phelps-Dodge, and concluding
that Kansas in fact had a viable state agency to which
notice was required to be given, the Board stated: "In the
instant case, however, as we have pointed out, the Kansas
Legislature has provided the State labor commissioner with
both personnel and funds with which to mediate disputes
and the State labor commissioner has exercised his authori-
ty on a number of occasions to mediate labor disputes."
None of these factors had existed in Arizona, and the
Ninth Circuit thus found that the 'state agency" was no
more than a shell and that requiring notice to the Arizona
agency would be to require the union to do a futile act.
Don W. Bruner, an employee of the Department of Hu-
man Resources, testified on behalf of the General Counsel.
He stated that he has been with this agency. and its prede-
cessor, since 1970, during which period the agency has not
been involved in any mediation matters. As distinguished
from the facts in Kansas City ('hip Steak, the state agency
at least for the last 7 years has not actually been involved
in any formal or informal mediation.
However, as further testified to by Bruner, the state
agency does have personnel to perform mediation services.
has the funds to do so. and routinely proffers its services to
parties who are involved in contract negotiations. It has
made II such proffers this year.2
Even though in the last 7 years the Kansas state agency
has not actually performed any mediation, it nevertheless
has the financial and personal resources to do so and does
in fact regularly offer to parties its services as a mediation
agency. Under the facts presented, had the parties asked
the Kansas agency to mediate their dispute, it would have
done so.
I must conclude that there is no fundamental difference
between the Kansas Department of Human Resources and
its functional capacity as a mediation agency, and the
Kansas State Labor Commissioner which was found by the
Board in 1963 to be a state agency within the meaning of
Section 8(d)(3). I conclude that the Kansas Department of
Human Resources is therefore a state agency to which no-
tice is required to be sent within the meaning of Section
8(d)(3).
It therefore follows that by striking on August 12, with-
out having given the state agency notice as required by
he agenc) receives a periodic screenout list fronm he Federal Media-
tin and ( onciliation Serce on which the FMCS indicates hich em-
ploers re too small to justif Its inlene tion. Front this he state agenct
makes its deltrlillilation Ito proffer its services
RETAIL STORE EMPLOYEES LOCAL 322 1111
Section 8(d)(3), the Respondent Union engaged in an un-
fair labor practice within the meaning of Section 8(b)(3).
While this is really a technical violation based on an
oversight and with potentially harsh results, namely. em-
ployees' loss of status as such, nevertheless, the statutory
scheme is quite specific. On the facts of this case, it is clear
that a state agency within the meaning of the statutory
scheme does exist and that agency must be given notice
before striking.
Finally, the fact that the Union did give notice after the
strike began (and the change herein filed) does alter the
outcome. A similar sequence of events occurred in Kansas
City Chip Steak.
IV. IHE EFFECTI O HL UNFAIR LABOR PRA(II( S L PON
(COMMER('E
The aforesaid activities of the Respondent having oc-
curred in connection with the Employer's business as set
forth above have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
v THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the foregoing findings of fact and conclusions of
law, the entire record in this matter, and pursuant to provi-
sions of Section 10(c) of the Act, I hereby issue the follow-
ing recommended:
ORDER3
The Respondent, Retail Store Employees Local Union
322 and Jack F. Gray and Glen Conyers, its officers.
agents, and representatives, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively with Wilhow Corpo-
ration, d/b/a Town & Country Supermarkets, a Kansas
corporation, concerning the termination or modification of
the collective-bargaining agreement with said Employer.
by failing, before striking, to notify the Kansas Secretary of
Human Resources of the existence of a labor dispute, as
required by Section 8(d)(3) of the Act.
(b) Engaging in, or causing or instructing the employees
of Wilhow Corporation, d/b/a Town & Country Super-
markets, to engage in, a strike for the purpose of modifying
or terminating a collective-bargaining contract, without
first having complied with the requirements of Section 8(d)
of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its offices and meeting halls copies of the
attached notice marked "Appendix." 4 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 17, after being duly signed by an authorized represen-
tative of the Respondent. shall be posted immediately upon
receipt thereof. and be maintained by it for a period of 60
consecutive days thereafter, in conspicuous places. includ-
ing all places where notices to its members are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered. defaced, or covered
by any other material.
(b) Sign and mail sufficient copies of said notices to the
Regional Director for Region 17 for posting by Wilhow
Corporation, d/b/a Town & Country Supermarkets. it
being willing, at all locations upon its or other premises
where notices to its employees are customarily posted.
(c) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
In the esenl no exceptions are filed as provided h,, Sec. 10' 4h of the
Rules an.d RegulatiLons f he National l.abor Relations Board. the findings.
conclusions. aind recommended Order herein shall, as proided in Sec
102 48 of the Rules nd Regulations. be adopted hb the Board and become
its findings. conclusions. and Order. and 31 bectilns Ihereio shall be
deemed .aied for .ill purpose,.
I In the eent that this Order is enforced b,, a Judgment of the t nited
States C('urt of Appeals.h the lirds In he ntice reading "..Poted hb Order
oif the Natlional l.abor Relations Board" shall read Posted Pursuant to) a
Judgment of the t niled States Court of Appeals Enforcing an Order of he
Naiiilal Lahbor Relations Board "
APPENDIX
NOTI(CE To MEMBERS
POSTED) BY ORDER OF THE
NAIONAL. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with Wil-
how Corporation. d/b/a Town & Country Supermar-
kets. concerning the termination or modification of a
collective-bargaining agreement with said Employer,
by failing before striking to notify the Kansas Secre-
tary of Human Resources of the existence of a labor
dispute, as required by Section 8(d)(3) of the Act.
WE WILL NOT engage in, or cause or instruct the em-
ployees of Wilhow Corporation, d/b/a Town & Coun-
try Supermarkets, to engage in, a strike for the
purpose of modifying or terminating a collective-bar-
gaining contract, without first having complied with
the requirements of Section 8(d) of the Act.
RETAIL STORE EMPLOYEES LOCAL 322, AND JACK F
GRAY AND G.LEN CONYERS. AGENTS THEREOF