Retail Associates, Inc.

National Labor Relations Board - Board Decisions

Apr 11, 1958

120 N.L.R.B. 388 (N.L.R.B. 1958)

388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been permanently terminated, and are ineligible to vote, whereas
the Petitioner claims that they are in temporary layoff status, and
eligible to vote.
Early in September 1957 the Employer laid off about 70 employees
because of lack of work. 'On October 15 the 55 employees in this
group who had not yet been recalled were notified by the Employer
that it had changed their status from "lay-off due to lack of work"
to "terminated due to lack of work." Between October 15 and No-
vember 9, the Employer laid off for business reasons about 80 more
employees, each of whom was told that he was being terminated. All
135 employees thus terminated were told that their insurance coverage
was being terminated and that they should seek other employment.
On November 11 six employees on leave of absence were notified by
the Employer that, because of business considerations, their status
was being changed from "leave of absence" to "terminated." The
Employer suggested to them also that they look for other work.
It appears that the 146 employees in issue will be offered work,
should additional hiring become necessary, before new employees are
hired. However, the testimony at the hearing does not indicate that
these employees have a reasonable expectancy of further employment
with the Employer in the near future. Upon the entire record, we
find that the 146 employees have been permanently terminated and
are ineligible to vote in the election directed herein.9
[Text of Direction of Election omitted from publication.]
• Brown -Forman Distillers Corporation, 118 NLRB 454; National Foundry Company of
New York, Inc., 112 NLRB 1214 ; United States Rubber Company, 86 NLRB 338.
Retail Associates , Inc., Petitioner and Retail Clerks International
Association, Locals Nos. 128 and 633, AFL-CIO. Case No. 8-RM-
185. April 11,1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Edward A. Grupp,
hearing officer . The hearing officer 's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
On March 28, 1958, the Board granted the request of Retail Clerks
International Association , Locals Nos. 128 and 633, AFL-CIO, here-
inafter referred to as the Union, for oral argument . On April 8, 1958,
the Board heard oral argument in which Retail Associates, Inc.,
hereinafter referred to as the Association , and the Union participated.
120 NLRB No. 00.
RETAIL ASSOCIATES, INC. 389
The Board has considered the entire record, the briefs of the parties,
and the oral argument in this case, and-for the reasons specifically
indicated in an opinion which shall hereafter be issued-finds :
1. The Association is engaged in commerce within the meaning of
the Act.
2. The Union involved claims to represent certain employees of the
members of the Association.
3. A question affecting commerce exists concerning the represen-
tation of certain employees of the members of the Association within
the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. We find that the following employees of the members of the
Association constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9 (b) of the Act :
All employees of The Lamson Brothers Company (downtown
Toledo and Colony stores), The La Salle & Koch Company (Toledo
store), and The Lion Dry Goods Company, Inc. (Toledo store), who
regularly work 20 hours or more weekly in the selling and nonselling
departments, including all sales clerks, all office employees and all
wrappers, cashiers, receiving and stock clerks, receiving reserve stock-
men and checkers, receiving openers and platform clerks, telephone
operators, sewers, fitters, pressers in ladies alteration, customer serv-
ice bureau clerks, shoe repairmen, and publicity and display division
employees,' but excluding "extra" or casual employees, appliance re-
pairmen, elevator repairmen, electrical, refrigeration, heating and air
conditioning maintenance men, carpenters, painters, finishers, sign
painters, elevator operators, maids, elevator starters, porters, wait-
resses, kitchen help, dishwashers, bus girls, cooks, butcher helpers,
baking workers, furniture drivers, furniture helpers, package drivers,
furniture finishers, mechanics, mechanics' helpers, warehousemen, em-
ployees in the men's alteration shop, the leased department beauty salon
employees,2 watchmen, guards, confidential employees, the head of
publicity and all other supervisors as defined in the Act.'
[Text of Direction of Election 4 omitted from publication.]
' Contrary to the Union's contention, we find that the publicity and display division
employees are not professional employees and have a sufficient community of interest with
the other employees to warrant their inclusion in the unit The Fair Department Store,
107 NLRB 1499, 1502; Herpol8heimer Company, 100 NLRB 1452, 1453, 1454
2 Contrary to the contention of the Association, we find that the lessee, American Yvette
Company, has the primary right of control over the terms and conditions of employment
of the leased department beauty salon employees and, in accordance with the Board's
usual practice, we shall exclude these employees from the unit. Duane's Miami- Corpora-
tion, 119 NLRB 1331 ; The Sperry qmd Hutchinson Company, 117 NLRB 1762, 1763;
The Fair Department Store, 107 NLRB 1501, 1503
2 With the exception of the publicity and display division employees and the leased
department beauty salon employees, the unit description conforms to the stipulation of
the parties
' The Board has decided to, and hereby does, overrule the "Loewenstein doctrine"
(75 NLRB 375) and therefore in this RM proceeding is placing the name of the non-
complying Union on the ballot. Member Bean would adhere to the Board' s decision in
Loewenstein and consequently would not reach the merits in the instant case.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
OPINION
May 27, 1958
On April 11, 1958, the Board 1 issued a Decision and Direction of
Election in the above-entitled proceeding 3 overruling its Loewenstein
doctrine,' finding appropriate a single unit, of certain employees of
the members of Retail Associates, Inc., hereinafter referred to as the
Association, and directing an election among those employees. How-
ever, the Board expressly provided that an opinion in this matter
would issue at a later date. That opinion and the facts upon which
it is based as follows :
The Association consists of department stores named the LaSalle
& Koch Company, the Lamson Brothers Company, and the Lion Dry
Goods Company, Inc. For nearly 20 years, the Association has rep-
resented these and other employers in labor relations matters. Since
1945, Retail Clerks International Association, Locals Nos. 128 and
633, hereinafter referred to as the Union, as member of a council,
has been party to contracts with the Association. The Union has
had contracts with the Association since 1955. The last of these
contracts expired June 1955.
The Association and the Union commenced informal exploratory
negotiations in February 1957 looking towards a new contract.
Formal negotiations began in April 1957 and continued until Octo-
ber 31, 1957. On and after November 4, 1957, the Union joined
together for negotiating purposes with other labor organizations
with whom the Association had a bargaining relationship in what
was designated as the Central Labor Union Joint Committee. Nego-
tiations continued on this basis until approximately the middle of
November 1957, but the parties were unable to reach an agreement.
On November 15, 1957, the Union announced publicly that it had
called a strike against the Association, but would actually picket only
one of the member stores. The store selected was Tiedtke's, Division
of Kobacher Stores, Inc., which up to that time. was a member of
the Association. The Union picketed Tiedtke's on November 16,
1957. On the same day, Tiedtke's wrote a letter to the Association
resigning its membership as of that date and revoking and with-
drawing any authority the Association had to act for it. On No-
vember 17, 1957, Tiedtke's entered into a separate bargaining agree-
ment with the Union. The Association replied to Tiedtke's letter
on November 22, 1957, accepting its withdrawal and resignation as
of November 16, 1957. Meanwhile, on November 20, 1957, the Asso-
ciation filed the instant petition.
1 Member Bean dissented.
s 120 NLRB 388.
75 NLRB 375.
RETAIL ASSOCIATES, INC. 391
Although not completely free from doubt, the record on bal-
ance appears to support the conclusion that during the period after
Tiedtke's withdrawal and November 22, 1957, there were some fur-
ther negotiations between the Association and the Union on the then
existing associationwide basis. In any event, on November 22, 1957,
the Union announced that in furtherance of its strike against the
Association it would commence picketing the LaSalle & Koch Com-
pany store the next day. Accordingly, early in the morning of
November 23, 1957, the Union began to picket LaSalle & Koch.
Later the same day the Union notified the Association by telegram
that it no longer wished to bargain with the Association as repre-
sentative of the department stores in an associationwide unit, but
at the same time indicated a willingness and desire to negotiate with
the management of each of the stores on an individual basis. The
picketing of LaSalle & Koch was still continuing at the time the
Decision and Direction of Election herein was issued.
The Association in its petition and at the hearing asserts that only
a three-store associationwide unit is appropriate. The Union for its
part claims to represent the employees of each individual store but
contends that only single store units are appropriate. More specifi-
cally, the Union maintains that it had, upon notice to the Associa-
tion, withdrawn from the existing three-store unit; that consequently
its disclaimer of representation as to such unit, alleged as appropriate
in the petition, was effective; that its compliance with the Act's filing
requirements had lapsed and therefore as a noncomplying union it
cannot be placed on the ballot; and that for these reasons the Asso-
ciation's petition for an election should be dismissed. Maintaining
the affirmative on a plea of equality and equity, the Union insists
that this representation proceeding must turn on the central issue
of whether a union under the Act has the same right as an employer
to withdraw from a multiemployer bargaining unit and pursue bar-
gaining in separate employer units. We disagree that this broad
issue need be reached in the circumstances involved here. Under
well known Board precedents and policies of the Act, it is fully suffi-
cient, and we hold, that the Union by its conduct here could not and
did not effect a change in the appropriateness of the historical multi-
employer bargaining unit, nor effectively remove itself from the
processes of the Board election machinery, authorized under Section
9 (c) (1) (B) of the Act, by the simple expedient of a disclaimer of
representation. Nor, as will be explicated infra, can it prevent an
election, by deliberately permitting its compliance status to lapse.
1. Reference should be made to certain established Board principles
with regard to union disclaimers in a representation matter as in-
volved here. A disclaimer to be effective must be unequivocal and
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must have been made in good faith 4 A union's "bare statement"
of disclaimer is not sufficient to establish that it has abandoned its
claim to representation, if the surrounding circumstances justify an
inference to the contrary.5 The union's conduct must not be "incon-
sistent" with its alleged disclaimer.6
For many years the Union has represented and bargained for the
employees of the association members in an associationwide unit.
This same historical bargaining pattern was renewed and reaffirmed
in February 1957 when the Union embarked upon the bargaining
negotiations with the Association and, indeed, the Union was in the
very midst of such multiemployer bargaining in November 1957 when
the events took place which it asserts in opposition to this election.
Significantly, the Union declared in its strike call of November 15,
1957, that the strike was directed specifically against the Association.
Thus, at a time when the Union admittedly was seeking association-
wide bargaining, it implemented its objective of obtaining a common
contract from all the members of the Association by the "whipsaw"
strategy of picketing Tiedtke's and thereby threatening the other
employers with future picketing if all of them did not accept the
contract terms demanded by the Union. After Tiedtke's signed a
separate contract, there is an indication in the record that further
negotiations took place between the Union and the Association. There
were no negotiations between the Union and any of the Association
members on an individual employer basis 7
On November 20, 1957, the Association filed a petition alleging the
propriety of a three member store associationwide unit. On November
22, 1957, the Union stated that it was seeking to bargain on an asso-
ciationwide basis by saying that it would strike the Association by
picketing LaSalle & Koch the next day. The Union's picketing of
LaSalle & Koch was initiated manifestly for the purpose of achieving
the same objective as its earlier picketing of Tiedtke's. Only later
in the day on November 23, 1957, did the Union for the first time
declare that it wished to substitute individual member bargaining for
associationwide bargaining, but even then its representation claims
included, as they do now, exactly the same employees of all the present
members of the Association.
None of the Union's conduct prior or subsequent to the filing of
the Association's petition-other than its naked statement of a desire
to represent them on a different basis-has been in derogation of its
4 Mississippi Valley Structural Steel Company , 115 NLRB 1288,1289 ; Standard Auto-
motive Manufacturing Company , 109 NLRB 726; International Brotherhood of Electrical
Workers, AFL--CIO and Local 59 eto. ( Te¢lite, Inc), 119 NLRB 1792.
53 Beall Brothers 3 et ai ., 110 NLRB 685, 687; The Johnson Bros. Furniture Co.,
97 NLRB 246.
14. A Rider J Sons, 117 NLRB 517, 51'8; McAllister Trans fer, Inc., 105 NLRB 751.
7 Tiedtke's withdrew as a member of the Association before it negotiated separately with
the Union
RETAIL ASSOCIATES, INC. 393;
consistent claim to representation of the employees of all the member
stores alleged as appropriate in the petition." The direct causal con-
nection between the filing of the petition by the Association and the
Union's asserted change in position is obvious. Premises considered,.
it is clear that as the Union has not abandoned its original objective
of seeking associationwide bargaining and obtaining a contract with
the Association, the Union has not renounced in good faith its repre-
sentation rights in the associationwide unit.' Hence, its alleged
disclaimer must perforce be regarded as a tactical maneuver designed
to avoid a Board finding that the appropriate unit is the association-
wide unit and to thwart the holding of an election therein.
The Union's purported withdrawal .on November 23 from the ex-
isting three-store bargaining unit was patently for the same reason it
deliberately went out of compliance with the filing requirements of
the Act-to avoid the Board election sought in the Association peti-
tion filed on November 20. Up to that point it continued to press its
bargaining demands on the multiemployer basis, demonstrating its-
acquiescence in the three-store bargaining unit. The right of with-
drawal by either a union or employer from a multiemployer unit has-
iiever been held, for Board purposes, to be free and uninhibited, or
exercisable at will or whim. For the Board to tolerate such incon-
stancy and uncertainty in the scope of collective-bargaining units
would, be to neglect its function in delineating appropriate units
under Section 9, and to ignore the fundamental purpose of the Act of
fostering and maintaining stability in bargaining relationships. Nec-
essarily under the Act, multiemployer bargaining units can be ac-
corded the sanction of the Board only insofar as they rest in principle
on a relatively stable foundation. While mutual consent of the union
and employers involved is a basic ingredient supporting the appro-
priateness of a multiemployer bargaining unit, the stability require-
ment of the Act dictates that reasonable controls limit the parties as_
to the time and manner that withdrawal will be permitted from an
established multiemployer bargaining unit. Thus, the Board has re-
peatedly held over the years that the intention by a party to with-
draw must be unequivocal, and exercised at an appropriate time.'°
8 Contrary to the Union's contention in its brief, the resignation of Tiedtke's from the
Association and its signing of a separate contract with the Union did not, in the circum-
stances here, destroy the associationwide bargaining pattern, or affect the propriety of the
three-store associationwide unit in which the election is sought. Indeed, as shown herein,
subsequent to Tiedtke's withdrawal and separate contract the Union by positive acts dis-
played its adherence and consent to the associationwide bargaining pattern. Withdrawal
of one member of an association has never been held sufficient to preclude a determination
of a unit of the remaining employers to be appropriate particularly when, as here, such
withdrawal is aquiesced in by all parties, including the Union
8 See N. L. R B. v Spalding Avery Lumber Company, 220 F. 2d 673 (C. A. 8) cited
with approval in N. L. R. B. v. Truck Drivers Local 449 (Buffalo Linen Supply Co.),
353 U. S. 87.
18 See, e. g., McAnary & Welter, Inc., 115 NLRB 1029; Jahn-Tyler Printing and Publish-
ing Company, 112 NLRB 167.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The decision to withdraw must contemplate a sincere abandonment,
with relative permanency, of the multiemployer unit and the em-
bracement of a different course of bargaining on an individual-em-
ployer basis. The element of good faith is a necessary requirement in
any such decision to withdraw, because of the unstabilizing and dis-
rupting effect on multiemployer collective bargaining which would
result if such withdrawal were permitted to be lightly made. The
attempted withdrawal cannot be accepted as unequivocal and in good
faith where, as here, it is obviously employed only as a measure of
momentary expedience, or strategy in bargaining, and to avoid a
Board election to test the union majority.
When the Supreme Court's decision in the Buffalo Linen case 11 is
considered, another reason appears for the Board's refusal to accept as
valid the Union's attempted disclaimer. In that case the Court held
that the nonstruck members of an association did not violate the Act
when they temporarily locked out their employees as a defense to the
Union's "whipsaw" strike against one of their members. Thus, when
the Union involved herein picketed Tiedtke's and particularly any
time during the period in which the Union has been picketing La-
Salle & Koch, the present association members could have retaliated
by shutting down their operatiops. However, instead of resorting to
the remedy of exercising their defensive right to lockout, they elected
to pursue the lesser remedy of having the Association file a petition
and requesting the Board to hold an election in the associationwide
unit. The Union by its alleged disclaimer is seeking to deprive the as-
sociation members of any of these remedies. Thus, if the Board were
to find the Union's disclaimer effective and valid, the Union would
then be placed in the enviable position of enjoying the benefits of its
"whipsawing."
In these circumstances to give controlling significance to the
Union's naked disclaimer and to allow the Union thereby-to render
moot the question concerning representation in the associationwide
unit would be to permit not only a flagrant abuse of the Board's proc-
esses, but a subversion of the employers' right, as enunciated in the
Supreme Court's Buffalo Linen decision, under certain circumstances,
to preserve the integrity of associationwide bargaining. For all the
reasons given above the associationwide unit is appropriate.
As concerns the issue of the Union's disclaimer and purported with-
drawal from the associationwide bargaining unit, we rely exclusively
upon the foregoing grounds. However, the Union argues strongly
that under the Board's rules it may never be given the opportunity to
withdraw from multiemployer bargaining although such a right is
accorded employers. While, as indicated above, this extreme question
21 See footnote 9, 8upra.-
RETAIL ASSOCIATES, INC. 395
does not arise in this case, we believe it reasonable to establish in ap-
propriate future cases , where such issues are squarely presented, spe-
cific ground rules, resting upon existing principles and policies under
the Act, to govern questions of representation in multiemployer bar-
gaining units. Among other things, the timing of an attempted with-
drawal from a multiemployer bargaining unit , as Board cases show, is
an important lever of control in the sound discretion of the Board to
-ensure stability of such bargaining relationships . We would accord-
ingly refuse to permit the withdrawal of an employer or a union from
a duly established multiemployer bargaining unit, except upon ade-
quate written notice given prior to the date set by the contract for modi-
fication, or to the agreed -upon date to begin the multiemployer negotia-
tions . Where actual bargaining negotiations based on the existing
multiemployer unit have begun , we would not permit, except on mutual
consent, an abandonment of the unit upon which each side has com-
mitted itself to the other, absent unusual circumstances. It is clear
that under the ground rules to be promulgated , we would reach the
same result as found in the present case.i2
2. Shortly after the close of the hearing of this case , the Union per-
mitted its compliance with the filing requirements of the Act to lapse
and the Board was administratively advised that the Union had no
present intention of seeking renewal . The Union contended that appli-
cation of the Board 's Loewenstein doctrine required dismissal of the
Association petition on the ground that there was no labor organiza-
tion claiming to be recognized as bargaining representative which was
in compliance with the filing requirements of the Act and thus qualified
to appear on the ballot , if an election was directed.
In the Loewenstein case, the Board held that in these circumstances
it was neither as a matter of law authorized to, nor as a matter of policy
should it, proceed to an election on an employer 's petition . The Board
has now concluded that the Loewenstein doctrine should be reversed.13
The reasons therefor will be detailed hereinafter.
The Board in Loewenstein construed Section 9 (c) (1) (B) and
9 (f) and ( h) of the Act as precluding it from directing an election
on an employer 's petition where the only union which makes a claim
of majority representation is not in compliance.
Section 9 ( c) (1) (B) prescribes that a petition filed with the Board
by an employer shall allege "that one or more individuals or labor
2 Member Jenkins considers it inappropriate to express, as his colleagues are doing here,
a view with respect to ground rules which, in his opinion, are inapplicable to this case.
To do so is to disregard the well-entrenched policy of the courts and this Board of uttering
no abstract generalizations unnecessary to a concrete decision. -
' Other cases applying the "Loewenstein doctrine" and which, of course, are also over-
ruled are : Staten Island Cleaners, Inc., 93 NLRB 396; The Federal Refractories Corpora-
tion, 100 NLRB 257; Law Tanning Company, 109 NLRB 268; Darling and Company, 116
NLRB 374; -Mine and Mill Supply Company, 118 NLRB 1536; -Sprouse-Reitz Co., Inc.,
119 NLRB 644.
396 DECISION S OF NATIONAL LABOR RELATIONS BOARD
organizations have presented to him a claim to be recognized as the
representative defined in section 9 (a)."
As originally enacted, and as they appeared when Loewenstein was
decided, Section 9 (f) and (h) provided, in pertinent part, that:
No investigation shall be made by the Board of any question affect-
ing commerce concerning the representation of employees, raised
by a labor organization under subsection (c) of this section, no
petition under section 9 (e) (1) shall be entertained, and no com-
plaint shall be issued pursuant to a charge made by a labor organi-
zation under subsection (b) of section 10 . . . [unless such labor
organization shall have complied with the filing requirements of
said sections as prescribed therein.] 14
In interpreting the above subsections, the Board reasoned that : the
question concerning representation referred to in Section 9 (f) and
(h), although brought to the Board's attention by the employer's own
petition under Section 9 (c) (1) (B), is-in the words of Section 9
(f) and (h)-"raised by a labor organization"; the question is raised
by the affirmative claim made by the union that it represents a major-
ity of the employees of the employer within an appropriate unit and,
absent such claim, the Board would be without jurisdiction to proceed
with its investigation under Section 9 (c) (1) (B) ; although it is the
employer's petition in such a case that sets the Board's machinery in
motion, it is an individual's or a labor organization's initial claim for
recognition that makes it possible for the employer to invoke that
machinery; it is therefore the claiming individual or labor organiza-
tion that raises the question concerning representation, not the
employer; as subsections (f) and (h) of Section 9 speak in terms
of questions raised, rather than of petitions filed, by unions, the statu-
tory language supports the application of these subsections to proceed-
ings instituted by petitions filed by employers; and, in view of the
foregoing, an employer's petition must be dismissed if the union
claimant is not in compliance with Section 9 (f) and (h).
Members Jenkins and Fanning, who have not had a previous oppor-
tunity to pass upon this question, agree with and adopt Member
Rodgers' construction of the language of Section 9 (f) and (h) as
expressed by him in his dissent in the Darling case.15 In the opinion
of these three members, the Board in Loewenstein misinterpreted and
misapplied the pertinent statutory language. For, the words of Sec-
tion 9 (f) and (h) do not refer to employer petitions, but merely pro-
hibit the investigation of questions concerning representation "raised
by a labor organization under subsection (c) of this section,"-words
''The language "no petition under section 9 (e) (1) shall be entertained " has since
been eliminated from Section 9 (f) and ( h). Section 9 (e) (1) referred to union petitions
for authority to execute union -security agreements.
15 See footnote 13, supra. -
RETAIL ASSOCIATES, INC. 397
which, in their context, have application only to representation peti-
tions filed by unions. Thus, as originally enacted, the words "raised
by a labor organization under subsection (c) of this section" in the
first clauses of Section 9 (f) and (h) were followed directly by the
language:
No petition under section 9 (e) (1) shall be entertained, and no
complaint shall be issued pursuant to a charge made by a labor
organization under subsection (b) of section 10... .
The language of these latter clauses clearly refers to procedural steps
taken by labor organizations under the Act-that is, the filing'with
the Board of a union-security authorization petition, or a charge.
The direct conjunction of these clauses with the words "raised by a
labor organization under subsection (c) of this section," demonstrates
that these latter words also refer to a procedural step taken by a labor
organization-that is, the filing of a representation petition. In its
context, therefore, these members do not think it material that the first
clauses of Section 9 (f) and (h) speak of questions raised rather than
petitions filed and the emphasis that the Board in Loewenstein placed
on this fact seems to them to be unwarranted. Accordingly, they find
no legal or statutory impediment to placing a union claimant's name
on the ballot and directing an election on an employer's petition where
the union is not in compliance with the filing requirements of the
Act.
With respect to the policy question, the Board in Loewenstein held
that it should not entertain an employer's petition where recognition
is requested by a noncomplying union. The Board reasoned that : a
fundamental objective Congress sought to achieve in Section 9 (f) and
(h) was to prevent a noncomplying union from being beneficiary of
any Board investigation of a question concerning representation by
withholding the processes of the Act from such labor organization; if
a noncomplying union were placed on the ballot and won the election,
the Board would not issue a certification to it, but a victory at the
polls --even without a later certification-would confer certain moral
and practical advantages on the union which the basic policy of Con-
gress appeared to discountenance ; while this conclusion might some-
times result in depriving an employer of information which the Act
would permit him to secure if only a complying union was affirmatively
claiming representative status, conflicting policy considerations were
before the Board; and, the exclusion of a noncomplying union from
the ballot in a case where the employer was the petitioner was more
nearly consistent with the supervening policy of denying the impri-
matur of Government to such a labor organization.
Chairman Leedom and Members Rodgers, Jenkins, and Fanning
interpret the recent decision of the Supreme Court in the Bowman
398 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
case 16 as effectively undermining the policy basis for the Loewenstein
doctrine." In that case, the Board had issued a Decision and Order ie
finding that the employer had rendered-illegal support and assistance
to District 50, United Mine Workers of America-a noncomplying
union-thereby violating Section 8 (a) (2) of the Act. In accord
with the Board's standard remedy, the employer was ordered to cease
recognizing District 50 and to withdraw and withhold recognition
from it unless and until it shall have been certified by the Board as
the exclusive bargaining representative of the employees.
The Supreme Court held that the Board's Order conditioning the
future recognition of an assisted noncomplying union on a Board
certification constituted an abuse of the Board's discretionary power
in that a noncomplying assisted union is not eligible for a Board
certification and therefore employees might never have an opportunity
to select it as their representative. The Court concluded, however,
that the Board did have the power to condition such recognition upon
an election not followed by a certification. An election, the Court
stated, "would properly reconcile the objectives of eliminating -im-
proper employer interference and preserving the employees' full choice
of a bargaining representative.," It would "achieve the Board's prime
objective in these cases, viz., to `demonstrate that . . . [the assisted
union's] right to be the exclusive representative of the employees
involved has been established in an atmosphere free of restraint and
coercion.' "
The Board recognizes that this case arose in the posture of Court
consideration of appropriate implementation of the Board's, remedial
powers under Section 10 of the Act and, indeed, that the Court stated
that the prohibitions of Section 9 (f), (g), and (h) and the require-
ment of Section 9 (c) of Board-conducted elections "are concerned
not with remedial orders under Section 10 (c), but with questions of
representation and unfair labor practices `raised by a labor organiza-
tion.' " However, the Board cannot disregard either the language
of the Court heretofore referred to or the following statements of
the Court which, in the Board's opinion, taken together, render unten-
able the policy basis for the Loewenstein doctrine: "The single objec-
tive of § 9 (f), (g), and (h) was `to stop the use of the Labor Boards
by noncomplying unions.,"; "Nothing in the subsections . . . is a
barrier to the conduct by the Board of an election not followed by a
certification. . . ."; "'Subsections (f) (g) and (h) of § 9 merely
16 N L R B v District 50, UMW ( Bowman Transportation , Inc ), 355 U S 453
17 Chairman Leedom also finds in the Supreme Court's decision very persuasive reasons.
for agreeing , as he does, with the rejection of the legal basis for the Loewenstein doctrine.
Member Rodgers considers the decision as constituting confirmation of the views expressed
by him in his dissent in the Darling case , footnote 13, supra, with respect to the policy
basis for the Loewenstein doctrine
's 112 NLRB 387
RETAIL ASSOCIATES, INC. -399
describe advantages that may be gained by compliance with their
conditions . The very specificity of the advantages to be gained and
the express provision for' the loss of these advantages imply that no
consequences other than those so listed shall result from noncompli-
ance.' "; and, "Congress did not in § 9 (f), (g), and (h) make the
filing required by those subsections compulsory or a condition prece-
dent to the right of a noncomplying union to be recognized as the
exclusive representative of the employees."
As the Board reads the entire opinion of the Supreme Court in the
Bowman case, the Court is clearly indicating that the Board should
not concern itself solely and exclusively, as it did in Loewenstein, with
an objective of Congress to deny the benefits of the Act to a noncom-
plying union. On the contrary, primary consideration must be given
to the rights of the noncomplying union, the employees, and the em-
ployer. With regard to the rights of, and advantages to, a noncom-
plying union the Court points out that they should be restricted solely
to the limited extent expressly provided in Section 9 -(f), (g), and
(h). With-respect to the rights of the employees, the Board is very
impressed with the vigorous emphasis placed by the Court in Bowman
upon the fact that the Board, in fashioning its remedy for the unfair
labor practices found, must take into account and preserve "the em-
ployees' full choice of a bargaining representative." In the Board's
opinion, parity of reasoning requires the conclusion that in a Loewen-
stein situation decisive weight should be given to the interests of the
employer and the employees in resolving the representative status of a
union which is seeking recognition, even though by virtue of its non-
compliance the union itself could not directly petition the Board for
an election. Accordingly, in a proceeding instituted by an employer's-
petition,19 the Board shall henceforth place the name of a noncom-
plying union claimant on the ballot and direct an election, provided,.
however, that if the union wins the election and is not in compliance,,
only the arithmetical results will be certified.
The Board realizes that, as was noted in the Loewenstein case, the
noncomplying union claimant's victory at the polls may confer upon
it certain advantages. However, this is likewise true: with respect to,
the conduct of an election involving the noncomplying assisted union
in the, Bowman case. Moreover, it is the Board's :opinion that any
benefit which the union .may derive from having its status determined
in a Board election should be regarded, as the 'Court appears to have
suggested in Bowman, as of an incidental character and not contrary
to the letter and spirit of Section 9 (f), (g), and (h).
39 Cf. Harris Foundry i Machine Company, 76 NLRB 118, placing the name of a non-
complying union on the ballot in a proceeding instituted by a decertification petition.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having duly considered the briefs, the record in this case, and hav-
ing accorded the Union an opportunity for oral argument, and being
fully advised of all the problems which are presented by this case, the
Board, after due deliberation and consideration of the complexity of
the issues involved, and after having had due regard for the rights
of the parties and the public involved herein, has come to the con-
clusions hereinabove set out.
MEMBER BEAN, dissenting :
I would adhere to the long-established rule first enunciated in the
Herman Loewenstein case and therefore dismiss this petition because
the Union named as claiming recognition is not in compliance with
the filing requirements of the statute. In my opinion, the statute,
read in its entirety, denies to noncomplying unions not only direct
benefits from this administrative agency, but also such indirect assist-
ance as would inhere in a majority vote for a union which is denied only
the technical formality of a paper certificate.
Atomic Projects & Production Workers, Metal Trades Council,
AFL-CIO, and its President , William F. Leverenz, Jr.; and
Office Employees International Union, Local No. 251, and its
President , Peter J . Cook, and New Mexico Building Branch,
Associated General Contractors of America . Case No. 33-CC-
16. April 14, 1958
DECISION AND ORDER
On December 9, 1957, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices,' and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the
Respondents filed exceptions to the Intermediate Report and a
supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, recommendations, and
conclusions of the Trial Examiner.
'With the exception of Respondent Peter J Cook, as to whom the Trial Examiner rec-
ommended dismissal as there was no evidence of his participation in the events in question.
120 NLRB No. 58.