Retail Clerks Union Local No. 324, Etc.

National Labor Relations Board - Board Decisions

Oct 28, 1963

144 N.L.R.B. 1247 (N.L.R.B. 1963)

RETAIL CLERKS UNION LOCAL NO. 324, ETC. 1247
12. Page 191, line 19: Strike the words "a power" and substitute therefor the words
.,an employer."
13. Page 192, line 2: Strike the numeral "(6)" and substitute therefor the letter
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14. Page 196, line 3: Strike the word "normal" and substitute therefor the word
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APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Relations
Act, as amended, you are notified that:
WE WILL NOT threaten our employees with reprisals if they join or assist
District 50, United Mine Workers of America, or any other union.
WE WILL NOT change the working conditions of our employees in such a way
as to interfere with the free exercise of their rights under the National Labor
Relations Act, as amended.
WE WILL NOT warn our employees that they will lose benefits if they select
a union as their collective-bargaining agent.
WE WILL NOT in any related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form, join,
or assist District 50, United Mine Workers of America, or any other union, to
bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from such activities.
All our employees are free to become, remain, or refrain from becoming or re-
maining, members of any union.
THE J. S. DILLON & SONS STORES CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Anyone having any questions concerning this notice or compliance with its pro-
visions may communicate directly with the Board's Regional Office, 1200 Rialto
Building, 906 Grand Avenue, Kansas City 6, Missouri, Telephone No. Baltimore
1-7000, Extension 2732.
Retail Clerks Union Local No. 324, Retail Clerks International
Association, AFL-CIO and Vincent Drugs No. 3, Inc. Case No.
21-CB-1918. October 28, 1963
DECISION AND ORDER
Upon unfair labor practice charges duly filed on July 5, 1962, by
Vincent Drugs No. 3, Inc., herein called the Employer, the General
Counsel of the National Labor Relations Board, by the Regional Di-
rector for the Twenty-first Region, issued a complaint on September
13,1962, alleging that Retail Clerks Union Local No. 324, Retail Clerks
International Association, AFL-CIO, herein called the Union, had
engaged in and was engaging in unfair labor practices within the
meaning of Section 8(b) (2) and (1) (A) of the National Labor Rela-
tions Act, as amended Copies of the charges and the complaint, the
144 NLRB No. 108.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amendments thereto, and notice of hearing were duly served upon
the Union.
With respect to the unfair labor practices, the complaint as amended
alleges in substance that since on or about January 6, 1962, the Union
maintained in effect and enforced a union-security agreement with
the Employer covering a unit of both professional and nonprofessional
employees; the professional employees had not been afforded a sepa-
rate election as provided in Section 9(b) (1) of the Act; and the unit
thus "does not constitute an appropriate collective-bargaining unit."
The complaint further alleges that the Union attempted to cause the
Employer to discharge a professional employee, Stevenson, for re-
fusing to join the Union pursuant to the union-security provision of
the agreement. The complaint concludes that by these acts the Union
attempted to cause the Employer to discriminate unlawfully against
Stevenson and the other employees, and restrained and coerced them
in the exercise of their statutory rights.
On October 15, 1962, the parties filed a stipulation of facts and a
motion to transfer this proceeding directly to the Board, for issuance
of a Decision and Order after the filing of briefs and without further
hearing. The parties waived their rights to a hearing before a Trial
Examiner, and to the issuance of an Intermediate Report, and agreed
that the charges, complaint, the amendments thereto, answer, notices
of hearing, and stipulation of facts should constitute the entire record
in this case. On October 17, 1962, the Board approved the stipulation,
granted the motion to transfer the proceeding to the Board, and set
the time for the parties to file briefs. Briefs have been filed by the
Union, the General Counsel, and the EmpAoyer.1
Upon the entire record in the case and the briefs of the parties, the
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Employer is a California corporation engaged in the operation
of a retail drugstore at Santa Fe Springs, California. During the
last 12 1month period, the Employer's gross retail sales exceeded
$500,000, and it purchased and received goods valued in excess of
$50,000 originating outside the State of California.
The parties agree, and we find, that at all times material herein the
Employer was engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
1 The requests of the Union and the Employer for oral argument are denied, as the
record and the briefs in our opinion adequately present their positions.
RETAIL CLERKS UNION LOCAL NO. 324 , ETC. 1249
II. THE LABOR ORGANIZATION INVOLVED
The Respondent Union is a labor organization within the mean-
ing of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
From 1953 to the present the Employer and the Union have had
successive collective bargaining agreements, which specifically in-
cluded both clerks and pharmacists in a single unit, although the
pharmacists have never voted for inclusion therein. The clerks in
this unit are not "professional employees" within the meaning of
Sections 2(12) and 9(b) (1) of the Act, but the pharmacists are.
The current agreement, effective from July 2, 1959, to June 1, 1964,
contains a union-security clause which provides in part that all em-
ployees shall as a condition of employment become members of the
Union not later than the 31st day of their employment, and shall
remain members in good standing as a condition of continued em-
ployment. The agreement further provides that the Employer shall,
within 7 days after written notice from the Union, terminate the
employment of any person who has failed to comply with the union-
security provision.
The Employer hired Stevenson for part-time employment as a
pharmacist in February 1961, and notified Stevenson of the union-
security requirement in the agreement. Stevenson, although con-
tinuing to be employed-except for a brief period in 1961-- has at all
times refused to join the Union.
On March 1, 1962, during the term of the agreement and more than
a year after Stevenson was first employed, the Union sent a letter
to the Employer requesting that Stevenson be discharged pursuant
to the union-security clause. The Employer, however, refused to
comply with that request. Later that month, the Employer filed a
petition with the Board (Case No. 21-RM-806), seeking an election
among its employees. On June 7, the Union again requested the
Employer to discharge Stevenson pursuant to the union-security
agreement, and the Employer again refused.
On September 7,1962, after the foregoing discharge requests alleged
as unfair labor practices herein, the Regional Director held elections
in the RM case, in part to ascertain the desires of the professional em-
ployees on the question of inclusion in the existing unit with non-
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
professional employees.2 The result of the election among the profes-
sional employees showed that they did not desire to be included.
B. Discussion
Under the proviso to Section 8 (a) (3), a union-shop agreement is
authorized if the union party to the agreement "is the representative of
the employees as provided in Section 9 (a) in the appropriate collective-
bargaining unit covered by such agreement when made." Section 9 (a)
defines such a representative as one which has been designated or
selected for the purposes of collective bargaining by a majority of the
employees "in a unit appropriate for such purposes." In this case,
it is not disputed that the Union was designated by a majority of the
employees in the unit covered by the contract when made, nor is it
questioned that the union-security provision complied in formwith the
statutory requirements therefor. Thus the narrow issue before us is
whether the contract unit was "an appropriate collective-bargaining
unit." If so, it is agreed by all that this complaint must fall.
Relying entirely on Section 9(b) (1) of the Act, the General Coun-
sel and the Employer attack the appropriateness of the contract unit on
the ground that it combined in a single grouping both professional and
nonprofessional employees. They do not, and indeed cannot, contend
that the unit was inherently inappropriate, for Section 9(b) (1) itself
specifically recognizes that such a unit may be appropriate. They
argue, however, that the Board may under no circumstances consider
such a unit appropriate for any purpose unless bottomed on a prior
self-determination election in which a majority of the professional
employees have voted for inclusion in the unit, as provided for in
Section 9(b) (1).
Section 9(b) directs the Board to "decide in each case whether, in
order to assure to employees the fullest freedom in exercising the rights
guaranteed by the Act, the unit appropriate for the purposes of collec-
tive bargaining shall be the employer unit, craft unit, plant unit or
subdivision thereof." Section 9 (b) (1) then qualifies this broad grant
of authority by providing that "the Board shall not (1) decide" that a
combined unit of both professional and nonprofessional employees is
2 The Regional Director had originally issued a Decision and Direction of Elections find-
ing appropriate two separate units , one of professional employees and the other of non-
professional employees , and directing separate elections therein. The Union had then filed
with the Board a request for review , arguing principally that the professional employees
should also be afforded an opportunity to vote on inclusion with the nonprofessional em-
ployees in a single combined unit. The Regional Director then amended his Decision in
accordance with part of the Union 's contention The Union did not make a tunely request
for review of this amended Decision Subsequently , the Union 's request for review of the
Regional Director ' s original Decision was denied as moot , in view of the Regional Director's
amendment of his Decision in conformity with the Union's original request for review.
After further proceedings, the Board on January 11, 1963, confirmed the validity of the
elections, which showed that the nonprofessional employees voted for the Union 10 to 6,
and that the professional employees voted against the Union and against inclusion in a
unit with the nonprofessional employees 2 to 1.
RETAIL CLERKS UNION LOCAL NO. 324, ETC. 1251
"appropriate for such purposes . . . unless a majority of such profes-
sional employees vote for inclusion in such unit."
Quite clearly, Section 9(b) (1) precludes the Board in a certifica-
tion proceeding under Section 9 of the Act from itself establishing an
appropriate unit containing professional employess among others,
unless the self-determination election requirement of Section 9(b) (1)
has first been met. The Act does not, however, require prior resort
to a Board determination whenever the parties establish ,in appropri-
ate bargaining unit. The specific question in this case is whether
Section 9(b) (1) compels a contrary result where professional em-
ployees are one of the groups involved; and whether the Board, in a
Section 10 complaint proceeding involving the validity of a contract, is
required to find inappropriate for the purposes of collective bargain-
ing, simply because no self-determination election has been held, a
unit combining professional and nonprofessional employees, where,
as here, the contract unit was initially established not by the Board,
but by parties themselves and maintained without challenge for many
years before the making of the contract sought to be invalidated.
Section 9(b) (1) does not in terms condemn such a contract unit as
inappropriate. Nor do we find anything in the legislative history of
that section to suggest that Congress had any such intent. Section
9(b) (1) was enacted in 1947 as one of the amendments in the Taft-
Hartley Act. Previously, the Board had followed the occasional prac-
tice in representation proceedings of establishing bargaining units that
included professional employees together with production and mainte-
nance, or technical and clerical, or other nonprofessional employees.
At the hearings that practice had brought vigorous protests from
representatives of professional associations , who argued that pre-
viously unrepresented professional employees because of their special
interests should not be thrust by the Board into a bargaining unit with
nonprofessional employees against their will.' Congress accordingly
decided to change this earlier practice of the Board through Section
9(b) (1), by requiring the Board to afford the professional group "an
opportunity to vote in a separate unit to ascertain whether or not
they wish to haven bargaining representative of their own." 4 The
committee reports reflect that Congress intended Section 9(b) (1)
to be applicable to situations where the Board itself establishes bargain-
ing units in the first instance. Thus the amendment-which in its
present form originated in the Senate-was discussed in the conunittee
report of that body, along with other Section 9 amendments, under
the heading, "Reform in Representation Proceedings." 5 The House
conference report explained the adoption of Section 9(b) (1) as a
8S Rept 105 , 80th Cong , 1st less , p 11, 1 Leg list L.IIRA ( 1947) 417
J bid
Id ,p 10,
727-083-64-val. 144-80
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restriction imposed on "the Board" designed to provide "substantially
larger protection of [the professional employees' self-determination]
rights when bargaining units are being established than has heretofore
been the practice." 6 [Emphasis supplied.] And the same Report else-
where explained that Section 9 (b) (1) was intended to give professional
personnel "an opportunity to exclude themsleves from larger bargain-
ing units in which it was proposed that they be included,"' by directing
the Board "to exclude any such group from the bargaining unit pro-
posed to be established if less than a majority in it . . . voted for the
representive certified by the Board for the rest of the unit." s [Em-
phasis supplied.] Along the same lines, Senator Taft, in his analysis
before the Senate of the conference agreement of June 5, 1947, noted
that : "The House bill . . . recognized the principle embodied in Sec-
tion 9 (b) of the Senate amendment by permitting professional person-
nel to have voting units of their own in representation cases." 0 So, too,
Senator Murray in his analysis of the conference agreement the fol-
lowing day stated that the "bill provides in Section 9 for separate vot-
ing of such employees in Board Elections." 10 [Emphasis supplied.]
We find nothing in Section 9(b) (1) or its legislative history to sug-
gest that Congress intended that section to invalidate as inappropriate
a historically established contract unit simply because of a joinder
of professional and nonprofessional employees.
The views expressed above have support in prior Board precedents,
and Section 9 (b) (1) has been interpreted by the Board as applying
only in situations where a representation election is sought in a unit
including professional employees among others. Thus, in Westing-
house Electric Corporation, 115 NLRB 530, 432, the Board, dismissing
a petition to decertify a professional segment of a larger unit, stated
with respect to Section 9 (b) (1) :
That section does not require the Board under any and all cir-
cumstances to conduct an election, but only circumscribes the
Board's discretion to determine the appropriate unit when an
election is being sought in a unit including professional employees
... [Emphasis supplied.]
In Great Falls Employers Council, Inc., 114 NLRB 370, the Board
dismissed a decertification petition seeking to sever a group of ph^ar-
macists from a larger bargaining unit which also included non-
professional employees. In bottoming its dismissal on the ground
that the only appropriate unit for decertification was one coextensive
H. Conf Rept. 510, 80th Cong, 1st sess. , p 47; 1 Leg Hist. LMRA ( 1947) 551.
7 H. Conf. Rept. 510, at 36; 1 Leg Hist LMRA (1947) 540.
8 H Conf Rept 510, p. 47; 1 Leg Hist LMRA (1947) 551.
9 93 Daily Congressional Record, 6599, 2 Leg. that LMRA ( 1947) 1537.
10 93 Daily Congressional Record, 6660; 2 Leg. Hist. LMRA ( 1947) 1576.
RETAIL CLERKS UNION LOCAL NO. 324, ETC. 1253
with the existing contract unit, the Board in effect accepted the ap-
propriateness of the latter unit.
In Pennsylvania Power cC Light Company, 122 NLRB 293, the
Board in a representation proceeding refused to include in a profes-
sional unit sought by the petitioner a group of professional junior
engineers who were then included in an existing contract unit with
nonprofessional employees even though they had never been afforded
a separate vote for inclusion in that contract unit. The Board re-
jected the employer's argument that because the professional employ-
ees had never exercised their right to vote as such under Section
9(b) (1), the contract-bar rule could not be applied as to them. In
so holding, the Board relied on the opinion of the Court of Appeals
for the Third Circuit in Westinghouse Electric Corporation v.
N.L.R.B, 236 F. 2d 939. In that case, the court enforced a bargaining
=order which excluded from a professional unit, over the objection of
the employer, certain professional employees who without a separate
election under Section 9(b) (1) were covered by another union's con-
tract in a bargaining unit which for many years had also included
nonprofessional employees. With respect to Section 9(b) (1), the
.court commented, at 943:
.. . The obvious effect of the proviso is merely a limitation
onthe Board's power to create mixed units. [Emphasis supplied.]
The court further stated, at 944:
While we have been somewhat troubled by the fact that the
excluded . . . professional employees [share] . . . an identity of
interest with those included in the unit, the long association of
these engineers with the [nonprofessional] salaried unit, their
existing contract with the IUE, and the fact that they may at a
proper time in the future determine whether they will be in-
cluded in the [professional] unit, leads us to accept their present
exclusion as justified.
The General Counsel argues in effect that the subsequent Supreme
,Court case of Boyd S. Leedom v. William Kyne, etc., 358 U.S. 184,
.overrules earlier authority and compels the Board to find in the instant
case that the contract unit was inappropriate. However, the Kyne case
was not concerned with the validity of an existing contract covering
a unit of both professional and nonprofessionals that had been estab-
lished by the parties, based on an established collective-bargaining
history which preceded the making of the contract. The precise issue
presented in the Kyne case was whether such a combined unit could
be established initially by Board action in a representation proceeding
without first affording the professional employees a self-determination
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election to authorize their inclusion in such a unit. We therefore find
the cited case distinguishable and inapposite.,,
In all the circumstances of this case, and considering particularly
the long collective-bargaining history between the Employer and the
Union in contracting on the basis of the combined unit here involved-
a history which began some 6 years before the contract in issue was
executed-we find no sufficient basis for holding that the contract unit
was inappropriate. Nor do we interpret Section 9(b) (1) as requiring
us in this proceeding to hold otherwise."
As the union-security agreement fully met the requirements of the
proviso to Section 8(a) (3), and was one therefore that the Union
could lawfully enforce against members of the contract unit, we
conclude that the Union did not engage in the unfair labor practices
alleged, by attempting to cause the Employer to discharge Stevenson
for refusing to comply with the provisions of that agreement. Ac-
cordingly, we shall dismiss the complaint.
,ORDER
IT IS HEREBY ORDERED that the complaint filed herein be, and it hereby
is, dismissed in its entirety.
MEMBERS LEEDOM and JENKINS took no part in the consideration of
the above Decision and Order.
11 Nor do we find apposite Monsanto Chemical Co., 108 NLRB 870, and The William J.
Burns International Detective Agency , Inc., 134 NLRB 451, upon which the General
Counsel also relies . Both cases involved a different provision of the Act, relating to units
of both guard and nonguard employees . As the Board made clear in the Burns case, the
Board is precluded from finding such units are appropriate for any purpose. That is not
true in the case of a unit combining professional and nonprofessional employees.
1tThus we find it unnecessary to reach the further question whether Section 10( b) pre-
cludes an attack in this proceeding on the validity of the union -shop agreement , which was
entered into more than 6 months prior to the filing of the charge in this case. Of. Local
Lodge No . 1424 , International Association of Machinists , AFL-CIO ( Bryan Manufactur-
ing Company ) v. N.L.R.B., 362 U.S. 411.
Albert Simon , Inc., Simon Phonographs , Inc., American Photo
Machine, Inc. and Local 917, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of Amer.
ica and Joseph Phillip Grant . Cases Nos. 2-CA-9090, 2-CA-
9090-2,1 and 2-CA-9169. October 29, 1963
DECISION AND ORDER
On July 16, 1963, Trial.Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
1 The caption in the Intermediate Report inadvertently omitted this case number.
144 NLRB No. 117.