Southeast Portland Drug Association

National Labor Relations Board - Board DecisionsAug 12, 1959

124 N.L.R.B. 467 (N.L.R.B. 1959)

SOUTHEAST PORTLAND DRUG ASSOCIATION 467 mental agreement depended for its existence on the master contract, and expired with the master contract on April 9, thereby rendering timely the April 10 petition herein. The supplemental agreement expressly states that it is "supplemen- tal and subject to" the terms of the companywide agreement. The "union security" provision of the supplement is in itself incomplete, dealing only with the mechanics of checkoff, and specifically requires reference to the union-security clause of the master agreement. Likewise, certain provisions relating to holidays, vacations, overtime pay, and lunch periods are contained only in the master contract. The section on grievances contained in the Milan supplement expressly pertains only to grievances filed "according to the grievance proce- dure outlined in the Company-wide Agreement." On the above facts, and the entire record, we find that the Employer and the Intervenor intended the supplemental agreement to be ancil- lary to and dependent upon the master agreement." We hold, there- fore, that the supplemental agreement necessarily expired with the termination of the master agreement on April 9, 1959, and that it is not a bar to a present determination of representatives.' Accordingly, we find that a question affecting commerce exists within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: 8 All production and maintenance employees at the Employer's Milan, Tennessee, plant, excluding office clerical employees, laboratory and technical employees, professional employees, watchmen and guards, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] See New York Butchers Dressed Neat Company, 81 NLRB 855. 7 See U.S. Rubber Company, 115 NLRB 240. 8 The appropriate unit is as stipulated by the parties, except that the Petitioner would exclude, and the Intervenor include, four employees classified as firemen-watchmen. Dur- ing winter months, these employees tend boilers as well as perform watchmen ' s duties They work rotating shifts, so that at least one is on duty at all times. They control access to the Employer's premises, and at night punch timeclocks in the course of their patrols. We find the firemen-watchmen are guards, and exclude them. Consolidated Rendering Company, 117 NLRB 1784. Southeast Portland Drug Association and Independent Pharma- cists and Clerks Association, Petitioner. Case No. 36-RC-1393. August 1 2, 1959 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed, a hearing was held before Robert J. Wiener, hearing officer. The hearing officer's rulings made at the 124 NLRB No. 56. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing are free from prejudicial error and are, with the exception noted below, hereby affirmed.' Upon the entire record, the Board finds : 1. The Employer is an Association organized November 1958 and composed of three stores in the Portland, Oregon, area, namely, the Gresham Drug Store owned by Stauffer A. Dowsett and Eugene A. Welling, and the Midway Drug and Po%vellhurst Drug Stores owned by George Bolton. During the year 1958, the total sales of the three stores were in excess of $500,000. As the Employer meets the Board's jurisdictional standard for retail concerns, we find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction over the Employer. 2. The Petitioner claims to represent certain employees of the Employer. 3. The hearing officer admitted evidence on the question of whether the Petitioner was inspired and dominated by the Employer.' In the Union Manufacturing Company decision,' the Board affirmed its general rule that unfair labor practice allegations are not properly litigable in a representation proceeding. Under this rule, it is well established that evidence of employer assistance to a labor organiza- tion is not admissible in a representation proceeding. The rationale behind excluding evidence of unfair labor practices in a representa- tion proceeding is that such allegations may be litigated in a com- plaint case proceeding which is the proper forum for adjudicating such matters and obtaining a proper remedy. Thus, by keeping the representation proceeding free of such litigation, the petition may then be processed with a minimum of complication and delay. Al- though the Board did not specifically pass upon the question of the disposition to be made of evidence of unfair labor practices if it is improperly admitted in a representation proceeding, we believe such evidence should not be considered by the Board. To hold otherwise would, in our opinion, place a premium upon a successful introduc- tion of evidence which is not properly a part of a representation proceeding. We shall, therefore, not consider the evidence concern- ing employer assistance to a labor organization in this or any future representation proceedings. 1 The hearing officer permitted the intervention of Local 1092, Retail Clerks Interna- tional Association , AFL-CIO, herein called the Clerks . The Petitioner, in turn, moved that the Clerks be excluded from the instant proceeding because it made no showing of interest . In the absence of a showing of interest or any other valid reason for the Clerks ' participation in the hearing, we grant the Petitioner 's motion and deny inter- vention to the Clerks. z The Clerks filed 8(a)(2) and ( 1) charges (36-CA-907 ), which were dismissed by the Regional Director and are now before the General 'Counsel on appeal. s 123 NLRB 1633. SOUTHEAST PORTLAND DRUG ASSOCIATION 469 Accordingly, we find that a question concerning representation exists within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner and the Employer, which entered into a contract in December 1958, for an associationwide unit of all pharmacists and clerks are in agreement on that unit. However, the Petitioner indi- cates that in the alternative it would accept such unit as may be deter- mined by the Board. Although the Board usually finds appropriate a unit to which the parties have stipulated, Section 9 (b) (1) of the Act precludes the Board from including in a single bargaining unit pro- fessional' and nonprofessional employees without according to the former an opportunity of separately expressing their desires respect- ing such inclusion. We shall, therefore, direct separate elections in the following voting groups : (a) All full-time and part-time clerks, merchandiser-drug clerk, fountain girls, delivery boy, and stock boy in the Employer's Gresham, Midway, and Powellhurst stores, Portland, Oregon, excluding phar- macists, pharmacists-trainees, guards, store managers, and other su- pervisors as defined in the Act. (b) All pharmacists and pharmacists-trainees in the Employer's Gresham, Midway, and Powellhurst stores, Portland, Oregon, exclud- ing all other employees and supervisors as defined in the Act. The employees in the professional voting group (b) will be asked two questions on their ballot : (a.) Do you desire to be included in the same unit as other em- ployees at the Employer's Gresham, Midway, and Powellhurst stores, for the purposes of collective bargaining? (b) Do you desire to be represented for the purposes of collective bargaining by the Independent Pharmacists and Clerks Association? If a majority of the professional employees in voting group (b) vote "Yes" to the first question, indicating their wish to be included in a unit with the nonprofessional employees, they will be so included. Their votes on the second question will then be counted together with the votes of the nonprofessional voting group (a) to decide their rep- resentative for the whole unit. If, on the other hand, a majority of the professional employees in voting group (b) vote against the in- clusion, they will not be included with the nonprofessional employees. Their votes on the second question will then be separately counted to decide whether they want the Petitioner to represent them in a separate professional unit. Our unit determination will be based upon the results of the election among the professional employees. However, we now make the fol- lowing findings in regard to the appropriate unit: 4 It is clear that the pharmacists and pharmacists-trainees are professional employees within the meaning of the Act. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) If a majority of the professional employees vote for inclusion in a unit with nonprofessional employees, we find that the following employees will constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All full-time and part-time clerks, merchandiser-drug clerk, foun- tain girls, delivery boy, stock boy, pharmacists, and pharmacists- trainees in the Employer's Gresham, Midway, and Powellhurst stores, Portland, Oregon, excluding guards, store managers, and other super- visors as defined in the Act. (2) If a majority of the professional employees do not vote for inclusion in the unit with nonprofessional employees, we find that the following two groups of employees will constitute separate units appropriate for collective bargaining within the meaning of Section 9 (b) of the Act : (a) All full-time and part-time clerks, merchandiser-drug clerk, fountain girls, delivery boy, and stock boy at the Employer's Gresham, Midway, and Powell.hurst stores, Portland, Oregon, excluding phar- macists, pharmacists-trainees, guards, store managers, and other supervisors as defined in the Act. (b) All pharmacists and pharmacists-trainees in the Employer's Gresham, Midway, and Powellhurst stores, Portland, Oregon, exclud- ing all other employees and supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] Pennsylvania Power & Light Company and Utility Engineers Association, Engineers and Scientists of America , Petitioner. Case No. 4-RC-3594. August 12, 1959 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Decision and Direction of Election issued by the Board on December 3, 1958,1 an election by secret ballot was conducted on December 19, 1958, under the direction and supervision of the Re- gional Director for the Fourth Region among the employees in the unit found appropriate by the Board. Following the election, the parties were furnished a tally of ballots which showed that, of ap- proximately 153 eligible voters, 152 cast valid ballots, of which 42 were for, and 110 against, the Petitioner. The Petitioner filed timely objections to conduct affecting the re- sults of the election. The Regional Director investigated the objec- 1 122 NLRB 293 . On December 5, 1958, the Board issued an order correcting Decision and Direction of Election. 124 NLRB No. 59.