Walgreen Co.

National Labor Relations Board - Board Decisions

Oct 15, 1942

44 N.L.R.B. 1200 (N.L.R.B. 1942)

In the Matter Of WALGREEN COMPANY and CHICAGO DRUG WORKERS
ASSOCIATION,, AFFILIATED WITH THE WAREHOUSE AND DISTRIBUTION
WORKERS UNION7 AFFILIATED WITH THE I. L. W. U. and CHICAGO
DRUG WORKERS ASSOCIATION, INC., PARTY TO THE CONTRACT
Case No. C-0265 .-Decided October 15, 1942
Jurisdiction : drug retailing industry.
Unfair Labor Practices.
Collective Bargaining: majority established by prior certification-refusal to
bargain : contract executed with labor organization during pendency of repre-
sentation petition filed by charging union, held invalid and no defense.
Remedial Orders : employer ordered to bargain collectively 'upon request.
Unit Appropriate for Collective Bargaining : all employees in Company's ware-
house excluding supervisory employees, watchmen, and employees in the
personnel department.
Mr. William J. Isaacson, for the Board.
Mr.. George E. Arthur and Mr. Julian A. Tishler, of Chicago, Ill.,
for the respondent.
Mr. Sam Lissitz, of Chicago, Ill., for Warehouse and Distribution
Workers Union.
Mr. Arthur Frankel, of Chicago, Ill., for the Chicago Drug
Workers Association, Inc.
Mr. Bliss Daffan, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE. CASE
Upon a second, amended charge duly filed by Chicago Drug Work-
ers Association, affiliated with the Warehouse & Distribution Work-
ers Union, affiliated with the I. L. W. U., herein called the Union,
the National Labor Relations Board, herein called the Board, by
the Regional Director for the Thirteenth Region (Chicago, Illinois),
issued its first ' amended complaint dated May 22, 1942, against
Walgreen Company, Chicago, Illinois, herein called the respondent,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
44 N. L. R. B., No. 229.
1200
WALGREEN COMPANY 1201
Section 8 ( 1) and ( 5) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act . Copies
of the first amended complaint , accompanied by notice of hearing,
were duly served upon the respondent , the Union , and Chicago Drug
Workers Association , Inc., party to the contract , herein called the
Association.
With respect to the unfair labor practices the complaint as
amended alleged in substance (1) that on August 13, 1941, the Union
filed a Petition for Investigation and Certification of Representa-
tives pursuant to Section 9 (c) of the Act, alleging that it represented
a majority of all the employees in the respondent 's Chicago ware-
house, excluding supervisory employees , watchmen, and employees in
the personnel department ; that on or about October 3, 1941, with
knowledge of the pendency of the representation proceeding and
while such proceeding was as yet undetermined , the respondent en-
tered into a written contract with the Association providing for a
general wage increase , which contract has been and still is being main-
tained and enforced ; that by entering into, maintaining , -and en-
forcing said contract the respondent interfered with, restrained, and
coerced the employees in the exercise of their rights under the Act,
thus rendering the contract invalid, void, and of no force and effect;
(2) that on or before January 15 , 1942, a majority of the employees
in the appropriate unit, set forth above, designated the Union as
their representative for the purpose of collective bargaining with the
respondent , said designation having been made in an election by
secret ballot conducted under the supervision of the Board on Jan-
uary 15, 1942; that on or about January 21, 1942, and at all times
thereafter , the respondent refused, upon request, to bargain collec-
tively with the Union; that on March 17, 1942, the respondent agreed
with the Association to grant, and did grant , an increase in wages
to its employees within the appropriate unit described and so advised
them; that by each of the acts set forth above the respondent has
engaged in unfair labor practices within the meaning of the Act.
On June 1, 1942, the respondent filed its answer in which it ad-
mitted certain allegations of the complaint in respect to its business,
denied the unfair labor practices alleged, and set out certain affirma-
tive defenses. On the same day it filed a written motion and petition
in the nature of a demurrer that the complaint be dismissed. On
June 2, 1942 , the Association filed its answer , admitting certain
allegations of the complaint and denying that the respondent had
committed the alleged unfair labor practices . On the same date the
Association also filed a written motion and a petition in the nature
of a demurrer that the complaint be dismissed . On June 4, 1942, the
487498-42-vol. 44-76
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent filed an amendment to its answer, setting forth additional
affirmative defenses.'
Pursuant to notice, a hearing was held on June 4, 5, 6, and 8,-1942,
at Chicago, Illinois, before Gustaf B. Erickson, the Trial Examiner
duly designated by the Chief Trial Examiner. The respondent, the
Board, and the Association were represented by counsel and the
Union by a representative. All the parties participated in'the hear-
ing and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the
issues. At the beginning of the hearing motions of the respondent
and the Association to dismiss the complaint were denied by the
Trial Examiner. During the course of the hearing a motion by the
respondent to amend its answer in a minor respect was granted by
the Trial Examiner without objection. At the close of the board's
case, and again at the close of the hearing, the respondent and the
Association renewed their motions to dismiss the complaint and the
Trial Examiner reserved ruling thereon. At the close of the Board's
case, and again at the close of the hearing, motions on behalf of the
Board, the respondent, and the Association to conform the pleading
to the proof in regard to formal ,matters were granted by the Trial
Examiner without objection. Upon the conclusion of'the hearing all
parties were afforded an opportunity to argue orally before the Trial
Examiner and to file briefs. Counsel for the Board made an oral
argument which was included in the record. On June 18, 1942, the
respondent and the Association filed briefs-with the Trial Examiner.
On July 15, 1942, the Trial Examiner filed his Intermediate Report,
copies of which were duly served upon all the parties, in which he
overruled the motions of the respondent and the Association upon
which he had reserved ruling during the hearing, and found that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1)
and (5) and Section 2 (6) and (7) of the Act. He recommended
that the respondent cease and desist from the unfair labor practices
found to have been committed. Thereafter, the respondent, the
Association, and the Union ' filed exceptions to the Intermediate Re-
port. The respondent and the Association also filed briefs in support
of their exceptions. -
During the course of the hearing the Trial Examiner made rulings
on numerous motions and on objections to the admissions of evidence.
The Board has reviewed all the rulings of the Trial Examiner and`,
although finding two of his rulings to be erroneous, finds that no
'Material allegations of the respondent 's ansooer and amended answer are considered
hen einafter. `
WALGREEN -COMPANY 1203
prejudicial errors were committed. Except as hereinafter indicated,
the rulings are hereby affired.
On September 3, 1942, a' hearing for the purpose of oral argument
was held before the Board in Washington, D. C. The respondent,
the Association , and the Union were represented by counsel and
participated in the hearing. I -
In its exceptions and in its brief filed in support thereof, the re-
spondent contends, among other things, that it was prejudiced by the
conduct of the Trial Examiner at the hearing and thus denied due
process of law and its right to a fair and impartial hearing. The re-
spondent's contention is twofold : (1) the Trial Examiner indulged in
hostile, argumentative , and coercive cross-examination of the respond-
ent's witnesses and (2 ) the Trial Examiner improperly excluded evi-
dence material to the respondent's defense.' We have examined and
reviewed the record in the light of proposition (1) of the respondent's
.contention , and have specifically directed our attention to those in-
stances at the hearing cited by the respondent in support of its position.
Our examination fails to disclose that the Trial Examiner exceeded the
bounds of proper conduct in his examination of the respondent's wit-
nesses . Relative to proposition ( 2) of the respondent 's contention, in
two of the instances cited by the respondent in support thereof, the
:evidence offered appears to have materiality and the Trial Examiner's
exclusion thereof, we therefore believe to be erroneous . In each in-
-stance, however, the evidence excluded consisted of_a written document
-which was incorporated in the record as a rejected exhibit and, as
-shown below, the ruling of the Trial Examiner has been reversed and
-.the documents considered in arriving at our conclusion regarding the
issues in this case. Moreover, while we are of the opinion that,the evi-
dence in question was erroneously excluded, such action did not deprive
the respondent of a fair hearing, with opportunity to present relevant
- evidence and properly to save its exceptions to all adverse rulings.
The Board has considered the exceptions of the parties to the Inter-
-Inediate-Report, and the briefs in support thereof, and insofar as the
-exceptions are inconsistent with the findings , conclusions , and order
.set forth below, finds them to be without merit.
Upon the entire-record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE EUSINESS OF THE RESPONDENT
Walgreen Company, an Illinois corporation, has its principal place
,of business in the city of Chicago, Illinois. It is engaged in the opera-
tion of retail drug stores for the purchase, sale, and distribution of a
-general line of chugs and various and sundry merchandise. The
1204 DECISIONS OF NATIONAL 'LABOR • RELATIONS BOARD
respondent owns and operates-approximately 275 retail drug stores, of
which 199 are located in Illinois, 12 in Colorado, 13 in Indiana, 10 in
Iowa, 15 in Michigan, 16 in Minnesota, 4 in Nebraska; 2 in South Da-
kota, and 3 in Wyoming. It owns and operates 3 warehouses, 2 of
which are located outside the State of Illinois. The 'respondent also
owns a substantial portion, if not all, of the outstanding shares of
stock of 22 subsidiary corporations in 31 States of the United States.
During the year ending September 30, 1941, in the operations of its
Chicago warehouse, with which this proceeding is concerned, the re-
spondent purchased materials, products, and equipment valued at ap-
proximately $23,000,000. Of this amount aproximately 75 percent
was purchased at points outside the State of Illinois and delivered to
the Chicago warehouse. During the same period it shipped from the
Chicago warehouse products and equipment valued at approximately
$9,800,000 to States of the United States other than the State of Illinois.
There are approximately 334 employees in the employment of the re-
spondent at its Chicago warehouse.
II. THE ORGANIZATIONS INVOLVED
Chicago Drug Workers Association, affiliated with the Warehouse &,
Distribution Workers Union, affiliated with I. L. W. U., is a labor or-
ganization affiliated with the Congress of Industrial Organizations,,,
admitting to membership employees of the Chicago warehouse of the-
respondent. The Chicago Drug Workers Association, Inc., is an un-
affiliated labor organization admitting to membership employees of the-
respondent's Chicago warehouse.
III. THE UNFAIR LABOR PRACTICES
A. Chronology o l events
On July 2, 1940, the Board certified the Association as the bargain-
ing representative of the employees of the respondent's Chicago ware--
house.2. On December 20, 1940, a collective bargaining agreement was-
entered into between the respondent and the Association to remain
in effect until December 19, 1941, and from year to year thereafter,,
unless sixty days' notice of termination be given by one or the other of,
the parties thereto. The contract also provided that either party
could open negotiations relative to changes therein by thirty days'-
notice to the other'party.
On July 30, 1941, while the contract was in force, the_ employees
covered thereby engaged in a strike. Within a few days after the
2 Matter of Walgreen Company and Wholesale Candy and' Chain , Drug Warehouse.
Employees Union , Local 21704 , 25 N L. R B. 15.
WALGREEN COMPANY 1205
strike began, Sam Lissitz, an organizer for the Warehouse & Distri-
bution Workers Union, I. L. W. U., affiliated with the Congress of
Industrial Organizations, was called in by the striking employees and
began organization work among them. Thereafter, at a meeting of
the Association on August 5, 1941, attended by over 300 of the respond-
ent's warehouse employees and by Arthur Frankel, attorney for the
Association, membership cards in the Union were distributed and
signed by employees present. Lissitz urged affiliation of the Associa-
tion with the Warehouse & Distribution Workers Union, I. L. W. U.,
and assured the employees that the existing officers of the Association
and their attorney would be retained under such an affiliation. A vote
was then taken and the employees voted to affiliate the Association
with the Warehouse & Distribution Workers Union, I. L. W. U., under
the name of the Chicago Drug Workers Association, affiliated with
the Warehouse & Distribution Workers Union, affiliated with the
I. L. W. U., herein referred to as the Union. -
On August 7, Lissitz, Frankel, and three employees, Sutter, Wrage,
and Heckins, met with a committee representing the respondent to
negotiate a settlement of the strike.3 Frankel advised the respond-
ent's representatives that at the meeting on August 5, attended by "375
people," the employees had "voted unanimously to join the C. I. 0."
He then introduced Lissitz as the International Representative of the
Union, with which the Association had become affiliated. Julian Tish=
ler, the respondent's attorney, then questioned the capacity in which
Lissitz was appearing at the meeting, and also the matter of the affilia-
tion of the Association with the Union. Lissitz repeated Frankel's
previous statement that the Association had affiliated with the Union,
produced application cards for membership in the Union, which had
theretofore been executed by the respondent's employees, in support
of this statement, and gave Tishler a sample membership application
card. Tishler advised the representatives of the Union that the affilia-
tion of the Association with the Union created a legal problem which
would require further study on his part before he could advise the
Union relative to the respondent's position. A further conference
was set for the next day.
On the following'day, August 8, representatives of the respondent
and the Association met again. The same parties were present rep-
resenting the Union with the addition of J. R. Robertson, international
vice president of'the Union. Tishler stated that due to the existing
contract with the Association, and the fact that it had been certified
by the Board, as the bargaining representative of the employees, the
respondent would 'not negotiate a• settlement of the strike with the
Union because of its fear,that such action might be an unfair labor
$ Sutter, Wrage , and Heckins had constituted the negotiating committee of the Associa-
tion prior to the affiliation.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice. Lissitz, Robertson, and Frankel all urged that settlement of
the strike was the primary consideration and urged that affiliation
by the Association with the Union was not "a stumbling block" to set-
tlement of the strike. Lissitz also:suggestecl that a consent election
be held, to absolve any doubts which the respondent might have with
regard to the union affiliation of the employees. The conference thus
ended with the respondent maintaining the position that it would not
deal with the Union.
The representatives of the Union met on the same day and Frankel
suggested that in view of the respondent's position, he was of the
opinion that negotiations could not be resumed with the respondent
unless the affiliation of the Association with the Union was "drawn in
the background." Frankel suggested to the representative of the
Union that this be done, and that he arrange a meeting with the re-
spondent as a representative of the Association. Lissitz and Robert-
son acquiesced in Frankel's proposal and, as a result thereof, the plac-
ards carried by the pickets which had theretofore borne the • title
of the Union were changed to eliminate all reference thereto. How-
ever, before a meeting could be arranged by Frankel with the respond-
ent, to carry out his plan, he and Lissitz disagreed on the matter of
the Union remaining in the background-Lissitz, representing the
Union, insisting that ' the Union be given ultimate credit for the strike
settlement, if the same were effected, and Frankel, as a representative
of the Association, maintaining the contrary position. As a result,
of the disagreement between the two factions, on August. 13, 1941, a
Petition for Investigation and Certification of bargaining repre-
sentatives was filed by the Union with the Regional Office of the
Board. On the same date and again on August 15 letters were sent
by the Regional Office of the Board to the respondent, advising of
this action, and requesting the respondent's presence at a conference
of the interested parties on August 21.
As a further result of their disagreement, Frankel and Lissitz ap-
peared before a meeting of a committee of the striking employees,
known as the "strategy committee," on the evening of August 15.4
At this meeting Frankel urged the necessity of terminating the strike
and that this be done by a resumption of negotiations with the re-
spondent by the Association, as such, in accordance with his previous
suggestion. Lissitz argued against the resumption of negotiations on
this basis, contending that the Union should participate in the strike
settlement negotiations. The matter was then submitted to a vote of
the strategy committee and a majority thereof voted in favor of
Frankel's suggestion that negotiations be resumed with' the respond-
4 Frankel testified that these were either 11 or 13 employees on the strategy committee.
WALGREEN COMPANY 1207
ent by the Association. The vote indicates that there was a close
division of opinion among the members of the committee do the
subjects According to the undisputed testimony of Frankel, which
we accept as true, on the morning of August 16, 1941, Frankel met
with representatives of the respondent and Marshman , a conciliator
of the Department of Labor, advised them of "'what had occurred"
at the meeting of the strategy committee the night before , and stated
that he was of the opinion that they strike could be settled "if you will
just bring the parties together because I think that Lissitz does not
want the strike settled." Marshman called Lissitz on the telephone
and advised him that the respondent had requested a conference.
According to Frankel, Lissitz's reply to Marshman was that Frankel
"should be thrown out." -Thereupon, a conference was arranged be-
tween Frankel , the respondent , and Marshman for the afternoon of
the same day. This meeting was attended by a committee of six
employees, including Sutter, Wrage, and Heckins, the old bargaining
committee of the Association, and three others; and by Frankel,
Marshman, Walgreen,' Jr., Tishler, and four other representatives of
the respondent . Walgreen , Jr., asked each of the six employees pres-
ent and Frankel whom each represented . Each assured him that he
represented the Association and had no other affiliation. After
lengthy negotiations, a proposal was submitted by the respondent
which was accepted by the committee of the Association , subject to,
ratification at a special meeting of the employees to be called on the
following Monday, August 18. The terms of the proposal which were
accepted provided that the employees should receive a 71/2 percent
increase in wages, effective as of August 18, 1941; that the agreement
of December 20, 1940, between the respondent and the Association, be
extended for a period of 1 year; that negotiations would be reopened
on February 2, 1942, for a further increase in wages to be based upon
statistics of the Department of Labor on that date ; and that the,
employees would end the strike and return to work by August 18, 1941.
A meeting of the striking employees was held on Monday, August
18, and the committee of the Association reported the tentative agree-
ment to the employees. The employees voted to accept its terms. By
Tuesday, August 19, all of the employees had ceased striking and
returned to work . The wage increase provided by the terms of the,
agreement of August 16 was put into effect immediately by the
respondent.
The meeting which had been scheduled for August 21, 1941, in con-
nection with the petition theretofore filed by the Union in the Regional
Office of the Board, was held but the record does not contain evidence
with reference to what occurred at this meeting. However,, on the,
6 Frankel testified with reference to the vote taken by the strategy committee that "by
either one or two votes I prevailed."
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same day, Heckins, Sutter, and Wrage, as the "collective bargaining
committee of the Chicago Drug Workers Association," addressed a
letter to the respondent stating that the petition in the representation
case "be dismissed or withdrawn in view of the fact that all documents
and activities on which said petitions were based are, as of said meet-
ing on August 16, 1941, null and void and of no force and effect. This
includes the membership applications with the Warehouse & Distribu-
tion Workers Unit [sic] I. L. W. U:, affiliated with the C. I. 0." On
the same date, the same parties addressed another letter to the respond-
ent, stating in effect, that such letter. constituted a confirmation of the
representations made by, the Association to the respondent at a meeting
on August 16 to the effect that the signers thereof constituted the
bargaining committee of the Association; that the Association had
no connection with the C. I. 0.; that all acts done by the employees,
represented by the Association, with respect to affiliation with or mem-
bership in the C. I. 0., "are null and void"; that the settlement of the
strike was negotiated and consummated by the Association; and that
the Association was and is "the sole and exclusive bargaining agency
for the employees." 6 Thereafter, on August 22, representatives of
the respondent and the afore-named committee of the Association
went to the Regional Office of the Board and requested that the petition
filed by the Union be withdrawn or dismissed. The Regional Director,
after conferring with Meyers & Meyers, the Union's attorneys who had
filed the -petition, and ascertaining that the Union would not consent
to dismissal or withdrawal, refused to dismiss the petition or permit
its withdrawal.
The respondent and the Association continued negotiations during
August and September of 1941 relative to certain wage rates which
were not adjusted by reason of the wage increase granted in accordance
with,the agreement of August 16, 1941. The terms of the agreement
of August 16, 1941, were not reduced to writing and signed by the
parties, however, until October 3, 1941.
Pursuant to an order of the Board dated September 30, 1941, a hear-
ing on the petition filed by the Union for investigation and certifica-
tion of representatives was held from October 13 through October 17,
1941, before the Trial Examiner of the Board. The Union, the re-'
spondent, and the Association were represented by counsel and par-
ticipated in the hearing. While the hearing was in progress, the
executive committee of the Union met during intermission and
changed the name of the Union from "Chicago Drug Workers Asso-
ciation, affiliated with the Warehouse & Distribution Workers Union,
6 The two letters of August 21, 1941, referred to above, were offered in evidence by the
respondent but such offer was refused by the Trial Examiner and they appear in the
record as rejected exhibits. As stated above, the Trial Examiner's ruling with-respect to
the introduction of these two documents is reversed and they have been received in evi-
dence and considered in determining the issues involved in this case.
-WALGREEN COMPANY 1209'
affiliated with the I. L. W. U." to "Warehouse & Distribution Workers
Union, C. I. O.", On the last day of the hearing, the request of the
attorney for the Union to have the name of the Union appear on the
ballot under its changed form, was granted by the Trial Examiner.
No objection was made by either the respondent or the Association to,
this procedure. On December 18, 1941, the Board issued its Decision
and Direction of Election 7 authorizing the name of the Union to-
appear on the ballot in its changed form. Thereafter, pursuant to
the Board's Decision and Direction of Election, on January 15, 1942,
an election was held among the employees of the respondent in the
unit theretofore found to be appropriate by the Board to determine
whether they desired to be represented by the Union or the Associa-
tion. A majority of the employees, voting in said Election, cast their
ballots in favor of the Union." As a result thereof, on March 18, 1942,
pursuant to Section 9 (a) of the Act, the Board certified the Union
as the exclusive representative of all the employees in such unit for the-
purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of employment.°
On March 21, 1942, following the issuance of the Board's certifica-
tion, the respondent received a letter from the Union in which it
requested "an immediate meeting with authorized representatives of
your Company to open negotiations on a proposed contract which
we will submit." Thereafter, on or about March 24, 1942, Sam Lis-
sitz, representing the Union, met with Joe C. Foster, in charge of
labor relations for the respondent, and requested a conference for-
the purpose of'engaging in collective bargaining. The respondent
replied to the requests of the Union to engage in collective bargain-
ing by letter dated March 26, 1942, in which it stated that "it is the
opinion of the Company that we cannot grant your request until
such time as there has been a legal adjudication of the entire matter
including the objections filed to the Election and Election Report." io
In the meantime, pursuant to the agreement of August 16, 1941,
negotiations between the respondent and the Association resulted
I Matter of Walgreen Company and Chicago Drug Workers Association, affiliated with
the Warehouse & Distribution Workers Union, affiliated with the I L W. U., 37 N L. It. B.
765.
8 On the day following the election the Association sent a telegram to the respondent
stating that the election was not conducted fairly and would be contested ; that if negotia-
tions were "commenced between you and the C 1 O. we will consider it an act`on your
part to breach our contract and will fight with everything within the law" , and demand-
ing an "immediate resumption of negotiations " The same day the respondent replied to
the Association by telegram stating that it had no intention of breaching its contract
with the Association and that the Association's demand to resume negotiations was accepted.
o Matter of Walgreen Company and Chicago Drug Workers Association, affiliated with
the Warehouse & Distribution Workers Union, affiliated with the I. L. W. U, 39 N. L R B.
920.
IU The objections to the Election and Election Report were disposed of by the Board in its
Supplemental Decision and Certification of Representatives. See footnote 7, supra.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the execution of a supplement dated March 17, 1942. This sup-
plement granted an increase in wages to the employees and, although
having no expiration date, provided that negotiations should be re-
,opened for a further increase in wages on October 1, 1942. On March
26, 1942, the Association sent a telegram to the respondent stating
that it understood that a demand had been made by the Union to
open negotiations and requesting immediate advice by telegraph if
this was true . The respondent replied to the telegram on the same
day advising the Association that a request had been made by the
Union to open negotiations but that it was "unable to grant this
request inasmuch as numerous irregularities filed require court
review."
On March 24, 1942, the respondent included in the pay envelopes
of the employees a notice to the effect that it was granting an in-
crease in wages "which was agreed upon with the C. D. W. A. [the
Association] bargaining committee last Tuesday, March 17, 1942."
The Union made no further attempts in engaging in collective
bargaining with the respondent after receiving the above letter of
March 26, 1942.
B. The refusal to bargain colleetively
1. The appropriate unit
In the representation case the respondent , the Association, and
the Union agreed that all employees of the respondent's Chicago
warehouse, excluding supervisory employees, watchmen, and em-
ployees in the personnel department , constituted a unit appropriate
for the purposes of collective bargaining . In its Decision and Direc-
tion of Election in that proceeding the Board found that such unit
would insure to employees of the respondent the full benefit of their
right to self-organization and to collective bargaining and otherwise
would effectuate the policies of the Act. In its Supplemental Deci-
sion and Certification of Representatives the Board certified the
Union as the exclusive bargaining representative of the employees
within such unit. The same unit is alleged as appropriate in the
complaint herein, and in their respective answers the respondent
and the Association admit such unit to be appropriate . There was
no contention to the contrary at the hearing herein.
We find that all employees in the respondent's Chicago warehouse,
excluding supervisory employees, watchmen, and employees in the
personnel department, at all times material herein, constituted, and
that they now constitute, a unit appropriate for the purposes of
;collective bargaining with respect to rates of pay, wages, hours of
.employment, or other conditions of employment, and that said unit
WALGREEN -COMPANY 1211
insures to employees of the respondent the full benefit of their right to
self-organization and to collective bargaining and otherwise effectuates
the policies of the Act.
2. Representation by the Union of a majority in the appropriate
unit
The complaint alleged, the record shows, and we find,_that, pursuant
to the election held on January 15, 1942, the Union was certified by
the Board, on March 18, 1942, as a statutory representative of the
,employees in the appropriate unit set forth above.
We find that at all times since March 18, 1942, the Union has been
the exclusive representative of all the employees in the unit heretofore
found appropriate for the purposes of collective bargaining with,
respect to rates of pay, wages, hours of employment, and other condi-
tions'of employment.
3. The refusal to bargain and the contracts with the Association
The complaint alleges that the respondent refused to bargain with,
the Union on or about January 21, 1942, and at all times thereafter.
It further alleges that by engaging in negotiations with the Association
and entering into the contracts of August 16, 1941, as reduced to writing
and signed by the parties on October 3, 1941, and of March 17, 1942,
with knowledge of the pendency of the Union's petition and the pro-
cedure of the Board instituted thereby, the respondent interfered with,
restrained, and coerced its employees in the exercise of their rights
under the Act.
While the respondent does not deny the facts hereinbefore recited
relative to its refusal to bargain with the Union after its certification
by the Board as the bargaining representative of the employees on
March 18, 1942, it asserts as a defense to such refusal (1) that it cannot
be found guilty of a refusal to bargain with the Union because the
Board certified an organization which had ceased to exist and the
request to bargain was made on behalf of an organization other than
the one certified by the Board and the one which filed the charge;
(2) that the Union is estopped by reason of its own misrepresentation
of material fact from now asserting, the charge herein, because the
respondent was induced by such representation to enter into the con-
tract of August 16, 1941; and (3) the agreements of August 16, 1941,
and March 17, 1942, are valid, existing, and enforceable agreements
between it and the Association, which prohibit the respondent from
engaging in collective bargaining with the Union.
As shown above, during the course of the hearing the Union changed
its name from Chicago Drug Workers Association, affiliated with, the -
Warehouse eC Distribution Workers Union, affiliated, with the
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. L. 'TV. U., to Warehouse cC Distribution Workers Union, C. I. O.
and thereafter requested and was granted permission by,the Board
to have its name appear on the ballot in the election under its changed
form.11 No objection was made by either the 'respondent or the Asso-
ciation to this procedure. In addition, the Association, which had
participated in the representation proceeding under the name of Chi-
cago Drug Workers Association, Inc., requested and was granted per-
mission by the Board to appear on the ballot as Chicago Drug Work-
ers Association. Upon receiving a majority of the votes at the elec-
tion, the Union was certified in the name in which it filed the petition,
Chicago Drug Workers Association, affiliated with the Warehouse cC
Distribution Workers Association., affiliated with I. L. W. U., rather
than under its new name. Likewise, the charge and the complaint in
the instant case allege a refusal by the respondent to bargain with
Chicago Drug Workers Association, affiliated with the Warehouse and
Distribution Workers Union, affiliated with I. L. W. U., the old name
of the Union, whereas, the Union's letter of March 21, referred to
above, upon which the respondent's refusal to bargain is predicated
in ,part, shows that the, request to bargain was made on behalf of
Local X08, Warehouse d Distribution Workers Union, I. L. W. U.
(CIO), which is the name under which the Union appeared on the
ballot with the addition of the words Local 008, and the I. L. W. U.
The respondent's contention assumes that Local 008, Warehouse cfi
Distribution Workers Union, I. L. W. U. (CIO) and Chicago Drug-
Workers Association, affiliated with the Warehouse ct Distribution
Workers Union, affiliated with the I. L. W. U., are two different labor
organizations, and that the, respondent's refusal to bargain collec-
tively with the first is not a refusal to bargain with the second, or certi-
fied organization. What the Board certified in the representation
case was not a name but a Union. Without objection by the respon-
dent, both the Union and the Association appeared on the ballot
under names which differed from the names under which they ap-
peared in the representation proceeding, and there is no evidence what-
soever in the record that the employees who cast their votes for the
Union at the election were iii any doubts regarding the representative
whom they had selected. Moreover, the respondent was not misled,
since the evidence is clear that,it considered that the request to bar-
gain on behalf of Local 208, Warehouse & Distribution Workers Union,
I. L. W. Ti. (CIO) was in truth and in fact a request made by the
Union-as the organization which received a majority of the votes at'
the election and was certified by the Board as the exclusive bargaining
representative of the employees as a result thereof. This is clearly
shown by the respondent, in its-letter of, March 21, 1941, referred to
above, assigning as a reason for its refusal to bargain the fact that it,
11 See footnote 7, supra, and related text.
WALGREEN COMPANY 1213
could not grant the request until there had been a legal adjudication
of. its objections to they "election and Election Report," although, as
found above , the Board had already overruled the respondent 's objec-
tions in its Supplemental Decision -and Direction of Election. In the
-complete absence of any showing that the two names under which the
Union has appeared during various stages of its proceedings before the
Board has operated to the damage of or detriment to the respondent
,or the employees involved , we find no merit in the -respondent 's conten-
tion.
The respondent 's contention that the Union was guilty of misrep-
resentation which caused it to enter into the contract of August 16,
1941, likewise finds no support in the' record. As set forth above, at
the meeting on August 7, 1941, Lissitz exhibited signed union applica-
tion cards of employees to representatives of the respondent and
Frankel stated that at the meeting of August 5, 375 of the respondent's
employees had voted unanimously to "join the C. I. 0." The respond-
ent -was thus put on notice that employees had designated the Union
as their bargaining representative. Likewise, according to Frankel's
undisputed testimony set forth above, when he met with . representa-
tives of the respondent on the morning of August 16, 1941, to arrange
the conference between the respondent and the Association at which
the strike settlement was effected, he advised them regarding "exactly
what had occurred" at the meeting of the "strategy committee" the
night before ; and that the strike could be settled if the parties were
brought together since "Lissitz does not want the strike settled." Fur-
thermnore , according to the undisputed testimony of Frankel , Marsh-
man called Lissitz on the same occasion and was advised by Lissitz
that Frankel "should be thrown out." It must be assumed that Marsh-
man on that occasion communicated to the respondent this repudiation
by Lissitz,of any authority on the part of Frankel or the Association
to represent the Union. Thus the undisputed evidence in the record,
rather than . supporting the respondent 's contention that the Union
was a party to misrepresentation , clearly refutes any such , implication.
It is clear that prior to entering into said agreement of August 16,
1941, the respondent was put on notice that the Union , through Lissitz,
was asserting interest in the matter of the strike settlement and the
representation of the employees which were clearly and directly in
conflict with those asserted by the Association through Frankel. Un-
der these circumstances , the respondent had no right to rely upon the
representation of the Association that the ' employees had repudiated'
any membership in and affiliation with the Union and that the Asso-
ciation represented a majority of the employees . Since it chose to do
so and dealt with the Association, notwithstanding the clearly as-
1214, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
serted adverse claims of the Union, the respondent's allegation of
misrepresentation, and reliance thereon, is without merit.
Moreover, in the representation case we held,12 and we now hold,
that the contract between the respondent and the Association did not
constitute a bar to an investigation and determination of representa-
tives because it was entered into after the respondent had notice of
the Union's claim to represent the respondent's employees, and after
the filing of its petition with the Board. For this reason, the existence
of the contract does not justify the respondent's refusal to honor the
Board's certification. The Congress has clothed the Board with the
exclusive power to investigate and determine representatives for the.
purpose of collective bargaining. When a petition for investigation
and certification is lodged with the, Board, the employer is put on
notice that the Union filing the petition is claiming to represent a
majority of the employees, and may be the statutory representative
thereof. He cannot thereafter, with impunity, negotiate a collective
bargaining agreement with a rival labor organization and, if he does,
so without awaiting the Board's certification, the agreement is subject
to the final result of the Board's investigation and determination of
representation. The contract of August 16, 1941, the contract of
March 17, 1942, and any amendments or supplements thereto, must
therefore yield to the provision of the Act and the orders of the Board
issued pursuant thereto. Since the contract was subject to the Board's.
determination in the representation case, and that determination re-
sulted in the certification of the Union as the exclusive representative.
of the employees, it cannot be permitted to stand in the way of the
respondent fulfilling its duty under the Act of engaging in collective
bargaining with the Union, as the organization so certified. By ref us-
ing to honor the Board's certification, the respondent arrogated to,
itself the privilege of overruling the Board's determination, and this,.
the Act does not permit. A contrary holding would completely abro-
gate the express function of the Board under the Act, of determining
an exclusive bargaining representative with which the employer is
required to bargain collectively regarding the wages, hours, and work--
ing conditions of the employees.13
There remains the further contention that the respondent refused
to bargain with the Union because of the'Association's threats to^
"fight with everything within the law" any attempt on the part of
the respondent to breach or disregard its contract with the Association.
Mere threats of action by the Association which, under the findings
heretofore made, had no valid legal basis, did not clothe the respondent,
'z 37 N L R. B. 765.
Cf Matter of John Engelhorn & Sons and Packinghouse Workers Organizing Commit-
tee, affiliated with the Congress of fndustrtal Organizations , et al., 42 N. L . R. B. 866.
WALGREEN COMPANY 1215,
with immunity to disregard its obligation under the Act to bargain
collectively with the Union.14
We find that on March 21, 1942, and at all times thereafter, the
respondent refused to bargaiii collectively with the Union as the
exclusive representative of its employees in an appropriate unit with
respect to rates of pay, wages, liours of employment, and other con-
ditions of employment. We further find that by such refusal the,
respondent interfered with, restrained, and coerced its employees.
in the exercise of the rights guaranteed in Section'7 of the Act.'
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above
occurring in connection with the operations of the respondent de-
scribed in Section I, above, have a close, intimate, and substantial,
relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes, burdening and obstructing coul-
nierce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to 'effectuate the policies of the
Act. -
We have found that the respondent has refused to bargain collec-
tively with the Union as the representative of a majority of the em-
ployees in an appropriate unit. We shall therefore order that the
Iespondent, upon request, bargain collectively with the Union.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Chicago Drug Workers Association, affiliated with ' the Ware-
house & Distribution Workers Union, affiliated with the I. L. W. U.
and the Chicago Drug Workers Association, Inc., are labor organi-
zations within the meaning of Section 2 (5) of the Act.
54Natsonal Labor Relations Board v Star Publishin84 Cc, 97 F (2) 465 (C. C A 9),
enf'g 4 N L R B 498; Wilson if Co , Inc v National Labor Relations Board 123 F (2(1)
411 (C C. A 8), enf'g as mod 26 N L R B 273 and 26 N L R B 297, 1cQnay-Noirns
Mfa Co v National Labor Relations Board, 116 F (2d) 748 (C C A. 7). enf g 21 N L R B
709, cert. denied 313 U. S 565 Cf National Labor Relations Board v Zludson Woto'
Can Co, decided June 3, 1942 (C C A 6), enf'g 34 N' L R B 815
"We do not consider whether, aside from affording the iespondent no defense to the
charge that it has refused to bargain collectively with the Union, the enteung into the
agreements with the Association, of itself, constituted an unfair labor practice within the
meaning of Section 8 (1) of the Act
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. All employees in the respondent 's Chicago warehouse , exclud-
ing supervisory employees , watchmen, and employees in the personnel
.department , constitute a unit appropriate for the purpose of col-
lective bargaining within the meaning of Section 9 (b) of the Act.
3. The Chicago Drug Workers Association, affiliated with the Ware,
house & Distribution Workers Union , affiliated with the I. L. W. U.,
v ,as on March 18, 1942, and at all times thereafter has been, the exclu-
sive representative of all the employees in the aforesaid unit for the
purposes , of collective bargaining within the meaning of Section 9 (a)
of the Act.
4. By refusing to bargain collectively with Chicago Drug Workers
Association, affiliated with the Warehouse & Distribution Workers
Union, affiliated with the I. L. W. U., as the exclusive representative
of its employees in the appropriate unit, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of
.Section 8 (5) of the Act.
5. By interfering with, restraining , and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act. -
ORDER
Upon the basis of the above findings of fact and conclusions of law
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Walgreen Company, Chicago, Illinois, and its officers, agents, si c-
,cessors , and assigns , shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with the Chicago Drug Work-
ers Association , affiliated with the Warehouse & Distribution Workers
Union, affiliated with the I. L. W. U ., as the exclusive representative
,of all employees,in respondent 's Chicago warehouse , excluding super-
visory employees , watchmen, and employees in the personnel depart-
ment, with respect to rates of pay , wages, hours of employment, and
other conditions of employment;
(b) In any other related manner interfering with, restraining, or
coercing its employees in the exercise of the right of self-organiza-
tion, to form , join, or assist labor organizations , to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other'
mutual aid or protection , as guaranteed in Section 7 of the National
Labor Relations Act.
i
WALGREEN COMPANY 1217
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the Chicago Drug
Workers Association, affiliated with the Warehouse & Distribution
Workers Union, affiliated with the I.'L. W. U., as the exclusive repre-
sentative of all employees in respondent's Chicago warehouse, exclud-
ing supervisory employees, watchmen, and employees in the personnel
department, with respect to rates of pay, wages, hours of employment,
and other conditions of employment; '
(b)J Post immediately in conspicuous places in its warehouse in
Chicago, Illinois, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees
stating (1) that the respondent will not engage in the conduct from
which its is ordered to cease and desist in paragraphs -1 (a) and (b)
of this Order; and (2) that the respondent will take the affirmative
action set forth in paragraph 2 (a) of this Order; .
(c) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order.
4874;x8-- 42-vol 44-77