Retail Clerks Union Local No. 324, Etc.

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 (c) .11 14. Page 196, line 3: Strike the word "normal" and substitute therefor the word "formal." 15. Page 204, line 4: Strike the word "line" and substitute therefor the word "volume." 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.