National Food Stores of Louisiana, Inc.

NATIONAL FOOD STORES OF LOUISIANA 127 National Food Stores of Louisiana, Inc. and Professional Pharmacists Guild of Louisiana, AFL-CIO, Petitioner. Case 15-RC-4193 October 28, 1970 SUPPLEMENTAL DECISION AND OR- DER REMANDING CASE TO REGIONAL DIRECTOR BY MEMBERS FANNING, BROWN, AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer, I. Harold Koretzky on July 15, 1969. Thereafter, on August 13, 1969, the Regional Director for Region 15 directed an election in the unit found appropriate. In accordance with National Labor Relations Board Rules and Regula- tions the Employer filed a timely request for review, which was denied by the Board on September 5, 1969. On September 8, 1969, the Employer filed a motion to reopen and dismiss with the Regional Director on the basis of newly discovered evidence relating to an alleged conflict of interest disqualifying Petitioner from representing the Employer's employees. On the same date the Regional Director issued a notice to show cause. On September 15, 1969, the Regional Director issued an order reopening record, remanding proceeding to hearing officer and notice of further hearing. A hearing was held before Hearing Officer, H. Sloan McCloskey on September 22, 1969. After the hearing was closed the case was transferred to the Board. Thereafter, on March 26, 1970, the Petitioner filed a motion to reopen for the purpose of taking additional evidence on its status as a labor organiza- tion. On March 30, 1970, the Employer filed its opposition to Petitioner's motion. On May 12, 1970, the Board issued its order granting motion and remanding proceeding to Regional Director. The Regional Director issued a notice of further hearing May 22, 1970. A hearing was held before Hearing Officer, I. Harold Koretzky on June 2, 1970. The parties have filed briefs in support of their respective positions.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officers' rulings made at the hearings and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case the Board finds: Petitioner seeks to represent a unit comprising 1 We reject as without merit the contention that the conflict of interest issue was not timely raised certain of the Employer's pharmacists. It is a recently created organization composed of approximately 80 pharmacists and has no collective-bargaining agree- ments in force. When the petition was filed, the Union was affiliated with the Journeymen Barbers, Hair- dressers, Cosmetologists and Proprietors' Internation- al Union of America, and its membership was said to comprise approximately 150 pharmacists, including some 40 with proprietary interests in pharmacies. The Union's constitution then permitted employer mem- bership, as did the International's, but precluded their participation in bargaining. At that time three of the Union's officers were employers and a fourth was the son of an employer. The Union has since disaffiliated, the employers have resigned, a slate of nonemployer officers has been elected, and a new constitution and bylaws adopted restricting regular membership to employed pharmacists. The Employer contends that there is a conflict of interest which bars the Union from representing its pharmacists and that the Professional Pharmacists Guild of Louisiana, AFL-CIO, has no standing in this proceeding since the petition was filed by the Professional Pharmacists Guild of Louisiana Local 2101, AFL-CIO. We find the latter allegation to be without merit, since the record plainly shows that the two organizations are one and the same. The Employer relies in large part on the Union's past affiliation with the Barbers, its admitting employ- ers to membership and their election to various offices, and its goals, which included uniting employ- ers and employees. The Board has held that an employer is justified in refusing to bargain with a union which is engaged in a directly competitive business, even though the union has not abused its power as a labor organization in pursuit of business objectives. Bausch & Lomb, 108 NLRB 1555; Bambury Fashions, Inc., 179 NLRB No. 75. Generally, a potential conflict of interest disquali- fies a labor organization as collective-bargaining representative when there is an innate or proximate danger that the interests of the employees will be subordinated to factors which are not germane to the employer-employee relationship. See David Buttrick Co., 167 NLRB 438, enfd. 399 F.2d 505 (C.A. 1). The Union is not now, nor has it ever been, engaged in a competitive business. Whether or not the Union would have been qualified to represent these employ- ees had it not divorced itself from employer-members and officers, the record is clear that this relationship has now been severed, regular membership is open only to employed pharmacists, and the formulation and pursuit of bargaining objectives are limited to employees in the unit concerned. Even before 186 NLRB No. 12 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD adoption of its new constitution and bylaws the Union had sought to limit bargaining to unit members. We cannot hold, as the Employer would have us, that the Petitioner has been unredeemably tainted by its history - relevant though that history may be. We find no innate or proximate danger that the past associations of the Petitioner will infect its bargaining objectives; nor do we believe that its present goals, which include raising professional and ethical stand- ards, are inconsistent with its duties as a labor organization. Hypothesis and speculation are not a sufficient foundation upon which to erect a barrier against the Petitioner. We will not, however, be unmindful of Petitioner's history should it become collective-bargaining representative and allow its bargaining objectives to become susceptible to extrin- sic factors. Procedures exist under the Act to curb any such proclivity; but the record fails to demonstrate any present danger of such an eventuality. We shall remand the case to the Regional Director in order that he may conduct an election pursuant to his Decision and Direction of Election, except that the eligibility date shall be the payroll period immediately preceding the date of this Decision and the Union shall appear on the ballot as the Professional Pharmacists Guild of Louisiana, AFL-CIO. ORDER It is hereby ordered that this case be, and it hereby is, remanded to the Regional Director for Region 15 to conduct an election pursuant to his Decision and Direction of Election.