Walgreen Co.

In the Matter of WALGREEN COMPANY and CHICAGO DRUG WORKERS ASSOCIATION, AFFILIATED WITH THE WAREHOUSE & DISTRIBUTION WORKERS UNION, AFFILIATED WITH THE I. L. W. U. Case No. R-3165.-Decided December 18, 1941 Jurisdiction : retail drug industry. Investigation and Certification of Representatives : existence of question: refusal of Company to accord union recognition ; conflicting claims of rival representatives; contract amended after filing of petition by rival union, no bar to ; prior certification by the Board more than one year before, not con- sidered to be a bar; election necessary. Unit Appropriate for Collective Bargaining : all employees at the Company's Chicago warehouse, excluding supervisory employees, watchmen, and employees in the personnel department ; agreement as to. Practice and Procedure : consolidated cases severed upon withdrawal of two petitions ; technical defects in formal papers found to afford no basis for a claim of prejudice. Mr. Russell Packard, for the Board. Mr. Julian A. Tishler and Mr. George E. Arthur, of Chicago, Ill., for the Company. Meyers & Meyers, by Mr. Irving Meyers, of Chicago, Ill., for the Association-CIO. Mr. Arthur Frankel, of Chicago, Ill., for the Association-Inde- pendent. Mr. Frederic B. Parkes, 2nd, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On August 13 and October 16, 1941, respectively, Chicago Drug Workers Association, affiliated with the Warehouse & Distribution Workers Union, affiliated with the I. L. W. U., herein called the Association-CIO, filed with the Regional Director for the Thirteenth Region (Chicago, Illinois) three petitions and an amended petition each alleging that a question affecting commerce had arisen concerning the representation of employees of Walgreen Company, Chicago, Illi- nois, herein called the Company, and requesting an investigation and 37 N. L. R. B., No. 121. 764 WALGREEN COMPANY 765 certification of representatives pursuant to Section 9 (c) of the Na- tional Labor Relations Act, 49 Stat. 449, herein called the Act.' On September 30, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Section 3, of National Labor Relations Board Rules and Regula- tions-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice; and pursuant to Article III, Section 10 (c) (2), of said Rules and Regulations, ordered that the three cases be consolidated for all purposes. On October 4, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and the Association-CIO and upon Chicago Drug Workers Association, Inc., herein called the Association-Independent, Sign Painters Union Local 830, affiliated with the American Federation of Labor, and Dry Goods & Hardware Warehousemen's Union, Local 743, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers, labor organizations claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on October 13 to 17, 1941, inclusive, at Chicago, Illinois, before Mortimer Riemer, the Trial Examiner duly desig- nated by the Chief Trial Examiner. The Company, the Association- CIO, and the Association-Independent were represented and par- ticipated in the hearing.2 Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the outset of the hearing, the Association-CIO moved to withdraw the petitions filed in Cases Nos. XIII-R-899 and XIII-8-900 for the reason that it has filed charges of unfair labor practice affecting Case No. XIII-4-899 and that it contemplates filing similar charges affecting Case No. XIII-R-900 s The Trial Examiner reserved ruling on the motion for the Board. On November 19, 1941, the Board granted the motion to withdraw 'the petitions in Cases Nos. XIII-R-899 and XIII-R-900 and ordered the two cases severed from Case No. R-3165. 'The petition In Case No. XIII-R-899 describes the appropriate unit as, "All com- missary department employees and ice cream packers in the ,Company's building at 500 E. 40th St., Chicago, Illinois, excluding supervisory, personnel department employees, watchmen and truck drivers and truck drivers helpers." The petition in Case No. XIII-ii-900 describes the appropriate unit as, "All Squegee men and helpers and sign shipping employees in the sign shop at S. Cottage Grove Ave." The amended petition in Case No. R-3165 (XIII-8-901) describes the appropriate unit as, "All employees in the Chicago Warehouse of the Company excluding supervisory employees, watchmen, employees of the Personnel Department, truck drivers and truck drivers helpers." 2 Sign Painters Union Local 830, affiliated with the American Federation of Labor, and Dry Goods & Hardware Warehousemen's Union, Local 743, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, did not appear at the hearing. 3 Proof at the hearing was limited to Case No R-3165 766 DECISIONS OF NATIONAL LABOR ,RELATIONS BOARD At the beginning of the hearing the Association-Independent filed, a motion to dismiss the petition. At-,various times during the hear- ing the Association-Independent renewed its, motion to, dismiss and, the Company moved to dismiss the petition.4 The Trial Examiner reserved rulings on these motions for the Board. The motions are hereby denied. At the close of the hearing the Company made a motion for a new trial on the grounds that the Company had been deprived of its "right to put in affirmative testimony without a previous offer of proof in open court. The Association-Independent adopted the Com- pany's motion for -a new trial. ' The Trial Examiner reserved ruling on the motion for the Board. The motion is hereby denied. • During the course of the hearing, the Trial Examiner made various-rulings on other 'motions and objections to the admission of evidence..-The - * The Association -Independent and the Company urged the dismissal of the petition on the following grounds : ( 1) the original petition and the amended petition contain false statements since each states that there are no other known individuals or labor organi- sations who claim to represent any of, the employees in the bargaining unit ; ( 2) the. original petition was signed "Meyers & Meyers", the name of a law firm, and not by an, individual who was capable of swearing to his signature as required by the Board's Rules and Regulations ; ( 3), the Regional Director 's notice of hearing did not specify the year and therefore did not constitute due notice as provided for by the Board 's Rules and' Regulations ; ( 4) a prima facie case had not been made out by, the Association -CIO,; (5) the Trial Examiner refused to allow interrogation of witnesses on certain issues without an offer of proof and the Company contends that the Trial Examiner deprived the Com- pany of its right to put in affirmative testimony ; ( 6) since the 'Association-CIO' had been enjoined by the Illinois Circuit Court of Cook County from using the name of the Association -Independent , the Association-CIO by these proceedings is attempting to con- tinue a deception and fraud upon certain persons , and the Board by allowing the Asso- ciation-CIO to continue in the use of that name is assisting the petitioner to continue and carry on a conspiracy in violation of the laws of Illinois. With respect to the first ground , the inaccuracy in the -challenged allegations of the petitions is not material since the Association-Independent participated fully in the heaiing. In regard to the second and third grounds of the motion , it may be noted that the amended petition filed with the Regional Director on October 16, 1941 , is signed by Ben Meyers , thereby curing one alleged defect in the original petition , and the notice of hearing was amended by motion at the hearing by inserting the year, 1941 . Moreover, since comparable technical defects in a charge in an unfair labor practice proceeding afford no basis for a claim of prejudice , [ See National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U S 333 , 351, reversing 92 F. (2d ) 761, affirming 87 F. (2d) 611 (C ,C A 9), setting aside 1 N L R B 201; Port Wayne Corrugated Paper Co. v National Labor Relations Board, 111 F. (2d) 869 (C C A. 7), enforcing as modified 14 N. L. R. B 1 ; Stewart Die Casting Corporation v National Labor Relations Board, 114 F. (2d) 849 (C. C. A 7), enforcing as modified 14 N L R B 872 , cert. denied 312 U. S. 680; North Whittier Heights Citrus Ass'n. v National Labor Relations Board, 109 F.'(2d) 76 (C C A 9), enforcing 10 N L R B 1269 , cert denied 310 U S 6321 a fortiori there can he no prejudice by reason of such defects in the petitions and notice of hearing in a representation proceeding, which leads only to the certification of a fact-that is,' the employees' choice of a collective bargaining representative With respect to the fourth ground , we hereinafter find upon this record the existence of a question conceiDing, representation . Concerning the fifth ground , the Trial Exam; iner ' s ruling constituted a proper exercise of discretion to keep the hearing within the issues in this proceeding Moreover , there is no claim or showing that any material evidence was improperly excluded ; and, finally, the Association-CIO is plainly designated as such in this proceeding and hence not within the injunctive order of the ,Circuit Court of Cook County , which order expressly provided , "that this injunctional order or the writ of injunction issued thereupon shall not restrain or hinder any proceedings before the National Labor Relations Board." COMPANY 7fi7 Board has reviewed the 'rulings of the Trial Examiner and finds that no prejudicial_ errors were committed. The rulings are hereby affirmed. On November 10, 1941, the Company filed with the Board a Peti- tion for Rehearing and to Reopen the Record. In a letter dated November 7, 1941, the Association-Independent adopted the Com- pany's petition for rehearing. The petition for rehearing is hereby denied. On November 18, 1941, the Association-CIO filed with the Board a motion to amend its position in regard to the unit which it contends is appropriate for collective bargaining purposes.,' The motion is hereby granted. 'On November 5; 1941. the Company and the Asso- ciation-Independent filed briefs which have been considered by the Board. Upon the entire record in the case, the Board makes the following-. FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Walgreen Company is an Illinois corporation with its principal offices in Chicago, Illinois. It owns and.controls 22 subsidiary cor- porations operating in 31 States of the United States. The Com= pany, 'itself, operates approximately. 300 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 Dakota, and 3 in Wyoming. - The Company -operates 3 warehouses, 2 of which are located outside Illinois. The only plant affected by this pro-' ceeding is the Company's Chicago warehouse, where the merchandise sold by the Company's stores in the Chicago area is received, stored, packed, repacked, and shipped to its various stores upon order. During the year ending September 30, 1941, the Company pur-' chased for its Chicago warehouse materials, products, and equipment valued at approximately $23,000,000, of which 75 per cent were pur- chased from points outside Illinois. During the same period,- the Company shipped from its Chicago warehouse to points outside Illinois materials, products, and equipment valued at approximately $9,800,000. On July 16, 1941, the Company employed approximately 375 non-supervisory employees at its Chicago warehouse. 5 At the close of the hearing, the Association-CIO moved to amend its petition to con- form with the proof and to amend the unit described therein to be appropriate to conform with the unit which it claimed to be appropriate at the hearing, namely, all employees of the Company's Chicago warehouse, excluding supervisory employees, personnel department employees, watchmen, cafeteria employees, clock repairers, radio repairmen, outside truck drivers, and outside truck drivers' helpers . The Company and the Association-Independent objected to such amendment . The Trial Examiner reserved rulings on the motion and 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED Chicago Drug Workers Association is a labor organization admit- ting employees of the Company to membership. It is affiliated with Warehouse & Distribution Workers Union, which in turn is affiliated with International Longshoremen's and Warehousemen's Union, an affiliate of the Congress of Industrial Organizations. Chicago Drug Workers Association, Inc., is an unaffiliated labor organization admitting employees of the Company to membership. Ill. THE QUESTION CONCERNING REPRESENTATION On July 2, 1940, the Board certified the Association-Independent 6 as the exclusive bargaining representative of the Company's employees in its Chicago warehouse and candy divisions.7 On December 20, 1940, the Company and the Association-Independent entered into a contract recognizing the Association-Independent as the statutory representative of the employees of the Chicago warehouse and candy divisions. The contract provides that it shall be in effect from De- cember 20, 1940, until December 19, 1941, and that it shall continue in effect from year to year thereafter unless 60 days' notice of inten- tion to terminate be given by either party before the annual expiration date. On August 5, 1941, during a strike of the warehouse employees, at a general meeting of the Association-Independent, attended by ap- proximately 280 to 300 persons, a motion to affiliate with the Ware- house & Distribution Workers Union, affiliated with International Longshoremen's and Warehousemen's Union, C. I. 0., was unani- mously approved. The officers of the Association-Independent were carried over as officers of the Association-CIO. On August 7, 8, and 11, 1941, the negotiation committee of the Association-CIO informed the Company of the change in affiliation and requested recognition as the collective bargaining representative. The Company refused to grant such recognition for the reason that the Board had certified the Association-Independent as the statutory representative on July 2, 1940, and that the Company could not determine whether the commit- tee represented the Association-CIO or the Association-Independent. On August 15,'1941, the Association-CIO filed its petitions in this the objections for the Board . We find it unnecessary to rule upon the motion and objections, since in its motion filed on November 18, 1941, the Association -CIO has changed its position in regard to the unit and now seeks a unit identical with that claimed by the Company and the Association -Independent to be appropriate , namely, "all employees of the Walgreen Company Chicago Warehouse , excluding watchmen , super- visory employees and employees in the personnel department." Ollfatter of Walgreen Co. and Wholesale and Chain Drug Warehouse Employees Union, Local 91704, 25 N L. R B 15. 1 The operations of the candy division were discontinued in the spring of 1941. WALGREEN COMPANY 769 case. On August 16, 1941, the strike was, settled.8 On September, 5; 1941, the Association-CIO elected new officers' and a new negotiating committee which met with the Company's representatives on Septem- ber 10 or 17, 1941, and requested recognition. The Company stated that it would be necessary for the committee to present legal proof of its right to represent, the employees before the Company would bar- gain, with it. On. October 3, 1941, the Compaliy and the Association-Independent executed an amendment to their initial contract entered into on De- cember 20, 1940. The amendment set forth an increased wage scale and provided that, the terms of the original contract should be con- tinued in effect until December 19, 1942. The Company and the Association-Independent contend that, their contract, as, amended, constitutes a bar to a present investigation and determination of rep- resentatives. This contention the Board finds to be without merit in view of the fact that the Association-CIO had informed the Company of its claim to represent the Company's' employees' and had filed its petitions in the instant case over four months before the renewal date of the contract and approximately two months prior to the date of the execution of amendment extending the term of the contract for an- other year.9 'A statement of the Regional Director introduced into evidence at the hearing shows that the Association-CIO represents a substantial number of employees in the unit found hereinafter to be ap- propriate."' We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF TII'E QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has,a close, intimate, and substantial I 'The evidence is contradictory as to whether the committee settling the strike repre sented the Association-Independent or the Association-CIO. On August 21, 1941, the committee which had negotiated the strike settlement notified the Company that it represented the Chicago Drug Workers Association and that no connection with the C I. 0 , and purported to repudiate on behalf of the membeiship of the Chicago Drug Workers Association all acts relating to affiliation with the C I 0 However, such affiliation was never repudiated by the membership of the Association-CIO ° See !hatter of Tiansoysam Company, Inc and Local 721, United Paper, No:,elty f Toy Workers of Ames ica, C 1 0, 31 N L R B, No 36 "The Association-CIO submitted to the Regional Director 281 application cards, of tchich-266 were dated between May 1 and September 1, 1941, and 15 were undated The Regional Director reported that all signatures appeared to be genuine original signatures and that 160 cards bore signatures of persons whose naives appear on the Chicago ware- house pay, roll- of July 15, 1941, which contained 334 names. There are approximately 310 employees in the unit found below to be appiopriate 770 ' DECISIONS OF NATIONAL .LABOR ,,- RELATIONS, BOARD relation to trade, traffic, and commerce among the several States. and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Company, the Association-CIO, and the Association-Independ- ent agree, and we find, that all employees of the Company's Chicago warehouse, excluding supervisory, employees, watchmen, and em- ployees in the personnel department, constitute a unit appropriate for the purposes of collective bargaining.11 We further'find that such unit will'insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise will effectuate the policies of the Act. VI. 'THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by means of an election by secret ballot. -The' Company, the Association-CIO, and the Association-Inde- pendent request the use of the pay roll of July 15, 1941, for the pur- pose of determining eligibility to vote on the grounds that temporary employees have- been hired since August 1, 1941, due to the seasonal increase in the Company's business which reaches its peak during the Christmas season and that such pay roll is the last before the strike which commenced the latter part of July 12 The Association- CIO desires to be designated on the ballot as "Warehouse & Dis- tribution Workers Union, G. I. 0." The Association-Independent would appear thereon as "Chicago Drug Workers Association." These requests are hereby granted. We find no reason to depart from the agreement of the parties and shall accordingly direct that those persons eligible to vote in the election shall be those in the appro- priate unit who were employed during the pay-roll period ending July 15, 1941, subject to the limitations and additions hereinafter set forth in the Direction of Election. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: "The unit is the same as that found by the Board to be appropriate in Matter of Wal- green Co. and Wholesale and Chain Drug Warehouse Employees Union, Local 21704, 15 N. L. R B. 980, and covered by the contract between the Association-Independent and the company, with the exception of employees of the candy-manufacturing division which was discontinued in the spring of 1941. 12 The strike was settled on August 16, 1941 WALGREEN COMPANY CoNcLusIONs OF LAW 771 1. A question affecting commerce has arisen concerning the rep- resentation of employees of Walgreen Company, Chicago , Illinois, within the meaning of Section 9 (c,).-and Section - 2 (6) and (7) of ;the Act. 2. All employees of the Company's Chicago warehouse, excludjng supervisory employees, watchmen, and employees in the 'personnel department, constitute a unit appropriate for the purposes of col- lective bargaining ,within the . meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby ' 'DIREcTED that as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargain- ing with Walgreen Company, Chicago, Illinois, an election by secret ballot shall be conducted as early as possible but not later than thirty (30)- days from the date of this Direction , under the direction and supervision of the Regional Director for the Thirteenth Region, act- ing in^ this matter as agent for the National Labor Relations Board; and subject - to Article III, Section 9, of said Rules and Regulations, among all employees of the Company 's Chicago Warehouse who were employed during the pay-roll period ending July 15, 1941, in- cluding all employees who did not work during such pay-roll period because they .were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but exclud- ing supervisory employees, watchmen, employees in the personnel department, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Ware- house & Distribution Workers Union, C. I. 0., or by . Chicago Drug Workers Association, for. the purposes of collective bargaining, or by neither.