Brunswig Drug Co.

National Labor Relations Board - Board Decisions

Sep 26, 1951

96 N.L.R.B. 451 (N.L.R.B. 1951)

BRUNSWIG DRUG COMPANY 451
BRUNSWIG DRUG COMPANY, MCKESSON & ROBBINS, INC., THE Los
ANGELES DRUG CO., AND MORGAN & SAMPSON, INC. and WAREHOUSE
PROCESSING AND DISTRIBUTION WORKERS UNION, LOCAL 26, INTER-
NATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, PETI-
TIONER. Case No. 01-UA 3471. September 06,1951
Decision and Order
Upon a petition for a union-shop election duly filed, a hearing was
held before Jerome A. Reiner, hearing officer. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed?
Upon the entire record in this case, the Board finds : -
1. The Employers are engaged in commerce within the meaning
of the Act.
2. The Petitioner is the exclusive bargaining representative of
employees of the Employers as provided in Section 9 (a) of the Act.
3. The alleged question concerning authorization of a union shop :
On February 28, 1949, the Petitioner, as exclusive bargaining repre-
sentative of the employees described in the present petition, entered
into a contract with the Employers to extend to February 28, 1951.
Thereafter, on April 14, 1950, the contracting parties executed a
supplemental agreement extending the original contract to February
28, 1953, and providing, inter alia, that:
Notwithstanding the provisions of Article II, Section 3, or
any other provision of this Agreement, each party hereto ex-
pressly waives any obligation or duty presently or hereafter
imposed by State or Federal law on any other party, and acknowl-
edges and recognizes that no obligation or duty exists under this
Agreement (except relative to general wage changes pursuant to
Sections 2 and 3 of Article XIX, under the conditions and during
the periods therein specified) on any party to bargain collectively
or negotiate with any other party over or pertaining to wages,
hours, pensions, insurance, or any terms or conditions of employ-
ment or any other matters or subjects whatsoever during the life
of, this Agreement. [Emphasis added.]
The Employers contend mainly that, by virtue of the above pro-
vision, they are not obligated to, and will not, bargain with the Peti-
tioner concerning union security until after February 28, 1953, and,
therefore, no election should be conducted at the present time. We
find merit in this contention.
' At the hearing, the Employers moved to dismiss the petition on grounds relating to the
question concerning authorization of a union shop. For the reasons stated in paragraph
numbered 3, Infra, the motion is granted.
96 NLRB No. 64.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear from the terms of the existing contract that the Employ-
ers are absolved from any.legal obligation to bargain with the Peti-
tioner concerning union security until at or near the termination of
the contract.' Moreover, as indicated above, the-Employers have cate-
gorically stated that ,they would not voluntarily enter into negotia-
tions with the Petitioner with respect to union security even if that
organization won the election. Under these circumstances, and par-
ticularly because no bargaining order could presently issue to imple-
ment any authorization issued herein, we believe that the conduct of
an election at this time would,be both a futile gesture and an un-
warranted dissipation of Board funds. Unlike our dissenting col-
we do not believe that either the language of Section 9 (e) of
the Act, or prior Board decisions compel the holding of an election
which could thus serve no useful purpose.3
Accordingly, we are of the opinion that the instant petition should
be dismissed, without prejudice to the timely filing of a new petition.'
Order
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
MEMBER HOUSTON , dissenting :
I cannot agree with the decision of the majority that the petition
for union-security authorization should be dismissed.
The Board has repeatedly held that Section 9 (e) (1) of the Act
sets forth only two prerequisites to the holding of a union-security
authorization election: (1) That the labor organization shall have
presented evidence that at least 30 percent of the employees within the
unit desire such labor organization to negotiate and execute a union-
shop contract, and (2) that no question of representation shall exist.'
s Cf. The Jacobs Manufacturing Company, 94 NLRB 175
See Giant Food Shopping Center, Inc, 77 NLRB 791, where the Board, in refusing to
conduct a union-security election in a State that prohibited union-security agreements,
similarly found persuasive that such an election "would serve no useful purpose "
Utah Wholesale Grocery Co., ct at. , 79 NLRB 1435, and similar cases cited in the dissent,
did not involve contracts with terms comparable to those present in this case and, accord-
ingly, are not controlling. And while the Board is reluctant to admit evidence of unfair
labor practices in a representation case, we perceive no reason for refusing to consider
whether a bargaining order could issue where, as here, such consideration demonstrates the
futility of a present election. Giant Food Shopping Center, Inc., supra.
4If the Employers should alter their position with respect to union security during the
term of the existing contract, then, of course, a petition filed at that time would be
deemed timely.
5Utah Wholesale Grocery Co., et at, supra; Western Electric Company, Incorporated,
84 NLRB 1019; Kay & Burbank Company, 92 NLRB 224
BRUNSWIG DRUG COMPANY 453
As'the Board emphasized in the Utah Wholesale Grocery case, .'Once-
these conditions have been met, the Board `shall' conduct such an
election . . . the existence of a collective bargaining agreement is
not'a factor to be considered in determining whether or not a union
security authorization election should be conducted." 6
It is uncontroverted that the preliminary requirements for a union-
security authorization election have been fully met in this case.
There is manifestly no reason, therefore, as a matter of law, for
denying the Petitioner's request for an immediate election.
Nor in my opinion, are any policy considerations present which
militate in favor of a contrary result. The majority deems persua-
sive in this respect its determination that an 8 (a ) (5) order could
not issue if the Petitioner wins the election and if the Employers then
refuse to bargain concerning union security. Yet, the possibility
that the Employers will refuse to bargain if the' Petitioner is suc-
cessful in the election is purely speculative regardless of their cur-
rently stated opposition to such bargaining. The Employers may at
any time lawfully change their position, and, indeed, such change is,
not unlikely in view of the concessions which the Petitioner might
well make in return for a union-security agreement. Significantly,
the existing contract is subject to reopening on the matter of wages
as early as December 16, 1951. Moreover, the majority is, in effect,
actually deciding the 8 (a) (5) case in this union-security authoriza-
tion proceeding.' The Board has consistently refused to litigate
unfair labor -practice charges in representation cases,a and the same
principles are clearly applicable to union-security authorization
proceedings°
For the foregoing reasons, I would direct that an immediate elec-
tion be held.
CHAIRMAN HERZOG and MEMBER STYLES took no part in the con-
sideration of the above Decision and Order.
79 NLRB 1435, at page 1436.
'It may be observed that in the present case the majority bases its determination one
the language of the existing contract In a futuie case in order to resolve whether an
8 (a) (5) order would issue , the Board conceivably will be required to undertake an
extensive investigation of past negotiations to ascertain whether any reference to union.
security was made. See The Jacobs Manufacturing Company , supra.
B P R. Mallory & Co , Ire, 89 NLRB 962; Arkansas City Flour Mills, 88 NLRB 1293 ;
1:onwrt Teller, Inc., 84 NLRB 414
a The Manufacturer's Protective and Development Assn, 95 NLRB 1059.
974176-52-vol. 96-30