Albert's Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1950

91 N.L.R.B. 522 (N.L.R.B. 1950)

In the Matter Of ALBERT'S INCORPORATED, EMPLOYER and OFFICE EM-
PLOYEES INTERNATIONAL UNION, LOCAL No. 243, A. F. OF L.,
PETITIONER
Case No. 20-RC-720
AMENDED DECISION, ORDER, AND DIRECTION OF
ELECTION
September 26,1950
On June 6, 1950, the National. Labor Relations Board issued. a
Decision and Order in the above-entitled proceeding, finding inappro-
priate the severance of a unit of office clerical employees at the
Employer's Richmond, California, retail department store from a
store-wide unit which the Board regarded as established by the bar-
gaining history. Accordingly, the Board dismissed the petition
herein.'
On July 8, 1950, the Petitioner filed a motion, asking that the
Board reconsider the said Decision and Order and alleging in sub-
stance (a) that its proposed unit of office clerical employees is a
prima facie appropriate unit in the absence of bargaining history ; (b)
that there has been no bargaining history on a store-wide basis at the
Employer's Richmond store; (c) that there was no established bar-
gaining unit at the Richmond store when the instant petition was filed;
and (d) that the only past bargaining history for these employees had
been through a labor organization found by a Trial Examiner to be
company-assisted. On July 31, 1950, the Intervenor 2 replied, oppos-
ing the granting of the Petitioner's motion. On August 4, 1950, the
Petitioner requested leave to reply to the Intervenor. This request
was denied on August 8, 1950.
As stated below, after the issuance of the original Decision and
Order in this case, the Intervenor was found to have been unlawfully
assisted by the Employer in violation of Section 8 (b) (2) of the Act.
That fact, as well as certain other matters brought to the Board's,
attention by. the Petitioner's motion, raise substantial issues which
require our reconsideration of this case. We shall therefore vacate our
100 NLRB 110.
2 Local 11.79, Retail Clerks International Association , A. F. L.
91 NLRB No. 78.
522
ALBERT'S INCORPORATED 523
Order of July 6, 1950, dismissing the instant petition, and order that
the petition be reinstated.
Upon the basis of the entire record in this case, the Board makes
the following:
AMENDED FINDINGS OF FACT AND CONCLUSIONS
The Employer operates department stores in Marin and Contra
Costa Counties in California. Its Contra Costa County store, which
includes an annex, is at Richmond, California, and is the only store
involved -in this proceeding.
In and after 1938, the Employer was a member of California
Association of Employers and its two subassociations, Contra Costa
Employers Council and Mann County Employers Council. From
1938 to 1948, the Employer and other employer-members of Contra
Costa Employers Council recognized the Intervenor as the collective
bargaining representative for all of their store employees "subject to"
the latter's jurisdiction and entered into bargaining contracts for these
employees. The parties to these contracts regarded the office clerical
employees as falling within the scope of the contract unit, although
it does not appear that during the period 1938-48 the Intervenor
processed any grievances on behalf of any office clericals..
In November 1948, negotiations between Contra Costa Employers
Council and the Intervenor broke down ; since that date no contract
has been negotiated on a multiemployer basis for these employees. On
October 14, 1949, the Intervenor filed a petition for certification in
Case No. 20-RC-700, alleging as appropriate its prior contract unit of
office clerical and sales employees of employer-members of Contra
Costa Employers Council, including the Employer. On or before
October 26, the Employer withdrew from Contra Costa Employers
Council and, on October 27, signed a proposed contract with the Inter-
venor covering employees at the Employer's Richmond store.3 This
contract contained an illegal union-security clause. On the same day,
the Petitioner filed the instant petition seeking a unit of office clerical
employees at the Employer's Richmond store.4
On August 1, 1950, following the issuance of a complaint upon
charges filed by the Petitioner based on the afore-mentioned union-
security provision and a hearing had, the Board issued its Decision
and Order in Cases Nos. 20-CA-320 and 20-CB-105,5 finding, inter
3 On November 28, 1948, the Intervenor withdrew its petition in Case No. 20-RC-700.
4 This proposed contract was not immediately signed by the Intervenor, but was to be
signed later and submitted to the Intervenor's membership for approval. The instant
record does not disclose the date when the contract was signed by the Intervenor and sub-
mitted and approved by the membership.
5 (Unpublished .) The Board adopted the findings and conclusions of the Trial Examiner,
in the absence of exceutions to the Intermediate Report.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alia, that, by executing a contract with the Intervenor containing an
illegal union-security clause, the Employer herein had unlawfully
assisted the Intervenor, in violation of Section 8 (a) (1) and (2) of the
Act. The Board accordingly ordered the Employer to withdraw
recognition from the Intervenor as bargaining representative of
employees at the Employer's Richmond store until the Intervenor
should be certified by the Board.
As set forth in our original decision, the office clericals at the Em-
ployer's Richmond store constitute a homogeneous group such as we
have found may constitute an appropriate bargaining unit, absent a
history of collective bargaining on a broader basis.6 In that deci-
sion, however, we concluded that the history of bargaining with the
Intervenor on a store-wide basis rendered inappropriate a unit con-
fined to the office clericals. But that conclusion is no longer war-
ranted, in view of the fact that the Employer has been found to have
extended illegal assistance to the Intervenor. It has long been the
policy of the Board not to predicate a unit finding on the collective
bargaining experience of a union found to have been illegally assisted
by the Employer.' That principle is applicable . here, and we there-
ore find that there is no bargaining history which precludes the estab-
lishment of a unit of office clericals at this time.
Accordingly, upon the basis of the above amended findings of fact
and the entire record in this case, we reach the following conclusions :
1. We find that a question affecting commerce exists concerning
the representation of the employees of the Employer, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
2. We find that all office clerical employees at the Employer's Rich-
mond store,8 excluding sales and other employees and supervisors, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
ORDER
IT Is h EREBY ORDERED that the Order dismissing the petition in this
case be, and it hereby is, vacated.
. [Text of Direction of Election omitted from publication in this
volume.]
MEMBERS REYNOLDS and MURDOCK took no part in the consideration
of the above Amended Decision, Order, and Direction of Election.
6 Maas Brothers, Inc ., 88 NLRB 129 ; Meier & Frank Company, 86 NLRB 517.
7 See Pacific Telephone and Telegraph Company, 80 NLRB 107, and cases cited therein.
8 These employees include billers , bookkeepers , cashiers , payroll clerks, invoice clerks,
credit interviewers , and secretary clerks.
I