National Food Stores of Louisiana, Inc.

National Labor Relations Board - Board Decisions

Oct 28, 1970

186 N.L.R.B. 127 (N.L.R.B. 1970)

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.