Town & Country

National Labor Relations Board - Board Decisions

Jan 19, 1972

194 N.L.R.B. 1135 (N.L.R.B. 1972)

TOWN & COUNTRY 1135
E. & R. Webb, Inc., d/b/a Town & Country and
Retail Clerks Local 588, Retail Clerks International
Association, AFL-CIO, Petitioner. Case
20-RC-9932
January 19, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
Upon a petition duly filed on March 18, under
Section 9(c) of the National Labor Relations Act, as
amended, a hearing was held before Hearing Officer
Jerrold C. Schaefer. Following the hearing and
pursuant to Section 102.67 of the National Labor
Relations Board Rules and Regulations and State-
ments of Procedure, Series 8, as amended, this case
was transferred to the National Labor Relations
Board for decision on July 16, 1971. Thereafter, briefs
were duly filed by the Petitioner' and the Intervenor,'
and the Petitioner subsequently filed a motion to
strike certain portions of Intervenor's brief.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
Petitioner's and Intervenor's briefs, the Board finds:
1. The parties stipulated, and we find, that the
Employer is engaged in commerce within the meaning
of the Act, and that it will effectuate the purposes of
the Act to assert jurisdiction herein.
2. It is not disputed that the Petitioner is a labor
organization within the meaning of the Act claiming
to represent certain employees of the Employer.
However, the Petitioner contests the status of the
Intervenor, Christian Labor Association and its Local
46, as a bona fide labor organization within the
meaning of the Act. It contends that the Petitioner is
primarily a religious organization which allegedly
requires certain religious beliefs of its members and
which thus restricts its membership to those sharing
such beliefs. The record, including particularly the
constitution of the Intervenor's International, shows
clearly that the Intervenor exists, in part at least, for
the purposes of representing employees and dealing
with employers with respect to rates of pay, hours of
' Christian Labor Organization, Local 46, was permitted to intervene on
the basis of its current collective -bargaining agreement with the Employer
covering the employees involved herein.
2 As we do not rely on the matter contained in Intervenor's brief to
which Petitioner objects, we need not , and do not , pass on Petitioner's
motion
194 NLRB No. 176
work , and working conditions , generally . As there is
no showing that the Intervenor restricts its member-
ship on religious grounds or that it will not accord
adequate representation to all unit employees, we
reject the Petitioner's contention.3
3. The Employer operates two retail supermarkets,
one in Oakdale and one in Modesto, California. The
Petitioner seeks to represent certain employees of
those supermarkets . The Intervenor contends that its
collective-bargaining contract with the ' Employer,
covering those employees and effective from Februar-
y 18, 1971 , to February 17, 1974, constitutes a bar to
this representation case . The Petitioner urges, howev-
er, that a valid question concerning representation
existed at the time that contract was entered into and
that it consequently does not bar this proceeding. On
July 30, 1971 , the Petitioner filed charges in Cases
20-CA-6922 and 20-CB-2526 alleging , inter alia, that
the Employer violated Section 8(a)(1) and (2) and the
Intervenor violated Section 8(b)(1)(A) and (2) of
the Act by entering into that contract.
While acknowledging that unresolved unfair labor
practice charges will normally forestall the processing
of a representation case , the Petitioner requested in a
letter to the Acting Regional Director , that he
nevertheless proceed in the present matter, notwith-
standing pendency of the above unfair labor practice
cases. Petitioner stated it would waive objections
based on conduct occurring prior to the filing of the
petition , and agreed that the Intervenor may appear
on the ballot in any election directed and may be
certified if it wins and meritorious objections are not
filed. Petitioner further stated that, if the Intervenor
be certified, "no further action be taken to enforce
those portions of the Board's Order relating to the
Section 8 (a)(2) findings4 in the unfair labor practice
proceeding." At the same time, the Petitioner also
states, however, that it does seek a disgorgement
remedy. Thus, in effect, it still demands litigation of
the charges , findings of violations , and a remedy
pursuant thereto.
In support of its request to proceed , the Petitioner
cited cases in which the Board has conducted an
election despite the pendency of charges which
normally "block" such action. Those cases are
inapposite, however , as in each of them the contract
was removed as a bar either because the Board had
already. found the violation of Section 8(a)(2) in the
companion unfair labor practice cases or for reasons
3 Cf Berghuis Construction Company, 116 NLRB 1297, 1298; Lake
County Farm Bureau Cooperative Association, Inc, 101 NLRB 110
4 In fact, no hearing has yet been held and no "Board's Order" or
"Section 8(aX2) findings" are outstanding.
5 Carlson Furniture Industries, Inc, 157 NLRB 851. The same situation
prevailed in N.LR B v. Keller Aluminum Chairs Southern, Inc, 425 F.2d
(Continued)
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apparent in the context of the record in the represent-
ation proceeding .6 In other cases, the blocking charge
involved a labor organization not a party to the
election, and hence those charges raised no issues
warranting delay of an election.? Finally, New York
Shipping, Association- and_ -its w members 8 involved a
national emergency resolvable only by an election,
and the national interest in avoiding an Atlantic
coastwide strike clearly outweighed other considera-
tions. We note, in addition, that none of those cases
involved a companion CB case based on the same
facts which had not been waived; here the "waiver" is
limited to the charge against the Employer.
In the instant case, the issues raised by Petitioner's
charges and petition rest on resolution of the unfair
labor practice charges. Thus, the contract between the
Employer and the Intervenor constitutes a bar to this
proceeding unless the Employer's recognition of the
Intervenor as the collective-bargaining agent was
itself unlawful and in violation of Section 8(a)(2) and
8(b)(1)(A) and (2) of the Act. To make such a
determination in this case would be contrary to
established Board policy that unfair labor practice
allegations are not properly litigable in a representa-
tion proceeding. A party asserting such allegations
may litigate them only in an unfair labor practice
proceeding designed to adjudicate such matters.9
Accordingly, we hereby deny the Petitioner's request
to proceed herein.
ORDER
It is hereby ordered that the instant proceeding shall
be remanded to the Regional Director to be held in
abeyance and for further action by the Regional
Director at an appropriate time following resolution
by the General Counsel or the Board of the aforemen-
tioned unfair labor practices charged by the Petition-
er.
MEMBER FANNING, concurring:
Having indicated, in the Intalco case ,10 my general
disapproval of the Carlson waiver, I find it unneces-
sary to pass upon the validity of the distinctions from
prior cases made by my colleagues. For the reasons
set forth in the last paragraph of the majority opinion,
I concur in the disposition of this petition.
709 (C .A. 5, 1970); Intalco Aluminum Corporation, 174 NLRB No 122 , and 7 Michigan Bell Telephone Company, 63 NLRB 941, 944 ; Pullman
Sufsun Co, Inc., 174 NLRB No. 123. Industries, Inc, 159 NLRB 580.
6 Marston Corporation, 120 NLRB 76, (interim temporary agreement 8 107 NLRB 364, 375-376.
and final contract held no bar to petition filed 2 days prior to latter S Nathan Warren & Sons, Inc., 119 NLRB 292, 294.
agreement) 10 174 NLRB No. 122