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PHARMACISTS & RETAIL DRUG STORE EMPLES. UNION

March 11, 1964

Pharmacists and Retail Drug Store Employees Union, Local 330, Retail Clerks International Association, AFL-CIO, Plaintiff
v.
Lake Hills Drug Co., et al., Defendants


Beeks, D.J.


The opinion of the court was delivered by: BEEKS

BEEKS, D.J.:

Initially the Court must decide whether it has jurisdiction of this action under Section 301 of the Labor Management Relations Act, 29 U.S.C.A. § 185(a), in view of the fact that the plaintiff union, a majority of whose members are non-supervisory employees, represents and bargains for some persons who are "supervisors" as defined in the Act.

 Defendants contend that because the plaintiff union includes "supervisors" within its membership, it is not a "labor organization representing employees" within the meaning of Section 301. Plaintiff, on the other hand, argues that neither Section 301 nor Section 2(5) which defines "labor organization" specify that the labor organization must be composed exclusively of non-supervisory employees; that if a union represents some "employees" and some "supervisors," it is nonetheless a "labor organization representing employees."

 The only case brought to the attention of the Court involving the question of union representation of supervisory personnel in which the question of jurisdiction under Section 301 was raised is A. H. Bull Steamship Co. v. National Marine Eng. B. Ass'n (2d Cir. N.Y. 1957), 250 F.2d 332, cert. den., 355 U.S. 932, 78 S. Ct. 411, 2 L. Ed. 2d 414. Defendants contend that Bull compels this court to decline jurisdiction of the action or in the alternative to limit the action to non-supervisory personnel. The Court does not agree.

 First, although there is strong dicta in Bull to the effect that there was no jurisdiction under Section 301, the court did not so hold. Secondly, it should be noted that the court in Bull was dealing with an entirely different set of facts than exist in this case. In Bull it appeared to be the fact that the only persons represented by the union in the Section 301 action and who were covered by the contract in question were supervisory personnel and that there were no statutory employees involved at all. It would have been completely contrary to the spirit if not the letter of the language of Section 301 for the court to have upheld jurisdiction under such circumstances.

 The Court does not believe that the reasoning of Bull should be applied in a case such as this where most of the employees in the bargaining unit are statutory employees and only a few are supervisors and, where, in addition, the employer has voluntarily bargained with the unit and, in effect, treated the supervisory personnel as employees for the purpose of bargaining. While Section 14(a) of the Act, 29 U.S.C.A. 164(a), was intended to prevent an employer from being compelled to bargain with supervisory personnel, the section also provides that individuals employed as supervisors shall not be prohibited from becoming or remaining members of a labor organization. A careful reading of Section 14(a) leads to the inescapable conclusion that an employer may voluntarily recognize supervisory personnel as employees for the purpose of bargaining. Certainly, when a supervisor exercises the right given him by Section 14(a) and joins a union which represents other statutory employees, and an employer voluntarily treats such person as an employee for the purpose of bargaining, it cannot be said that the union is no longer a "labor organization representing employees." Nor can it be said that the employer has in any way been compelled to treat the supervisor as an employee. The cases of NLRB v. Edward G. Budd Mfg. Co. (6th Cir. 1948), 169 F.2d 571, and Local Union 1055 etc. v. Gulf Power Co. (D.C. Fla. 1959), 175 F. Supp. 315, are not directly in point, the former not arising under Section 301 and the latter not involving a specific attack on jurisdiction, but they do, however, buttress the conclusion reached by this Court.

 The Court, therefore, finds that it has jurisdiction of the action under Section 301 of the Act, 29 U.S.C.A. 185(a).

 Assuming that the industry-wide bargaining agreement covering the period from September 16, 1962 to September 15, 1964, is valid, are defendants bound by it?

 It is admitted in the pretrial order that for several years prior to 1962 all defendants were members of the Seattle-King County Pharmaceutical Society, the multi-employer bargaining unit involved in this case, and were all covered by the industry-wide agreements negotiated by it, including the agreement covering the period from September 16, 1960 to September 15, 1962, which immediately preceded the agreement in question. If there is any doubt that membership in the Society also included representation by the Society in labor matters, it is eliminated by an examination of the form of membership application which includes an express delegation of such authority to the Society.

 The Court therefore finds that prior to 1962 the defendants were all members of the Society and had authorized the Society to act as their labor arbitrator. The only real question then, indeed the very heart of this action, is whether the defendants effectively withdrew from the Society during 1962.

 There is no question but that defendant M & D Prescriptions, Inc. did not withdraw inasmuch as on July 10, 1962, it signed a form reaffirming the authority of the Society to negotiate on its behalf and sent it to the plaintiff.

 With respect to the remaining defendants, it is admitted in the pretrial order that at no time prior to, or during, the negotiations leading to the signing of the agreement in question on December 10, 1962, did any of the defendants notify the Society in writing, or otherwise, that they desired to withdraw from membership.

 In addition, the by-laws of the Society provide, in part, that "the resignation of any member shall be made to the Executive Secretary in writing, but no resignation shall be accepted from any member who is in arrears in dues."

 There is no evidence whatsoever that any of the defendants had actual knowledge of the provisions of the by-laws. Are they charged ...


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