Santa Clara County Pharmaceutical Association

256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 8 (a) (3), the Respondent Union has engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 6. By restraining and coercing persons employed by the Respondent Company in the exercise of rights guaranteed to them by Section 7 of the Act, the Respondent Union has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Santa Clara County Pharmaceutical Association and Owners' Section, Santa Clara County Pharmaceutical Association and Retail Clerks Union, Local No. 428, AFL and Pharmaceutical Clerks Association of Santa Clara County. Case No. f0-CA- 992. October 7, 1955 DECISION AND ORDER On May 18, 1955, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding, finding that Santa Clara County Pharmaceutical Association and Owners' Section, Santa Clara County Pharmaceutical Association, herein indi- vidually referred to as Respondent Association and- Respondent Owners' Section, and"collectively referred to as Respondents, had en- gaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take' certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also found that the Respondents had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of those allegations. Thereafter, Respondent Owners' Section and the General Counsel filed exceptions to the Inter- mediate Report and briefs. The request for oral argument by the Re- spondent Owners' Section is hereby denied, as the record and briefs, in our opinion, adequately present the issues and positions of the parties. To the extent here material, the Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered 'the Intermediate Report, the exceptions and briefs, and the entire record in the case, and is of the opinion that the assertion of jurisdiction over the Respondents is not warranted. - The Respondent Association is a nonprofit California corporation existing for the purpose, among other things, of furthering the "stand- ards of Pharmacy" and of securing "the preservation and advance- ment of Pharmacy." Its membership is composed mainly of registered pharmacists, drug salesmen, and,owners and operators-of retail drug- stores and pharmacies. During 1954, the 63 dues-paying owner-mem- 114 NLRB No. 60. SANTA CLARA COUNTY PHARMACEUTICAL ASSOCIATION 257, bers of the Respondent Association listed in the record made purchases indirectly from out of State valued in excess of $2,000,000.' The Respondent Owners' Section was organized early in 1953 for the purpose of handling problems peculiar to retail drugstore owners and operators, including owner-members of the Respondent Associa- tion. With respect to labor relations matters, the Respondent Owners' Section functions principally through a labor relations committee. During 1954, the approximately 110 members of the Respondent Owners' Section named in the record 2 made purchases indirectly from out of State valued in excess of $2,000,000. Sometime between the establishment of the Respondent Owners' Section and June 1954, the Respondent Owners' Section sent to its members for signature forms authorizing it to represent them "in any and all matters involving labor-management relations and to retain and employ legal counsel" but also providing that "no collective bar- gaining agreement with any labor organization shall be entered into by . . . [Respondent Owners' Section] without ... [the member's] prior specific approval and authority." The record contains-the names of two members who executed these authorizations.' Beginning in May 1953, the labor relations committee of the Re- spondent Owners' Section and representatives of the Pharmacists Guild of Santa Clara County, hereinafter called the Guild, met to negotiate a contract covering pharmacists. In the course of these ne- gotiations the labor relations committee made it plain to the Guild that it was without authority to negotiate a contract on an association- wide basis and that the Guild would have to work out with individual drugstore owners the final details of any agreement concluded by them. After the terms of a contract with the Guild were agreed upon, the Respondent Owners' Section, in October 1953, sent copies of the con- tract to its members who employed members of the Guild. In the forwarding letters, the Respondent Owners' Section recommended the contract to those members, stating that "We have been advised that the Guild represents the person or persons employed by you as phar macists." Thirty members of the Respondent Owners' Section who are not identified in the record chose to sign this contract with the Guild. In June 1954, the Pharmaceutical Clerks Association of Santa Clara County, hereinafter called the Intervenor, requested a meeting with the labor relations committee of the Respondent Owners' Sec- 3 It appears from the record that all the individual drugstore owners and operators involved herein are engaged in making local sales and that they do not make purchases directly from out of State 9 The membership of the Respondent Owners' Section includes all or virtually all of the 63 dues-paying owner-members of the Respondent Association referred to above. In view of our disposition of the case , we deem it unnecessary to inquire into the connection, if any, between the other members of the Respondent Owners' Section and the Respondent Association 3 Whether or not other members also ' signbd the authorizations is not disclosed by the record 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, claiming that it had members in 24 drugstores and pharmacies located in. Santa Clara County. Thereafter,, representatives of the Re- spondent Owners' Section and of the Intervenor met and agreed upon a contract covering drugstore clerks. On September 22, 1954, the Respondent Owners' Section mailed copies of this agreement to its members with a recommendation for its adoption, at the same time recommending that they not execute the agreement "until after it has been ascertained that the majority of your clerks are members of the .. [Intervenor]." About 38 members of the Respondent Owners' Section do not regularly employ clerks. Of those who do, 20 signed the contract negotiated with the Intervenor. During 1954, these 20 members made purchases indirectly from out of State valued at about $1,187,000. In passing upon the jurisdictional issue herein, the Trial Examiner regarded each Respondent and all its store-owning members as a single employer. Then, considering the totality of the operations of all those members disclosed by the record, he concluded that the as- sertion of jurisdiction over each Respondent was warranted under the Board's jurisdictional standards pertaining to retail stores,4 whether the Respondent Owners' Section is in effect but a committee of the Respondent Association, as the General Counsel contends, or a dif- ferent and separate entity, as claimed by the Respondents. As already indicated, even assuming the validity of the General Counsel's posi- tion that the Respondent Association and Respondent Owners' Sec- tion must be treated as one and the same organization,, we disagree with the Trial Examiner's conclusion that jurisdiction should be asserted over them. In cases involving associations or groups of employers it is well- established policy for the Board to treat all the employers as a single enterprise for jurisdictional purposes, and to apply its jurisdictional standards on the basis of their total operations, where the evidence is clear that the employers unequivocally intend to be bound in collective bargaining by a group rather than individual action.' Such evidence appears when, for example, the employers participate personally with other employers in joint negotiations, or when they delegate to a joint bargaining representative authority to conduct negotiations on their behalf, and thereafter uniformly adopt the agreements resulting from such negotiations.' In the present case, however, we find no such evi- dence or any other adequate support for the Trial Examiner's finding 4 ,7. R Knott and Hugh H Hogue d/b/a Hogue and Knott Supermarkets, 110 NLRB 543, wherein the Board adopted a minimum indirect inflow requirement of $2,000,000 as a determinative factor in asserting jurisdiction over retail stores. 5 Insulation Contractors of Southern California, Inc, et at., 110 NLRB 638; Capetat District Beer Distributors Association, 109 NLRB 176; Samuel Bernstein & Co., 98 NLRB. 1144; The Plumbinq Contractors Association of Baltimore, Maryland, Inc, et al., 93 NLRB 1081; Pacific Metals Company, Ltd., 91 NLRB 696. 6 Fish Industry Committee, 98 NLRB 696 ; Schulze Baking Co., 92 NLRB 73 SANTA CLARA COUNTY PHARMACEUTICAL ASSOCIATION 259, that the Respondents and their members have constituted themselves a single employer. It appears from the facts recited above that the 1953 negotiations between Respondent Owners' Section and the Guild concerned only those members of the Respondents who employed Guild members. And even as to those employers, the record does not show that all of them entered into a contract with the Guild. It would also appear that the Respondent Owners' Section did not negotiate with the Intervenor in 1954 on behalf of all the employers in question,, inasmuch as a substantial number of them do not regularly employ clerks. Moreover, here it affirmatively appears that the contract re- sulting from those negotiations was not adopted by all the members who do regularly employ clerks. In the light of the foregoing facts and considerations, and the record as a whole, we believe that the es- sential element warranting our considering all store-owning members of the Respondents, together with the Respondents, as a single em- ployer-for jurisdictional purposes has not been shown to exist. The jurisdictional defect in the General Counsel's case would not be cured even were we to assume arguendo that the 30 Employers who signed the 1953 contract with the Guild and the 20 Employers who signed the 1954 contract with Intervenor have, by their conduct, mani- fested a desire to be bound in their labor relations by joint rather than by individual action. The former group of Employers are unidenti- fied, and there is no commerce data pertaining to them, in the record. And the combined indirect inflow of the latter group during the only year for which such information is available is valued at substantially less"than $2;000;000. Thus, it is plain that the combined operation's of these Employers disclosed by the record do not satisfy the jurisdic- tional requirements applicable to this case. On the basis of all the foregoing, we find that the assertion of juris- diction in this case is not warranted, and we shall therefore dismiss the complaint in its entirety. [The Board dismissed the complaint.] MEMBER MURDOCK took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint in this case , issued on December 2, 1954, is based on an original charge filed on June 16 , 1954, and on amended charges filed on August 5 and Oc- tober 18, 1954, by Retail Clerks Union, Local No. 428, AFL, herein called the Union. As Respondents, the complaint 1 names Santa Clara County Pharmaceutical Association, herein individually called Respondent Association, and Owners' Sec- 'The complaint , naming the Respondents and Pharmaceutical Association of Santa Clara County and Owners' Section of that Association , was corrected at hearing upon motion made by General Counsel. 387644- 56-vol 114-18 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, Santa Clara County Pharmaceutical Association , herein indivadually called Owners' Section, alleged to be a subdivision of Respondent Association . The com- plaint alleges that the Respondents engaged in certain unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2 ), and (3 ) and Section 2 (6) and (7 ) of the National Labor Relations Act, as amended, 61 Stat . 136, herein called the Act. In substance, the complaint alleges that the Respondents , acting through their officers, agents, representatives , and certain members, dominated and contributed support to, and interfered with the formation of, the Pharmaceutical Clerks Association of Santa Clara County , herein called the Clerks Association; and on about July 12, 1954, acting through and by Frank Carcello, doing business as San Jose Drug Co., San Jose, California, one of Respondents' members, caused the discharge of Nueme Long for the reason that she refused to join or assist the Clerks Association and joined and assisted the Union. The Respondents filed separate answers, each denying that the Owners ' Section is a subdivision of the Respondent Association and each denying the commission of unfair labor practices. Answers sought to be filed on behalf of certain individual members for whose acts the complaint alleges the Respondents were responsible were rejected, because they were not named as Respondents and no separate remedy was sought against them on an individual basis. Copies of the complaint , notice of hearing, and second amended charge were duly served on the respective Respond- ents, the Union , and the Clerks Association.2 Pursuant to notice, a hearing was held before me, as duly designated Trial Ex- aminer, at San Jose, California , on certain days between February 1 and 25, 1955, and at San Francisco , California, on March 4, 1955. On motion made at the open- ing of the hearing, the Clerks Association was permitted to intervene to the extent of its interest. All parties were represented by counsel , who participated in the hearing. In the course of the proceedings , a number of motions were made , including mo- tions to correct the transcript, which need not be detailed. On the opening day, the General Counsel moved to make a minor amendment to paragraph 2 of the complaint by adding clarifying words. The motion was granted. On February 9, the Owners' Section moved to dismiss the complaint on the ground that the Board lacked juris- diction and on the ground that it would not effectuate the policies of the Act for the Board to assert jurisdiction . The motion was denied. On February 11, the Re- spondent Association moved that the case be dismissed as to it. The motion was denied. On February 16, counsel for the Respondent Association withdrew from further participation in the hearing, expecting ' that the General Counsel would not ask for a remedial order against that Respondent. On the last day of the hearing, the Owners' Section renewed its motion to dismiss on jurisdictional grounds. Ruling thereon was reserved and is ruled on in section I , below. Also at the close of the hearing the General Counsel moved to amend paragraph VII of the complaint by adding names of additional members of the Respondents alleged to have performed acts contributing to the Respondents ' alleged commission of unfair labor practices. The motion was granted . Counsel for the General Counsel, for the Union , for the Owners' Section, and for the Clerks Association argued orally on the final day of the hearing and time was given in which to file briefs. Briefs were received from the General Counsel , the Union, the Owners' Section, and the Clerks Association .3 From my observation of the witnesses , and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. FACTS BEARING ON JURISDICTION A. Nature of the organization of Respondent Association and business of its members The Respondent Association , originally an unincorporated association , but in- corporated in 1954 4 as a nonprofit California corporation , having its principal of- 2 Copies of the original charge had been served on the Respondent Association and on certain individual members Copies of the first amended charge had been served on the Owners' Section and the same individual members 8 The biief of the Clerks Association is also headed "Brief and Proposed Findings and Conclusions," but no specific enumerated requests are made for findings of fact or con- clusions of law 4 The articles of incorporation are dated for execution in May 1954. The exact date of incorporation is not in evidence, but the executive secretary of the Respondent Association testified that he thought it was August 17, 1954. SANTA CLARA COUNTY PHARMACEUTICAL ASSOCIATION 261 fices in San Jose, California, exists, according to its constitution , "to further the standards of Pharmacy , to promote the general welfare of the public , to insure pro- fessional tranquility and to secure the preservation and advancement of Pharmacy." Its constitution provides for two classes of members : " l. Pharmacist registered in the State of California. 2. Any U. S. citizen of good moral and professional stand- ing who is directly associated with Pharmacy or allied drug trades." Although jobbers may be members, most of the members fall into three categories : employed registered pharmacists, travelers, and owners or operators of retail drugstores or pharmacies. The organization's constitution makes no provision for the manner in which membership is acquired , and it makes specific provision for termination of membership only by vote of the advisory committee for violation of any of the ethical or legal rules governing the practice of pharmacy. Six months' arrearage of dues results, by the constitution, in a discontinuation of "service" of the As- sociation, but the constitution makes no specific provision for termination of mem- bership for nonpayment of dues. Nonmembers may attend meetings of the Re- spondent Association . Those who pay dues receive a monthly bulletin from the organization . Those more than 6 months in arrears of dues are taken off the mail- ing list. Although the constitution specifically provides that honorary members shall not be entitled to vote, it makes no provision regarding voting privileges of de- linquent members, and the evidence indicates no effort on the part of the Associa- tion to guard against voting by nondues payers or delinquent dues-paying members. The organization maintains as records two sets of cards of persons (within the categories for membership ) located in Santa Clara County, California , and vicinity. One set consists of cards of persons who are not delinquent in dues, while the other set includes all others, whether or not they have ever paid dues. In practice, state- ments for dues are sent to all persons so listed . If the dues are paid, a membership card is issued (presumably for the year for which dues are paid). The evidence lists 63 dues-paying owners or operators of retail drugstores or, pharmacies . These are all engaged in making local sales. Omitting several mem- bers from whom no information was procured as to purchases , the total purchases of such members for the year 1954 exceeded $3,800,000, of which approximately 75 percent, or more than $2,850 ,000 worth of purchases , originated outside the State of California and reached the members of the Respondent Association indirectly ih the flow of commerce. B. Nature of the organization of Owners' Section and business of its members In'its inception , Owners' Section was ' understood to be a subdivision of the Re- spondent Association . The advisory board of the latter is composed of all current officers, the past presidents of the prior 3 terms, 1 retail pharmacy owner, 1 drug representative ( traveler), and 1 employee pharmacist ; the last 3 of whom are ap- pointed by the president. Early in 1953, Clarence Schuh was the owner-member of the advisory board. Some of the owners had brought their labor problems to the advisory board, according to Schuh, and "the presiding officer was of the opinion that labor problems did not belong in the association meeting and he said, `Mr. Schuh , as long as you represent the owners we will refer this matter to you and you take it up with the owners."' Schuh started by communicating with owners in the county without consideration of dues standing in the Respondent Association. The executive secretary of the Respondent Association presided at one of the early meetings. The April 1953 monthly bulletin ( Mortar and Pestle) reported that the advisory committee at its April 7, ' 1953', 'meeting passed a motion to appoint section chairmen for owners , employees, and travelers sections, each chairman having authority to call meetings for his respective section ' for the purpose of transacting business concerning that group only . The appointed members of the advisory committee representing each of the foregoing groups were automatically to be ap- pointed section chairmen . Thus, Schuh became the first chairman of the Owners' Section. • Following such appointment , meetings of owners were held, as related in greater detail hereinafter, and the Owners' Section established a labor relations committee and hired an attorney. It also established and began to collect "dues" to defray the expenses of its labor relations committee . It is impossible to determine whether or not all owners who paid dues to the Owners' Section in 1953 or 1954 also paid dues to the Respondent , Association in the same years, because the Re- spondent Association maintains records only of dues for the current year, but, by the time of the hearing, although all dues-paying , owner-members of the Respondent Association were, or at sometime . had been, listed as members of the Owners' Sec- tion, an additional number of members of the Owners ' Section, approximately, 43, were not currently dues-paying members of the Respondent Association. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Aside from the appointment of the chairman of the Owners' Section, the advisory board of the Respondent Association made no effort to control the Owners' Section; it required no reports, gave no directions, and offered no official advice. Robert Patterson, the executive secretary of the Respondent Association (appointed by the advisory board), also served as secretary to the labor relations committee of the Owners' Section until he resigned in June 1954. With each Respondent he was the only paid officer. It is contended by both Respondents that the Owners' Section, sometime in 1954, began to "draw off" by itself and to become a separate organization rather than just a section of the Respondent Association. The Owners' Section never adopted a constitution and never notified the Respondent Association that it was severing connections. The evidence does not support the contention of the Respondents un- less the assessment of "dues" by the Owners' Section gave it a position of independ- ence. But even if the Owners' Section were a separate entity, the volume of business. of its members exceeds that of the dues-paying members of the Respondent As- sociation; so jurisdiction may be asserted. Figures on total purchases were not furnished for approximately 32 members of the Owners' Section, but of the re- mainder, their total 1954 purchases exceeded $5,000,000, of which 75 percent, or $3,750,000, came indirectly from points outside the State of California. Despite the fact that the business of the member-owners affects commerce within the meaning of Section 2 (6) and (7) of the Act and despite the fact that the value of the indirect inflow is more than the amount which the Board has fixed as a stand- ard for asserting jurisdiction over retail establishments, the Owners' Section contends (as a basis for its motions to dismiss) that it will not effectuate the policies of the Act for the Board to assert jurisdiction over retail drug establishments. In support of this contention, it cites cases such as Contra Costa Retail Druggists Association, 90 NLRB 1910; Hook Drugs, Inc., 90 NLRB 1841; Jacobs Pharmacy Co., Inc., 87 NLRB 309, and Hateston Drug Stores, 82 NLRB 1264 and 86 NLRB 1166. These cases do indeed appear to support the contention of the Owners' Section, but the pol- icy of the Board, as it was formulated before October 1950, when those cases were decided, was not that retail drugstores were peculiar among retail establishments and that they alone were unsuited for the exercise of the Board's jurisdiction; rather the Board's view was that the business of any essentially local retail establishment had little effect upon interstate commerce and that, although the Board was not without jurisdiction, it would not effectuate the policies of the Act to assert jurisdiction over such establishments. But the Board modified this view on October 3, 1950, and de- cided to assert jurisdiction over local retail establishments which had a direct inflow of materials valued at $500,000 or more a.year (Federal Dairy Co., Inc., 91 NLRB 638) or'an-indirect inflow of materials valued at $1,000,000 or more a year (Dorn's House of Miracles, Inc., 91 NLRB 632). The latter policy remained in effect until July 1954, when the Board announced a modification of these standards and fixed the jurisdictional amounts for retail establishments at $1,000,000 of direct inflow (Hogue and Knott Supermarkets, 110 NLRB 543) and $2,000,000 of indirect inflow (Jeffer- son Company, Inc., 110 NLRB 757; Homer Chevrolet Company, 110 NLRB 825). The Board continued, without change, its past practice 5 of considering all association members who participate in multiemployer bargaining as a single employer for juris- dictional purposes (Insulation Contractors of Southern California, Inc., 110 NLRB 638. See also Capital District Beer Distributors Association, 109 NLRB 176). C. Respondents as employers 1. The Owners' Section The Owners' Section contends that there are two further reasons why the Board, ought not to assert jurisdiction despite its general rule of calculating the dollar value of commerce by lumping the purchases of all association members. First, it is con- tended, an essential prerequisite to assumption of jurisdiction by the Board is that the association over whom the Board may assert jurisdiction must bargain on behalf of its members for a single master contract binding on all members. As an association would not be an employer within the meaning of the Act unless it acts in the interest of individual members in labor relations, this contention, in effect, is a denial by the Owners' Section that it is an employer within the meaning of Section 2 (2) of the Act. As will be related in greater detail hereinafter, the Owners' Section was au- thorized to and did negotiate with the Clerks Association an agreement the terms of which were approved and recommended to members by the Owners' Section although the latter did not, itself, execute it on behalf of its members. Rather, it left the name. 5 Oertei Brewing Company, 93 NLRB 530; Carpenter & Skaer, Inc., 90 NLRB 417. SANTA CLARA COUNTY PHARMACEUTICAL ASSOCIATION 263 ,of the employer blank and allowed individual owners to fill in, their respective names and sign the agreement if they chose. Although members of the Owners' Section pre- ferred to execute individual identical contracts, it is clear that they exhibited a desire to be represented collectively for the purpose, among others, of negotiating a con- tract. They appointed a labor relations committee and they hired an attorney.6 They authorized the committee to act on their behalf in all labor relations matters, including the question of recognition of collective-bargaining agents, negotiation of union contracts, and litigation of suits to enjoin picketing of individual members. Whenever a member was approached by a labor organization which claimed to repre- sent his employees, he referred that organization to the Owners' Section as his repre- sentative in such matteis. The fact that nearly all the owner-members, who were re- quested by the Clerks Association to negotiate an agreement, accepted the form con- -tract negotiated by the Owners' Section in itself demonstrates a desire for collective bargaining on a joint rather than a separate basis. Furthermore, members of the 'Owners' Section adopted an "all for one" attitude in withstanding picketing of any member by the Union, paying the attorney's fee in 2 injunction suits, and making a gratuitous contribution of $1,000 to a proprietor ostensibly to compensate him for losses suffered as a result of the Union's picketing. The assumption of the Owners' Section that an associationwide unit of employees most exist and that an association of employers must be authorized to bind its mem- bers to a master contract before it is to be deemed an employer in the sense of an agent acting in the interest of an employer under the definition in Section 2 (2) of -the Act is ungrounded.? Whatever basis the Owners' Section might have for its argument, if the facts had shown that it negotiated separately for each Employer and that divergent contracts resulted, the evidence here indicates that such was not the desire or practice of the members of the Owners' Section. The sum of the evidence suffices to establish that the Owners' Section is an employer within the meaning of the Act. Finally, the Owners' Section argues that, although the Board may assume jurisdic- tion of an agent that is not, of itself, engaged in interstate commerce if the agent's principal is engaged in commerce within the meaning of the Act, the Board cannot proceed against such an agent if the principal is not so engaged. Apparently the argument is that the Board should not assert jurisdiction over an employer in the sense of one acting in the interest of an employer ( i. e., an agent) unless it would assert jurisdiction over the individual employer in whose interest acts are per- formed (i. e., the principal), and hence should not assert jurisdiction over the Owners' Section inasmuch as it would not assert jurisdiction over the indi- vidual member whose volume of business, separately considered, is below the Board's current jurisdictional standards. Whatever the merits of such an argu- ment might be, if the agent or person acting in the interest of the employer were a stranger to the principal employer, no value can be given to the argument when the so-called agent is, in itself, an association composed of the very principals for whom it acts When pharmacy owners act alone, their individual activities in the operation of their businesses may but slightly affect interstate commerce. Within certain standards, the Board, although not without jurisdiction, has for proper reasons decided not to assert jurisdiction over individual local retailers. But when individual employers combine in an association to act as one employer within the meaning of the Act, the impact of their activities upon commerce is multiplied by the number of component parts of the whole. Cases are too numerous to require citation which hold that several integrated businesses will be considered as one employer for the purposes of jurisdiction. And this is true even though the unfair labor practices may involve the activities of only one of the several opera- tions of such employer. It is immaterial that the businesses of the members of ° Leonard Kuhn, an owner on the labor relations committee of the Owners' Section, testified that an attorney was hired to help the owners negotiate. "We wanted somebody who could get us together so we could be negotiated with rather than dominated . . . in- dividually by handing them a printed form and saying 'sign it or be picketed.' " v Capital District Beer Distributors Association, 109 NLRB 176 (footnote 8) ; Puerto Rico Steamship Association, 103 NLIIB 1217; Al Lanian Motors, Inc., 98 NLRB 724; Fish Industry Coinrn4ttec, 98 NLRB 696, Bryant's Marina, Inc, 92 NLRB 718, Balaban & Katz (Princess Theatre), 87 NLRB 1071, Oertel Brewing Company, 93 NLRB 530, 537, Columbia Pictures Corporation, 82 NLRB 568, Association of Motion Picture Producers, inc. 79 NLRB 466; Everett Automotive Jobbers Association, 81 NLRB 304; Retail Employee Relations Commission, 80 NLRB 1473; George F Carleton & Company, 54 NLRB 222; Rayouier, Incorporated, 52 NLRB 1269, and Associated Shoe Industries of Southern Massachusetts, Irte, 81 NLRB 224 (footnote 15). 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an association are ndt themselves integrated when the activities indulged in joint- ly-those dealing with labor relations and collective bargaining-are such as to bring them within the statutory definition of employer. Although I am not aware of any case in which the Board has passed upon this precise argument-that the principal should be under the jurisdiction of the Board before the Board may assert jurisdiction over the agent even though the agent is, on its volume of interstate business, clearly within the Board's jurisdictional standards-the Board has con- sistently taken jurisdiction over employer associations , although it might not have done so on the basis merely of the volume of business of individual members of the association.8 2. The Respondent Association The Respondents both deny that the Owners' Section is a division or subdivision of the Respondent Association and the latter takes the position that it is not responsi- ble for the words or deeds of the Owners' Section. In effect, this raises the question of whether the Respondent Association, like the Owners' Section, is an employer within the meaning of the Act. If no connection had ever existed between the two, the Respondent Association probably would not be found to be an employer within the meaning of the Act inasmuch as all the acts performed on behalf of pharmacy owners were, at least ostensibly, initiated and carried out by the Owners' Section. But the General Counsel takes the position that the Respondent Association is accountable as an employer because it was the creator of, and continued to be the parent of, the Owners' Section. The evidence is clear that the Respondent Association set up the Owners' Sec- tion in 1953 to handle problems peculiar to that segment of its organization. At the organizational meeting of the Owners' Section, Robert Patterson, executive secretary of the Respondent Association, and Clarence Schuh, owners' representa- tive on the advisory committee (in effect the board of directors) of the Respondent Association, presided, and Patterson described the function of the owners' committee as a labor relations division of the Respondent Association. In the April 1953 issue of the monthly bulletin of the Respondent Association, the executive secretary's report read: The Advisory Committee at its April 7th meeting passed a motion "to appoint section chairmen of the Owners, Employees and Travelers Section of the S. C. Co. Ph. Assn., each chairman to have authority to call meetings for his respective section or group for the purpose of transacting business concerning that group only. The appointed members of the Advisory Com- mittee (Travelers, Employees, Owners) shall be automatically appointed to chairmanship of such sections." The motion is the result of much consideration and discussion with many members of the Association. The committee recognizes that a great deal of the success of our Association is the result of its varied membership. It also; recognizes the necessity for occasional collective thinking and action by indi- vidual groups or sections of the membership, such as Owners, Employees, or Travelers. Such action frequently is expedited by action under the sanction of a constitu- tion of a recognized association rather than that resulting from a mass meeting. It was felt that the arrangement resulting from the motion would maintain the varied membership apparently necessary for a successful association, and at the same time provide an efficient mechanism for use by individual sections involving their unique problems. The appointed members of the Advisory Committee for the current year are- Larry Schuh, Phil Brown, and Carl Deiss. They therefore will be chair- man of the Owners Section, Employees Section, and Travelers Section, respec- tively, for the balance of the year. Patterson testified that although the Owners' Section started as part of the Re- spondent Association, the Owners' Section "pulled off by itself" during 1954 without notice to the Respondent Association and thus became a separate entity. He point- ed to the lack of liaison and the difference in membership between the Respondent Association and the Owners' Section as evidence of this, although he admitted that no affirmative action had been taken to effect an actual separation. With respect to the alleged lack of liaison, it may be said that the Respondent Association does not appear to have been given to formality in its operations, and certainly on an informal basis there was no lack of liaison. Patterson, from April 1953 to June 1954, acted in the dual capacity of executive secretary of the Respondent 8 See footnote 7, supra. SANTA CLARA COUNTY PHARMACEUTICAL ASSOCIATION 265 Association and secretary of the labor relations committee of the Owners' Section, the nucleus that carried out the aims of the Owners' Section . Labor relations was the principal function of the Owners' Section and the labor relations committee ap- parently was the only standing committee . Almost all the funds of the Owners' Section were spent on labor relations matters, and during Patterson 's term as secre- tary of the committee, those funds were in his charge . As executive secretary of the Respondent Association, Patterson's duties included sitting at meetings of its advisory committee , taking minutes of that committee 's meetings, and carrying out its directions . He was in a perfect position to keep the advisory committee of the Respondent Association advised of the activities of the Owners' Section. Patterson resigned as secretary to the labor relations committee of the Owners' Section in June 1954, and his successor, Charles Mallory, was not a member of either the Owners' Section or the Respondent Association, Mallory being an independent public rela- tions and advertising man with his own firm. But in May 1954, before Patterson's resignation, Clarence Schuh, who was president of the Respondent Association and ex officio a member of its advisory committee during 1954 and who had been chair- man of the Owners' Section in 1953, became chairman of the labor relations com- mittee of the Owners' Section and he still held that position at the time of the hear- ing. In such dual capacity he also could keep the parent organization informed. Ansel Buletti, Schuh's successor as Owners' representative on the advisory committee of the Respondent Association, in 1954 became chairman of the Owners' Section, the position which Schuh had first held by virtue of the same position on the advi- sory committee. If any separation occurred, it did not come about as a result of any change in method of appointing the chairman of the Owners' Section. The contention that the Owners' Section was a different organization from the Re- spondent Association because of a difference in membership starts with the premise that membership in each Respondent is determined solely by payment of dues .9 The evidence throws some doubt on the accuracy of this premise. The constitution of the Respondent Association does not cover the manner in which a retail pharma- cist or other eligible person becomes a member and, as previously stated, the con- stitution does not specifically provide for termination of membership, as distinguished from termination of services, for nonpayment of dues. That the Owners' Section was a separate organization apparently was not a belief entertained by members of the Respondent Association . In June 1954, Schuh testified in a lawsuit in a State court that all drugstore owners who were members of the Respondent Association automatically became members of the Owners' Section . This belief was also enter- tained by the witness, John Kent, who had been a member of the Owners' Section in 1953 and 1954 and who had been appointed to its labor relations committee in- May 1954, for he testified at the hearing in the instant case that his payment of dues to the Respondent Association paid his dues in the Owners' Section , and he referred to the payment made to the Owners' Section as an assessment rather than as dues. As previously stated, the Respondent Association maintains a list of all "pros- pective members" by means of a card file separate from its card file of those who have paid dues. When a dues payer becomes 6 months delinquent in his dues, the executive secretary of the Respondent Association withdraws his card from,the file of dues payers' cards and puts it in the file of prospective members. The Respondent Association has no record of which prospective members are former dues payers after their cards are transferred to the file of prospective members. The effect of nonpayment of dues is to terminate "services." The only specific services of the Respondent Association mentioned by Patterson were mailings, in- cluding the bulletin. Similarly, in the Owners' Section, those who were delinquent in dues were eventually supposed to have been taken off the mailing list.10 But the evidence does not show that delinquent members of the Owners' Section were always denied services. The Owners' Section supplied a list of its current members for an exhibit introduced in evidence by the General Counsel. I notice from the financial records of the Owners' Section that some who were listed as members of that group 9 Information supplied by the Respondents is apparently based on 1955 dues status Some current dues-paying members of the Respondent Association had, in 1954, paid' dues to the Owners' Section However; as no 1954 roster of dues payers of Respondent Association is available, a comparison of dues-paying members for the period actually covered by the complaint is impossible ii Patterson testified, "1 think the only thing that may have been done was that I asked' the duplicating service to withdraw addressograph plates of individuals who had not paid their dues, thus stopping correspondence with them. . . . I did weed out those that had not paid after a period , after their initial dues , and just sent communications to those- who had paid " 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paid something on "dues" but failed to pay the emergency assessment levied in July 1954. Among these were Anthony Campagna of Moderne Drug, who paid $50 dues in 1953, $60 dues in 1954, $20 dues in January 1955, but who paid nothing on the July 1954 assessment although he was the recipient of the $1,000 payment previously mentioned. Charles Longinotti of Morehead Fleming Drug Co. paid $50 in each of the years 1953, 1954, and 1955, but he paid nothing on the July 1954 emergency assessment. Lawrence Armanini of Armanini's Drug Store paid $50 for each of 2 stores in 1953 and 1954, but paid nothing on the July 1954 assessment . Monson's Drugs paid $50 in 1953, but apparently made no payment thereafter. Bascom Avenue Medical Pharmacy paid nothing although it was listed as a member from the beginning. M&M Drugs paid $20 in July 1954, but no more. All the foregoing were listed by the Owners' Section as members in 1955. Other instances might be cited. Although Patterson testified that at sometime "dues" were fixed at $10 a month or $50 for 6 months, this suggests that $100 a year was expected, payable in 2 equal semiannual installments or $120 a year payable at the rate of $10 a month. Such was not the practice, at least. If paid in a lump sum, the $50 payment was apparently all that was expected for a full year for no one actually paid more than $50 or $60 per store in any given calendar year except on the emergency assessment. Patter- son testified that an initial payment of $50 was set in May 1953 and that there was no period for which this applied. That the nonpayment of dues was not a sole determinant of membership is also indicated by the following evidence: First, so-called eligible or prospective members and delinquent dues payers were not excluded from meetings of either the Respond- ent Association or the Owners' Section. Although voting in meetings of Respondent Association was supposed to be limited to dues payers, according to Patterson (a probable assumpion on his part, as the constitution makes no provision for voting qualifications) the treasurer never checked to see if only dues payers voted. Second, noiidu6s payers were allowed to hold committee positions. For example, one Pat McConville, proprietor with interests in 2 pharmacies, who paid only $20 to the Owners' Section in the period from May 1953 to January 1955 but who apparently had not paid dues to Respondent Association (his card being in the latter's file of prospects only), was nevertheless appointed by the president of the Respondent Association as its legislative representative for Sunnyvale. Similarly with the Owners' Section, for one Monson, proprietor of Monson's Drugs mentioned above, was named by Patterson in his testimony as a member of the labor relations committee of the Owners' Section for a term starting in May 1954, although on the basis of dues he would not have been a member after 1953.11 In the light of such evidence and of the fact that the constitution of the Respondent Association merely provides for termination of services (which, so far as appears, means mailing of correspondence and the monthly bulletin) rather than of member- ship, for delinquency in dues, one is led to the conclusion that "membership" is not so well defined a concept as the Respondents would have it appear. In fact, the evidence indicates that to be an active member of the Respondent Association anyone in or near Santa Clara County needs only be in an occupation connected with pharmacy and participate in the affairs of the Respondent Association. Having a card showing the payment of dues does not appear, in practice, to be a prerequisite to voting or taking an otherwise active part in Association affairs. The professional ideals for which, according to its constitution, the Respondent Association exists do not appear to require the expenditure of any appreciable amount of money. They do not require special services. Except for postage, telephone calls, cost of publica- tion of the monthly bulletin, and record keeping by the executive secretary no services which would require funds were revealed by the evidence. The $6 a year dues apparently cover these expenses. Discontinuance of such services would not seri- ously interfere with the activities of the members in the furtherance of the constitu- tional aims of the Respondent Association. This may explain why no effort is made to limit attendance or voting to dues payers. Obviously if additional services were desired, contributions would have to be larger. Hence, when the owner-members wanted assistance in connection with labor relations, it was up to them to bear the additional cost, principally of attorney's fees. Since such services did not benefit other types of members of the Respondent Association, it was logical for the owners to collect and expend their own moneys rather than have the Association as a whole do it for them. The moneys so collected were spoken of by certain witnesses as "dues," but nothing in the cashbook of the Owners' Section so denominates them. All funds so collected went into the same account and were expended for the same general purposes as 11 Other evidence faits to list Monson as a committee member in 1954. SANTA CLARA COUNTY PHARMACEUTICAL ASSOCIATION 267 were the, moneys collected under the name of "emergency assessment." The so- called dues of the Owners' Section are not a personal charge. They are based on the number of pharmacies operated rather than on personal membership. The initial charge in May 1953 was $50 for each drugstore owned. When this amount was fixed, it was for no determinate time. No further payments were required to be made before May, 1954 at which time the amount charged was,$50. in advance 6r"$1'0'•in^6 monthly payments. In July 1954 an emergency a'ssessirient on' each store operated required owners to pay on a sliding scale depending on the number of employees in each store . On all the evidence, I conclude that the contributions to the Owners' Section were not dues in the ordinary sense. Not only did the Respondent Association initiate the move to establish the Owners' Section but it endowed it with its own name . Use by the Owners' Section of the Respondent Association's name as a part of its own continued, with the tacit per- mission of the Respondent Association, until after the commencement of the hearing. No attempt was ever made, before the hearing, to inform members or the public that the Owners' Section was not what its name implied-a section of the Respondent Association. In view of the language of the report of the executive secretary of the Respondent Association in the April 1953 bulletin, quoted above, which clearly indicates an intention on the part of the Respondent Association to sponsor the activities of the Owners' Section, a notice to members of separation of the Owners' Section from the Respondent Association was particularly called for if the Respond- ent Association wished to be relieved of responsibility for acts of the Owners' Section. Although the Respondent Association, as a body, did not direct the activities of the Owners' Section, its officers and committee members participated actively in the oper- ations and affairs of the Section throughout. The Owners' Section during the entire period from the time of its organization in April 1953 to the time of the hearing in February 1955 met only three times. The rest of the time its affairs were carried on by its labor relations committee. In some instances, decisions would be made and action would be taken by the chairman of the committee without the formality of a meeting or even notice to the full membership. When the decision was made to make a "contribution" of $1,000 to Campagna, purportedly to compensate him for losses sustained as a result of having his store picketed (a contribution not made to other picketed druggists), of the 13 members of the committee, only Chairman Schuh and Leonard Kuhn, treasurer of 'the committee, participated.12 They made the deci- sion without talking with Campagna, without getting any statement concerning Cam- pagna's losses, and without presenting the matter at a committee meeting. At that time only Kuhn and Schuh could draw checks, but Kuhn could do so only on authority from Schuh. Money raised from the July 1954 assessment went into an account in Schuh's name. At this time Schuh was president of the Respondent Association. On all the evidence, I find that the Respondent Association made itself responsible for the acts of the Owners' Section. I find therefore that it, as well as the Owners' Section, is an employer within the meaning of Section 2 (2) of the Act. And as I have foundthat the Board's jurisdictional standards are met, I find that it will effectu- ate the policies of the Act to assert jurisdiction. II. THE ORGANIZATIONS INVOLVED Retail Clerks Union, Local No. 428, affiliated with Retail Clerks International Association, AFL, and Pharmaceutical Clerks Association of Santa Clara County are labor organizations admitting to membership employees of members of the Owners' Section of the Respondent Association. III. THE UNFAIR LABOR PRACTICES A. Domination and assistance of the Clerks Association 1. Background: Formation of the Owners' Section and of the Pharmacists Guild In the early months of 1953, the Union was engaged in a campaign to organize retail drugstores in Santa Clara County, California. Its method was to approach the drugstore owner, present him with a copy of the Union's standard form of contract, and ask him to look it over and to sign it. At this time, the Union sought to represent a Schuh testified that the money was paid to Campagna after he had talked on the telephone with Kuhn and that he did not know whether other members of the committee knew of it. Kuhn testified that he "probably" had a conversation with other members about `the payment but had no recollection of who they might have been and that he "assumed" that other people did know of the decision Later, without being sure, he testified that lie believed he had talked to Don McCormack, Murphy, and Buletti At the time of the payment, only Buletti of the three named was on the committee 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all employees who worked in drugstores. If the owner refused to sign the contract presented, the Union threatened to picket the store. The drugstore owners, through Clarence Schuh, their representative on the advisory committee of the Respondent Association, presented their labor problems at a meeting ,of that committee. Under the constitution the advisory committee initiates all pro- grams and policies of the Respondent Association. The chairman of the committee suggested that, as this was not a matter in which all members were concerned, Schuh should take the labor problems to the owners. Schuh, with a group of owners, went to the Employers' Council in San Jose to seek advice. Following this visit, Schuh sent telegrams to drugstore owners, notifying them of a meeting to be held on a date in March 1953 at the Sainte Claire Hotel in San Jose. Schuh made no effort to limit this notice to dues-paying members of the Respondent Association. On the appointed day and at the selected place, about 35 to 50 owners met.13 Pat- terson, executive secretary of the Respondent Association, presided.14 The group was addressed by a man named Hale, of the Employers' Council. There was a discussion of the organizational drive of the Union. Questions were asked concerning the legal- ity of picketing of drugstores. Hale told them that they did not have to sign a contract but that there was no way to prevent. picketing. A labor relations committee was,set up at this meeting with Donald McCormack as chairman. 15 It may be that the committee was not at first called a labor relations committee, for witnesses differed on the date of the creation of such a committee, but I am convinced and find that a committee with McCormack at its head functioned before the next meeting of owners. Patterson 'became its secretary at the April 1953 meeting and it may be that the name "labor relations" was first applied to the committee at this time. Witnesses who had been on this committee in 1953 testified that they were not satis- 'fied with the answers which Hale had given them and were not satisfied that there were no answers to the problem of avoiding threatened picketing. They discussed among themselves the possibility of hiring an attorney to represent them in dealings with the Union. The morticians in San Jose had been represented by an attorney in a matter -involving another union, so McCormack, chairman of the labor relations committee, telephoned a mortician whom he knew and was given the name of James Duberg as the attorney who had represented the morticians. John Murphy, a member of the committee, expected to be in Los Angeles the following week and offered to speak with Duberg to see if he was available. In April 1953, about 75 owners met in San Jose at a public hall called Mary-Ann Gardens. Neither Schuh nor Patterson knew who sent out notices of this meeting, but they sat at a table at the head of the room, and Patterson explained to the owners that the group was a labor relations division or committee of the Respondent Associ- ation. Duberg was there and spoke to them about picketing and what could be done to avoid it. He told them that the only sure way to avoid picketing was to sign a contract, but he raised the possibility of negotiating a contract as an alternative to accepting the form presented by the Union. The witness Leonard Kuhn, an owner and a member of the labor relations committee, who tended to qualify his answers with words of uncertainty, although I am not satisfied that his memory was poor, indicated that there may have been mention of the California Jurisdictional Strike Law.15 John Kent, an owner who attended the meeting, testified that while he was 13 Schuh testified that this was mainly a meeting of owners who had been approached 'by the Union. 14 This finding is based on Patterson's testimony Patterson could not recall who asked him to preside. The witnesses for the General Counsel were nearly all adverse witnesses. For this reason I have credited statements in the nature of admissions although I have not given full credit to the testimony of each witness. 1c Patterson, in his testimony, identified the other members as John Murphy, Willard Larson, Ansel Buletti, Leonard Kuhn, Walter Wade, Bob Knight, and Larry Nelson. But it was later stipulated that Frank Carcello was also a member. At the first meeting of the -committee, the chauman proposed that a quorum be a majority of those present 1e Kuhn testified Q Do you recall any mention at the Mary-Ann Gardens meeting, Mr Kuhn, of the California Jurisdictional Strike Law? A. It may have been mentioned, sir. Q It's possible it was mentioned? A: It's possible that it could have been mentioned in a question from the floor as to why certain things could not be done and perhaps there was a statement of law, as an explanation It's a known fact. I suppose it's common knowledge. Later, Kuhn testified that his use of the expression "possible" was "in the sense that it ,could have happened but not as my recollection that it did. . . . I do not recall definitely SANTA CLARA COUNTY PHARMACEUTICAL ASSOCIATION 269, there, although not during the meeting- proper, he'heard talk that the employed pharmacists might form a pharmacists guild. Patterson testified that he had no recol- lection that it was ever said at any meeting of the labor relations committee that the Pharmacists Guild of Santa Clara County be used to create a jurisdictional dis- pute between that Guild and the Union,,but-he admitted that he hadso testified in a certain lawsuit about 8 months before the hearing in this case and that his testimony as-then given was correct. On examination by the General Counsel and the Union, Patterson could not recall when this subject was discussed, but on examination by counsel for the Owners' Section, Patterson fixed- the time as between the date of a meeting of the labor relations committee at which the Pharmacists Guild represent- atives were introduced and the date of a meeting of the labor relations committee with the negotiating committee of the, Guild. As the Guild was organized, on May 19, 1953, and as a negotiation meeting was held sometime in May 1953, the date as fixed by Patterson may be proximately determined. Regardless of how and when the California Jurisdictional Strike Law was introduced to the members, I deduce that from the time of their April 1953 meeting, members of the Owners' Section were conscious of the potential application of that law to their cases. As a result of the meeting at Mary-Ann Gardens, the owners decided to retain, Duberg as counsel , and ways and means of raising the money to pay therefor were discussed. The account book of the Owners' Section indicates that the first $50 assessment was set up on May 11, 1953. 1 As previously stated, a small group of employed pharmacists called a meeting of pharmacists for May 19, 1953. A letter dated July 24, 1953, sent to "Fellow Pharmacists" over the signature of Philip C. Brown, then chairman of the member- ship committee and vice president of the Pharmacists Guild of Santa Clara County, hereinafter called the Guild, recited that the meeting of May 19 was called because a small group of pharmacists realized the urgency of the situation created by the efforts of the Union to "force pharmacists into their Union" by getting contracts with various owners "Our only defense," said the letter, "was to form a guild or union of our own and to secure our own contracts with the store owners, if possible, before the A. F. of L. secured theirs." The letter then related the meeting , adoption of a constitution and bylaws, election of officers, and commencement of negotiations for a contract. Then the letter continued: "The decision will probably be made in the near future as to which organization, the guild or the A. F. of L., will be recognized as the bargaining agency for employee pharmacists. Your choice will not be whether or not to join such an organization but which one to join." It is interesting to note that Brown, the writer of this letter, was the employees' representative on the advisory committee of the Respondent Association and as such was head of the Employees' Section. He was employed by Leonard Kuhn, a mem- ber of the labor relations committee of the Owners' Section. Joan Leahy, secretary of the Guild at that time, was employed by John Murphy, a member of the same labor relations committee and the man who was to see Duberg while in Los Angeles before the April meeting at Mary-Ann Gardens. Olive Wakley, then treasurer of the Guild, was employed by Willard Larson, a member of the same labor relations committee . Frank J. Bucher, then a director of the Guild and later its president, was the second vice president of the Respondent Association in 1953, was the first vice president of the Respondent Association in- 1954, and was its-president in 1955. His employer was a member of the Respondent Association and of the Owners' Section. Employers of the Guild's president, E. A. Saville,17 and of the other Guild director, Harold Graves, were members of the Owners' Section. Patterson, who was also an assistant professor at San Jose State College, twice made arrangements for meetings of pharmacists to be held at the college. The sec- ond meeting held in the fall of 1953'was, to Patterson's knowledge, definitely a meet- ing of the Guild. The first was held in the "early summer or spring" of 1953, but Patterson was not present at the meeting and would not say that that was the time when the Guild was formed. The time, however, approximates the date of the forma- tion of the Guild - From its inception, the Guild has had an employer-employee relations committee whose function it is to meet with the labor relations committee of the Owners' Sec- tion to negotiate contract terms. Sometime in May 1953, the Guild sent letters to whether a question as to California law regarding jurisdictional disputes was brought up at that particular time or not." The California law was found constitutional by the Supreme Court of the State in a case decided on March 10, 1953 17 Saville was succeeded as president by Brown in January 1954. Brown held this position until May 1954 It is not certain from the evidence if Bucher then succeeded Brown, but Bucher was president of the Guild at the time of the hearing in this case 270 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD all owners informing them of the formation of the Guild and requesting a meeting with the labor-relations committee of the Owners' Section for the purpose of collec- tive bargaining. It is interesting to note that the Guild, like the later formed Clerks Association, apparently proceeded on the assumption that it could negotiate a con- tract through the labor relations committee which would be acceptable to individual proprietors and would be executed only by -individual proprietors. The labor rela- tions committee had a meeting with the Guild on an unspecified day in May when the Guild told the committee of its organization and stated that they were going to, present a contract to individual owners. Following that meeting, the labor relations committee asked Duberg to come up to tell them whether or not the Guild was a bona fide labor organization and what their responsibilities might be. At this meeting, according to Patterson, one of the members of the committee asked what his position would be if his pharmacist were covered by a Guild contract and the Union picketed him for refusing to sign a con- tract with it-whether or not he would have grounds to seek "injunction relief." Duberg said he was not in a position to decide the case before it was tried. It may be inferred that Duberg was referring to the fact that, under the California Juris- dictional Strike Law, a labor organization is defined as one which is "not found to be financed in whole or part, interfered with, dominated or controlled by the employer." In a proceeding for an injunction, the court could be called upon to pass on the ques- tion of whether or not the Guild was employer dominated, controlled, or financed. The labor relations committee again met with the Guild representatives on an un- fixed date in May and the Guild presented a contract. The labor relations com- mittee stated that it had no authority to negotiate a contract on an associationwide basis-that they could work out a form of agreement but it would be up to the indi- vidual stores to work out final details. After 3 or 4 meetings, all told, the labor relations committee and the Guild agreed upon terms of a contract. The labor rela- tions committee agreed to forward it to individual owners. After the agreement was printed, it was mailed to owners by the labor relations committee together with a letter, signed by Patterson as secretary of the labor relations committee, which reads as follows: LABOR RELATIONS COMMITTEE OWNERS SECTION SANTA CLARA COUNTY PHARMACEUTICAL ASSOCIATION September 11, 1953 DEAR SrR: Enclosed herein is the basic agreement which the Committee has negotiated with the Pharmacists' Guild. The language and various stipulations contained therein we understand are acceptable to the Guild and we recommend them to you. You will note that the amount of paid' vacation as provided for in Article VI Section 2 has been left blank. We have been advised that the Guild represents the person or persons em- ployed by you as pharmacists. If you wish some further proof of this, please advise. If you feel that the enclosed could be the basis for an agreement between you and the Guild with respect to your pharmacists, please advise as to the amount of vacation you are willing to give, viz., 1 week for 1 year, 1 week for 2 years, 2 weeks for 2 years, etc., and advise us as to any other matters which are not acceptable or in which you wish modification or changes. If you are willing to enter into this agreement, please return the enclosed agreement showing the amount of vacation which you will pay and any changes, desired and we shall attempt to secure agreement from the Guild and then draw up the formal agreement. We understand that no agreement will become effective until signed by you in its final form. The enclosed need not be signed unless satisfactory as it is pres- ently constituted. Sincerely, (Signed) H. R. Patterson, H. R. PATTERSON, Secretary, Labor Relations Committee. Despite the date on the letter, it was not mailed until sometime in October. It is in- ferrible that the reason for the delay was to give the Guild time to take formal ac- tion on the contract at its October meeting. Presumably the Guild approved the terms, for 30 owners signed the contract without change. SANTA CLARA COUNTY PHARMACEUTICAL ASSOCIATION -271 In September 1953, before the contract negotiated between the labor relations committee had been sent out, Victor Lazzaro, a business representative for the Union, went to Hester's Pharmacy where Saville, the Guild president, was employed by the owner, one Milligan. Lazzaro gave Saville copies of the agreement that the Union was proposing, and sought permission to have a union representative speak at the forthcoming meeting of the Guild with a view to dissuading it from, proceeding with its, contract, and substituting the Union's contract on the ground that the Union's contract provided better terms. Milligan was present during part of the conversa- tion between Lazzaro and Saville and commented that he did not think the owners could pay the pharmacists what the Union's contract called for. Milligan knew that Saville was president of the Guild, for Saville mentioned it to Lazzaro in Milli- gan's presence. Saville told Lazzaro that he would have to take up Lazzaro's request for permission to speak at the Guild meeting with the Guild's directors. Having heard nothing from Saville before the time for the Guild' s meeting, Lazzaro went to the Guild's meeting place-the Science Building of San Jose State College-on the scheduled evening, and when Saville arrived for the meeting, he again asked permission to speak. Saville said he would take the matter up in the meeting. About 11/2 or 2 hours later, a pharmacist came out to inform Lazzaro, who was still wait- ing, that =his request had been denied for that evening and that he would receive a letter. Several days later Lazzaro received a letter from the Guild secretary deny- ing the request. During the month of October 1953, Lazzaro visited the Star Pharmacy, which was under the proprietorship of Joseph Arceri, a member of the Respondent Association and Owners' Section. Arceri told Lazzaro that the owners, including himself, were telling their pharmacists to join the Guild. 2. The commencement of picketing and the first injunction suit A member of the Union named Walter Hodja, on an unfixed date, went to the Union to get a withdrawal card on the ground that he was becoming a part owner in a new drugstore. Having learned that Hodja was at the LaRosa Pharmacy and that he was not a partner of Gus LaRosa, the owner, but merely an employed pharmacist, Lazzaro went, in March 1954, to tell Hodja that he could keep his group insurance through the Union if LaRosa would sign a contract with the Union. Hodja told Lazzaro that he would like to keep his insurance if possible and would like to have LaRosa sign the Union's agreement, and he asked Lazzaro to speak to LaRosa about it. Lazzaro did speak with LaRosa, who told him that he had signed up with the Guild, that "the Association" was representing him, and that he would not sign an agreement with the Union. Lazzaro reported this to Hodja, who said he wished LaRosa would change his mind as he (Hodja) would have liked to remain a member of the Union.18 Also visited by Lazzaro in March or early April 1954 was a proprietor named Pat McConville, who had an interest in the Bascom Avenue Medical Pharmacy and the M&M Drugs store. McConville put off Lazzaro with excuses, but on about Lazzaro's third visit McConville told him that he was represented by the Respondent Association and the only way to negotiate with him was through the labor relations committee. Evidence furnished by the Owners' Section listed both the Bascom Avenue Medical Pharmacy and M&M Drugs as members. The owners thereof were not shown by the list of members furnished by the Respondent Association to be members of that organization. The Owners' Section account book, however, although listing the Bascom Avenue Medical Pharmacy as a ledger entry in debiting it with the original $50 assessment or "dues," shows no entry for payment of that or any other amount by the Bascom Avenue Pharmacy and only $20 in all for the M&M pharmacy. Nevertheless, the Owners' Section, through Duberg, did represent McConville in 1954 Because of the Union's lack of success with LaRosa and McConville, it com- menced to picket the LaRosa Pharmacy on about April 23 and the M&M and Bascom Avenue Medical Pharmacies on about May 12, 1954.19 18 The Union apparently believed this As Hodja did not go into partnership but re- mained an employed pharmacist, he appears to have been gf'vmg a false explanation to the Union as an excuse for getting a withdra sal card I ain not convinced, therefore, that Hodja really desired to remain it member of the Union, as he told Lazzaro 19 On May 11 McConville wrote to the Union, offering to negotiate a contract and offering to put his representatives in touch with the Union if the latter wished This was received by the Union on May 12 The result of this is related subsequently herein 272 .DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Thursday, April 29, 1954, there appeared in the San Jose Evening News an advertisement (paid for by the Owners' Section) covering four-sevenths of a standard-sized newspaper page reading as follows: THE FACTS A. F. L. RETAIL CLERKS UNION VS. LA ROSA PHARMACY 1. Gus La Rosa's employees are not on strike. 2. The A. F L. CLERKS UNION, through picketing, is attempting to force La Rosa's Pharmacist into their Union. 3. La Rosa s Pharmacist belongs to a Pharmacist's Union and does not want to join the A F. L. Retail Clerks Union. 4. Of the approximately 110 drug stores in Santa Clara County, only one store-one of the three large chains-employs Pharmacists who belong to the Retail Clerks Union. 5. Gus La Rosa has been singled out as the "Goat." His circumstances are no different than many other independent stores in the county. This could happen to any other independent drug store in this county. 6. Therefore, the independent druggists are standing behind Gus La Rosa and giving their support to him and his partner in this inter-union rivalry. 7. We, the independent druggists, sincerely ask that La Rosa's former cus- tomers and the people in his areas continue to trade with Gus and Mary La Rosa during this jurisdictional dispute. THIS AD PAID FOR BY THE OWNERS' SECTION OF THE SANTA CLARA COUNTY PHARMACEUTICAL ASS'N.20 Meanwhile, on April 27, 1954, an action was commenced in a State court by LaRosa against the Union, in which LaRosa asked, inter alia, for a preliminary injunction against picketing on the ground that the picketing was proscribed by the California law concerning jurisdictional disputes. Duberg and an attorney named Campbell represented, LaRosa and were compensated for their services by the Owners' Section 21 The application for preliminary injunction came on for hearing on May 5, 1954. The Union withdrew its claim to represent LaRosa's one pharma- cist, and the court dismissed the application for preliminary injunction on the ground that no jurisdictional dispute existed. Presumably before this result was known, the Owners' Section had sent out a notice to members calling an "urgent general meeting" for a "report of Labor Relations Committee" at 9 p. m. on May 5 at a place in San Jose known as the I. E. S. Hall. At this meeting Duberg reported to the members the result of the LaRosa case. Someone asked if the outcome might have been different had there been another union or another association of clerks, and if in that case there would have been grounds for injunction. Duberg's answer was in the affirmative. At the same meeting, an executive committee was appointed with Clarence Schuh as chairman. Schuh at this time was president of the Respondent Association. Although referred to as the executive committee, the members appointed were intended to serve in place of the labor relations committee. In other words, this was the appointment of members of the labor relations committee for the coming year.22 Actually, the name "Labor Relations Committee" continued to be used thereafter, but it had bestowed upon it the powers of an executive committee. 21 The next to the last line is lightface small capital letters, the last line is boldface capital letters. 21 This finding is based in part on a stipulation in which the Clerks Association and the Respondent Association refused to join. However, Schuh testified that money was paid to Campbell or LaRosa for attorney's fees The account book of the Owners' Section shows payments of $312.94 to Campbell and $811 38 to Duberg on May 24, 1954. 22 Of the members appointed, Ansel Buletti, Leonard Kuhn, Walter Wade, Bob Knight, Larry Nelson, and Secretary Patterson were reappointed for a second term. The new members named by Patterson in his testimony, in addition to Schuh, were Stewart McCormack, Roy Gill, Al Brower, Bob Clifford, Stan Bishop, and a man identified only as Mr. Monson. However, John Kent testified that lie also became a member of the com- mittee at that time. The letter quoted below contains a list of names identified by Patterson as committee members, and, in addition to those named by him, Kent and Sam Kahn are listed. SANTA •CLARA COUNTY PHARMACEUTICAL' ASSOCIATION 273 At the May 5 meeting, owners . among themselves commented that LaRosa; because of ill health, should sign the Union's contract. They also discussed reim- bursing owners of picketed stores for their losses or expenses 23 3. New strategy by the Owners' Section On the night of May 10 , 1954, the newly appointed committee held a meeting which was attended by retiring members of the labor .relations committee.. The results of this meeting were reported by Patterson the next day in the following letter to members: , SANTA CLARA COUNTY PHARMACEUTICAL ASSOCIATION OWNERS SECTION May 11, 1954. DEAR MEMBER: ' Last night the Labor Relations Committee met with the Executive Committee appointed at our May 3rd General Meeting.24 Larry Schuh was appointed Chairman of the new Committee. Activities for the coming year were discussed and a plan of action was formulated, further details of which are available by phoning the Committee Member in your area. Members are listed below: Menlo Park: Bob Clifford Palo Alto: Stan Bishop Sunnyvale-Mt. View: Bob Knight Mr. Monson Los Altos: Sam Kahn Larry Nelson Los Gatos-Saratoga: Al Brower Santa Clara: Walter Wade San Jose: Leonard Kuhn Larry Schuh Roy Gill Stewart McCormack John Kent Gilroy-Morgan Hill: Ansel Buletti Dues for the coming year were tentatively set at $10.00 per month, with a rate of $50.00 for six months paid in advance. You will find a statement enclosed which should be returned with your check immediately. Statements will be sent monthly unless advance payment is received. Sincerely, (Signed) H. R. Patterson, H. R. PATTERSON, Secretary, Labor Relations Committee, Owners Section. Of those named in the letter, Kent, Schuh, Kuhn, and Patterson were called as wit- nesses by the General Counsel. Kent testified that, although appointed to the com- mittee, he never met with it or served on it. The other three were questioned about the "plan of action." Schuh, who was not present at the May 5 meeting when he was appointed chairman, testified that he was notified by Patterson on May 6, 1954, of his appointment 25 When questioned about the "plan of action," Schuh testified that he did not know if he attended the meeting of May 10, had no idea of what the plan was, did not ask any of the others what it was after he received Patterson's letter above quoted, and could not recall that anyone called him for information about it. Kuhn acknowledged being present at a meeting when the "plan of action" was discussed but he was vague and, when pressed, testified that he did "not recall any specific plan of action as you would refer to programs in the military sense that we had any specific tactics that we were going through. . . . We had discussions but I do not think there was any specific actual written plan as to what we were going to do and what we re Kent testified at one point that this took place at either the May 5 or May 24 meeting. At another point he put it on May 5. Since all picketed stores were not reimbursed, I infer that the reimbursement was limited to those involved in litigation. LaRosa's attorneys, Campbell and Duberg, were paid on May 24. 24 The date "May 3rd" was conceded by Patterson to be an error as the general meeting was held on May 5 2$ The evidence caused some confusion as to the date of Schuh's appointment. On a thorough consideration of the evidence I am convinced and find that he was appointed chairman at the May 5 meeting 274 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD weren't going to do." Patterson testified that he could not recall any discussion of a plan of action.26 4. Formation of the Clerks Association Activity toward formation of an independent labor organization of clerks employed in pharmacies began in the second, week of May 27 An attorney named ^ Spencer Williams,represented the Pharmacists Guild. In May 1954 he wasiengaged in a politi- cal campaign, running for office in the State Assembly. His campaign manager was Ed Tablak. On Monday, May 10, or Tuesday, May 11, Attorney Russell Roessler, who later became attorney for the Clerks Association and appeared on its behalf in this case, received a telephone call from Tablak in which the latter told Roessler that some clerks were contemplating an association and that a call had come to Williams 28 and that Williams was too busy to handle it. Although Roessler did not so testify, I infer that the purpose of this call was to ascertain if Roessler would be available to handle the legal aspects of the formation of the Clerks Association when it should get under way. On the morning of May 11, between 9 and 10 o'clock, Jean Fleshman, a clerk at the Morehead-Fleming Pharmacy 29 went to the Moderne Drug Store, of which Anthony Campagna, a member of the Respondent Association' and of its 'Owners' Section,30 was proprietor, and asked Matilda Mills, Catherine Campagna, and' Joy Stanton, clerks employed there, if they had time for a coffee break. The four went to the Moderne Creamery, adjoining the drugstore, where they had a conversation in which LaRosa's Pharmacy was mentioned, probably by Fleshman. (Sometime after LaRosa's application for an injunction had been dismissed, LaRosa signed a union contract which apparently required membership as a condition of employment.) Mills commented that she would not like to be pushed into anything so quickly and would not care to join the Union. Fleshman suggested that they do something along the lines of the Guild and have their own association. The others were receptive to the idea. Fleshman explained her visit to Moderne that morning by testifying that she was sent there by Longinotti to pick up some merchandise, the nature of which she could not remember. I am not convinced that this was the purpose of her visit. Fleshman testified that when she went to other drugstores to pick up merchandise for her employer, she usually went to one of the clerks and then the clerk would get per- mission of the owner to sell it to her (presumably at cost, since otherwise permission would not be needed). But no one, not even' Fleshman herself, testified that she spoke to anyone at Moderne about merchandise that morning. On all the evidence, I con- clude and find that her purpose in going to Moderne that morning was to propose formation of a clerks' association. That evening Fleshman telephoned Bucher, heretofore identified with the Phar- macists Guild. Bucher gave her Roessler's name. Next morning, Fleshman tele- 2e Although Patterson admitted having authorized the mailing of the above-quoted letter, no copy of the letter was contained in the file of the Owners' Section ze Some testimony suggested that fist events might have occurred as early as May 9, but on a thorough consideration of the conflicting testimony and other evidence, I conclude that it began no earlier than Monday, May 10, the date of the meeting at which the plan of action was adopted The events preceding the May 13 meeting may have occurred a day later than I leave found them but not, I am convinced, any earlier. 29 In a State court proceeding in June 1954, Roessler testified concerning this conversa- tion (and his testimony was stipulated into the record in this case) "I think there was some testimony concei ping a telephone conversation from Mr. Bucher to Mr. Williams or someone, and I think that was intercepted by Mr. Tablak who was taking care of telephone calls while Mr Williams was not present." Bucher at this time was first vice president of the Respondent Association, was active in the Pharmacists Guild, and was an employed pharmacist at the Santa Clara Pharmacy 29 Fleshman had been a student at San Jose State College and a part-time clerk before 1954 Her employer, the proprietor of 'Morehead-Fleming, was Charles Longinotti, a member of the Respondent Association and of the Owners' Section I infer that he and Patterson had close relations, for at one point in his testimony Patterson said of Longinotti, "He's one that I always go to with my troubles." On August 5, 1954, the Owners' Section paid Longinotti $5 15 for "phone." No other explanation is given in the record Only on one other occasion does Longinotti's name appear in the account hook of the Owners' Section On July 3, 1953, he had been paid $2 80 for telephone expense I conclude that Longinotti's telephone was used for business of the Owners' Section ao Campagna withdrew from the Owners' Section on about January 28, 1955, shortly before the commencement of the hearing in this case. SANTA CLARA COUNTY PHARMACEUTICAL ASSOCIATION 275, phoned Roessler's office for an appointment and was given one the same morning. Fleshman told Roessler she might be interested in forming an association of drug- store clerks and asked if he would represent them. Roessler agreed to do so and suggested that the clerks have a meeting to see if they were interested in it. A reser- vation was made for a room at the DeAnza Hotel in the name of Edna Jones-a fictitious name-for the night of May 13. Fleshman testified that she was the one who made the reservation, but she did not satisfactorily explain why she had done so under a fictitious name.31 Fleshman testified that she requested and was given that afternoon off by Longi- notti and that she visited 4 or 5 drugstores to notify clerks of the meeting. When questioned by counsel for the General Counsel, Fleshman was unable to remember the names of any stores she visited or of any clerks she spoke to. But on examina- tion by attorney for the Union she named Santa Clara Drug, Hester Pharmacy, Lincoln or Park Avenue Pharmacy, and Wade's Mission Pharmacy as stores she thought she had visited. The only clerk she was able to name at these stores with whom she spoke was Dorothy Schnerr at the Park Avenue Pharmacy. 'Santa Clara Drug is the store where Bucher works. Hester 32 is the store at which Saville, first president of the Guild, had been employed. Lincoln Avenue and Park Avenue Pharmacies are owned by Donald and Stewart McCormack. Donald McCormack was chairman of the 1953 labor relations committee-the one which met with the executive committee on May 10 and formulated a plan of action-and Stewart Mc- Cormack was a member of the 1954 labor relations executive committee. Wade, proprietor of Wade's Mission Pharmacy, was a member of the 1953 labor rela- tions committee and also of the 1954 labor relations executive committee. Fleshman telephoned the M&M pharmacy in Sunnyvale, where the Union had started picketing on May 12, and asked to speak to one of the clerks. She was vague about her reason for calling that particular pharmacy. The party answering the telephone gave her the name and telephone number of Colette Carrie (some- times spelled Carey) who was then at home sick in bed. Nevertheless, Fleshman telephoned her there and informed her of the intended meeting. Carrie did not attend this meeting but did attend a later one on May 18. There is no persuasive evidence that anyone else visited stores or invited clerks to the meeting.33 Nevertheless 12 clerks met at the DeAnza Hotel on the night of May 13. Roessler, by prearrangement, waited outside until called. Those present, the stores at which they were employed, and the names of the proprietors are as follows: Gloria Razendez 34 Alum Rock Schuh 35 Maria Guiffre Crescent Park Carcello and Barton Myrtle Chapman Medico Dental Kuhn Irene Joseph Medico Dental Kuhn Barbara Cunningham Santa Clara Drug Tibbetts Betty Elliott Santa Clara Drug Tibbetts Matilda Mills Moderne Campagna Catherine Campagna Moderne Campagna Joy Stanton Moderne Campagna Corinne Barnett Wade's Mission Wade Dorothy Schnerr Park Avenue McCormack Jean Fleshman Morehead-Fleming Longinotti 31 At one point, Fleshman testified, "I think there was a call made to the DeAnza to see whether there would be a room available and then I think confirmation of that was made later " Because Fleshman's testimony was designed to be unspecific at vital points, the foregoing. answer in the passive voice suggests that someone beside herself may have telephoned the DeAnza Hotel, at least on the first of the two occasions. 33 On August 3, 1954, Hester paid the Owners' Section $35 at a time when payments were being made by owners on the special assessment. The $35 payment suggests that this represented, the amount of the special assessment against Hester. If this be the case, according to the graduated schedule of amounts assessed, it may be deduced that Hester was a one-man operation at this time and would not have employed any clerks. 33 Mills vaguely testified that she helped Fleshman telephone some of the clerks, but then testified that she thought it was for the meeting of May 18 that she did this. 34 Sometimes spelled Resendez in the record. Roessler testified that he thought Razendez was employed-at Hester Pharmacy But I conclude that he was mistaken-because Schuh named her as one of his employees 85 Proprietors whose names are printed in italics were on the labor relations committee. All were members of the Owners' Section. 387644-56-vol 114-19 ' 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Before going to the DeAnza Hotel on the night of May 13, Roessler had tele- phoned Williams, the Guild's attorney, told Williams that he had been in communi- cation with the clerks who wished to form an association and that he was inexperi- enced in such matters, and he asked to borrow Williams' file. Williams told Roessler he could pick up the file the next day. The clerks decided that they were confronted with a situation where they would have to join either the Union or an association. When they called Roessler in to the meeting, they informed him they wanted to form an association and wanted him to draw up a constitution and a contract. A discussion was had of the terms of a con- tract. Someone present expressed concern about the reaction of her employer to a contract. According to Roessler, ". . . most of the women at the meeting made it known that even the $1.25 which we were including in our contract was substan- tially less than they were receiving." The figure of $1.25 was arrived at because that was the rate being asked by the Union. Someone at the meeting mentioned the fact that the M&M Drug Company in Sunnyvale was being picketed. Mills was elected temporary president. The next meeting was set for May 18 at Roessler's office. In the interim, Roessler, using Williams' file, prepared a constitution which, except for the substitution of names or description of members, was word for word the same as that of the Guild. He likewise prepared a form of contract, using the Guild's contract as a guide. The contract which he drew differed from the Guild's with re- spect to wage rates, length of vacation, sick leave, and length of workweek. Other provisions such as union-shop clause, overtime pay, holidays, grievance procedure, and the general pattern were identical. He also prepared the following letter for signature: PHARMACEUTICAL CLERKS ASSOCIATION OF SANTA CLARA COUNTY May 18, 1954. DRUG STORE AND PHARMACY OWNERS, Santa Clara County-Menlo Park Area. GENTLEMEN: A majority of pharmaceutical clerks in the Santa Clara County- Menlo Park area have recently organized themselves into the Pharmaceutical Clerks Association of Santa Clara County. The purpose of this organization is to establish uniform and acceptable standards for employment of association members in the various pharmacies and drug stores doing business in this area. The association desires to accomplish this purpose through the execution of individual employment agreements with the store owners which shall govern the terms and conditions of employment of its members. Attached hereto you will find a copy of the proposed agreement which has been approved by the membership of the association. We would ask that you study this agreement, and if you deem it necessary, discuss the matter with your attorney or authorized labor relations agent, within the next few days. You may expect to be contacted by one of the members of the association's employer-employee relations committee on or about May the 24th, for the pur- pose of reaching an agreement and execution of the attached contract by your- self and the association. It is believed that the establishment of such uniform standards as are set forth in the attached agreement will be for the benefit, not only of the pharmaceutical clerks who are members of this association, but yourselves as store owners and the general public, as well. In the meantime, please do not hesitate to contract [sic] the undersigned if you have any questions in the matter. Yours very truly, Chairman, Employer-Employee Relations Committee. Mills and Fleshman were apparently without knowledge as to how the clerks who at- tended the meeting of May 18 were notified of it.' Mills testified- that she thought she telephoned a few and was apparently under the impression that Fleshman tele- phoned others.36 Fleshman testified that she "may have" notified some but could not remember and that she did not know how the clerks were notified of the meeting. According to the stipulated testimony of Jo MacLachlin, a clerk employed at Knight's Pharmacy in Mountain View, Colette Carrie, the clerk at M&M pharmacy whom Fleshman had called about the May 13 meeting, came to Knight's Pharmacy. 86 Testifying about the May 13 meeting, Mills said : "I did call some . . . I can't, remember whether it was that meeting or the meeting of the 18th . I did phone some of them but I think it was the meeting of the 18th." SANTA CLARA COUNTY PHARMACEUTICAL ASSOCIATION 277 Knight, the proprietor,37 spoke with Carrie and then said, "Well, I think I am the one you want to see about that." Knight took Carrie to his office and then called MacLachlin in and introduced her to Carrie. Carrie told MacLachlin about the meeting of the Clerks Association, told her that to join the Union would cost $50 for initiation fees, whereas it would cost only $5 to join the Association, told her that M&M was being picketed, and that if the Clerks Association were formed it would get rid of the pickets. Knight wrote the address where the meeting was to be held, gave it to MacLachlin, and told her that he wanted her to attend the meeting to rep- resent the store. Knight, apparently unsuccessfully, tried to reach a clerk at "his Dana Pharmacy." MacLachlin "obtained Mr. Knight's permission to take another clerk in his employ, Mrs. Anna Michaelski, to the meeting." 38 About 42 clerks attended the meeting in Roessler's office 39 Copies of the con- stitution and the proposed contract were distributed, as far as they went. The large number present required that the clerks be seated in separate rooms-the library, the corridor, and the reception room. Mills presided. Until the end of the meeting, when nine of those present paid dues and initiation fees, no steps were taken to ascertain which of those present desired to become members. Several left, unde- cided, at the end of the meeting, and apparently they never joined. Nevertheless, the constitution and the contract were approved. The minutes of the meeting recorded a motion and a second to adopt the "constitution and by-laws" as read, but they do not say anything about a vote being taken. Separate bylaws were not prepared: Officers and directors were elected and committees were appointed 40 Appointed chairman of the "employer-employee relations committee" (the same name as that used by the Guild for its negotiating committee) was Adrien Bissonnette, who had been notified of the meeting by another clerk just before closing time. Bissonnette was employed at 1 of the 2 Arminini pharmacies.41 The evidence does not disclose whether or not Mills (although it would be her function as president to appoint com- mittees ) appointed Bissonnette and, if she appointed him, how she got his name42 Also appointed to the committee were Carrie of M&M Drugs, McConville's phar- macy, and Anita Toroni of Alum Rock, Schuh's pharmacy. After Bissonnette was appointed, he signed a number of copies of the letter, above quoted, which had al- ready been prepared by Roessler. Bissonnette had not seen either the letter or the contract before he attended the meeting. The minutes of the meeting state that "those members present took a copy of con- tract together with a letter both of which were to be presented to their employer on May 19, 1954." Mills testified that she laid a copy of the proposed contract on the counter where Campagna was working and told him that it was for him. He did not reply. Between the date of the May 13 and 18 meetings, Campagna had been called before the Central Labor Council. McConville, whose M&M Drugs was being picketed, signed a copy of the Clerks Association contract and turned it over to Bissonnette between May 18 and 2443 Longinotti, Fleshman's employer, took the copy of the contract she gave him and discussed the Clerks Association with her, but said nothing about the contract. 87 Knight was a member of the labor relations committee of the Owners' Section. 88 It does not appear why Knight's permission was needed, but MacLachlin' s use of the word suggests that Michaelski would otherwise have been on duty. 89 The figure 42 is taken from a list of names supplied by the Clerks Association as a complete list of those present In the minutes of this meeting, names of persons nominated for directors are recorded, some of which were not shown on the foregoing list to be present at the meeting. Also Bissonnette's testimony referred to his riding to the meeting with 3 other clerks, but only 2 of the 3 were named on the list as present at the meeting. 40 The officers elected were : Matilda Mills, president ; Colette Carrie, vice president ; Dorothy Schnerr, secretary ; Corinne Barnett, treasurer. Directors : Adrien Bissonnette ; Emily Peake ; Valdyne Benner ; Anita Carrol. Peake was not listed as present at this meeting. 43 One was at Sunnyvale ; the other was at Mountain View. Both were members of the Owners' Section. 49 According to the stipulated testimony of Bissonnette, while he rode to the meeting with three other clerks, they asked him to accept various offices in the Clerks Association. 43 This finding is based on the stipulated testimony of Bissonnette. The contract may have been lost for, according to a stipulation, M&M Drugs signed a contract with the Clerks Association on October 15, 1954. This was after it had been modified and approved by the Owners' Section. 278 DECISIONS OP NATIONAL LABOR RELATIONS BOARD 5. Further organizational activity and circumstances preceding second injunction suit On May 20, Knight told his clerk, MacLachlin, that he had made an error, that he or MacLachlin was supposed to have told a clerk at Nelson's pharmacy in Los Altos [Los Altos Pharmacy, owned by Larry Nelson, a member of the labor relations executive committee of the Owners' Section ] to be present at the May 18 meeting and that MacLachlin should go over and get the girls there to join. Next morning at 9 a. m., when she otherwise would have been at work, MacLachlin went to Nelson's pharmacy. Nelson was not present. MacLachlin went to the man that she assumed to be the manager and told him that Nelson expected him to call on his clerks to explain about the contract or the association . This man took her to the girls at the fountain or restaurant. They told MacLachlin that they had been approached by the Union the day before and that MacLachlin should see Nelson. One of the girls called Nelson, who came and took MacLachlin to his office. MacLachlin had with her the copy of the proposed contract which she had brought from the meeting for Knight. She told Nelson that she thought he would like to have the girls read it and that she had told the girls that she thought the Employers were "behind this" and wanted the girls to join the Clerks Association. Nelson told MacLachlin she must not mention that the Employers wanted or knew anything about the Clerks Association, that it was "strictly supposed to be an employee association that the employers knew nothing about, that she should say the Guild or something' would like them to join but not to say the employers wanted it." 44 MacLachlin went back to speak with the girls and Nelson followed a minute or two later. Nelson or one of the girls suggested a meeting where the girls could learn what the Clerks Association was about. Nelson told the girls he was not supposed to know anything about it, that it was strictly supposed to be between the girls themselves. Later MacLachlin notified Carrie that the girls at Nelson's wanted a meeting and that Carrie should take over from that point. According to Patterson, the labor relations committee, at a meeting held a week or 10 days before May 21, 1954, met and adopted a policy which it asked Duberg to formalize so that it could send a statement of it to the members of the Owners' Section. As a result, Duberg sent the following memorandum to Patterson, who had it reproduced and distributed to members: OWNERS SECTION MEMBER: THIS IS A COPY OF A MEMORANDUM MEMORANDUM To: H. R. Patterson. From: James S. Duberg, Esq. STATING OUR CURRENT POLICY. BOB PATTERSON May 21,1954. SUBJECT: Pharmaceutical Clerks Association of Santa Clara County and Statement of Policy. 1. Demands have been forwarded to this office which have been made upon Messrs. Longinotti and McConville by the Pharmaceutical Clerks Association of Santa Clara County, concerning collective bargaining agreements. 2. We know very little about this organization as per its own statement that it is a "recently" organized group. 3. It would appear appropriate and to our protection that we invite represent- atives of this organization to appear before our committee and bring whatever proof of representation they have of the employees in the two stores involved. If they have counsel it might be well that such counsel be present. 4. We can not afford to endanger our position by being accused of foisting any illegal combination on the courts or our employees . This organization, therefore, should be closely scrutinized for the protection of McConville and Longinotti. By this we mean in no way to cast any reflections nor make any improper inferences concerning the said Clerks Association, employees or store owners. We are aware that many of the employees are quite anxious to avoid being forced into the Retail Clerks Union, Local 428, and that many drug store owners believe that, morally, said employees should not be forced into something which they do not of their own volition desire. 5. For the foregoing reasons, as attorney for Messrs. Longinotti and McCon- ville, we must insist that this organization be scrutinized very closely for any "Quotation Is from MacLachlin's stipulated testimony. SANTA CLARA COUNTY -PHARMACEUTICAL ASSOCIATION 279 legal or technical defects. Our caution and hesitation concerning the Guild will be recalled in this connection . We must be, then, equally, if not more diligent in ascertaining the true facts in this matter. 6. Our off hand opinion is that this movement of the employees involved is motivated by a desire of the employees to stay out of the Retail Clerks Local 428. This may or may not be commendable on their part, however, we, legally, are only protected against interference with our business if such interference arises out of a dispute between two bona fide labor organizations ; so that our only interest in this is the question of whether or not this Clerks Association meets the test. 7. Please make it clear to all owners as well as to any labor organization involved that the Owners Section does not and will not deal with any union upon an association wide "package" deal. Each individual owner represents a different case and must be dealt with in the light of his peculiar circumstances. This does not mean that the Owners Section cannot recommend a form of agreement which has been negotiated with a labor organization or that we are not ready to act on behalf of any and all owners, but such action we repeat must be on an individual basis. 8. Some of our members have been accused of being "anti-union." What is meant by "anti-union" we do not know for certain. But one thing that we are not "anti" is the right or privilege of our employees to deal collectively with us concerning hours, wages and other working conditions through representatives of their owns selection . This is a statement of our policy . This is not to say that we approve of all labor organizations and all aims of labor organizations; nor that we will not resist to our utmost, persons, organizations and beliefs which we do not feel are consistent with personal liberty and the basic rights of freedom such as the right to acquire , own and retain private property. Wages are property the same as "blue chip" stocks, Ford cars, and the right to conduct in a lawful manner, a legitimate business. 9. It is recommended that this be disseminated to all interested persons. On May 24, 1954 (the date suggested in the Clerks Association letter of May 18), the Owners' Section met (for the second time since its organizational meeting in April 1953) and received the officers and members of the negotiating committee of the Clerks Association and Roessler. Bissonnette had been notified during that day by another clerk that he should be at a meeting that night. Until he arrived, he supposed it was to be a meeting of his committee. After the officers and committeemen of the Clerks Association had been introduced to the Owners' Section, Roessler and Duberg did the talking. Duberg asked and Roessler answered questions concerning the organi- zation of the Clerks Association, the purpose of which was to ascertain whether the Clerks Association had been properly organized . After completing his interrogation, Duberg dismissed the representatives of the Clerks Association and the Owners' Sec- tion continued in session . There is no evidence that any questions were asked con- cerning the matter mentioned in paragraph 3 of Duberg 's memorandum-proof of representation . The only concern seems to have been that stated in paragraph 6- whether the Clerks Association . could be used as a basis for jurisdictional dispute. John Kent (proprietor of Kent's Pharmacy and a member of the labor relations execu- tive committee) who was being threatened by the Union with picketing, who had been asked to appear before the Central Labor Council, and who had one clerk who was a member of the Union, at this meeting asked Duberg if there was any chance that he could get the pickets removed on grounds of jurisdictional dispute. Duberg replied that he did not think there was. He said that whether or not the Clerks Association was a legal organization and whether Kent had a jurisdictional dispute was a matter to be determined by the court. Between May 24 and 28, 1954, a number of druggists were invited to appear before the Central Labor Council. Among these were Charles Longinotti of Morehead- Fleming Drug Co., Anthony Campagna of Moderne Drugs, John Kent of Kent's Pharmacy, Frank Carcello of San Jose Drugs, and Sal Gattucio of Sir Francis Drake Pharmacy. Moderne and Morehead-Fleming were picketed by the Union beginning about May 28 or 29 and Sir Francis Drake was picketed beginning June 9. Carcello was before the Central Labor Council on May 28 to show cause why he should not be picketed on May 29. Meanwhile, on May 28, Duberg telephoned Roessler and told him that Campagna was contemplating litigation . He asked Roessler to prepare an affidavit and have Mills sign it. Roessler did not testify to details requested in the affidavit , but I infer from other evidence that it was to cover the organization of the Clerks Association and, perhaps, the number of members. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the afternoon of the same day, May 28, Mills went to the Morehead-Fleming pharmacy and told Fleshman that she was going to the San Jose Drug Co. Mills presumably told Fleshman that the clerks there had previously said they would join the Clerks Association and now had changed their minds and might join the Union. Fleshman asked Longinotti if she could leave to go with Mills. He consented. Mills and Fleshman went to the San Jose Drug Co., where Mills spoke with the proprietor, Frank Carcello. Carcello had been a member of the labor relations committee of the Owners' Section up to the' May 5, 1954, meeting. She asked if she might speak to one of his clerks. Two were on duty at the time. Carcello suggested they go to his office. Mills told Carcello they had come because his clerks had intended to join the Clerks Association and then had changed their minds. Carcello told his clerk, Long, to come to his office upstairs. There he introduced Long to Mills and Fleshman. Mills told Long that they were concerned, that they wanted Long as a member but did not want her to join if she did not desire to. Carcello told Long he expected to be picketed the next day and that if his clerks would join the Clerks Association, he would not be picketed; but that if they did not join the Clerks Association the Union would not permit them to cross the picket line 45 and he'd have to see to it that he had other employees there who were able to work. According to Long's stipulated testimony, Carcello told her if she did not join the Clerks Association, he could find an excuse for firing her. Carcello told Long of the vacation and holiday provisions of the Clerks Association contract and said that the dues were not so high as the Union's. Fleshman said that it would cost Long $50 to join the Union and that if she "went Union" she would probably be blackballed from every nonunion drugstore in San Jose. Accord- ing to Long's account, Mills stated that Long had better sign with the Clerks Associa- tion right away, that Mills had understood from a prior conversation with Cleo Clemons, another clerk at this store, that all the clerks there wanted to join the Clerks Association and that, accordingly their names had been placed in an affidavit saying that they were members of the Clerks Association, and that the affidavit had been forwarded to Duberg, the lawyer for the Owners' Section 46 According to Roessler's stipulated testimony, he did not deliver the requested affidavit to Duberg until June 1, after the "long week-end." (May 30 fell on Sunday, so May 31 was a holiday.) Long said she did not know much about the Clerks Association. Mills told her there was to be a meeting of the board of directors at her house that evening and invited Long to come and discuss whether she would like to join. Following the conversation with Long, Clemons, the other clerk, came to the office and Mills and Carcello told her substantially the same thing. Clemons said she was undecided. That night at dinner, Clemons, Long, and a third clerk, named Ann Ruddell, decided to join the Clerks Asso- ciation. Later that same night, Carcello went to Mills' home and told her that his clerks had decided to join and were anxious that she get the money for the dues before the next day, so he brought it himself. Carcello himself paid the cost of the initiation 'fees and dues, in what form-check or cash-does not appear, but Mills testified that she did not know that Carcello had himself paid for the dues and initiation fees until later, as will be explained hereinafter. Carcello and George Barton operated the Crescent Pharmacy in partnership. On an unfixed date in May 1954, Aurora Navarro, a clerk at the Crescent Pharmacy, while on her day off, received a telephone call from Marcia Salazar, another clerk at the same pharmacy, to come to the store at once, as Barton wished to see her. Barton, himself, was unable to speak at this time because of an operation on his throat. Navarro went to the store and there, in Barton's presence, Salazar told Navarro that the Union "wanted to get in," that the girls (clerks) had made an as- sociation to protect themselves, that the Union's initiation fee was $50 and the As- sociation's was $5, and that Barton thought it was better if they all joined the Clerks Association. Navarro said it was all right with her. Salazar told Navarro to bring her $5 in that day or the next, that the Union had already begun to picket some of the other stores and Barton did not want them to picket his store, so the clerks should sign up with the Clerks Association as soon as possible. About 2 weeks later, Barton telephoned Navarro on her day off and asked her to work from 7 to 10 p. m. so his other two clerks could go to a meeting of the Clerks Association. Navarro did as requested. 45 As this result would appear to follow only if they Joined the Union, I deduce that such was Carcello's meaning "If Mills believed this to be true it could explain the urgency of the visit to San lose Drug Co. and Fleshman's getting excused from work. SANTA CLARA COUNTY PHARMACEUTICAL ASSOCIATION 281 6. The second injunction suit and, subsequent events ° On June 1, Roessler received from Duberg notes of.what Duberg wanted in the affidavit he had requested on May 28. Roessler delivered it the same day. On -June 2, Duberg, on behalf of Campagna, filed suit in a State court against the Union -for an injunction against picketing, the grounds being a jurisdictional dispute. The -trial commenced on June 4 and ran until June 16. As a result of this suit, a pre- liminary injunction was issued against the Union on June 17 47 Although the pay- ment by the Owners' Section of $1,000 to Campagna in early August 1954, following the levying of a special assessment, was testified by Kuhn and Schuh to be compensa- tion for losses suffered as a result of picketing, the round figure, the failure to ascertain the amount of Campagna's loss, the fact that no other picketed druggist received such a payment, and all the evidence lead me to the conclusion that the payment to Cam- 'pagna was more in the nature of an award for being a successful litigant. Kuhn testified, "... inasmuch as there was the possibility that many of us had benefited by -Mr. Campagna's loss, we felt ... that we should do something to compensate him -for it." As this was the largest disbursement made in the latter part of 1954, I con- clude that the raising of funds to pay Campagna was the prime reason for the emergency assessment levied by the Owners' Section in the latter part of July 1954. During the Campagna trial, evidence was given which tended to prove that four of Nelson's clerks, employed at his Los Altos Pharmacy, had joined the Clerks As- ,sociation at the instance of their employer. It also came out in Long's testimony at the Campagna trial that Carcello had paid the dues and initiation fees for his clerks at the San Jose Drug Co. On June 14, the Clerks Association wrote each of the four Los Altos Pharmacy clerks (Nelson's clerks) a letter enclosing a check for return of his dues and initiation fee. The letter suggested that they return the check if their becoming members was their own decision uninfluenced by what their Employer may have said. None returned the check. The Clerks Association also returned to Carcello the dues and initiation fees that he had paid for his three clerks,48 and it wrote to each of these clerks a letter similar to that written to Nelson's clerks, except that it requested them to send their own checks if they wished to belong to the Association.49 On June 22, '1954, Mills addressed a letter to Patterson as secretary of the labor relations committee suggesting a negotiating meeting between that committee and the negotiating committee of the Clerks Association. "Our records indicate that we have members in twenty-four drug stores and pharmacies located in Santa Clara County," wrote Mills. "We are aware of the fact that your committee cannot ne- gotiate on a package basis but must solicit the approval of each individual owner." Patterson wrote Mills on June 27 'acknowledging receipt of her letter and stating that he had forwarded it to "our" attorney. On June 29, 1954, Patterson sent a letter to members of the Owners' Section an- nouncing the appointment of Charles Mallory (whom he described as experienced in the public relations and advertising field) as secretary' for the labor relations com- mittee to take effect on July 1. In the same letter, Patterson wrote: "The Committee is presently in negotiation with the Pharmaceutical Clerks Association concerning its proposed collective bargaining agreement. We would like to urge you not to sign any contract with any labor organization until such negotiations are completed and our recommendations are made known. Negotiations with Local 428 [the Union] are presently suspended." The last sentence of Patterson's letter may have been intended to refer to efforts by the Union to negotiate with the Owners' Section in regard to McConville's M&M pharmacy. Sometime after May 11 McConville had referred the Union to Duberg for negotiations. Duberg had written to the Union on May 17, referring to the sub- ject matter as, "Re: Retail Clerks vs. McConville," and had enclosed a copy of his proposed contract. As there is no copy of the Union's proposed contract in evi- dence, a comparison is impossible. However, the terms tendered by Duberg, on behalf of McConville, were in general less favorable to the Union than the con- tract terms agreed to with the Clerks Association were to the latter organization. Instead of the flat $1.25 per hour wage rate agreed to with the Clerks Association 47 In January 1955 the suit was dismissed on the ground that the court lacked jurisdiction. 48 There is no evidence that the Clerks Association verified Long's testimony by asking Carcello if in fact he had paid the dues. 49 Long was discharged on July 12, 1954, presumably without having rejoined ; Clemons did not join the Clerks Association again until November 9, 1954. The evidence does not disclose what Ruddell did. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for all clerks, the terms tendered the Union .provided for a beginner's rate of $1 per hour with $1.25 after 6 months' employment.50 No provision was offered the Union for sick leave. However, double-time pay was offered for the seventh day of work in any week, as well as time and a half for other overtime work, whereas no double-time pay was provided for in the Clerks Association contract. As a result of Duberg's letter, a meeting took place on May 25, attended by Lazzaro and Mc- Loughlin for the Union, and by Duberg, Longinotti,51 and McConville. Patterson also may have been present. However, the meeting produced no agreement. But this was not the only effort the Union made to negotiate. It had asked Harry Ross, proprietor of Ross Hyde Park Pharmacy (a member of the Owners' Section), to sign its contract. Ross referred the matter to Duberg. On June 30, Duberg wrote the Union asking evidence of its authority to represent Ross' employees. Two of Ross' clerks, Ruby Berg and Mary Hargrave, had been former members of the Union, and at a meeting of the Union held on June 7, 1954, they had signed ap- plications for membership in the Union. On about July 2, 1954, the Clerks Associa- tion held a meeting, notices of which it had sent out . One such notice came to Ross' store. At about 5 p. m. that afternoon, while Hargrave was out to dinner, Ross told Berg that there had been a notice of the Clerks Association meeting for that evening at the DeAnza Hotel, that he did not know how Berg felt but that Har- grave was going to the meeting and if Berg would like, he would like her to go, too. As this was Hargrave's night to work, Ross excused her so that she might attend the meeting. Afterwards Hargrave discussed the Clerks Asosciation "lightly" with Ross. On July 16, Hargrave joined the Clerks Association. On July 22, the Union sent a letter to Duberg enclosing photostatic copies of the application cards of Hargrave and Berg. In this letter, it informed Duberg that it still retained strike sanction and said that if Ross did not sign the Union's contract by July 28, it would assume that a labor dispute existed. Duberg replied on July 26 acknowledging receipt of the application cards as evidence of the Union's interest, but stated that the Clerks Association had claimed to represent the same employees and that its claim would be investigated. On August 9, Duberg wrote the Union as follows: Pursuant to our letter of July 26th we must advise you that the Clerks Associ- ation claims to represent the employees involved in this store by virtue of mem- bership in said Clerks Association of one of the employees involved; such said membership and application therefor is dated July 12, 1954.52 It would appear to me that there is some question as to who should represent these employees for the purpose of collective bargaining. On the face of the matter, should Mr. Ross sign your proposed contract , present employees would be required to join Local 428; should Mr. Ross execute the Clerks Association proposed con- tract, only future employees would be required to join the Clerks Association. Unless you are in a position to suggest some solution to this problem it would appear that it would beto Mr. Ross' advantage to sign a contract with the Clerks Association rather than with Local 428. In any event, the proposed contract of the Clerks Association contains provisions more acceptable to Mr. Ross than does your proposed contract. Once more let me inquire as to whether or not it would serve any useful pur- pose to attempt to arrive at such a proposed agreement as this office could recom- mend to Mr. Ross as a collective bargaining contract. If you had any idea that that could be done , it is possible that some arrangement could be entered into to the satisfaction of all parties involved, namely, Mr. Ross, yourself and the Clerks Association. We will appreciate your advice in this matter. No further negotiations are mentioned in the record . Ross eventually (December 29, 1954), signed a contract with the Clerks Association, knowing at the time that 1 of his 2 clerks was a member of the Union and that the other was a member of the Clerks Association. so The Clerks Association did not bargain for incidental employees not engaged in waiting upon the public, taking orders, or making sales, for whom the McConville terms proposed 75 cents an hour. 51 The reason for Longinotti's presence is not made certain by the record, but pre- sumably the Union was seeking to have him sign its form contract also e2 Hargrave may have made an oral or other commitment to join as early as July 12, but her card was dated July 16. SANTA CLARA COUNTY PHARMACEUTICAL ASSOCIATION 283 During July 1954, Mallory, the new secretary of the labor relations committee sent an undated,53 mimeographed letter to members of the Owners' Section. In it he announced that "we have recently been appointed as your executive secretary and public relations counsel," and among other things gave the office hours of his agency, suggested members drop in to visit him, welcomed suggestions or criticisms, suggested the submission of ideas for newspaper or radio publicity, offered to act as a buffer between members and advertising salesmen, and concluded with the following two paragraphs: Another of our functions will be the establishment of an employment bureau for all members. We have prepared an application form, which I am certain will be acceptable to all of you, and will cover all pertinent information desired by any prospective employer. To insure the proper functioning of this bureau, may we urge each of you to refer all applicants for employment (unless you may actually want to utilize the individual at the particular time he is applying) to this office. We will thus be able to form a master list of job applicants and will be able to make this list available to each and every one of you whenever the need arises, simply by a telephone call by you to this office. The application form prepared for such use by Mallory (the contents of which he discussed in advance with one or more members of the labor relations committee) was headed "Santa Clara County Pharmaceutical Association." In it there was a line for "union affiliation if any." Up to the time of the hearing, about 10 or 15 applicants had used the form. On July 11, 1954, the Owners' Section sponsored and paid for a radio broadcast (replying to one by the Union on June 27) dealing with the subjects of the Campagna case litigation and the dispute between the Union and the Clerks Association. Par- ticipants in the broadcast on July 11 were Patterson (at this time having no position with the Owners' Section or its labor relations committee but being executive secre- tary of the advisory board of the Respondent Association), Schuh (president of the Respondent Association and chairman of the labor relations executive committee of the Owners' Section), Mills (president of the Clerks Association), Duberg (at- torney for the Owners' Section), and Roessler (attorney for the Clerks Association). Mills and Roessler had been invited by the Owners' Section to participate. The script for the broadcast was prepared by Duberg after consultation with the par- ticipants and was submitted to such participants for their approval. At about 9 p. m., on a night in July 1954 (suggested by counsel to be July 16, but not accurately fixed by the evidence) the labor relations committee met with repre- sentatives of the Clerks Association concerning terms of a contract. Present for the Clerks Association were Roessler, Mills (president), and Schnerr (secretary). Apparently no member of the negotiating committee was present. Present for the Owners' Section were Duberg, Donald and Stewart McCormack (Donald held no position at this time; Stewart was on the labor relation executive committee), Schuh (chairman of the committee'), and Kuhn (treasurer of the Owners' Section). The meeting was estimated by Mallory to have lasted about 13/.r hours. Then the matter was put in the hands of Duberg and Roessler to reduce a proposed agreement to writing subject to approval of the committees representing the Owners' Section and the Clerks Association. (While this meeting was going on, representatives of the Pharmacists Guild were waiting to meet with the labor relations committee con- cerning group . insurance.) Comparison of Roessler's original proposed draft and the final recommended agreement discloses the following changes- The final draft contained a definition of "pharmaceutical clerks" which was not in the original; the final draft contained a section providing for a checkoff of dues which was not in the original; excess verbiage of one section on vacations, copied in the original draft verbatim from the Guild contract, was deleted in the final draft, but the meaning was not changed; a section on maintenance of an employee list by the Clerks Association, also copied verbatim from the Guild's contract, was deleted from the final draft; apparently as unnecessary in view of the list maintained by Mallory's office; although the language had been copied verbatim from the Guild's contract, a change in word- ing was made in the grievance clause with respect to submission to arbitration rather than to a State court; the final draft eliminated a provision for 1 week's sick leave after 6 months' employment but left a provision for 2 weeks' sick leave after 1 year's employment ; and the final draft also added a provision for proof of illness at the w Mallory, uncertain of the date, refused to fix it closer than "July or August." From the language of the letter. and all other relevant evidence, I infer that the letter was sent In the first half of July 1954. , 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer's option and a definition of "two weeks" as ten 8-hour working days; and, finally, a provision was added in the final draft for reopening the sick-leave clause at the option of either party for negotiations with respect to a health and accident insurance program. With the exception of the elimination of the provision for 1 week's sick leave after 6 months' employment, the Clerks Association appears to have lost nothing as a result of the negotiations and appears to have gained to some extent. The agreement contained a provision for a modified union shop, new employees being required to join within 30 days and existing members being required to maintain their membership. When the two attorneys had returned the final draft and it was approved, Mallory's office had it mimeographed at the expense of the Owners' Section. On September 22, 1954, copies were mailed to members of the Owners' Section with a letter over the signature of Schuh, as chairman of the labor relations committee, recommending the agreement and recommending "that you not execute the agreement until after it has been ascertained that the majority of your clerks are members of the Associa- tion." No suggestion was made as to how this was to be ascertained. During September and October 1954, 19 of the approximately 110 claimed mem- bers of the Owners' Section 54 individually signed the recommended contract with the Clerks Association. A 20th (Ross) signed in December. About 38 of the 110 members hire no clerks regularly. One of the foregoing 19 signers executed a sup- plemental agreement on December 6, 1954. 7. Prohibition of solicitation In its organizational efforts, the Union engaged in the distribution of leaflets to employees employed in the drugstores in the area in which members of the Owners' Section did business. Except in one instance, the Union's agent was not shown to have been interfered with. The one instance occurred on May 3, 1954, when Lazzaro went to Park Avenue Pharmacy, in which Donald McCormack, a member of the labor relations committee, was a partner with his brother. After giving notices of a union meeting to two of the clerks, Lazzaro, intending to give a third clerk a leaflet also, stood in a line of people who were paying water bills to this clerk. McCormack came to Lazzaro and asked what he was doing. Lazzaro said he was passing out notices of a union meeting. McCormack told Lazzaro that he could not do this on his (McCormack's) time, that Lazzaro would have to do it outside the store. Lazzaro claimed that he had a right to come in. McCormack protested that the clerks were busy and that Lazzaro should not do it on working time. Lazzaro said he was going to do it anyway. McCormack ordered him to leave the premises and Lazzaro refused to go. As the altercation continued, Lazzaro finished passing out leaflets and left. About a week later, Lazzaro encountered McCormack again when he went to the Lincoln Avenue Pharmacy, another pharmacy in which Donald McCormack was a partner with his brother. At this time Donald McCormack had been replaced by his brother, Stewart, on the labor relations committee but had not ceased to be active in committee interests. Lazzaro handed Donald McCormack a copy of the Union's contract form and asked him to read and sign it. McCormack took the paper in his hand and threw it, according to Lazzaro's testimony, in his face, but according to McCormack's testimony, on the floor. Evidence that McCormack permitted the Clerks Association to solicit within the store was given by Fleshman, who testified that on about May 12 she visited the Park Avenue Pharmacy and asked one of the McCormacks for permission to speak to the clerks. She was not asked, as was Lazzaro, the nature of her business with the clerks. Although it was not affirmatively shown that either of the McCormacks knew the nature of Fleshman's business, I am not convinced that they did not have reason to know. If McCormack was alert enough to question Lazzaro, I am satisfied that he would have questioned Fleshman, who, without apparently knowing any of his clerks by name at that time, asked to speak to "the clerks," signifying all of them. If she were just a friend of one of them, she would have known her name and would not have asked to speak to all. From all the evidence, I conclude and find that McCormack did demonstrate disparate treatment of the two labor organizations by his conduct in permitting the Clerks Association to solicit members in his store while denying such privilege to the Union. 64 At least two of this number had ceased to participate in the Owners' Section activities after they had signed contracts with the Union in May 1954. A third withdrew from membership on November 1, 1954. Others withdrew in January and February 1955. Many of the 110 were delinquent in their dues or special assessment or both. Some of the 110 did not join until later. SANTA CLARA COUNTY PHARMACEUTICAL ASSOCIATION 285 During May 1954 when the Clerks Association was organizing and soliciting mem- bers, the Owners' Section gave no advice to its members concerning their conduct, and the evidence indicates not only permission by members of the Respondents to the Clerks Association to solicit but also actual cooperation therein. However, later (and, significantly, almost coincidentally with the evidence adduced at the Campagna trial tending to show employer influence on employees) the labor relations com- mittee of the Owners' Section on June 14, 1954, published and distributed a pamphlet entitled "Owners Primer of Conduct with Respect to Labor Organizations." The brochure enjoined Employers not to discuss labor organizations with employees. It advised Employers not to "allow your store to be used as a convenient place for labor organizers to solicit your employees," and to "tell any person coming to solicit membership in any labor organization-politely-that they may not do it in your store during business hours," and "if they have any literature to leave, tell them to leave it with you ... and you will make it available to your employees." It sug- gested not cooperating with any labor organizer, for by granting no favor to one there could be no criticism for denying the same favors to another. It advised against expressing opinions to employees without using a written statement pre- pared by counsel. It gave instructions on "what to do if approached by a labor organizer." These instructions read: (a) IF THEY WANT TO TALK TO YOUR EMPLOYEES, TELL THEM "NO," they will have to contact employees on their own time. (b) IF THEY WANT YOU TO SIGN A CONTRACT or to talk about a contract, ask for the proposed document.. . ask if your employees are mem- bers of the particular organization involved.. . write down name of person presenting contract and date presented. TELL THIS PERSON YOU WILL REFER THIS MATTER TO YOUR REPRESENTATIVES WHO WILL CON- TACT THE LABOR ORGANIZATION WITHIN THREE DAYS. THAT IS ALL-DO NOT HAVE ANY FURTHER OR OTHER CON- VERSATION WITH THIS PERSON. (c) Mail such documents to: 86 So. Cragmont, San Jose,55 immediately with your name, business address, and telephone number. You will be advised as to your rights in this matter immediately. (d) COMMUNICATE WITH NO ONE EXCEPT THIS COMMITTEE OR ITS COUNSEL. THIS IS IMPORTANT. The brochure then continued with a statement that "your employees have the right to self-organization" and with a request to "keep your hands off and your noses out of their business." Accompanying this brochure was a mimeographed copy of an approved notice or statement to employees. The statement does not exceed the bounds of free speech. In it employees are told that "I have been asked to sign a contract with the (Local 428) (Clerks Association)" and, after a sentence stating that "I know that many of you are interested in what my feelings in this matter are," tells employees that they are free to join any labor organization, but comments that in the past "it has been my experience that Local 428 of the A. F. of L. has been entirely unreasonable in its demands in that it has insisted that I (or some of the druggists) sign a contract with it forcing you into their union regardless of your feelings in the matter." It states that "I will deal with whatever labor organization you choose to represent you," and, "this does not mean that I will sign the first con- tract I am presented with by such organization, but I will try to reach an agreement if possible, with your representatives." It closes with a statement urging employees to make their decision according to their own best interests. There is no evidence of employer participation in the membership drive of Clerks Association after June 14. 56 The complaint alleges that the Respondents, acting through their members, permitted the Clerks Association to solicit members while denying the same privilege to the Union. There is no evidence that the Respondents expressly authorized or en- couraged such disparate treatment before June 14, 1954, and in its brochure of that date the labor relations committee advised against it. Except in the case of Mc- Cormack, the evidence goes only to show assistance to the Clerks Association in soliciting members, but does not show denial of the privilege of solicitation to the Union. In the absence of evidence that unequal treatment with respect to solicita- tion was general or customary, and without further evidence that it was designed or encouraged by the Respondents, I find that, although members of the Owners' Section individually were inimical to the Union and may have exhibited their per- 65 This appears to be the address used by Patterson. ss The contents of the radio broadcast on July 11 are not in evidence. I assume that no direct appeal for members in the Clerks Association was made. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sonal prejudices, the disparate treatment actually shown by individual members is not proved to be attributable to the Respondents. 8. Concluding findings respecting domination and support The evidence is abundant and convincing that members of the Respondents gave unlawful assistance in the formation of the Clerks Association. Fleshman was apparently given all the time she needed during business hours to initiate the move- ment to form the Clerks Association and to solicit members. Other employees like- wise were given time off to solicit or to attend meetings of the Clerks Association as previously related. Direct evidence of active assistance is supplied in the conduct of such Employers as Knight, Carcello, Nelson, Barton, and Ross, all members of the Owners' Section and some of them either current or past members of the labor re- lations committee. If the responsibility of the Respondents depended upon this evi- dence of assistance alone, some doubt might be entertained concerning the Re- spondents' responsibility for the acts of individual Employers; but there is ample evidence to connect the Respondents with the acts of individuals. Much, if not most of it, is circumstantial and evidence of occurrences considered in isolation might not easily be connected with the Respondents. But the congeries of circum- stances fall into a pattern which could reasonably be designed only by agents of the Respondents. A proper evaluation of all the evidence cannot be made without a consideration of the attitude of the members of the Respondents toward the Union. It is not a matter here to be decided whether or not the Employers reacted with justifiable indignation toward the approach used by the Union in its efforts to organize the druggists of Santa Clara County. For the protection of the rights of employees Congress has, by the Act, proscribed certain conduct by employers. Such rights may not be vio- lated even by one reacting with a feeling of natural indignation. Moral justification is not of itself a legal justification. It is abundantly clear that the Owners' Section was set up and sponsored by the Respondent Association specifically to present a united front of opposition to the Union and its threat of picketing. The advisory committee of the Respondent Association, as revealed in the April 1953 secretary's report, recognized the fact that the owners, even en masse, could not act so effectively as they could "under the sanction of a constitution of a recognized association." Hence, the owners, as a section, were permitted to function under the aegis of the Respondent Association. Once organized, the owners took immediate steps to discover some way, other than by signing the contract proffered by the Union, to avoid being picketed They invited a lawyer versed in labor matters to speak to them and tell them what the law was. From whatever source the owners received their information, they appear to have been aware of the recently upheld State jurisdictional strike law and the possibilities of using it for their purposes. We begin to hear talk among members that the employed pharmacists, also members of the Respondent Association, might organize and that their organization could be used by the owners to create a jurisdic- tional dispute with the Union. The Pharmacists Guild blossomed, and within a matter of days it had its constitution and proposed contract. The primary concern of the Owners' Section appears not to have been with the question of whether the Guild represented a majority of the employees of any given owner nor with the question of what contract terms should be approved. Its concern was not with the question merely of whether the Guild was a labor organization, a fact which might have been inferred from the fact that the Guild sought to bargain with Employers concerning wages, hours, and working conditions. Rather its concern was with the question of whether or not the Guild was "a bona fide labor organization," a pre- requisite to invocation of the California jurisdictional strike law. The only evident deterrent to the Guild's organization as a "bona fide" union would be employer influence. To tell the labor relations committee whether or not the Guild was a bona fide labor organization, that committee called its attorney, Duberg, from Los Angeles. Duberg was asked whether or not an owner would be able to enjoin picketing by the Union if he had a contract with the Guild. Obviously, the answer to this question depended upon what could be proved if the legality of the Guild were attacked in a court case. Hence, Duberg logically replied that he could not answer the question until it was decided in court-that is, in a case brought for an injunction under the jurisdictional strike law. The first opportunity to make a test case arose with the picketing by the Union of the LaRosa Pharmacy in April 1954. The outcome of the suit that was com- menced, however, was inconclusive, for the Union eliminated any basis for an injunc- tion (on the ground of jurisdictional dispute) by disclaiming representation of SANTA CLARA COUNTY PHARMACEUTICAL ASSOCIATION 287 pharmacists. This meant that the Union, claiming to represent only clerks and' miscellaneous employees, could continue to picket LaRosa's pharmacy or any other without running into a jurisdictional dispute with another labor organization because no other union was claiming to represent the same employees. Thus the Guild could no longer be used to solve the problems of the Owners' Section. Hard on the heels of the abortive LaRosa suit a meeting of the Respondents' agents took place. This meeting was not limited to the newly elected labor relations committee, which inci- dentally had been given executive powers at the May 5 meeting of the Owners' Section. It was also attended by members of the preceding year's committee. To- gether, members of the two committees formulated a plan of action the details of which were not reduced to writing and were not revealed by the testimony. Yet succeeding events remove doubt that the plan of action dealt with the major concern of the Owners' Section-a way to enjoin picketing. Hastily, after this joint meeting of the members of the old and new labor relations committee, an association of clerks sprang into being. Until after this meeting no clerks appeared to have been so concerned over the activities of the Union as to have openly or concertedly considered formation of an association a necessity, but within a day or two after the joint meeting of the old and new labor relations com- mittees Fleshman, the clerk of Charles Longinotti (significantly not a member of ' either committee, but nevertheless a consultant of Patterson, the committees secre- tary), during working hours promoted interest in organizing an association by talking to the clerks of Anthony Campagna, also significantly not a member of either committee, although a member of the Owners' Section. A nucleus of four clerks thus was aligned as a starting point. A meeting was arranged under circum- stances concerning which Fleshman was quite vague. She was unable to explain how she happened to call the M&M pharmacy in Sunnyvale to invite McConville's clerk to the meeting. She could not remember who gave her the name of the M&M pharmacy, and she did not know if she had ever heard of it before. Yet it is, a fact that the Union began picketing the M&M pharmacy on May 12, the day Fleshman telephoned. Although Fleshman was able to name only I clerk whom she had notified of the meeting and vaguely identified 5 drugstores she claimed to have visited to notify unidentified clerks, the meeting was attended by 12 clerks employed by 8 proprietors, 5 being members of the old or new labor relations com- mittee. Two of the clerks present were employed by Tibbetts, who, although not a committee member, was the member of the Owners' Section who also employed Frank Bucher. Bucher, an active member of the Pharmacists Guild and an officer of the Respondent Association, had caused Roessler, the attorney, to be alerted to the expected formation of the association of clerks about a day before Fleshman had Roessler's name or started organizing. More than mere coincidence was involved in such events which took place so rapidly after the "plan of action" was formulated by the joint labor relations committee. It is a reasonable inference that Fleshman's organizational contacts were being directed and assisted by someone who knew which proprietors might have reason to give cooperation. Only someone in close contact with the affairs of the Owners' Section would be likely to give her the name of the M&M pharmacy to call. The probability that she pulled the name out of a telephone list like a rabbit out of a hat is too remote to be given weight. Likewise, the at- tendance at the May 13 meeting of clerks of whom at least half were employed by members of the old or new labor relations committee and the rest of whom were employed by supporting members of the Owners' Section appears to be more than would be expected on bare chance. At the meeting of May 13, the clerks present decided to organize and to employ Roessler as their attorney, although there is no evidence that they discussed his fee with him in advance and although they had prospects of raising only $65 in initiation fees and $13 in monthly dues amongst them. The primary interest of the clerks at this meeting was not that normally displayed by employees who decide to organize. It was not to improve their working conditions. The stated purpose, like that of the Guild, was to block the Union. To do this, it was necessary to make a claim to represent employees of the various members of the Owners' Section for the pur- poses of collective bargaining. This was to be done by tendering a proposed con- tract. If the clerks had genuinely been interested in collective bargaining, they would at least have waited until they had adopted a constitution and appointed ap- propriate committees before deciding upon the terms they desired in a contract. But speed was so essential that drafting of the contract apparently could not be postponed and Roessler was commissioned then and there to draft one. They did discuss some of the terms at this meeting although they were not then organized. They were practicaly all making more than the $1.25 per hour they decided to put in their contract. One of the clerks was fearful of her Employer's reaction to 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a contract, but if the rate decided upon was less than they were already receiving it would not appear to be objectionable to their Employers. There was no evidence to establish whether or not the terms of the proposed contract would have required a change of any existing working conditions. But in any event, no owner would have to accept the contract if it actually required concessions on his part, and he would still be able (for a time at least) to use the Clerks Association for the purpose of an injunction against picketing by the mere fact that the Clerks Association claimed, in confect with the Union, to represent his employees. That the Clerks Association was merely going through a ritual of formation for the sake of appearances and that the contract was but a formality in such ritual is evident from the fact that the contract was drafted (largely copied from that of the Guild) before the Clerks As- sociation existed as an organization and before it actually had members, from the fact that the letter of presentation of the contract to the owners was already drafted and awaiting a signature before the intended signer was appointed to office or even was known, from the fact that no reference is made in the minutes to a vote of ap- proval of the contract before it was given to clerks to be presented to their Em- ployers,57 from the fact that no effort was made to determine the identity even of those who wanted to become charter members before voting on the constitution, and approving the contract, from the fact that the constitution was copied almost verbatim from that of the Pharmacists Guild, from the fact that the negotiating committee was composed of figureheads who never had an opportunity to perform their functions, and from many other circumstances. Of course members of the negotiating committee were paraded before the Owners' Section when the latter was ascertaining whether or not the Clerks Association was a "bona fide labor organi- zation," but it was not present at the actual negotiating conference. The Clerks Association gave copies of the proposed contract to the clerks who attended the May 18 meeting and had them deliver the copies to their Employers with the letter which stated that "you may be expected to be contacted by one of the members of the association's employer-employee relations committee (the name of the ne- gotiating committee) on or about May 24th...." Duberg in his memorandum of May 21, 1954, mentioned Longinotti and Mc- Conville as having received demands from the Clerks Association, stated the ap- propriateness of inviting representatives of that organization to appear before the labor relations committee of the Owners' Section and "bring whatever proof of representation they have of the employees in the two stores involved." May 21, 1954, fell on a Friday. On Monday, May 24, representatives of the Clerks Associa- tion appeared before the labor relations committee and Duberg. The speedy ar- rangement of this meeting and its taking place on the very day mentioned in the prepared letter of the Clerks Association suggests that the date of May 24 had been prearranged. Of the witnesses who testified about this meeting, none said that the Clerks Association was asked to present proof of representation of employees at the two stores involved. Only the details of the process of organization were in- vestigated. Although Duberg's letter of May 21 to members of the Owners' Section had stated that to guard against "being accused of foisting any illegal combination on the courts or our employees," he would insist, "as attorney for Messrs. Longinotti and McConville, . that this organization be scrutinized very closely for any legal or technical defects," so anxious was McConville to make use of the Clerks As- sociation that, without waiting for scrutiny or proof of representation, and before the meeting of May 24, he signed the copy of the agreement presented to him by the Clerks Association and delivered it to Bissonnette. At that very time, Mc- Conville was ostensibly in the process of negotiating with the Union, and the day after the meeting of May 24 he attended a conference (along with Longinotti, Patter- son, and Duberg) with representatives of the Union, presumably to attempt to negotiate. The easy approval of the Clerks Association contract may also be taken into ac- count in evaluating all the facts. The negotiating meeting was held in July 1954, as the first of two meetings scheduled by the labor relations committee for the same evening. Mills, president, Schnerr, secretary, and Roessler, attorney, represented the Clerks Association. The negotiating committee of the Clerks Association was conspicuous by its absence. The Owners' Section was represented by Duberg, at- B+ It is difficult to determine whether or not a vote of approval of the contract would have been legally proper before Identification of members. Under the constitution adopted, no provision was made for charter members. It did make payment of initiation fee and 1 month's dues a prerequisite to admission to membership . No more than nine made such payments on May 18, and none paid before that date. SANTA CLARA COUNTY PHARMACEUTICAL ASSOCIATION 289 torney, Schuh, chairman of the labor relations committee, Kuhn and Stewart Mc- Cormack, members of the committe, and Donald McCormack, chairman of the labor relations committee until May 5, 1954, but holding no official position thereafter. After a discussion of the terms of the contract, the details were left to the two attorneys. On July 28, 1954, according to minutes of a special meeting called by Mills 58 to discuss "our contract and the counter proposal of employer labor rela- tions" a meeting was held at which three changes in the contract were approved, ac- cording to the minutes of the meeting. The first reads: A motion was made and seconded we include in agreement only full time clerks in P. C. Association, not stock boys and etc. This is according to em- ployers desire. The second was a decision to change the wording of article III, section I, of the agree- ment apparently by inserting a phrase "at the discretion of the employee" at some unidentified point in the section. The third read: Next was discussion of Article X. A motion was made seconded and voted we change article according to the desire of employers, which were one week - sick leave for six months employment. Two weeks for year or more em- ployment. The final draft of the agreement contained a definition of "pharmaceutical clerks" which excluded employees other than clerks, as recited in the first change noted in the minutes. Also in accordance with "desire of employers" the sick-leave provision was changed by eliminating 1 week's leave after 6 months' employment. The other change voted on does not appear to have been made. There was no mention in the foregoing minutes of the other changes heretofore related as having been made in the final draft, so it must be assumed that the two attorneys devised them; and the checkoff provision appears to have been a gratuity. On all the evidence, it is difficult to disregard the similarity between the Clerks Association and the various so-called "citizens' committees" and "good-government leagues" that spring up at general election times through the good offices of a friend of one of the candidates. Such organizations go through certain formalities to make it appear that they are impartial as between candidates at the outset, but they always reach the conclusion which they are formed to reach and endorse the candidate they were formed to endorse. Here, the Clerks Association came into being at the pro- pitious moment when the members of the Owners' Section needed it. The openly avowed design was to save the clerks from being forced into membership in the Union. The haste of organization was ostensibly to deal with a new and imminent danger to the clerks. However, the pattern was the same in the case of the Pharma- cists Guild, organized in' 1953, about a year earlier. The Union's drive was going on in 1953, and the Union then was seeking to organize all employees-not just pharmacists; but the clerks did not then jump into action to save themselves from the danger of being forced into the Union. It was not until after May 5, 1954, when the Owners' Section learned that the Guild was no longer adequate to serve as a basis for an injunction suit against picketing that any clerks made a pretense of show- ing alarm. Like the Guild, the clerks formed at the moment propitious to the Owners' Section. The promoting clerks formed the Clerks Association with the aid and cooperation of members of the Owners' Section. That the Owners' Section gave aid and support to the Clerks Association I find to be clearly established. But in cases involving employer-patronized labor organiza- tions, a question always arises concerning the extent of the employer's influence. Was the labor organization dominated in its formation so that it should be perma- nently disestablished, or was it merely given assistance not permanently affecting its viability? That is to say; could the organization be said to be of independent origin, life, and'functional processes despite the advantages conferred on it by employer assistance, or is its origin and life so far due to the dominant influence of the em- ployer that it continues to be a means by which the employer, in effect, bargains with, himself? In the case at hand it may well be that some of the clerks, especially if they were not among those influenced by their Employers to attend meetings or join the Clerks Association, genuinely desired representation by an independent labor organization, but the initial impetus given the Clerks Association by the Employers had carried the organizational process and the preparation of the contract forward so fast as to leave 68 Under its constitution, the Clerks Association had regular meetings only three times a year, in- January, may, and September. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nothing vital to be accomplished by an independently thinking group. Certainly the open participation of the various members of the Owners' Section could leave little doubt in the minds of employees concerning the fact that the Clerks Association was being backed by the Employers. In the words of Jo MacLachlin (who was sent by her employer, Knight, a member of the labor relations committee, to Nelson's pharmacy on business of the Clerks Association during working hours), she told the clerks at Nelson's that "she thought the employers were behind this." Nelson, who, like Knight, was a member of the labor relations committee, inferentially ad- mitted the pretense and the Employers' connection by cautioning MacLachlin not to mention that the Employers wanted or knew anything about the Association„which was "supposed to be" an employee association the Employers knew nothing about, and by telling his own clerks that it was "strictly supposed to be between the girls themselves." - When Carcello virtually told his clerks, in the presence of Mills and Fleshman,`that they would have to join the Clerks Association or lose their jobs, Mills and Fleshman made no effort then to disaffirm that. Once an organization bears the stamp of being the employers' tool it cannot easily achieve independence in the minds, of employees. The only evidence introduced which tended to show that the Clerks Association had sought to demonstrate a measure of independence was that of the return of dues paid for about 7 employees-3 of Carcello's and 4 of Nelson's- and evidence that the Clerks Association presented a grievance to the McCormacks concerning one of their members, whom the McCormacks apparently contended was not covered by the contract of the Clerks Association. Little weight can'be given to the former evidence in view of the fact that, at least so far as Carcello was con- cerned, the Clerks Association had knowledge of the Employer's coercive influence as early as May 28, 1954, but did nothing about it until after his payment of his clerks' dues and initiation fees was made public in court proceedings. The other evidence-presentation of a grievance-does not alone establish freedom from employer, control, especially if the grievance is not vigorously prosecuted. Here there is no evidence that the Clerks Association prosecuted the grievance to the final stages or even beyond the first stage. If an organization is in existence before the employer's aid and support is given, it is not unusual for the Board to find assistance alone without domination.59 But where the employer not only lends assistance but actually gives impetus to the organization's formation, a finding of domination may well be justified.60 The sum of the evidence in this case warrants the conclusion, and I find, that the Respondents, by and through officers, committeemen, and members, dominated and supported the formation of the Clerks Association as well as lent it assistance, in violation of Section 8 (a) (2) of the Act. In so finding, I have considered all the evidence, but I note, among other things, such recognized indicia of employer domination as the following: (1) The coincidence between the time of the forma- tion of the Guild 61 and of the Clerks Association and the time the Owners' Section felt the need for a labor organization other than the Union which could create a jurisdictional dispute; (2) the coincidence of the time of formation of the Guild and, Association and the Union's organizational drive; (3) the granting of easy recog- nition to the Clerks Association without strict proof of representation as was required of the Union: (4) the hasty organization of the Clerks Association on the pattern of the Guild; (5) the disposition of the Owners' Section to frustrate the Union; (6) the recommendation to members not to enter into a contract with any other union until terms of the contract with the Clerks Association were known; (7) the easy approval of an agreement and the recommendation of adoption although there was pending, at the time, a charge of illegal support and assistance; (8)- the granting of a modified union shop and a checkoff to an openly assisted organization; (9) the interference by Respondents' agents by threats or inducement to employees to join or attend meetings of the Clerks Association; (10) the support given to the Clerks Association on the radio broadcast of July 11, 1954, and grants of paid time off for meetings and activities. - In addition to finding that the Respondents have contravened the provisions of Section 8 (a) (2) of the Act by dominating and interfering with the formation of the Clerks Association and contributing,support to it, I find that they have independ- ently interfered with, restrained, and coerced employees of their-members in the exercise of the rights guaranteed in Section 7 of the Act by making use of employ- 119 Wagner Iron Works, 104 NLRB 445; Sears Roebuck & Company, 110 NLRB 226. a Milro Undergarment Co, Inc., 106 NLRB 767; Ben Corson Manufacturing Co., 112 NLRB 323: Rehrig-Pacific Company, 99 NLRB 163. No 'finding is made as to whether or not the Guild was dominated or assisted. SANTA CLARA COUNTY PHARMACEUTICAL ASSOCIATION 291 ment application forms in which applicant is asked to state his union affiliation,62 particularly under the circumstances of the Respondents' inclination to avoid organi- zation of members by the Union and of the efforts to assist the Clerks Association. B. Discrimination Nueme Long was employed as a clerk at San Jose Drug Co., of which Frank Car- cello was proprietor, in January 1954. Long was one of the two clerks who, by changing their minds, as previously related, occasioned the visit of Mills and Flesh- man on May 28, at which time they and Carcello worked on Long and Clemons to get them to join the Clerks Association. Carcello, either directly or in effect, told Long that her employment depended on her joining the Clerks Association, and that night when she decided with the other clerks to join, Carcello paid her dues and ini- tiation fee to Mills, as he did for the other two clerks. However, on about June 10, 1954, Long testified as a witness in the Campagna case. In that testimony she not only related that Carcello had paid the dues and initiation fees, as heretofore related, but she testified that Carcello had told her in the conver- sation of May 28 that if she did not join the Clerks Association "he could find an ex- cuse for firing her." When, following this, the Clerks Association returned the money to Carcello and gave Long a chance to join voluntarily, she did not do so. On Monday, July 12, at the end of the working day, Carcello discharged Long without notice. Long asked the reason and Carcello said that her sales were un- satisfactory. Long asked if her discharge was connected with her testimony in the Campagna case, and, Carcello replied that if it had been she would have been dis- charged the same night. During the week of Long's discharge, Carcello hired an inexperienced clerk. , Ac- cording to her stipulated testimony, Long had been complimented by Carcello on her work after she had been in his employ for 3 weeks and had never been criticized about her work or her sales. There is no evidence in the record to show what Long's sales amounted to or how they compared with those of the other two clerks; so there is no way of checking on the validity of the excuse given for Long's discharge. Even if Long's testimony that Carcello told her he could find an excuse to discharge her were credited, and even if the evidence sufficed to prove that an unfair labor practice was engaged in by Carcello in discharging Long, that would not prove that the Respondents caused the discharge, and Carcello was not made a respondent in the case. The complaint merely alleges that the Respondents "acting through and by Frank C. Carcello .. . one of their members, caused the discharge" of Long. The complaint does not state in what manner the Respondents caused the discharge, and the evidence shows no direct causal connection. If Carcello in fact discharged Long because of her testi- mony in the Campagna case, there is nothing to prove that his idea did not originate with him. The employment service set up by the Owners' Section through Mallory (with use of an application form identifying union affiliations) might have made it possible for Carcello to obtain a clerk who was not favorable to the Union P,; Long presumably was, and this might, in Carcello's mind, have suggested a change of clerks to affect the majority interest that he had reason to believe the Union might acquire; but even if this were not pure speculation, I am not satisfied that Carcello's act of discharging Long could be said to have been "caused" by the Respondents. "Causing" requires a closer connection with the effect than just providing a setting in which the actor who produces the effect conceives a motivating idea which he might have conceived even in the absence of such setting.63 I find, therefore, that the evidence fails to prove that the Respondents caused the discharge of Long. N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents described in section III, above, occurring in con- nection -with the operations described in section I, above, have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. ee See Knickerbocker Plastic Co ., Inc., 96 NLRB 586; McGraw Construction Co. Inc., 107 NLRB 1043. e3 This case is distinguishable from such cases as International Longshoremen's and Warehousemen's Union, Waterfront Employers of Washington, 98 NLRB 284; Holme and Seifert, 102 NLRB 347 at 375 , but at. ibid. at 380; George D. Auchter Company, 102 NLRB 881. 387644-56-vol. 114-20 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY During the hearing, counsel for the General Counsel stated that, although he be- lieved the Respondent Association was culpable of unfair labor practices to the same extent as the Owners' Section and although he was opposed to the motion of the Respondent Association that the complaint be dismissed as to it, he would not ask any remedy against the Respondent Association, and would be satisfied with a reme- dial order against the Owners' Section. This attitude was not shared by the Union. The evidence established that (even if the two respondents were separate entities, which I have found they were not) the Respondent Association was bound by the acts of the Owners' Section as a result of having set it up and permitted its name to be used by that section. To avoid being embarrassed in the future, the Respondent Association took steps during and after the close of the hearing to guard against a repetition of the history heretofore related. It adopted a constitutional amendment which proscribed the use of the name of the Respondent Association by any member or section without authority from the advisory committee, and it notified members that the constitution did not authorize a division of the Respondent Association into the, three groups: owners' section, travelers' section, and employees' section. Al- though the recommendation of the General Counsel with respect to the remedy is entitled to consideration, I am not bound by it, and I believe that no remedy would here be adequate which would run solely against the Owners' Section, especially in view of the constitutional amendment above referred to, which would prohibit the use of the name of the Respondent Association by the Owners' Section, for the use of that name undoubtedly gave strength to the Owners' Section and any remedy, to be adequate, should be effected under the same name. I shall, therefore, include the Respondent Association in the remedy herein recommended to insure that its name is included in the notices required to be sent out. Because the Respondents did not execute the contract of the Clerks Association, that portion of the customary remedy for violation of Section 8 (a) (2) of the Act which requires that the respondent employer cease giving effect to the contract with the dominated and assisted labor organization will have to be modified. Since the Respondents' part in the adoption of the contract was limited to negotiating it and recommending its execution to individual proprietors, this portion of the recom- mended remedy will be to notify all owner-members, including those to whom such recommendation of the Clerks Association contract was made, that the Clerks Asso- ciation has been found to be dominated and assisted by the Respondents and that the Respondents recommend to such proprietors that they cease giving effect to their respective contracts with the Clerks Association and that they withdraw and with- hold recognition from said labor organization and completely disestablish it as the collective-bargaining representative of their respective employees. If the list of such owner-members to whom the said contract was recommended differs from that to whom the labor relations committee mailed copies of the memorandum of May 21, 1954 (General Counsel's Exhibit No. 8), copies of the letter of June 29, 1954 (Gen- eral Counsel's Exhibit No. 13), or copies of the suggested statement to employees (General Counsel's Exhibit No. 30A),64 the notices herein recommended to be dis- tributed should include all to whom any of such materials was sent. CONCLUSIONS of LAW 1. The Respondents are employers within the meaning of Section 2 (2) of the Act. 2. Retail Clerks Union, Local No. 428, AFL, and the Pharmaceutical Clerks Asso- ciation of Santa Clara County are labor organizations within the meaning of Section 2 (5) of the Act. 3. By assisting and dominating the said Clerks Association as hereinbefore de- scribed, the Respondents have engaged in unfair labor practices within the meaning of Section 8 (a) .(2) of the Act. 4. By such conduct and by independently interfering with, restraining, and coerc- ing the employees of their owner-members in the exercise of rights guaranteed in Section 7 of the Act, as herein found, the Respondents have engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 64 Although I have not found the prepared statement to employees to exceed the bounds of free speech, it Includes a tacit recommendation of the Clerks Association, and proprietors who received such statement should be apprised of the fact that such tacit recommenda- tion is withdrawn so that they, in turn, may notify their employees. GARNER AVIATION SERVICE CORPORATION 293 5. The foregoing unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 6. The Respondents have not engaged in unfair labor practices within the mean- ing of Section 8 (a) ^(3) of the Act. [Recommendations omitted from publication.] Garner Aviation Service Corporation and Lynchburg Air, Trans- port and Sales Corporation d/b/a Garner Aviation Service Corporation and International Association of Machinists, AFL, Petitioner. Case No. 10-RC-2899. October 7, 1955 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Decision and Direction of Election issued herein on January 13, 1955,1 and to an order correcting the said decision, an election by secret ballot was conducted on February 10, 1955, under the direction and supervision of the Regional Director for the Tenth Region, among the employees in the unit found appropriate by the Board. Following the election, a tally of ballots *was furnished the parties. The tally shows that of approximately 337 eligible voters, 317 cast valid ballots, of which 97 were for the Petitioner and 220 were against it; 1 ballot was void and 8 were challenged. Thereafter, Petitioner filed timely objections to conduct affecting the results of the election. The Regional Director investigated the matter and, on July 13, 1955, issued and duly served on the parties his report on objections in which he found that the objections did not raise material and substantial issues and recommended that they be dismissed. On July 21, 1955, Petitioner filed exceptions to the Regional Director's report. The Board has considered the Petitioner's objections, the Regional Director's report, the Petitioner's exceptions, and the entire record in this case and hereby adopts the findings, conclusions, and recom- mendations of the Regional Director with the modifications noted below. Petitioner's objections are substantially as follows: 1. The Employer violated the settlement agreement in Case No. 10-CA-1530, entered into on February 11, 1953, by engaging in the conduct hereinafter set forth., 2. The Employer approved the formation and activities of the job security committee and a letter sent by the committee to its employees. This letter, which was mailed in the Employer's envelopes, contained allegedly coercive language. 111 NLRB 191. 114NLRB No. 57.