Anchorage Businessmen's Association

662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board's usual policies, for wage losses incurred as a consequence of her discharge during the period from June 28, 1958, to the date Reggie secured the employment she held at the time of hearing. As to Mary Wharton the Respondent offered at the hearing, and Wharton accepted, reemployment. Whether that engagement was carried out, and to what extent, is of course not presently apparent. Effectuation of the policies of the Act requires an affirmative order of reinstatement. It will therefore be recommended that the Respondent offer Mary Wharton immediate and full reinstatement to the position of clerk in the Kennedy Avenue store with all customary rights and privileges, and make her whole, in accordance with the Board's usual policies, for any wage losses incurred as a result of the discrimination against her. Wharton was available for work on October 20, and was originally directed by Suto to report on that day. The back-pay period will therefore begin to run on October 20, 1958. It having been found that the Respondent did not refuse to bargain collectively, it will be recommended that that allegation of the complaint be dismissed. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Retail Clerks International Association, AFL-CIO, Local 1460, is a labor organization within the meaning of Section 2(5) of the Act. 2. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Julia Reggie and Mary Wharton, thereby discouraging membership in a labor organiza- tion, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By discriminating against Mary Wharton because she had filed charges under the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (4) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not refused to bargain collectively within the meaning of Section 8(a)(5) of the Act. [Recommendations omitted from publication.] Anchorage Businessmen's Association, Drugstore Unit, and its Member Employers : E. A. Johnson, d/b/a Vista Pharmacy; Eastchester Drug, Inc., d/b/a Eastchester Drugs and d/b/a Save More Drugs; Denali Drug Company, Inc.; Ulmar-Burgess, Inc., d/b/a Rexall Drugs; Hewitt's Drugstore , Inc.; Bert's Drugs, Inc., d/b/a Bert's Payless Drugs and d/b/a Bert's Fifth Avenue Drugs; Bert's Spenard Drugs , Inc.; Francis Jones, d/b/a Bi Rite Drugs; John Erickson, d/b/a Thrifty Drugs and Anchorage Professional Pharmacists Association, Inc. and Retail Clerks International Association, Local No. 1496. Cases Nos. 19-CA-1527 and 19-CB-498. August 921, 1959 DECISION AND ORDER On September 30, 1958, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of 124 NLRB No. 72. ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 663 the Intermediate Report attached hereto. Thereafter, the Respond- ents and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations, except as modified herein. 1. Contrary to the Trial Examiner, we find that the Respondent Association and its member employers did not, by the pharmacist supervisors' participation in the activities leading to the withdrawal of all pharmacists from the Charging Union and the formation of the Independent, and by their participation in the intraunion activ- ities of the Independent, dominate the formation and administration of the Independent within the meaning of Section 8 (a) (2) of the Act. In finding domination of the Independent, the Trial Examiner proceeded on the theory that the activities of the pharmacist super- visors were automatically attributable to the Respondent Employers. We do not agree. It is well established that the participation of supervisors in intraunion activities does not per se constitute evidence of domination, where, as here, the supervisors were members of the same bargaining unit and union as rank-and-file pharmacists, and absent proof' that the employer encouraged, authorized, or ratified their activities. In the Nassau and Suffolk case the Board ration- alized the rule as follows : There are many industries where for a very long time foremen have been included in the same bargaining unit and union as the rank and file. No doubt in many such cases the foremen are active in the affairs of the union, serve on union committees, and are even union officers. It has not heretofore been contended, to the best of our knowledge, that where such conditions exist the employer must necessarily be considered as dominating the bargaining representative. We are not willing to hold that the voluntary inclusion of foremen in a bargaining unit of non- supervisory employees is per se proof of employer domination and justifies disestablishment of the union representing such unit. And to require the employer to exercise some sort of veto power over the appointment of foremen to official positions within the union to avoid the charge of domination would seem to involve interference in the affairs of the union, which is precisely what IIndianapolis Newspapers, Inc., 103 NLRB 1750, set aside on other grounds in 210 F. 2d 501 (C.A. 7) ; Wayside Press, Inc. v. N.L.R.B., 206 F. 2d 862 (C.A.9) setting aside 103 NLRB 11 ; Nassau and Suffolk Contractors ' Association, Inc., et at., 118 NLRB 174; Geilich Tanning Company, 122 NLRB 1119. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(a) (1) of the Act is designed to prevent. [Emphasis supplied.] In the instant case, all the pharmacist supervisors as well as the pharmacist stockholders with 50 percent or less ownership in their employer's store, whose conduct was attributed by the Trial Examiner to the Respondent Employers, were, prior to the formation of the Independent, required to be members of Local 1496 of the Retail Clerks Union. Together with rank-and-file pharmacists they were covered by the Union's contract with the association of drugstore owners in the area, which required membership in the Union as a condition of employment .2 As members of said Union, the pharmacist supervisors enjoyed the same right to engage in intraunion activities as rank-and-file pharmacists, except that because of their close rela- tionship to the management they were not permitted at union meet- ings to vote on wage demands. Some of the pharmacist supervisors, including Rodgers and Rush, have on a number of occasions attempted to withdraw from the Union because of the change in their employ- ment status. On all such occasions their requests were denied by Union Secretary Gibson in accordance with alleged union practice and policy. Under these circumstances, the pharmacist supervisors can be normally expected to have had some part in the administration of union affairs. Nor does the record show that the participation of the pharmacist supervisors in the activities of rank-and-file pharmacists was inspired by the Respondent Employers, or that, in participating in these activities, the pharmacist supervisors acted in their employers' rather than in their own professional interest as pharmacists. , Quite'to the contrary, there is abundant testimony showing that the decision to withdraw from the Retail Clerks Union was due to a long-standing dissatisfaction of pharmacists with membership in a union which admitted both professional and nonprofessional employees. As pro- fessionals,' the pharmacists believed that they should have their own organization dealing with their own professional problems. This feeling of dissatisfaction with membership in the Union became further aggravated by the Union's decision to call a strike in support of its contractual demands-a strike which was opposed by rank-and- file pharmacists. These were the reasons which prompted a group of pharmacists to present to Union Secretary Gibson a "Petition" 2 The contract recognized the Union as the bargaining representative of all employees who are within the jurisdiction of the Union engaged in handling, servicing , and the selling of merchandise . It specially covered pharmacists , including pharmacist store managers . It also provided for so-called nonactive membership in the Union , which was defined as membership in the Union by a drugstore owner with less than 50 percent interest in a store. 3It has been stipulated by the parties that the pharmacists, who withdrew from the Union and joined the Independent, are professional employees within the meaning of Section 2 ( 12) of the Act. ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 665 for withdrawal from the Union and, after its rejetcion, to organize their own union. This move was met with overwhelming support and all the pharmacists in the area immediately joined the new organization. Also militating against the Trial Examiner's finding of domination is the evidence showing that after its formation, the Independent func- tioned as a bona fide labor organization. Membership meetings were regularly held, and minutes of such meetings were properly kept. Initiation fees of $15 and monthly dues of $5 were collected from members. Respondent Employers and members of the Independent unanimously denied that any financial assistance had been given to or received by the Independent. In protecting professional interests of members of the Independent, the Independent met with Federal and Territorial authorities and processed grievances with management. It also entered into a contract with the Employer Association provid- ing for higher rates than those in the old union contract with the As- sociation. Finally, when the Respondent Employers, in an attempt to break an impasse in their bargaining negotiations for a new contract and the termination of the strike, called at the Union's request upon the pharmacists to reaiiliate with the Retail Clerks, the Independent showed its independence of the Employers by unanimously rejecting the request at its membership meeting of October 9. While the record discloses that the Independent opposed the strike and even inserted a notice in a local newspaper advising the public that "the pharmacists do not support the Drug Clerks in their strike," the Independent's position was taken in its membership's interests, as the major issues of the strike were not wages, but the Union's attempt to limit the pharmacists' functions in the store. Upon the entire record, we find that the allegation of the complaint that the Independent was an employer-dominated labor organization incapable of functioning in the interests of its members is not sustained by proof. 2. In agreement with the Trial Examiner, we find that the Associa- tion and its member employers by their conduct herein described interfered with the administration of the Independent and contributed support and assistance within the meaning of Section 8 (a) (2) and (1) of the Act. Heretofore, we have found that, as the pharmacist supervisors were members of the same union and unit as the rank-and-file pharmacists, their participation in intraunion activities of rank-and-file pharma- cists in the Retail Clerks Union and the Independent could not be at- tributed to the Respondent Employers in the absence of proof that such participation was encouraged or authorized by the Respondent Employers, and, therefore, did not constitute evidence of domination of or assistance to the Independent. However, by acquiescing in the 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD voting by its supervisors at the Independent meetings and by dealing with such supervisors in their capacity as representatives of the In- dependent, the Association and its member employers violated their statutory obligation to refrain from interference with their employees' concerted and union activities. While it may not be inconsistent with the purposes of the Act for supervisors to participate in intraunion activities with the rank-and-file employees when they are members of the same unit and the union as the rank-and-file employees, it is clear that by serving as officers of the union or members of the com- mittees in dealing with the employer, or by participating in voting at union elections,' they would be in the position to influence the admin- istration of the affairs of the union in their employer's interests and thereby interfere with the administration of the union. In the instant case, the record is clear that all pharmacist supervisors, including Rodgers and Rush,' voted at the Independent elections, thereby af- fecting the administration of Independent. Although aware of the participation of the pharmacist supervisors in the affairs of Inde- pendent, the Respondent Employers took no steps to have them dis- continued. The record is also clear that the Respondent Employers bargained with the negotiating committee of the Independent which included two store managers, Potter and Carruthers. Despite their membership in the same union and the unit, Potter and Carruthers were also agents of their employers with the resulting divided loyalty and interests. Although the supervisors were elected members of the committee by the membership of the Independent, the Respondent Employers, when confronted with the Independent's negotiating com- mittee which included their own agents, were under duty to refrain from dealing with the committee which did not have a single-minded loyalty to their employees' interests. The Respondent Employers, however, failed to do so and by actually dealing with the committee as constituted, interfered with the employees' right to bargain free from the employer's pressure.' In addition, shortly after the formation of the Independent, the Association and the Independent also entered into an agreement, which at the insistence of the Association incorporated a union-security clause making membership in the Independent a condition of em- ployment with the Respondent Employers. As this contract was en- tered into before the Independent complied with the filing require- ments of Section 9 (f), (g), and (h), it was in violation of the proviso 4 Cf. Nassau and Suffolk Contractors ' Association, Inc., et al., 118 NLRB 174 at 183, where the Board 'held that job superintendents, shops foremen , and master mechanic, who were members of the same union as rank -and-file employees , although not in the same bargaining unit, by merely voting at union elections engaged in unlawful interference. 5 Rodgers and Rush were supervisors with managerial functions. 6 Cf. Nassau and Suffolk Contractors' Association, Inc., supra. ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 667 to Section 8(a) (3), which makes such compliance a prerequisite to the validity of the contract.? Upon the entire record we find that by acquiescing in its supervisors' participation in voting at Independent meetings affecting the admin- istration of the Independent, dealing with the Independent's negotiat- ing committee which included two store managers, and by entering into a union-security agreement with the Independent before the latter complied with the filing requirement of Section 9(f), (g), and (h), the Association and its member employers interfered with the forma- tion and administration of the Independent and contributed support and assistance to it in violation of Section 8 (a) (2) and (1) of the Act.' 3. As the July-August 1957 contract between the Association and the Independent requiring membership in the Independent as a con- dition of employment did not conform to the proviso to Section 8(a) (3) of the Act by reason of the Independent's failure to comply with the filing requirements of Section 9 (f), (g), and (h) of the Act, we find that by its execution, the Respondent Association and its member employers discriminated with respect to the terms and con- ditions of employment of their pharmacist employees by encouraging membership in the Independent, thereby engaging in conduct violative of Section 8(a) (3) of the Act. We also find that by having executed a union-security agreement with the Association without complying with Section 9 (f), (g), and (h) of the Act, the Independent has been and is causing the Associa- tion and its member employers to discriminate against their pharma- cist employees in a manner proscribed by Section 8 (a) (3), and thereby has been and is engaged in conduct violative of Section 8 (b) (2) of the Act, and has thereby also restrained and coerced the employees of the Respondent Employers in the exercise of the rights guaranteed in Section 7, in violation of Section 8(b) (1) (A) of the Act.9 4. We do not adopt the Trial Examiner's recommendation that the Respondent Association and its member employers be required, it accordance with the Brown-Olds remedy,10 to reimburse employees for the initiation fees, dues, and assessments, if any, that they were required to pay to the Independent in accordance with its agreement with the Association. Unlike the Brown-Olds case, where the dues and assessments were collected pursuant to an unlawful closed-shop 7 Member Jenkins, for the reasons stated in his concurring opinion in Local Lodge No. 1424, International Association of Machinists, AFL-CIO (Bryan Manufacturing Company), 119 NLRB 502, 510, would find that the execution of a union-security contract before the Independent complied with the filing requirements of the Act, standing alone, would constitute a violation of Section 8(a) (2) of the Act. 9 Nassau and Suffolk Contractors' Association, Inc., et at., supra. "Charles Ostrowski et at., d/b/a Philadelphia Woodwork Company, 121 NLRB 1642; Union de Soldadores, Mecanicos, Montadores de Acero, Auxiliares y Ramas Anexas, Local 1839, ILA-Ind., 122 NLRB 1603. 10 United Association of Journeymen & Apprentices of Plumbing & Pipefitting Industry, etc., Local 231 (J. S. Brown-E. F. Olds Plumbing & Heating Corporation), 115 NLRB 594. 66S DECISIONS OF NATIONAL LABOR RELATIONS BOARD Agreement in open defiance of the statutory policy outlawing such agreements, the contract here contains but a conventional union- security clause which does not exceed the permissible limits of the proviso to Section 8(a) (3) and is invalid merely because of the Inde- pendent's failure to comply with the filing requirements of Section 9(f), (g), and (h) of the Act. Nor does the complaint, as in the Brown-Olds case, allege the existence of a discriminatory hiring prac- tice pursuant to which pharmacists were denied employment unless they were members of the Independent. In these circumstances, and as all the pharmacists in the area had joined the Independent before the execution of the union-security contract and therefore must be presumed to have paid the initial dues and fees voluntarily, rather than under the compulsion of such contract, we find that it will not effectuate the policies of the Act to require the Respondents to reim- burse the employees for dues, fees, and assessments, if any, paid to the Independent." 5. We agree with the Trial Examiner that, by locking out the union members employed in the nonstruck stores while the strike against three stores of the Respondent Employers was in progress, the Re- spondent Association and its member employers violated Section 8(a) (3) of the Act. The record shows that, while the strike by the Union against 3 out of 11 stores comprising the multiemployer unit was in progress, the Association and its member employers laid off all sales clerks em- ployed in the nonstruck stores who were members of the Union while retaining in their employ the sales clerks who were not members of the Union. In defense of the lockout, the Respondents rely on the decision of the Supreme Court in the Buffalo Linen case.12 In agree- ment with the Trial Examiner, we find reliance on that decision misplaced. Although it is true that one of the reasons for the lockout in the instant case was the Respondent Employers' fear for the in- tegrity of the multiemployer unit threatened by the strike, it is also clear that it was but one of the several reasons for the lockout. The lockout, which followed the protracted efforts to come to some agree- ment with the Union with respect to contract terms, was also intended as means to exert pressure upon the Union to accept the Association's bargaining proposals. Thus, in its letter of November 19, 1957, to Union Secretary Gibson, the Association, after outlining its latest proposal to the Union, stated : In the event that you refuse to submit this proposal to a vote of your membership or in the event that your membership votes 11 Charles Ostrowski et at., d/b/a Philadelphia Woodwork Company, supra; Union de Soldadores, Mecanicos, Montadores de Acero, Auxiliares y Ramas Anexas, Local 1839, ILA-Ind., et al., supra; The Grand Union Company, 123 NLRB 1665. 1a N.L.R.B. v. Truck Drivers Local Union No. 449, et at. (Buffalo Linen Supply Co.), 353 U.S. 87. ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 669 against the acceptance of the proposal, the employer group feels that the only alternative left them by your Union is to proceed with the lay off action which will become effective at the close of today's business day. Also Respondent Employer Burston testified that the lockout, among other things, was regarded as a means "of getting Retail Clerks to come to an agreement . . . so everybody could go back to work." Not only was the lockout motivated by a combination of reasons, some of which were unlawful, but it was admittedly carried on in a discrimi- natory manner.. Only union sales clerks were laid off. Sales clerks. who were hired before the strike but did not at the time join the. Union, and sales clerks who were hired during the strike against the three stores, were retained. In this posture of the case, the Buffalo Linen case is clearly distinguishable on the facts. In that case, the Supreme Court was not confronted, as we are in the instant case, with a mixed motivation for the lockout. The "narrow question" before the Court was whether the lockout inspired by the employers' concern for the integrity of the multiemployer unit could be used as a defense to the charge of discrimination within the meaning of Section 8 (a) (3)... The Court drew a sharp distinction between the lockout inspired by the employers' concern for the destruction of the multiemployer unit and "the cases in which the lockout has been held unlawful because designed to frustrate organizational efforts, to destroy or undermine bargaining representation, or to evade the duty to bargain." We conclude that, as the lockout in this case was intended to exert bargaining pressure upon the Union in support of the Employer's proposals-a clearly unlawful motivation "-and was carried out in a discriminatory manner, the lockout was in violation of Section 8(a) (3) of the Act, even though, in part, it was also motivated by a legitimate concern of the employers for the integrity of the' multi- employer unit. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, we shall order that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We have found that the Association and its employer members gave support and assistance to, and interfered with, the administration of the Independent. As we have concluded that these unfair labor prac- tices did not amount to domination, no order directing the disestab- lishment of the Independent shall be entered against the Respondent 13 Quaker State Oil Refining Corporation , 121 NLRB 334, enfd. 270 F. 2d 40 (C.A. 3), where the Board said that "an employer may not during the bargaining negotiations either threaten to lock out or lock out his employees in aid of his bargaining position"; American Brake Shoe Company, 116 NLRB 820, set aside on other grounds, 244 F. 2d 489 (C.A. 7). 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employers. However, we shall order that the Association and its employer members withdraw recognition from the Independent and refrain from recognizing or dealing with the Independent, unless and until the Independent shall have demonstrated its exclusive majority status pursuant to a Board-conducted election among the Respondent Employers' employees. We shall also order that the Respondent Asso- ciation and its employer members cease giving effect to their July- August 1957 union-security contract with the Independent. However, nothing herein shall be taken to require the said Respondents to vary the wages, hours, seniority, and other substantive features of their relations with the employees themselves, which the said Respondents have established in performance of said contract or revision, extension, renewal, or modification thereof. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. Anchorage Businessmen's Association, Drugstore Unit, and its member employers, their respective officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Assisting, contributing support to, or interfering with, the administration of the Anchorage Professional Pharmacists Associ- ation, Inc., or with the formation or administration of any other labor organization of their employees. (b) Recognizing the Independent or any successor thereto as the representative of any of the employees of the Association's member employers for the purpose of dealing with the Association and its member employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, un- less and until the said labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-con- ducted election among the Respondents' employees. (c) Giving effect to the union-security contract, executed in July- August 1957, between the Respondent Association and the Independ- ent or to any extension, renewal, or modification thereof, or any other agreement between the Respondent Association and the said labor organization which may now be in force; provided nothing herein shall be taken to require the said Respondents to vary the wages, hours, seniority, and other substantive features of their relations with the employees themselves, which the said Respondents have established in the performance of said contract or revision, extension, renewal, or modification thereof. (d) Discouraging membership in Retail Clerks International As- sociation, Local No. 1496 or in any labor organization of the employees ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 671 here involved because of their union membership or activity, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment. (e) In any other manner interfering with, restraining, or coercing the employees of the Association's drugstore employer-members in the exercise of the right to self-organization, to form, join, or assist Retail Clerks International Association, Local No. 1496, AFL-CIO, or any labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from Anchorage Pro- fessional Pharmacists Association, Inc., as representative of their employees for the purpose of dealing with the Respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions, of employment, unless and until the said labor organization shall have demonstrated its exclusive representative status pursuant to a Board-conducted election among the Respondents' employees. (b) Make whole all the employees who were in the employ of the Association's drugstore employer-members on November 20, 1957, and who were locked out that day, in the manner and for the periods set forth in the section of the Intermediate Report entitled "The Remedy." (c) Post in all their establishments at Anchorage, Alaska, copies of the notice attached hereto marked "Appendix A." " Copies of said notice, to be furnished by the Regional Director for the Nine- teenth Region, shall, after being duly signed by their authorized representatives, be posted by them immediately upon receipt thereof and maintained by them for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that the said notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in (c), above, and as soon as they are forwarded by the Regional Director, copies of the Respondent Independent's notice, marked "Appendix B." (e) Notify the Regional Director for the Nineteenth Region in writing, within 10 days from the date of this Order, what steps the 14In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Association and each of its respective drugstore employer -members have taken to comply therewith. B. Respondent Anchorage Professional Pharmacists Association, Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause Respondent Anchorage Busi- nessmen's Association , Drugstore Unit, and its member employers to discriminate against any person because of nonmembership in-An- chorage Professional Pharmacists Association, Inc., or any other labor organization. (b) Enforcing or maintaining the union-security contract with Anchorage Businessmen 's Association, Drugstore Unit, or any exten- sion, renewal , or modification thereof, or any other contractual agree- ment with the said Respondent Association, or its member employers which may now be in force. (c) In any like or related manner restraining or coercing employees of member employers of Anchorage Businessmen's Association, Drug- store Unit, in the exercise of the rights guaranteed in Section 7 of the: Act, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its business office and meeting hall in Anchorage,. Alaska, copies of the notice attached hereto marked "Appendix B." 15 Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by an official representative of Anchorage Professional Pharmacists Association, Inc., be posted by the said Association immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Associa- tion to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Nineteenth Region signed copies of the notice attached hereto as Appendix B for posting at the offices of Anchorage Businessmen's Association and its member employers in places where notices to their employees are customarily posted. (c) Notify the Regional Director for the Nineteenth Region in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that Respondent Anchorage Busi- 15 See footnote 14. ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 673 nessmen's Association and its member employers dominated Respond- ent Anchorage Professional Pharmacists Association, Inc. MEMBERS RODGERS and BEAN took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT give effect to our contract with Anchorage Pro- fessional Pharmacists Association, Inc., executed in July-August of 1957, requiring membership. in that organization as a condi- tion of employment, or to any extension, renewal, or modification thereof, or to any other contract which may be now in force. WE WILL NOT interfere with the formation or administration of any labor organization or give support or assistance to it. WE WILL withdraw and withhold all recognition from Anchor- age Professional Pharmacists Association, Inc., as representative of any of our employees for the purpose of collective bargaining, unless and until said organization shall have demonstrated its exclusive majority bargaining status pursuant to a Board- conducted election among our employees. WE WILL make whole all the employees who were locked out on November 20, 1957, for any loss of pay they may have suf- fered as a result of the discrimination against them. WE WILL NOT influence our employees in their choice of collective-bargaining representatives, or in any other manner interfere with, restrain, or coerce said employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Retail Clerks International Association, Local No. 1496, AFL-CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to en- gage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment as authorized in Section 8(a) (3) of the Act. All our respective employees are free to become or remain members of any labor organization or to refrain from such action except to the extent that this right may be affected by an agreement in con- formity with Section 8 (a) (3) of the amended Act. We will not dis- criminate in regard to hire or tenure of employment or any term or 525543-60-vol. 124--44 ,674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD condition of employment against any employee because of member- ship in or activity on behalf of any labor organization. ANCHORAGE BUSINESSMEN'S ASSO- CIATION, DRUGSTORE UNIT Dated---------------- By------------------------------------- (Representative ) ( Title) E. A. JOHNSON, D/B/A VISTA PHARMACY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) EASTCHESTER DRUG, INC., D/B/A EASTCHESTER DRUGS AND D/B/A SAVE MORE DRUGS, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) DENALI DRUG 'COMPANY, INC., . Employer. Dated---------------- By------------------------------------- (Representative ) (Title) ULMAR-BURGESS, INC., D/B/A REXALL DRUGS, Employer. Dated---------------- By------------------------------------- (Representative) (Title) HEWITT'S DRUGSTORE, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) BERT'S DRUGS, INC., D/B/A BERT'S PAYLESS DRUGS AND D/B/A BERT'S FIFTH AVENUE DRUGS, Employer. Dated----------------- By------------------------------------- (Representative ) (Title) BERT'S SPENARD DRUGS, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) FRANCIS JONES, D/B/A BI RITE DRUGS, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) JOAN ERICNSON, D/B/A TIIRIFTY DRUGS, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, iii-id must not be altered, defaced, or covered by any other material. ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 675 APPENDIX B NOTICE TO ALL MEMBERS OF ANCHORAGE PROFESSIONAL PHARMACISTS. ASSOCIATION, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our members that : WE WILL NOT maintain or enforce any union-security contract with Anchorage Businessmen's Association, Drugstore Unit, which requires as a condition of employment membership in our :.organization, or-any contractual agreement with that Association or its member employers which may now be in force. WE WILL NOT cause or attempt to cause the said employer asso- ciation or its member employers to discriminate against any per- son because of nonmembership in our organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees of member employers of Anchorage Business- men's Association, Drugstore Unit, in the exercise of rights guar- anteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized .by Section 8 (a) (3) of the Act. ANCHORAGE PROFESSIONAL PHARMA CISTS ASSOCIATION INC., Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding is brought under Section 10 (b) of the National Labor Relations Act, as amended , 61 Stat. 136, herein called the Act, pursuant to a consolidated complaint issued by the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel 1 and the Board , against Anchorage Businessmen's Association, Drugstore Unit, and its Member Employers herein re- spectively called the Association and Drugstore Member-Employers , and against Anchorage Professional Pharmacists Association , Inc., herein called the Independent. The consolidated complaint, dated May 6, 1958 , as amended at the hearing , alleged that the Association and its Drugstore Employer-Members violated Section 8(a) (1), (2), and (3) of the Act and that the Independent violated Section 8(b)(1)(A) and (2 ) thereof. Copies of the consolidated complaint, the charges upon which it was based, the order of consolidation , and notice of hearing thereon, were duly served upon the Association, the individual Drugstore Employer-Members, upon the Independent, and upon the Union. Specifically, the consolidated complaint, as amended, alleged that ( 1) the Asso- ciation by engaging in certain acts and conduct, interfered with, restrained, and 1 This term specifically includes counsel for the General Counsel appearing at the hearing. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coerced the employees of its Drugstore Employer-Members in the exercise of the rights guaranteed in Section 7 of the Act; (2) the Association formed the Inde- pendent and thereafter (a) interfered with its administration, (b) contributed financial and other support to it, and (c) gave it unlawful assistance by entering into a collective-bargaining contract containing a provision violative of the Act; (3) the Association threatened and coerced the employees of its Drugstore Em- ployer-Members in an attempt, among other things, to have them withdraw from the Union; (4) the Association, after the Union had announced the strike and had begun picketing the drugstores of three of its Employer-Members, viz, Eastchester Drugs, Denali Drugs, and Rexall Drugs, announced to the public that the strike was a strike agai.,st all Employer-Members of its Drugstore Unit despite the fact that it well knew that the Union did not intend to strike or picket the other drug- stores; (5) the Association, after the strike had commenced, gave notice. to the employees of its Drugstore Employer-Members that if the strike and picketing did not cease by a certain stated date all clerical employees of said employers would be laid off until said strike and picketing were discontinued; (6) the Association's Drugstore Employer-Members laid off all their clerical employees on November 20, 1957, who were union members, while retaining in their employ all nonunion mem- bers and with ' the help of those nonunion members, their pharmacists, and the persons hired after the strike had commenced, continued to operate their stores, including the struck ones; and (7) that of the 29 union members laid off on November 20, 1957, because the strike. and the picketing had not been called off as demanded by the Association and 'its Drugstore Employer-Members, only one was rehired during the period of the strike and picketing which were discontinued on November 30, 1957. As to the Independent, the consolidated complaint, as amended, alleged that it was existing in violation of the Act because, among other things, it had been formed and was being dominated by the Association and since its inception has been receiv- ing unlawful assistance and support. The Association, Bert's, and the Independent each duly filed answers denying the commission of the unfair labor practices alleged. At the opening of the hearing the Independent's motion to amend its answer was granted without objection. Pursuant to due notice, a hearing was held between May 18 and June 4, 1958, at Anchorage, Alaska, before the duly designated Trial Examiner. All parties were represented by counsel and participated in the hearing. Full opportunity was afforded the parties to be heard, to examine and cross-examine witnesses, to introduce evidence relevant and material to the issues, 'to argue orally at the conclusion of the taking of the evidence, and to file briefs on or `before July 7, 1958.2 Briefs have been received from the General Counsel, from counsel for the Union, from counsel for Bert's, from counsel for the Association, and from counsel for the Independent, which have been carefully considered. After the close of the hearing, the General Counsel filed a motion to correct certain errors appearing in the stenographic re- port of the hearing. The motion is hereby granted and the motion papers are received in evidence and marked Trial Examiner's Exhibit No. I. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OPERATIONS OF THE EMPLOYER-MEMBERS OF THE ASSOCIATION'S DRUGSTORE UNIT . Anchorage Businessmen's Association is, and during all times material herein has been, among other things, the representative of its Employer-Members for the purpose of collective bargaining and in the adjustment of grievances with labor organizations representing the employees of said Employer-Members. One of the units of the Association is known as the Drugstore Unit, the employees of which are the only ones involved in this proceeding. The annular out-of-territory purchases of the stores comprising the Association's Drugstore Unit amount to more than $2,000,000. Contrary to Bert's contention that the Board lacks jurisdiction over its enterprises, the Trial Examiner finds that during all times material the Drugstore Employer- Members of the Association have been, and now are, engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the pur- poses of the Act for the Board to assert jurisdiction in this proceeding. 2 At the request of counsel for the Respondents the time to file briefs was extended to August 21, 1958. ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 677 II. THE LABOR ORGANIZATIONS INVOLVED Retail Clerks International Association, Local No. 1496, AFL-CIO, and Anchor- age Professional Pharmacists Association, Inc., unaffiliated, are labor organizations admitting to membership employees of the Employer-Members of the Association's Drugstore Unit. III. THE UNFAIR LABOR PRACTICES A. Formation and domination of, interference with, and support of the Association; the lockout; and interference, restraint, and coercion 1. The sequence of the pertinent facts Since 1941 the Union has had collective-bargaining contracts with the owners of the Anchorage, Alaska, drugstores covering their sales clerks and pharmacists. More recently the Association has been the bargaining representative of these employers. At a Board-conducted election, held in January 1950, the Union won a union- shop authorization election, in which the pharmacists and the sales clerks voted. At a regular union membership meeting held on April 12, 1957,3 it was decided to reopen the contract expiring on July 2, which covered not only the aforementioned drugstore employees but also the employees of the Anchorage stationery stores. At the above-referred-to meeting, which was attended by five pharmacists, Billy G. Pitts, who just prior to April 12, had been appointed store manager of Bert's Spenard drugstore,4 proposed that the five pharmacists in attendance compose the committee to negotiate a new contract with the Association. This proposal was adopted with the understanding that Pearl Gibson, the Union's executive secretary, be permitted to name five sales clerks to the committee, which she did.5 Several days after April 12, Potter, the manager of the Denali drugstore, stated to Gibson, during a telephone conversation, that, since he was a store manager, he did not believe that he should serve on the negotiating committee nor should Rodgers because of his close connection with the owners of Bert's stores.6 Potter then suggested that he and Rodgers resign from said committee which they did. They were replaced by L. G. McDonald and Bernie Gravel, nonsupervisory pharmacists. On April 29, a proposed agreement was submitted by the Union committee, headed by McDonald, to the Association's negotiating committee which then consisted of Wayne D. Calderwood, its attorney, Eldon Ulmer, one of the owners of Rexall Drugs and Denali Drugs, and Volmey Grace, the majority stockholder of Eastchester Drugs. On May 17, McDonald, Gibson, and Elmer Jackson, the Unino's recently ap- pointed business agent, met with Calderwood, Ulmer, and Grace. There, the Union's proposal was discussed but no definite agreement was reached as to any provision thereof. On May 18 Calderwood wrote Gibson transmitting certain Association proposals. These proposals were submitted to the union membership which, on June 5 and 6, voted to reject. On June 7, Gibson wrote Calderwood informing him of the membership's afore- said action. On June 20, McDonald, Gibson, and Jackson met with Calder-wood, Ulmer, Grace, and Charles Rush.7 After a somewhat lengthy discussion regarding the Association's May 18 proposals, which the union membership had rejected on June 5-6, and after a further discussion with respect to the Union's proposed wage increases for the pharmacists and for the sales clerks, Gibson suggested that in order to bring the negotiations to a quick amicable conclusion the parties enter into a 8 Unless otherwise noted, all dates hereinafter refer to 1957. 4 Pitts' appointment as store manager was unknown to the officials of the Union at the time of this meeting. Prior to this meeting no store managers had attended any union meetings although, as members, It was their privilege to do so. 6 The pharmacist committee members were Pitts, William Rodgers, Sammie Potter, Roger DeShazer, and Dennie Short. 'At that time Rodgers was, and still is, assistant general manager and a stockholder In the two Bert's corporations which own and operate Bert's Payless, Bert's Fifth Avenue, and Bert's Spenard stores. Grace's assistant manager and on occasion the manager of Grace's Eastchester store. Gibson testified that she believed Rush was acting as Grace's spokesman at this meeting because Rush "understood the drug business." 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2-year nonopening contract embodying the Union's proposed wage increases thus freezing for 2 years the wage question. Gibson added that, although she did not have the membership's authorization to propose such a contract, she felt that the membership would go along with her. Calderwood requested and received time to study the proposed 2-year contract with his associates. The meeting concluded with the understanding that the parties would meet again on June 27. Instead of meeting on June 27, as planned, the parties met on June 28. This meeting was attended by Gibson and Jackson representing the Union and by Calder- wood, Ulmer, Grace, and Rush representing the Association.8 Calder-wood proposed a 2-year contract providing for an immediate 10-cent per hour increase for the sales clerks but no increase for them during the second year; the pharmacists were to receive no increase the first year but would be given one the second year. At about 6:30 p.m. on July 1, McDonald and two of the Union negotiating committeemen, Gravel and DeShazer, met with Gibson at the union hall. After discussing the Association's June 28 proposal, the three committeemen decided to hold a meeting of the 5-man pharmacist negotiating committee. Later that evening, the full pharmacist committee met at Pitts' apartment where it was decided to request Gibson to immediately call a union, membership meeting. It was further decided that at the meeting of the membership the negotiating committee would recommend that the Association's June 28 counterproposal be rejected, and to inform the members that such a rejection was tantamount to a strike vote. On July 5, the union membership met to vote on the Association's June 28 proposal. Due to the difference in store hours, 16 members attended the morning and 35 members attended the evening meeting.9 McDonald attended the July 5 morning meeting and informed those present that the negotiating committee recommended rejection of the aforesaid Association's proposal. Pitts then cautioned the members that they should carefully consider the consequences of their action. because a vote to reject the proposal was a vole to strike, adding that if a strike were called it might be of long duration. Clayton C. Carruthers, the manager of Bert's Fifth Avenue store, attended the July 5 morning meeting. In view of the Union's policy against managers being permitted to vote on contract or strike issues, a question arose whether Carruthers should be allowed to vote. Gibson referred the question to McDonald who said, "Let him vote." Whereupon, Carruthers was permitted to vote. At the July 5 evening meeting, DeShazer explained the Association's June 28 proposals and then informed the members that the negotiating committee recom- mended the rejection -thereof, and that a rejection vote was in effect a vote to strike. This meeting was also attended by Rush, Rodgers, and William H. Steidtmann, the then manager of Bert's Payless store. Rodgers and Steidtmann were permitted to vote merely because Carruthers had voted at the morning session. Gibson, however, objected to Rush's right to vote and told him so. She based her objection on the fact that Rush had attended the last two association-union negotiating meetings as a member of the Association's committee and therefore she did not think he should vote on the question of the acceptance or rejection of the Association's latest proposals. Rush replied that he was. going to vote regardless of what Gibson said. Gibson, on Jackson's advice, finally withdrew her objection and Rush was permitted to vote. Before the voting began, Rush interrupted DeShazer who, as presiding offi- cer, was addressing the meeting, and for about 10 minutes angrily denounced the calling of a vote on the Association's proposals because, according to him, all the pharmacists were in favor of accepting the wages offered by the Association. Of the 51 secret ballots cast at July 5 meetings, 29 votes were cast to reject and 22 to accept the Association's latest proposals. Under date of July 8 Gibson wrote Cal derwood as follows: This is to inform you that on July 5, 1957, Employees of the Drug Store Unit voted to reject recent proposal submitted 6/28/57, of the Employer Group, and have instructed me to inform you, that they are standing firm on their original demand of Wage Increase: which was incorporated in the tentative proposal as of 5/2/57. The idea of a 2 year Contract, with a higher offer for Pharmacists, and no increase for unlicensed employees for the second year period; has definitely been rejected; and the one year contract, with the termi- nation date of 6/2/58, plus the wage demand still stands. 9 McDonald did not attend this meeting because through some misunderstanding he was not advised of the changed date. 9 Only drugstore employees attended these meetings because at about this date, July 5, the stationery store employees were taken out of the bargaining unit. ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 679' If the Employer Group still insists on standing pat on their offer, and will not come up on a higher offer; we will be forced to take action, on July 19, 1957 at 8 a.m. On July 15, McDonald, DeShazer, Gravel, Gibson, and Jackson met. McDonald, as chairman of the negotiating committee, proposed that, if a strike were called, pickets be placed at Bert's three stores, Hewitt's Drugstore, and at the Vista Phar- macy. Gravel and DeShazer were not in favor of picketing Bert's establishments. Because of this difference of opinion no strike strategy was agreed upon at this meeting. At about 9 a.m. on July 17, about six pharmacists, including Rush, Rodgers, Pitts,. and Steidtmann, appeared at the union hall and, according to the credited testimony of Jackson, the following took place: They immediately sat down and Pearl (Gibson) sat down at her desk and they wanted to know why they couldn't be issued withdrawal cards. They made the statement that they didn't want the retail clerks to bargain for them any longer and they wanted to withdraw from the retail clerks and get out of it. Charlie Rush said he was very well satisfied with the conditions and the wages that they were getting and they wanted to getout of the retail clerks altogether, they didn't want them as a bargaining agent . . . Steidtmann made the remark about that the retail clerks had no reason being the bargaining agent, that they were exempt under the Act, being professional men . . . . Well, Pearl simply told them that she would not issue them a withdrawal card at the present time or in the future as long as they were performing the work of a clerk . . . but any time that they performed the duties of a registered pharmacist and stayed behind the pharmaceutical department of prescriptions then [she] would gladly issue them a withdrawal card. In the July 17 issue of the Anchorage News, a daily afternoon newspaper, appeared an article quoting Gibson as stating that a strike would be called on July 19, by "almost 200 drug clerks, pharmacists and workers in ladies' apparel stores"; that there was a likelihood that an agreement might be reached before the strike deadline with the apparel store owners and if an agreement were reached then those employees would not be called out, but the chances of a settlement with the drugstore owners were slim; and that in the event of a strike against the drugstores , the public would not be left without prescription services because there was a pharmacy in Anchorage under the "professional pharmacy" classification which was not involved in the controversy. The next morning, July 18, Pitts, accompanied by Potter and four other pharma- cists, called at the union hall and proffered Gibson a petition containing the signa- tures of 12 pharmacists and bearing the following legend: THE UNDERSIGNED PHARMACISTS ALL OF WHOM ARE PRES- ENTLY MEMBERS OF THE RETAIL CLERKS UNION LOCAL 1496 WISH TO NO LONGER BELONG OR BE REPRESENTED BY THIS RETAIL CLERKS UNION. PHARMACISTS ARE PROFESSIONAL PEOPLE AND WHILE PART OF OUR WORK IS CLERICAL WE PRE- FER NOT TO BELONG TO A CLERKS UNION. THE N.L.R.B. HAS A RULING WHICH STATES "PHARMACISTS ARE PROFESSIONAL PEOPLE WHO CAN DECIDE FOR THEMSELVES WHETHER THEY WISH TO BECOME PART OF A LABOR BARGAINING UNIT." io Gibson refused to accept the petition. Thereupon, Pitts, who was the group's spokesman, shook the petition under Gibson's nose and then pushed the chair in which Gibson was sitting into the wall. Potter then took over as spokesman and inquired of Gibson why she would not accept the petition and grant all the members a re-vote on the strike issue. Gibson replied that she saw no reason for having an- other strike vote because the members knew that they were voting to strike when they voted on July 5 to reject the drugstore owners' latest offer. That evening, July 18,11 after store hours, a meeting of all but two pharmacists in the Anchorage area was held at one of the stores of which Rodgers is part owner and assistant manager. Rodgers arranged for the use of the store and advised some of the pharmacists of the meeting. Rodgers, as acting chairman, called the meeting to order and then announced that the purpose of the meeting was to organize the Inde- pendent. Rodgers then presented to the group for their approval incorporation papers drawn up by Calderwood. After considerable discussion, and after some lo This petition was typed and circulated by Rush. 21 This meeting ran over until the early hours of July 19, 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD revisions made therein, the papers received the group's approval. Thereupon said papers were signed by Potter, Steidtmann, and Clayton C. Carruthers as incorporators. la After Pitts had been elected president, Steidtmann, vice president, McDonald, recording secretary and business agent, DeShazer, secretary-treasurer, and Potter, Rolland Dowler, and Clarence Warfield members of the board of trustees, Pitts replaced Rodgers as presiding officer. A copy of the petition which was proffered to Gibson earlier that day and containing the signatures of 12 pharmacists was then presented. At the time of the presentation aforementioned, three additional pharma- cists had already affixed their signatures. Two more pharmacists signed at the meeting.13 The "next order of business," according to the Independent's minutes, was the execution of a petition requesting the Board to decertify the Union as the pharmacists' collective-bargaining representative.14 This petition was signed by all present, including Rush, Rodgers, C. A. Johnson (part owner of Bert's), and other managerial pharmacists. Before the meeting concluded the set of bylaws which Calderwood had prepared prior to the meeting and which Rodgers brought there, were, after certain revisions therein had been made, approved and signed by each member in attendance.15 The Independent's decertification petition (19-RD-105) was filed with the Board on July 22. Within a few days thereafter, a Board field examiner and Pitts conferred. At the July 25 Independent membership meeting it was voted to delete from McDonald's official title the words "business agent." The reason for such deletion is disclosed by the the minutes of that meeting which reads, in part, as follows: [Pitts] asked for some changes in the constitution and bylaws of [the Inde- pendent]. These changes were made necessary on advice of Mr. Immel of NLRB. It seems that when we filed petition with NLRB we did not realize that because of professional standing, as defined by NLRB, they would not have jurisdiction over only a small part of the membership of [the Independent].... At some undisclosed date between the Independent's organizational meeting of July 18-19 and its meeting of August 14, a collective-bargaining contract was en- tered into between the Association and the Independent.is While the record is not clear as to who represented the Independent in its bargain- ing negotiations with the Association, it is clear that the proposed contract submitted by. the Independent contained no union-security clause. In fact, before submitting the proposed contract, all reference to a union-security clause was deleted therefrom by the Independent. However, such a clause was inserted in the signed agreement by the Association "for the protection of the contract," despite the fact that the record in this case clearly discloses that many members of the Independent were op- posed to all forms of union-shop conditions. In fact, some members resented having the Independent classified as a labor organization. On August 13, Gordon W. Hartlieb, the union attorney, Gibson, and Jackson met with Calderwood, Rush, Grace, and Eldon Ulmer, and discussed a contract to cover only the drug clerks. 13 On July 24, said incorporation papers were duly filed in the offices of the Director of Finance of the Territory of Alaska. Calderwood paid the necessary filing fees for which he has not been reimbursed. Nor has he been paid for drawing up said papers nor for the other legal services he rendered the Independent. 13 The next morning the two pharmacists who did not attend the meeting signed the petition. 14 A copy of said decertification petition was delivered to Gibson the following morning by DeShazer in Pitts' presence. 15 The record discloses that Pitts signed the bylaws twice ; once as president of the Independent and once, on September 23, as a member thereof. When Pitts signed as president is not disclosed by the record but it is safe to assume, and the Trial Examiner does, that he did so at the July 18-19 meeting. 10 At the hearing Calderwood, who signed the contract on b. half of the Association's drugstore employer-members, stated that he could not recall when the agreement was executed. Neither could the several witnesses who were questioned regarding the date of the execution of the agreement fix a date. It is evident that the agreement was signed prior to August 14, for the minutes of the Independent's August 14 minutes read in part as follows : The membership decided by motion to restore office of business agent. This was almost manditory [sic] because of the new reading of the contract, which the Management had inserted for the protection of the contract. ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 681 Under date of August 14, Hartlieb wrote Calderwood as follows: In confirmation of our telephone conversation of this date, I offer, on behalf of Retail Clerks Local 1496; to negotiate with the employers for a contract covering the drug clerks or non-registered employees and excluding the pharmacists. This offer is made upon the condition that the following clause or its equivalent be written into any contract so negotiated. "All work and services connected with, or incidental to, the handling or selling of all merchandise offered for sale to the public in the employer's retail establishment covered by this agreement, shall be performed only by em- ployees of the employers within the unit referred to above. For which the Union is recognized as the collective bargaining agent by the employer." Stated more concisely; all work in the stores except the filling of prescrip- tions be performed by non-registered employees who are members of Local # 1496. Please understand that by making this proposal we are not giving up bargaining rights for the pharmacists, but agree only to delay negotiations covering the pharmacists until such time as your group is ready to negotiate a contract covering them. While the Association's representatives and the Union's representative met on sev- eral occasions during August, September, and October, no agreement was reached with respect to a bargaining contract mainly because of the Association's adamant refusal to agree that the pharmacists cease the handling and selling of merchandise normally handled and sold by sales clerks and confine their activities to the prescrip- tion end of the business.17 On October 10, the drug clerk members of the Union conducted a strike vote which resulted in a tie vote; that is, 17 ballots were cast in favor of a strike and 17 against. The next day, October 11, the said members took another strike vote which re- sulted in a vote of 18 in favor of a strike and 19 against. Immediately after the counting of these ballots, Earl Simon, an employee of Bert's, told Gibson that he did not believe that Arthur W. Burston, the majority stockholder of the two Bert's cor- porations, was cognizant of the negotiations going on between the Association and the Union and Simon then suggested that all strike action be delayed for 7 days to enable him to confer with Burston. Not hearing from Simon, another strike vote was taken on October 22, which re- sulted in 26 ballots being cast in favor of a strike and 7 against. The strike commenced on October 23, and pickets were placed at Denali, Rexall, and Eastchester stores, the employees of which were the only ones who went out on strike. That day, October 23, a special meeting of the Independent was called. The min- utes of that meeting reveal that Rodgers was "present to tell the side of management" and: Rodgers suggests that [the Independent] and Management cooperate in the advertising campaign that is planned to combat the strike. Motion made and seconded that Bill [Rodgers], Sammie Potter and Bill Steidtmann serve as corridinators [sic] of the Advertising campaign with management , [The Independent] will if necessary allott [sic] 25.00 every other day as advertising moneys. Steidtmann is appointed as chairman of the National Publicity Committee with help of [Rolland] Dowler. On October 26, the Association and the Independent each inserted an advertise- ment in Anchorage News. Rodgers helped prepare the Association's advertisement. Commencing on October 26, the drugstore employer-members of the Association placed pickets around their establishments and inserted advertisements in the Anchor- age daily newspapers announcing that the Union had struck all the Association's drugstores. On November 4, the Union filed a charge with the Board against the Association (19-CA-1527) alleging, among other things, that the Association caused Hewitt's Drugstore 18 to discharge Bernard Gravel because of union membership and his non- membership in the Independent. 17 Rush, as a management representative, attended all these meetings. Is Partly owned by Arthur W. Burston, the majority stockholder of the two Bert's corporations. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The minutes of the independent's November 6 meeting reads , in part, as follows: We received notice of suit against us by NLRB , Filed by Perl [sic] Gib- son of the Union. Case involves Bernard Gravel's dismissal by Frances Bowden, Hewitt Drug Co. We are called a Labor Union. We are an as- sociation . Chuck Rush offered to take letter and information to a Lawyer for advice on the proper way to answer the suit. Ruby Marshon testified , and the Trial Examiner finds , that on October 23, she was a union member and was then employed at Bert 's Fifth Avenue store, of which Rodgers is part owner with C. A. Johnson 19 (an independent ), and Burston ; that on October 24 ,20 she was called into the private office with Pat Carlson , another Bert's sales clerk , and was asked by either Rodgers or Johnson , both of whom were present, "to sign this paper [reading as follows] showing that we hadn 't voted for a strike for their own personal use": TO WHOM IT MAY CONCERN The undersigned are members of Retail Clerks Union Local # 1496, em- ployed in various drug stores in the Anchorage Area, and voted against the calling of a strike at the strike vote of drug members taken on October 21st and 22nd. On or about October 26, the following document was circulated among the drug- store sales members of the Union by La Demma Zuback: TO WHOM IT MAY CONCERN The undersigned are members of Retail Clerks Union Local # 1496, em- ployed in various drug stores in the Anchorage Area, and voted AGAINST the calling of a strike at the strike vote of drug members taken on October 21st and 22nd, 1957. We the undersigned make this statement of our own free will with out influence from any person or persons , and are willing to have this statement made public thru the press, and are willing to have this signed statement used in any court action where it may be needed. This statement is circulated for signature by members of Retail Clerks Union Local # 1496. Zuback testified that prior to testifying in this proceeding she never saw the document, dated October 24, which Johnson and Rodgers had asked Marshon and others to sign; 21 that she, herself, prepared and typed the October 26 document; and that she was the only one who circulated her document . The Trial Examiner has given no credence whatsoever to any of Zubacks testimony . This finding is based mainly, but not entirely , upon the following facts: The language of the first paragraph of the October 24 and 26 documents is the same except that the word "against" is capitalized in Zuback's purported document and the year is stated after the dates October 21st and 22nd. Moreover, Mike Howard's name appears first on the October 26 document and second on the October 24 one, Pat Carlson 's name appears first on the October 24 document an&second .on the October 26.ope,.and.Marshon's name appears third on each document. Under the circumstances, and upon the entire record , the Trial Examiner finds that the union members were requested by management to sign both the October 24 and 26 documents. Under date of October 25, Gibson wrote Bert's Payless store as follows: This letter is to request that you remove, or cause to be removed , from the premises which are owned and occupied by you as a business establishment the picket which you are maintaining in front of your establishment carrying a placard with the wording: "Drug Employees are out on strike. This establishment is involved in a labor dispute with Retail Clerks Union Local # 1496" 11 Johnson died during the course of the hearing. "The document referred to is dated October 24, and the Trial Examiner infers that Diarshon signed it that day. The document bears the purported signatures of 14 employees, only 5 of whom were then employed at Bert's Fifth Avenue store. 21 Rodgers testified that he believed Johnson prepared this document. ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 683 In maintaining a picket carrying the above legend, you are creating confusion in the minds of the general public and by the wording on the placard, you are misleading the general public into believing that your establishment is being picketed by members of Retail Clerks Local #1496. In addition, you are mis- leading the public by using the official name and number of this union, thereby ,creating confusion in the minds of the public and leading the public to believe that it is an official picket of Local #1496. This is especially true, as you well know, in view of the fact that certain other drug establishments in this city are being picketed by Local # 1496. You are requested to forthwith discontinue this fraudulent practice of dis- seminating an untruth to the public by use of these signs by you and your as- sociates in front of the business establishment maintained and controlled by you. Almost immediately after the Union's picketing started on October 23, the owners of the stores which had not been picketed, placed pickets in front of their own stores carrying placards reading, "Drug employees are out on strike, this establishment is involved in a labor dispute with Retail Clerks' Union, Local 1496." 22 On one oc- casion, Hewitt Drugs hired a picket to carry a sign reading, "This establishment is not involved in labor dispute, all employees are good members of the Retail Clerks Union, Local 1496." Under date of November 15, Calderwood wrote Gibson as follows: This is to advise you that at 5 p.m., Monday, November 18, 1957, all clerks presently employed in Bert's Spenard Drug, Bert's Payless Drug, Bert's Fifth Avenue Drug, Hewitt's Drug, Savemore Drug, Bi-Rite Drug, Thrifty Drug, and Vista Drug will be laid off unless the pickets are removed from Rexall Drug, Denali Drug, and Eastchester Drug, and the strike called by your Union against the three firms last mentioned is brought to an end. At any time your Union withdraws its pickets and ends the present strike, all laid off clerks will be recalled and reemployed. I should advise you further that all the above named firms will continue to be ready to resume negotiations at any time requested by your Union.23 Under date of November 18, Gibson wrote the Association as follows: Please be advised that Local 1496 requests a meeting with you on this date, Monday, November 18, 1957, to discuss the present existing dispute. In order to resolve our difficulties, Local 1496 offers the following proposal, which, it is felt, is a compromise and a concession on the part of the Local. The pharmaceutical employees will compound prescriptions and sell medicinal .supplies from the floor, which medicinal supplies shall be on the counter im- mediately adjacent to the pharmaceutical department. All other supplies and merchandise shall be sold by non-registered members of Local 1496. The lockout of all drugstores in the Anchorage area threatened in your letter of November 15, 1957 would benefit no one and would be placing an unneces- sary hardship on your buying public. Please be assured that this offer of compromise is made in the utmost good faith and in the hope that it will enable us to resolve our present difficulties. The above proposal, unless acted on forthwith, shall automatically expire at 5:00 P.M. Monday, November 18, 1957. It is further urgently requested that the parties meet for discussion sometime prior to 5:00 P.M. Monday, November 18, 1957 at a time and place to be named by your group. 'On November 19, Calder-wood addressed a letter to Gibson reading as follows: During our negotiations yesterday, due to the shortness of time before the deadline of the lay-off set by the employer group, it was agreed to postpone the employer lay-off action for 24 hours. This was done in order that the proposals of both groups could receive the fullest consideration. As you know, the negotiations were resumed this morning at 9:00 A.M. 2' The placards carried by the union pickets read, "Drug employees are out on strike, please do not patronize, Retail Clerks, Local 1496." 23 Marshon credibly testified that on the date this letter bears, or shortly thereafter, a copy thereof was posted "over the time clock in the prescription department" at Bert's Fifth Avenue store ; that she was told by either Johnson or by Clayton Carruthers, the store manager and a member of the Independent, to read the letter and then sign it; and that Johnson told her and another female clerk, sometime prior to the lockout, re- ferred to below, to quote Marshon, "We could either get out of the union and continue working or that we would all be locked out." 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Your proposal that the activities of registered pharmacists be restricted to compounding prescriptions and selling medicinal supplies only from the floor, with the further proviso that all medicinal supplies be maintained on a counter immediately adjacent to the prescription department, was given the fullest consideration by the employer group during our afterhour meeting with you this morning. During the meeting, it was pointed out in detail to you by the various members of the employer group that it would be virtually impossible to achieve the re- strictions of the registered pharmacists' activities which you have demanded. Among other things, it was pointed out to you that there are several thousand different articles offered for sale in most drug establishments, that it would be an enormous task to classify such articles as being medicinal or non-medicinal, that the physical lay-out of many stores would prevent the segregation of medicinal supplies adjacent to the prescription department, and that such an attempted division of work assignments would result in endless confusion to employees in both categories and would have a serious effect upon customer relations. In short, we feel that it would be impossible to draft a meaningful contract clause which the union, the employers and the employees would be able to work with. As we understand the position of your Union, your basic aim is to restrict the activities of pharmacists to the compounding of prescriptions and the selling of medicinal supplies. The employer group is willing to help your Union reach this goal in any manner that is workable and is based on common sense. Therefore, the employer group offers this proposal for consideration by your Union. The employer group will consent to the inclusion of a clause in any contract negotiated for the clerks which will state in substance that where there is on duty in any establishment at any time, only one pharmacist, that pharma- cist will not be subject to restrictions but shall be free to service customers if the circumstances require; provided, however, that if there are at any time in any establishment more than one pharmacist on duty, the activities of the second pharmacist will be restricted absolutely to the prescription department. The employer group feels that this proposal meets your Union's objection that pharmacists not be permitted to encroach upon the normal selling activities of your members and at the same time permits the employers to deal with business conditions as they presently exist in their stores. The employer group has faith that your members will recognize this proposal as the only workable and common sense solution to the difficulty that exists. In view of this, the employer group respectfully requests that you submit this pro- posal to a vote of your membership forthwith. All employers will make im- mediate arrangements for your members to visit your Union office for the purpose of voting on this proposal. In the event that you refuse to submit this proposal to a vote of your mem- bership or in the event that your membership votes against the acceptance of the proposal, the employer group feels that the only alternative left them by your Union is to proceed with the lay-off action which will become effective at the close of today's business day. The parties met on November 19. At about 3 p.m. that day all the clerks in the stores not being picketed by the Union were released by their respective employers to permit them to go to the union hall and vote on the Association's latest offer, as set forth in the above-quoted letter. The offer was rejected. On November 20, the employers of the unstruck stores laid off all the clerks who were union members and retained in their employ all the nonunion clerks and all other persons hired since the commencement of the picketing. With this personnel and with the help of the pharmacists the stores continued their regular business. Negotiation sessions between the Association and the Union were held on No- vember 26 and 27, as a result of which agreement with respect to a bargaining contract was reached. On November 27, Hartlieb, on behalf of the Union, sent Calderwood the follow- ing letter: In our negotiations yesterday, we attempted to draft a clause which would delineate the duties of pharmacists and clerks. The following clause was mu- tually suggested. "Employers agree not to assign duties to pharmacists which would encroach upon duties which have traditionally been performed by clerks in the employer's store." As the matter covered by this clause formed the principal reason for the present dispute, the interpretation of such clause becomes of primary importance. ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 685 The interpretation given by the employer group to such clause and the intent which the clause seeks to express is that the various employers signing the con- tract would continue to recognize and preserve the work assignments performed by clerks in each store during past years. That is to say that each employer would be restrained from assigning work to any pharmacist which would in- crease the over-all work assignment of pharmacists and decrease the over-all work assignment of clerks. In short, we interpret the clause as maintaining the status quo in each establishment with respect to the division of work assign- ments between pharmacists and clerks. We ask that you confirm in writing that this is the intent and purpose of the clause mutually drafted by us. On November 30, the Association and the Union entered into a 2-year contract and the locked-out employees were recalled to work. 2. The concluding findings The right of employees, under Section 7 of the Act, "to form, join, or assist labor organization, to bargain collectively through representatives of their own choosing [and] to refrain from any or all of such activities" is effectively implemented by Section 8(a) (1) and (2). These provisions forbid employers to "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7," and likewise prohibit employers from dominating, interfering with, or support- ing labor organizations of their employees. The employer's economic hold over his, employees, which inheres in their relationship, is thereby neutralized in matters of organization and representation, which are peculiarly the concern of the employees. Interdictions against employer intrusion in such matters are essential if employees are to be free from the coercive influence of their employers, for employees are, as the courts have repeatedly found, not insensitive to the advantages in their em- ployment that they consider are likely to flow from their choice of representative to coincide with the wishes of their employer, nor the disadvantages which may attend their choice of a representative opposed by their employer. And for the same rea- son, employees cannot be expected to derive the full benefit from their protected right of self-organization if they believe, from "circumstances which the employer created or for which he was fairly responsible," 24 that their representative however chosen, is subject to the employer's compulsive will. Consequently, the Act prohibits all forms of employer assistance to, or domination of, his employees' labor organiza- tions and interference in their organizing campaign which might operate to preclude an uninhibited exercise by employees of their collective-bargaining rights.25 In open disregard of their duty of neutrality, the Association and its drugstore employer-members foisted upon the employees here involved a labor organization which met with their approval for not only did their attorney draw up the Inde- pendent's incorporation papers and bylaws, for which he had nit been paid nor reim- bursed for the filing fees paid for incorporating the Independent, but store owners, store managers, and other supervisory personnel brought the Independent into being, and attended to all matters incident to its organizational structure. For example, Rodgers called the Independent's organizational meeting together, then he presented it with Calderwood's ready-made organization. In addition, store managers and other supervisory personnel became, and still are, officers of the Independent. Fur- thermore, after the Independent was formed, the Association entered into a contract with the Independent providing for a certain form of union security. The Inde- pendent did not want such a clause in its contract but it had to accept it because the Association suggested, recommended, and desired it. Admittedly, prior to the hear- ing herein, the Independent never complied, with the provisions of Section 9(f), (g), and (h) of the Act and hence, by entering into a contract containing a union- security provision the Association lent further support to the Independent. More- over, by forcing upon the Independent a union-security contract the Association further violated the Act because such a contract, unless entered into in accordance with Section 8(a) (3) of the Act, deprived the members of the Independent the right to refrain from all or any union activities. The evidence, as summarized above, leads to the inescapable conclusion that the Independent was formed by the Association and its drugstore employer-members 24N.L.R.B. v. Link-Belt Company, 311 U.S. 584, 588. 2s See N.L.R.B. v. Link. Belt Company, 311 U.S. 584; International Association of Machinists v. N.L.R.B., 311 U.S. 72; N.L.R.B. v. Electric Vacuum Cleaner Company, Inc., 315 U.S. 685; N.L.R.B. v. Southern Bell Telephone and Telegraph Company, 319 U.S. 50; N.L.R.B. v. S. H. Kress and Company, 194 F. 2d 444 (C.A. 6) ; Harrison Sheet Steel Company v. N.L.R.B., 194 F. 2d 407 (C.A. 7). 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that it exists and functions through their control, participation, and sufferance. In short, the Independent is being used by the Association and its drugstore employer- members as a substitute for collective bargaining and, as such, is a device which repeatedly has been held to be an outlawed form of labor organization.26 The Respondents contend that the Independent came into being only by persons who were members of the Charging Party and that the Independent, since its incep- tion, has been administered by only such persons and hence the Union, and thereafter the Board, cannot now be heard to complain that the Independent is an outlawed form of a labor organization. Whatever may be said of that contention, the fact remains that the issue to be resolved here is whether the Respondents violated the Act with respect, among other things, to their activities involving the Independent. The question whether the Union, by admitting to membership store owners, store managers, and other supervisory personnel, is likewise existing in violation of the_ Act contributes nothing to the resolution of the issues before us 27 Therefore, upon the entire record in the case, the Trial Examiner finds that the Association and its drugstore employer-members formed, dominated, and interfered with the administration of the Independent within the meaning of Section 8(a)(2) and (1) of the Act, thereby interfering with, restraining, and coercing the employees here involved in the exercise of the rights guaranteed in Section 7 thereof. Counsel seek to defend Respondents' action in locking out the employees from November 20 to 30,28 upon the United States Supreme Court decision in N.L.R.B. v. Truck Drivers Local Union No. 449, etc., usually referred to as the Buffalo Linen Supply Company case. The facts in that case as stipulated by the parties are as follows: The employers, linen supply companies, were members of an association which had bargained on their behalf with the union representing their truckdriver employees for some 13 years. Sixty days before April 30, 1953, when the existing collective agreement, which contained an automatic renewal clause, was to expire, the union notified the association of its desire to open negotiations to change the agreement. Thereafter, the parties negotiated for a new agreement without success, and on May 26, 1953, the truckdrivers for one of the employers went out on strike. On May 27, the other seven association members laid off their truckdrivers after notifying the union that this action was the result of the strike and that the employees would be recalled if the union ended the strike against the eighth member. Negotiations continued and on June 3, the union and the association executed a new agreement, whereupon the strike and the lockout were terminated and all employees returned to work. The Board, one member dissenting, dismissed the complaint alleging that the lockout was violative of Section 8(a),(1) and (3) of the Act. The majority's opinion, in part, is as follows: 29 From these facts, and in the absence of specific evidence showing that the strike was likely to spread to the nonstruck Employers, the Trial Examiner, by reliance upon certain prior Board decisions, inferred that the Employers who were not struck engaged in unfair retaliatory conduct. However, in these circumstances, we think the more reasonable inference is that, although not specifically announced by the Union, the strike against the one employer neces- sarily carried with it an implicit threat of future strike action against any or all of the other members of the Association. For, the Union's action represents a similar technique of exerting economic pressure to atomize the employer. solidarity which is the fundamental aim of the multiemployer bargaining rela- tionship. The calculated purpose of maintaining a strike against one employer and threatening to strike others in the employer group at future times is to cause successive and individual employer capitulations. Therefore, and in the absence of any independent evidence of anti-union motivation, we find that the Respondents' action in shutting their plants until termination of the strike at Frontier was defensive and privileged in nature, rather than retaliatory and unlawful. 26 See, for example, N.L.R.B. v. Newport News Shipbuilding c& Dry Dock Co., 308 U.S. 241 ; N.L.R.B. v. Baldwin Locomotive Works, 128 F. 2d 30 (C.A. 3) ; Bethlehem Steel Company v. N.L.R.B., 120 F. 2c1 641 ; Westinghouse Electric ct Manufacturing Company v. N.L.R.B., 112 F. 2d 657 (C.A. 2) ; Edward G. Budd Manufacturing Co. v. N.L.R.13., 138 F. 2d 86 (C.A. 3) : and N.L.R.B. v. Rath Packing Company, 123 F. 2d 684 (C.A. 8). 2-, See Local Union No. 929, United Brotherhood of Carpenters, etc.. et al. (The Mengel Company), 120 NLRB 1756; Communication Workers of America, AFL-CIO (Ohio Consolidated Telephone Company), 120 NLRB 684 and cases cited in footnote 3 thereof. -9 Except. Darlene Perry who was rehired on November 21. 109 NLRB 447, 448. ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 687 The facts here are distinguishable from those in Buffalo Linen. In the first place, in that case the Board apparently laid considerable stress upon the fact that the record disclosed no independent evidence of antiunion motivation on the part of the employers. Support for this conclusion is found at page 4 of the Board's brief filed in the Second Circuit in opposition to the petition to set aside the Board's order dismissing the complaint. There, the Board said, "'in the absence of any inde- pendent evidence of antiunion motivation' the Board viewed the lockout herein as 'defensive and privileged in nature, rather retaliatory and unlawful."' In its petition filed in the Supreme Court for a writ of certiorari the Board, at page 4 thereof, states that it "concluded that the employers, in order to defend their inter- est in the multiemployer bargaining unit which the threat of successive strike en- dangered, 'and in the absence of any independent evidence of antiunion motivation,' were privileged to shut down their operations . . " At pages 4-5 of the Board's brief in the Supreme Court there appears the following: The Board concluded that the Act did not forbid the employers, in order to de- fend their interest in the multi-employer bargaining unit against devisive pres- sures engendered by the threat of successive strikes, "and in the absence of any independent evidence of antiunion motivation," to make a common defense to the strike against Frontier and accordingly shut down their operations during. the strike 30 The credible evidence disclosed by this record clearly establishes that the employers engaged in acts which seriously interfered with the rights guaranteed employees under the Act, and hence the Buffalo Linen doctrine is not, as Respondents contend, ap- plicable to this proceeding. In the second place, the Board's holdings in Buffalo Linen that (1) the employers, under the circumstances of that case, did not violate the Act because the "inference is that . the strike against the one employer necessarily carried with it an implicit threat of future strike action against any or all the other members of the Association" or that the union's action was actually aimed at "exerting economic pressure to atomize the employer solidarity" in bargaining with the Union can not be applied here. In this case, the employers did not lock out any of their employees because they feared the Union would strike the other members of the drugstore unit of the Association nor did they believe that by striking the three stores in question the Union was attempting "to atomize" their bargaining solidarity but locked out some of their employees 31 so as to discourage membership in the Union,32 to discredit the Union in the employees' eyes, and to compel the Union to accept an unfavorable bargaining agreement. Finally, here, unlike in Buffalo Linen, there was no total shutdown but merely a layoff of all known union adherents. Upon the record as a whole, the Trial Examiner is convinced, and finds, that the employees mentioned in the consolidated complaint, as amended, were locked out on November 20, for reasons proscribed by the Act. By engaging in such conduct, the Trial Examiner finds that the Association and its drugstore employer-members vio- lated Section 8(a) (1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Association and its drugstore employer-members set forth in section 111, above, occurring in connection with the operations of said drugstore em- ployer-members described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them 31 It is significant to note that in the fore part of its opinion the Supreme Court stated„ "The Board therefore found that 'in the absence of any independent evidence of anti- union motivation . . . the Respondent's action in shutting down their plants until termi- nation of the strike at Frontier was defensive and privileged in nature, rather than retaliatory and unlawful' " and ends its opinion by remarking "We hold in the circurn- stances of this case the Board correctly balanced the conflicting interests in deciding that a temporary lockout to preserve the nniltf-employer bargaining basis from the disintegra- tion threatened by the Union's strike action was unlawful." 31 Certainly there is no basis in the record to support a finding that the strike created an economic or operative problem at the nonstruck stores to warrant the owners thereof to lock out or lay off any of their employees. 37 This finding finds support, among other credited evidence, in C. A. Johnson's con- duct with respect to his October 24 letter or notice which he had Marshon and others sign and Johnson's statements and conduct made on or about November 15 to Marshon and others regarding Calderwood's November 15 letter to Gibson. 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as have been found to constitute unfair labor practices, tend to lead, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Association and its drugstore employer-members have en- gaged in unfair labor practices violative of Section 8(a)(1), (2), and ( 3) of the Act, the Trial Examiner will recommend that they , and each of them, cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As found above, the Association and its drugstore employer-members formed, dominated , and interfered with the administration of the Independent and contributed" support to it. Under the circumstances , the Trial Examiner finds that the present ex- istence of the Independent and the Association 's and its drugstore employer-members' continued recognition thereof as a bargaining representative constitute a continu- ing obstacle to exercise by the employees here involved of the rights guaranteed them under the Act. Therefore , in order to effectuate the policies of the Act and to free said employees from the effects of the Association 's and its drugstore employer-mem- bers' unfair labor practices, the Trial Examiner will recommend that the Association and its drugstore employer-members withdraw all recognition from the Independent as a representative of any of the employees of the Association's drugstore employer- members for the purpose of dealing with them concerning grievances , labor disputes, wages, rates of pay, hours of employment , and other conditions of employment and to completely disestablish it as such representative. As previously found, the conduct of the Association and its drugstore employer- members in executing the contract July 2, 1957, with the Independent constituted unlawful assistance to the Independent . This contract has been a means whereby the Association and its drugstore employer-members have utilized the unlawfully formed, dominated , and supported Independent to frustrate self-organization and to defeat genuine collective bargaining by the employees here involved . The Trial Examiner, therefore, recommends that the Association and its drugstore employer-members cease and desist from giving effect to said contract or to any renewal , extension, modification, or supplement thereof. Nothing herein shall be taken to require the Association or its drugstore employer-members to vary the wages, hours, seniority, and other substantive features of their relations with the employees of the Associa- tion's drugstore employer-members , themselves , which said employers have estab- lished in performance of said contract or any revision , extension, renewal, or modi- fication thereof. In view of the nature and the extent of the unfair labor practices , as found herein, the Trial Examiner is convinced , and finds, that it would not effectuate the policies of the Act to permit the Independent to retain the payments which have been unlaw- fully exacted from the employees here involved , nor would it effectuate the policies of the Act to permit the Association or its drugstore employer-members to reap the benefit of their unlawful domination and support of, and assistance to, the Inde- pendent at the employees' expense. In order, therefore, that the remedy may be commensurate with the unfair labor practices found, and to restore to the employees the rights which they have been denied, the Trial Examiner recommends that the Association and its drugstore employer-members , and each of them, cease and desist from in any manner interfering with, restraining , and coercing the employees of the Association's drugstore employer-members in their right to self-organization; the Trial Examiner also recommends that the Association and its drugstore employer- members jointly and severally reimburse the employees who have been unlawfully required to pay dues , initiation fees , and assessments , if any, to the Independent; and the Trial Examiner also recommends that the drugstore employers here involved make whole their respective employees whom they locked out on November 20, 1957, and whom they did not rehire until November 30, 1957, with the exception of Darlene Perry who was rehired on November 21, 1957, for any loss of pay they may have suffered by reason of said unlawful lockout against them, by payment to each of them of a sum of money equal to the amount each would have normally earned as wages during the periods aforesaid , less his or her net earnings during such periods. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Retail Clerks International Association, Local No. 1496, AFL-CIO, and Anchorage Professional Pharmacists Association, Inc., unaffiliated , are labor organi- zations within the meaning of Section 2(5) of the Act. BOEING AIRPLANE COMPANY, SEATTLE DIVISION 689 2. By forming, dominating, and interfering with the administration of the Inde- pendent and by contributing support to it, the Association and its drugstore employer- members have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a)(2) of the Act. 3. By entering into and giving effect to the contract effective July 2, 1957, with the Independent , which contract was executed in violation of the Act, the Association and its drugstore employer-members have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. By discriminatorily locking out certain employees on November 20, 1957, thereby discouraging membership in the Union, the Association's drugstore employer- members have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. By interfering with, restraining , and coercing the employees here involved in the exercise of the rights guaranteed in Section 7 of the Act, the Association and its drugstore employer-members have engaged in, and are engaging in, unfair labor prac- tices within the meaning of Section 8(a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Boeing Airplane Company, Seattle Division and National Union, United Welders of America, Independent, Petitioner . Case No. 19-RC-9194. August p21, 1959 SUPPLEMENTAL DECISION AND CLARIFICATION OF UNIT On February 20, 1959, following a Decision and Direction of Elec- tion 1 and an election held pursuant thereto, the Board issued a Cer- tification of Representatives in the above-entitled proceeding in which National Union, United Welders of America, Independent, was certi- fied as the exclusive bargaining representative in an appropriate craft unit of welding employees. Thereafter, on April 16, 1959, Aeronau- tical Industrial District Lodge No. 751, International Association of Machinists, AFL-CIO, the Intervenor and bargaining representa- tive of the Employer's production and maintenance employees, filed a motion in which it requested the Board to clarify the welding unit to determine whether employees classified as automatic fusion welding machine operator and sheet metal worker and welder maintenance C should be included. The Petitioner filed a reply, and on April 28, 1959, the Board ordered a hearing for the purpose of receiving evi- dence relating to the unit placement of the aforementioned classifica- tions. Accordingly, on June 18 and 19, a hearing was held before Hearing Officer Robert E. Tillman and, thereafter, the Petitioner and the Employer filed briefs. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed .2 I Boeing Airplane Company, Seattle Division, Case No. 19-RC-2194 ( issued on Janu- ary 13, 1959 , unpublished). 9 The requests of the Intervenor and the Employer for oral argument are denied, as the record, including the briefs , adequately presents the issues and the positions of the parties. 124 NLRB No. 83. 525543-60-vol. 121-45