The Red Cross Drug Co.

610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Red Cross Drug Company* and Retail Clerks Union Local # 1403, AFL-CIO, Retail Clerks In- ternational Association , AFL-CIO. Case 30-CA-539 February 2, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On October 19, 1967, Trial Examiner John H. Eadie issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision, together with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision, the Respondent's ex- ceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as supple- mented herein.' 1967, on the complaint of the General Counsel and the answer of Red Cross Rexall Drug Stores, Inc., herein called the Respondent.' The issue litigated was whether the Respondent violated Section 8(a)(1), (3), and (5) of the Act. After the hearing the parties filed a combined stipulation and motion to close the hearing. The motion was granted. The stipulation and ruling on the motion are received in evidence as Trial Examiner's Exhibits I and 2, respectively. The Respondent filed a brief with the Trial Examiner. Upon the entire record in the case, and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Wisconsin corporation, is engaged in the operation of several retail drug stores in Racine, Wisconsin, including a store located at 5415 Washington Avenue, which is the only store involved herein. During 1966, the Respondent's sales in all of its retail stores were in excess of $500,000. During the same period, the Respondent purchased goods and materials, valued in ex- cess of $50,000, from points outside the State of Wiscon- sin. The complaint alleges, the Respondent's answer ad- mits, and the Trial Examiner finds that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union Local #1403, AFL-CIO, Retail Clerks International Association, AFL-CIO, herein called the Union, is a labor organization which admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, The Red Cross Drug Company, Racine, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. *[By Order dated April 25, 1968, the name of the Respondent was changed from Red Cross Rexall Drug Stores, Inc., to The Red Cross Drug Company.] ' The Respondent excepts to the Trial Examiner's failure to consider in his Decision the effect on the Union's card showing of a petition, signed by a number of employees and purporting to constitute a withdrawal of their union authorization cards. We find this petition of no effect on the Union's card showing in view of the evidence in the record that a super- visor solicited the signatures thereto, and in view of the other unlawful conduct of the Respondent set forth in the Trial Examiner's Decision. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN H . EADIE, Trial Examiner : This proceeding was held before me in Racine , Wisconsin , on May 9 and 10, A. Background Starting on January 19, 1967, Richard Eiden and Paul Whiteside , representatives of the Union , solicited the Respondent's employees to sign union authorization cards. By letter dated January 20, 1967, the Union notified the Respondent that it represented a majority of employees in a stated , unit, suggested a certain date for meeting in order to negotiate a contract , and stated that at the meeting it was prepared to prove its majority by sub- mission of authorization cards for a card check . Gilbert Brach , the Respondent's attorney , answered the Union's letter by letter dated January 24, 1967, stating that the Respondent would not meet with the Union on the sug- gested date "because we have no knowledge of any union organization and no evidence that any of our people are members of your union." On January 31, 1967, the Union sense mllwing letter to Brach: In your letter of January 24th, you claim to have no evidence of Union organization at the store. We have enclosed true and accurate copies of authorization cards voluntarily signed by an overwhelming majority of the Unit employees. In ad- dition , other unit employees have authorized the ' A charge and an amended charge were filed on March 8 and April 5, 1967. The complaint issued on April 11, 1967. 169 NLRB No. 89 THE RED CROSS DRUG COMPANY Union to bargain on their behalf but, perhaps because of the Company's continued campaign of anti-union coercion , now prefer to keep their identity confidential. Since you have now been furnished with conclu- sive proof of our majority, we trust you will respond by return mail advising as to when your client will be available to meet for purposes of negotiation. Enclosed with the Union's letter were copies of nine authorization cards. The Union did not receive any reply from the Respondent. The Union filed a petition for certification on February 13, 1967.2 At a subsequent conference held on February 23 the parties entered into a stipulation for certification upon consent election. The election was scheduled for March 9, 1967. At this conference the Union again of- fered to prove its majority through authorization cards. The Respondent refused the offer and insisted upon an election. As related above, the Union filed a charge on March 8, 1967. Due to the filing of this charge, the election was postponed indefinitely. On April 5, 1967, the petition was withdrawn with the approval of the Regional Director. B. The Status ofMinnie Mo desti The General Counsel contends that Modesti is a super- visory employee within the meaning of the Act. The Respondent contends otherwise. Modesti was employed by the Respondent for approxi- mately 1 year and 4 months before her employment was terminated about April 1967. Her job title was manager of the lunch counter. She testified that she ordered the food for the Washington store and for three other stores of the Respondent; that, if a large food order was in- volved, she first got the approval of Jack Donovan, the manager of the Washington store; that she assigned work to the employees in the lunch counter; that she and Donovan "together" made up the work schedules for the employees ; that prospective employees were first inter- viewed by her; that she made recommendations to Donovan for the hiring of employees; that, before em- ployees were hired, Donovan always talked to them; that she and Donovan "together" hired the employees; and that all employees whom she recommended to Donovan were hired. Employee Mae Fragale was hired as a waitress for the lunch counter in November 1966. She testified that Modesti asked her if she would like to work for the Respondent; that Modesti at the time told her what her wages and hours of work would be; that, when she stated that she would take the job, Modesti told her that she would give her a definite answer the following day; that Modesti explained that she had promised the job to another girl but that she was not sure if that girl wanted the job; that Modesti called and told her to report for work the following Monday; and that she first met Donovan about 8:30 a.m. on that Monday as she was per- forming "little chores" getting the lunch counter ready. Pauline Fazzari was hired by the Respondent in Sep- tember 1966 , as a waitress and dishwasher. She testified that Modesti asked her if she wanted a job with the Respondent; that when she accepted the offer; Modesti told her that she would ' give her an answer after she (Modesti) spoke to Donovan and that she (Frazzari) 2 Case 30-RC-585. 611 should go to "6th Street and make an application"; and that she was not introduced to Donovan until the morning when she first reported for work. Donovan testified that he was "in complete charge of hiring and scheduling" and denied that Modesti had hired any employees . Concerning her duties , Donovan testified, "Minnie Modesti is the leader of the ladies, to make sure that the laws as to neatness and to hairnets and the general health code is maintained. She assists me in buying food for our fountain , as well as warehousing some food for other fountains . In case of a scheduling [of work] conflict , she consults me as to whom I think is best to put on at certain times. In case if a problem would arise as to who is to clean the grill tonight, or who is to sweep the floor, she would delegate the routine maintenance du- ties .... The title of fountain manager would, in the absence of Minnie , fall to the next one in line, who would be Rose [Anzalone], and right straight down the line. It would be the oldest and most mature person on duty at the time that could be the leader." The above uncontradicted testimony of Fragale and Fazzari shows that Modesti in effect had the authority to hire employees. Donovan did not meet these two em- ployees until the morning that they reported for work. In any event, the evidence discloses that M odesti effectively recommended the employment of most, if not all, of the lunch counter employees. Accordingly, I find that Modesti was a supervisory employee within the meaning of the Act. C. Interference, Restraint, and Coercion As related above, Eiden and Whiteside commenced the union campaign on January 19, 1967. That night Eiden, accompanied by employees Sue Reber and Judith Stan- ton, went to the homes of several employees, including that of Modesti. Reber and Stanton spoke to Modesti. Modesti signed a union card at the time . By January 26, 11 other employees had signed union cards. Modesti testified without contradiction that, at some time after the employees had signed union cards, she "figured" that they no longer wanted the Union; that, after consulting with her attorney, she drafted a petition to withdraw from the Union; that after she, Rose An- zalone, her mother, and Fragale had signed the petition, she told Donovan what she planned to do; that he told her that it was "up to" her if she "wanted to do it or not"; that in the next 2 or 3 days she solicited all of the employees to sign the petition ; that after the employees had signed the petition, she presented it to Donovan ; and that she told him at the time that, if it would help him, she was giv- ing it to him "whatever he needed it for." I find that the above conduct of Modesti in drafting and circulating a petition among the employees for the pur- pose of having them reject the Union was violative of Section 8(a)(1) of the Act. Elizabeth Mehalic worked as a waitress. She had a con- versation with Donovan on or about January 28, 1967. In this connection Mehalic testified as follows: I asked him ... if we would get our discounts, and he just said why should we. . . "you'd be just taking more money of the company, if the union got in." .. . He said that the had the right to open the store and close it anytime that he wanted. And he said people were talking about having ... split hours, and I 350-212 0-70-40 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked him if I could be made [to work] split hours, and he said no, he wouldn't do it but he could if he wanted to, he can make it hard for u s to work.... he could change the schedule and make us work split hours. . . . He said he could make it hell for us to work, if he wanted to.... That we wouldn't be gain- ing anything more than we had, if the Union got in. ... That we would lose our discounts .. . . We would have a store meeting with Mr. Gates,3 and we'd discuss our grievances and things like that but they'd be done in writing, and that he'd answer them as best he could. Donovan did not deny categorically the statements at- tributed to him by Mehalic. Generally, he testified that he did not make any promises or threats to employees. I credit the above testimony of Mehalic. Her testimony dis- closes that Donovan threatened employees with split hours and loss of discount privileges if they adhered to the Union, impliedly promised that Gates would permit employees to submit written grievances at a store meeting if they renounced the Union,' and stated, in substance, that the selection of the Union by the employees would be a futile act. I find such conduct to be violative of Sec- tion 8(a)(1) of the Act. Sue Reber worked for the Respondent. as a clerk. She had a conversation with Donovan on or about January 28. Concerning this conversation, Reber testified without contradiction as follows: Mr. Donovan called me back to show me where our work schedule had been changed .... So after I got my hours straight I asked him why this was going into effect. And he said that when all this busi- ness was forgotten about - everything would go back to normal ... I said "What business?" And he said that he wasn't allowed to bring it up, that I would have to bring it up . . On or about January 30, Reber had several telephonic conversations with Donovan. She testified without con- tradiction to the following: Well, he called up to tell me that the work schedule is going into effect that week .... S o after I hung up, I called him back to find out if I was to come into work that night or not. And Jack said no, I was to come in Tuesday night, as usual. . . . He said that Mr. Gates had told him to tell us that we would have a meeting when everything was forgotten about the union. And that we would discuss all our grievances. And I asked Jack how we would do this, and he said that we would write down our grievances on a piece of paper which we wouldn't have to sign, and then Mr. Gates would discuss it with us. 5 And I told Jack that one of the things that we wanted the union in for . was that we thought we deserved more pay on Sundays and holidays. And he said that if I thought I needed more money for Sundays, then he could al- ways find someone cheaper to work. As was found in connection with the testimony of Mehalic and Kime, I find that the above statement of Donovan about a meeting with Gates was violative of the Act. I do not find that his remark about Sunday work was a threat of reprisal, as alleged in the complaint. Reber had a conversation with Donovan on Sunday, February 26. Concerning this conversation, she testified to the following: . Well Jack came up to the front where I was and he told me that he had talked with five women in the store, he knew that they were going to vote no. And he asked me what I was going to do when the elec- tion came. And I said I was I was going to vote no, too. And so Jack told me that he thought it was the part-time girls at the lunch counter that were pushing the union. And he said that I should go back and I should tell the girls that if they voted yes he would lay them off and hire the women from Elmwood Plaza in their place. . Well, I didn't quite understand how he could do this, and he said that if we wanted a union in we would have to go by seniority and the women from Elmwood Plaza had more seniority than the girls at our lunch counter. Donovan admitted having a conversation with Reber on the Sunday in question, but denied any discussion with her "in regard to the layoff of anybody" or about "union 3 The record discloses that Gates was either the owner or an officer of the Respondent. 4 The parties stipulated that if employee Eleanor M. Kime was called as a witness the following, taken from her affidavit, would constitute her testimony: On or about 1-25-67, 1 went back to the pharmacy and was talking with Jack Donovan, Store Manager. We are talking and by some re- mark, which I do not recall , we started to talk about unions . I think I was probably griping about something about the store . There was conversation about unions in a general sense . I asked if he knew about or was closely associated with a union. He said he was not. I told him that unions had done a lot for people and he had a lot to learn. Then he asked what I wanted from a union. I told him that I was looking for more security. He asked what I meant by that. I an- swered that being a full time employee I should have sick leave, paid holidays, and overtime if available. I also said that I was not expect- ing the union to get me a monumental raise, because I do feel that my hourly pay is close to union scale. He said it was not company policy to grant those benefits . I said it should be; this is why unions are a benefit because they can do things for people . He repeated it was company policy . He said he had been a good boss and reminded me of the benefits I do receive such as receiving personal calls, running over to Sears , smoking on the job and pleasant working conditions. He then asked if we could not work this out by ourselves . I said that would be lovely. He said that all the employees should turn in, un- signed, list of what they wanted improved at the store and that there would be a meeting with Mr. Gates & he would answer or explain why the request could or could not be granted. I suggested that the list should be signed so that Mr. Gates would know whose complaints they were, and I also said that I would pass this along. He had not asked me to do so. Jack said the employees did not have to sign. I said I would sure sign mine. The parties also stipulated to further testimony of Donovan. This testimony, in part, is as follows: Sometime during the latter part of January I recall having had a conversation with Eleanor M. Kime . ... The conversation con- cerned methods of improved benefits and the discussion led to the store meetings with Mr. Gates. This was a normal discussion because we have had store meetings in the past and Mr. Gates would be present and methods of improving the store, improving benefits, etc. would be normally a matter to be taken up at these meetings. I told Ellie that I couldn't say yes or no concerning such things as paid holidays, sick leave, etc. but that at the present time it was not com- pany policy to grant these and that I couldn 't do anything to change it .... I didn't promise -Ellie that there would be a meeting held but stated that such a meeting would be up to Mr. Gates. Except to . state that he did not "promise" that there would be a meeting, it is to be noted that Donovan did not deny the statements attributed to him by Kime. Accordingly, I credit the testimony of Kime. This testimony shows an implied promise of a meeting with Gates if the employees would reject the Union and supports the testimony of Mehalic in this connection. I do not find that Donovan's statements to Kime were violative of the Act in any other respect. I Reber testified that before the above time she had attended two store meetings and that Gates was not present at either meeting. THE RED CROSS DRUG COMPANY activities." ,I credit the above testimony of Reber and find that Donovan's interrogation as to her vote in the election and his threat to lay off the counter employees if they voted for the Union were violative of Section 8(a)(1) of the Act. Reber had another conversation with Donovan on or about March 11. In this connection Reber testified credibly, "Jack came back and told me that he had been talking to Mr. Gates, and Mr. Gates said that when everything was settled that we would get paid for ... holidays. And I asked him what he meant .... And he said that if the store were going to be shut on a holiday, and we were scheduled to work but we wouldn't because the store was shut, we would get paid for that day, or for the hours we would work ... he said if we forgot about the union that this would go into effect." I find that Donovan's promise of benefit if the em- ployees rejected the Union was violative of Section 8(a)(1) ofthe Act. D. Discrimination Against Doris Hougan During 1964 Hougan worked at several of the Respond- ent's stores. She was hired by Gates. During the early part of 1965 she quit her job because she did not want to work on alternate weekends. She told Gates the reason why she quit. During November 1965 Gates called Hou- gan and asked her to work at the Washington store. She said that she did not want to work for the Respondent again because she did not want to work on weekends. Gates said that there had been "a misunderstanding" over her former employment and said that she would not have to work "any weekends" if she would come back to work for him. Hougan accepted the job offer. During the summer of 1966 Hougan's hours per week were cut from 36 to 26 because she did not want to work on Saturday. She discussed this with both Gates and Donovan. At sometime during November 1966 Hougan told Donovan about a job offer from another company which would,give her more hours of work. She said that she would accept the job if her "schedule was changed once more. 116 Donovan replied that he would try to get her "more hours" and said, "Well, don't worry about the Saturdays." On January 19, 1967, at the lunch counter, Hougan solicited Fazzari and Anzalone to sign union cards. Hou- gan herself signed aunion card on January 20.,Eiden gave her the card while they were in the parking lot in front of the Respondent's store. On or about January 25 Hougan learned from Kime that her; work schedule was being changed. The new schedule called for Hougan to work on alternate Satur- days and Friday nights. About 11 a. m. on Saturday, January ',28, Donovan called Hougan at her home and told her that the new work schedule would go into effect the following Monday. He asked her if she had studied the schedule. She replied that she had seen it on the previ- ous Wednesday and said, "You know I can't work these hours, and I told you before, if I ever had to work on a Saturday I would have to quit." Donovan said, "Well, you knoiw why this new schedule is going into effect." Hougan answered, "Well, I won't be in on Monday." 6 Hougap testified that her work schedule was changed "at least eight times in ten months." ° The schedule was received in evidence. It contains a number of era- sures and in the upper comer shows the date January 9, 1967. 8 Reber testified without contradiction that after Hougan quit her, 613 Donovan closed the conversation by saying, "Well, I'll talk to you later." Donovan did not call Hougan again. Hougan did not report for work on Monday, January 30. On February 4, Hougan sent the following letter to gates: I agreed to come and work at your new store at 5415 Wash. Ave in Oct. 1965. My hours were to be Mon. thru Fri including Wed night 36 hours a week. It was also agreed no Fri, night, Sat or Sun. After the schedule was changed 10 times in 15 months I still worked the hours I was told, even tho my hours were cut to 26 hours a week. I am ready, willing, and able to work the above hours. However a week after I signed with the Union (Jan 28, 1967) Mr. Donovan called on Sat and informed me the new schedule would go into effect Mon. Jan 30th that would include Fri night and Sat. knowing it was impossible for me to work those days. That is why I said I would not be able to come to work last week. However I am still available for original hours I was hired for. Please advise. Hougan did not receive any answer from the Respondent. Concerning the new work schedule,' Donovan testified, in substance, that he had it on his desk since January 9, that he did not recall if he showed it to any em- ployees before he put it into effect, that it was "first discussed" with employees during November 1965, that it was put into effect "at the fountain" on January 9, and that it became effective for the other employees on Janua- ry 28. The Respondent did not present any evidence to show the necessity for changing the work schedules of the em- ployees. On the other hand, Donovan's statement to Mehalic indicates that the new work schedule was put into effect in order to "make it hard" on the employees because of their union activity. He told Reber, "When all this business was forgotten about- everything would go back to normal."" It is clear from his statements to Reber that he was referring to the union campaign. The Respondent knew that Hougan could not work on Saturdays. She had made this known to both Gates and Donovan. Gates told her that she would not have to work on weekends when he rehired her in 196 5. Before the ad- vent of the Union, Hougan had not been required to work on Saturdays while she was employed at the Washington store.9 Nevertheless, 5 days after the Union notified the Respondent that it represented a majority of the em- ployees, the Respondent scheduled Hougan for Saturday work. Accordingly, from all of the evidence I find that the new work schedule was instituted in reprisal for the union activities of the employees, that because of Hougan's union activity the Respondent scheduled her for Saturday work in order to force her to terminate her employment, and that by 1 such conduct the Respondent violated Sec- tion 8(a)(3) and (1) of the Act. In making the above find- ing as to Hougan I infer that the Respondent knew or suspected that Hougan was engaged in activities on be- half of the Union. The evidence shows that there were only 12 employees in the appropriate unit and that "hours went right back to normal, so there was no change." ' Hougan testified without contradiction that on occasion "as a per- sonal favor" she worked on weekends when another employee "called in sick." 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Modesti, a supervisor, was involved in the union activity. E. The Refusal To Bargain The complaint alleges the appropriate unit to be "All full-time and regular part-time employees at Respond- ent's store located at 5415 Washington Avenue, Racine, Wisconsin, excluding one store manager, professional employees, guards and supervisors as defined in the Act." The Respondent's answer admits this allegation of the complaint. Accordingly, I findthe above unit to be ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. The parties stipulated that there were 12 employees in the appropriate unit, including Hougan but excluding Modesti, on January 21, 1967. The General Counsel presented in evidence the cards of 11 employees, exclud- ing that of Modesti. The evidence discloses that all of these employees made valid designations of the Union as their collective-bargaining agent. 10 Nine of the cards were signed on or before January 20. The cards of Fragale and Mary Ricchio were signed on January 2 1 and 26, respec- tively. Accordingly, I find that at all times on and after January 20, 1967, a majority of the employees in the above-appropriate unit designated or selected the Union as their exclusive collective-bargaining representative. As related above, on January 20, 1967, the Union requested the Respondent to meet with it in order to negotiate a contract and offered to prove its majority by a card check. In its answer of January 24 the Respondent refused to meet with the Union, claiming that it had "no evidence" that any of its employees were members of the Union. The Union sent a second demand letter on Janua- ry 31 and enclosed photostats of nine authorization cards. The Respondent did not answer this letter. Since the Union submitted photostats of cards of well over a majority of the employees in the unit, it would not appear that the Respondent was insisting upon an elec- tion because it had a good-faith doubt of the Union's majority status. Further, it has been found above that the Respondent violated Section 8(a)(1) and (3) of the Act. This conduct began shortly after the Union's first demand for recognition. It shows that the Respondent completely rejected the collective-bargaining principle and that it merely sought an election in order to gain time within which to undermine the Union and dissipate its majority. Accordingly, I find that the Respondent's refusal to bar- gain on and after January 24, 1967, was violative of Sec- tion 8(a)(5) of the Act. It is undisputed that on January 22, 1967, six em- ployees received wage increases; that on February 5 An-/ zalone's hourly rate was increased from $1.50 to $1.65; and that the Respondent took this action without prior notice to or bargaining with the Union. Concerning the reason for the wage increases, Donovan testified, "An- ticipation of the minimum fair wage being increased February 1st to $1.40. It had been decided in December 10 In its brief the Respondent states, ". . . Sue Reber obtained cards by unlawful acts, by coercive acts by telling Rose Anzalone, Mary Ricchio, Mae Fragale, Pauline Fazzari and Allan J. Mollerskov that their signa- tures were needed to obtain 100%. This puts pressure on the individual because the real intent is to have this individual feel that he stands alone and such was not true." Fragale testified that Kime solicited her to sign a card, telling her that she would "like the store to be 100 percent union." Fazzari testified that Hougan solicited her and Anzalone to sign cards and that I-Iougan said or so by the management that everyone, irregardless [sic] of what position they occupied at any store, that they would all be raised to meet the minimum of $1.40. The date of the 22nd was decided upon, because the 21st ended a pay period and the 22nd started a pay period. So we started at the start of a pay period, which would be be- fore the 1st, and thereby comply with the Federal regula- tion." There is no showing, other than its belief, that the Respondent was subject to the minimum wage require- ments of the Fair Labor Standards Act. In any event, the Respondent increased the rates of six employees to the new minimum before the required time ; and Anzalone's hourly rate before her wage increase was above the new minimum wage . Since the Union was the bargaining representative of the employees involved, I find that the Respondent's unilateral action was violative of Section 8(a)(5) of the Act. It has been found above that on or about January 28 the Respondent in violation of Section 8(a)(3) and (1) of the Act enforced a new work schedule. I find that this conduct also constitutes a separate violation of Section 8(a)(5) since it is undisputed that the Respondent did not notify or bargain with the Union in this respect. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respond- ent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices , it will be recommended that it cease and desist therefrom and that it take certain affir- mative action designed to effectuate the policies of the Act. Having found that the Respondent has refused to bar- gain with the Union in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that the Respondent be or- dered to bargain with the Union upon request as the ex- clusive representative of all its employees in the ap- propriate unit concerning rates of pay, wages, hours, and other terms and conditions of employment, and, if un- derstandings are reached , embody such understandings in a signed agreement. It has also been found that the Respondent dis- criminated against Doris Hougan. Under the circum- stances found herein, the Respondent's conduct was in the nature of a constructive discharge . Accordingly, it will be recommended that the Respondent offer Hougan that she thought "it would be nice for all of us to be in the union ." Moller- skov was the only employee in the unit who did not sign a card. He testified that on January 19 Reber asked him to sign a card and that she told him at the time that he was "the only one that hadn't sign a card yet." The Respondent's contention is rejected . The uneontradicted testimony of Fragale and Fazzari shows that Kime and Hougan did not make any er- roneous representations . As for Mollerskov, there is no issue since he did not sign a card. THE RED CROSS DRUG COMPANY 615 immediate and full reinstatement to her former or sub- stantially equivalent position without prejudice to her seniority or other rights or privileges, and make her whole for any loss of pay suffered by reason of the discrimina- tion by payment to her of a sum of money equal to that which she would have earned as wages from the date of the discrimination to the date of reinstatement, less her net earnings during such period in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest on such sum, such in- terest to be computed in accordance with the formula prescribed by the Board in Isis Plumbing & Heating Co., 138NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 2. By interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. By scheduling Doris Hougan's working hours for times it knew she would be unable to work, thereby forc- ing her to terminate her employment, the Respondent dis- criminated against her and engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act. 4. All full-time and regular part-time employees at Respondent's store located at 5415 Washington Avenue, Racine, Wisconsin, excluding one store manager, profes- sional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. The Union has been at all times on and afterJanua- ry 20, 1967, the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of col- lective bargaining within the meaning of Section 9(a) of the Act. 6. By refusing at all times on and after January 24, 1967, to recognize and bargain collectively with the Union as the exclusive representative of its employees in the aforestated appropriate unit, the Respondent has' en- gaged in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act. 7. By unilaterally changing and enforcing a new work schedule, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act. 8. By unilaterally granting wage increases, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, I recommend that the Respondent, its officers, agents, suc- cessors, and assigns, shall be ordered to: 1. Cease and desist from: (a) Discouraging membership in the Union, or in any other labor organization of its employees, by changing the work schedules of employees or by otherwise dis- criminating against them in regard to their hire and tenure of employment or any term or condition of employment. (b) Interrogating its employees concerning their mem- bership in or activities on behalf of the Union, or making promises of benefits or threats of reprisal because of such activity. (c) Refusing to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment with the Union as the exclusive representative of its employees in the ap- propriate unit found above. (d) Unilaterally granting wage increases or changing and enforcing new work schedules without prior notice to or bargaining with the Union. (e) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the Union or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain fromany or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Sec- tion 8(a)(3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer Doris Hougan immediate and full reinstate- ment to her former or substantially equivalent position without prejudice to her seniority or other rights or privileges, and make her whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Upon request, bargain collectively with the Union as the exclusive representative, of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of work, and other terms and condi- tions of employment, and embody in signed agreements any understandings reached. (c) Preserve and, upon request, make available to the National Labor Relations Board or its agents, for ex- amination and copying all records necessary for the deter- mination of the amount of backpay due under these recommendations. (d) Post at its store in Racine, Wisconsin, copies of the attached notice marked "Appendix."" Copies of said notice, to be furnished by the Regional Director for Re- gion 30, after being duly signed by the Respondent or its authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, I I In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD defaced, or covered by any other material. (e) Notify the Regional Director for Region 30, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.12 12 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT discourage membership in Retail Clerks Union Local #1403, AFL-CIO, Retail Clerks International Association, AFL-CIO, or in any other labor organization of our employees, by changing the work schedules of employees or by otherwise discriminating against them in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees concern- ing their membership in or activities on behalf of the above-named labor organization, or make promises of benefit or threats of reprisal because of such ac- tivity. WE WILL NOT unilaterally grant wage increases or change and enforce new work schedules without prior notice to or bargaining with the above-named labor organization. WE WILL, upon request, bargain collectively with the above-named labor organization as the exclusive representative of all employees in the following unit with respect to rates of pay, wages, hours of employ- ment, and other conditions of employment, and, if understandings are reached, embody such un- derstandings in a signed agreement. The bargaining unit is: All full-time and regular part-time employees at our store located at 5415 Washington Avenue, Racine, Wisconsin , excluding one store manager, professional employees , guards and supervisors as defined in the Act. WE WILL offer Doris Hougan immediate and full reinstatement to her former or substantially equivalent position , without prejudice to her seniori- ty or other rights and privileges , and make her whole for any loss of pay suffered as a result of the dis- crimination against her. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form labor or- ganizations , to join or assist Retail Clerks Union Local #1403, AFL-CIO, Retail Clerks Interna- tional Association , AFL-CIO, or any other labor or- ganization , to bargain collectively through represent- atives of their own choosing , to engage in concerted activities for the purposes of collective bargaining or mutual aid or protection, or to refrain from any or all such activities , except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employ- ment as authorized in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization except to the extent that this 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. Dated By RED CROSS REXALL DRUG STORES, INC. (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 2nd Floor, Commerce Building, 744 North 4th Street, Milwaukee, Wisconsin 53203, Telephone 272-3879.