White Cross Stores, Inc.

492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD White Cross Stores, Inc. and George P. Bianchi, Jr. Case 6-CA-4630 November 10, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On April 28, 1970, Trial Examiner Bernard J. Seff issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged 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, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examin- er's Decision. The General Counsel subsequently filed cross-exceptions and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 exceptions, cross-excep- tions, and briefs, and the entire record in this case, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner, as modified below. The General Counsel filed exceptions to the Trial Examiner's failure to include language in his Recom- mended Order to clearly reflect his finding that Respondent had violated Section 8(a)(1) of the Act by promulgating a procedural bulletin which purported to confer supervisory status on Bianchi for the purpose of preventing him from exercising his rights under the Act. We find merit in this exception, and will, accordingly, modify the Order and Notice to include language which is designated to remedy this specific independent violation of Section 8(a)(l) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner, as modified below, and hereby orders that Respondent, White Cross Stores, Inc., Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall take the action 186 NLRB No. 32 set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete the present paragraph 1(h) and substi- tute the following: "(h) Promulgating an official company bulletin or other official company publication which purports to designate employees as supervisors for the purpose of preventing employees from exercising their rights under the Act." 2. Insert the following as paragraph 2(b) and reletter the subsequent paragraphs accordingly: "(b) Notify George Bianchi, if presently serving in the Armed Forces of the United States of his right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." 3. Delete the ninth indented paragraph in the Notice to Employees, marked "Appendix" and insert in its place, the following language: WE WILL NOT designate employees as supervi- sors, through the promulgation or issuance of company bulletins or other written memoranda, or by other means, in order to prevent said employees from supporting or assisting any union. 1 The General Counsel excepts to the Trial Examiner's finding that the General Counsel made a motion to strike Kardon's testimony, and to the Trial Examiner's reversal of his ruling granting the motion to strike Kardon's testimony, as no motion to strike was made by the General Counsel. The General Counsel and Respondent both excepted to the Trial Examiner's implication that Kardon's testimony was on the record, since Respondent had made an offer of proof as to his testimony. We do not regard the Trial Examiner's reversal of his prior ruling as prejudicial error. Even if we were to consider Respondent's offer of proof as affirmative evidence, it would not affect our determination regarding the disposition of this case. 2 In his Decision, the Trial Examiner stated that Bishop worked as a relief pharmacist at Braddock in 1968 and that Eugene Davis was the predecessor to Bianchi at the Braddock Pharmacy. We note that Bishop worked relief in 1969 and that it was Bishop who was Bianchi's predecessor . In other portions of the Trial Examiner's Decision, the Trial Examiner has stated these facts correctly. Those inadvertent errors on the part of the Trial Examiner are corrected accordingly. Basing our determination only on the content of Zimmerman's testimony, we agree with the Trial Examiner's finding that he should not be credited. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Trial Examiner: In this proceeding, the General Counsel of the National Labor Relations Board (herein called the General Counsel and the Board, respectively) issued a complaint alleging that White Cross Stores, Inc. (herein called the Respondent and/or the Company), had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act). The answer to the complaint admitted some of its allegations, denied the commission of any unfair labor practices, and pleaded affirmatively that Bianchi was a supervisor and/or a managerial employee and thus, was not an employee within the meaning of the WHITE CROSS STORES, INC. Act. Pursuant to notice, a hearing was held before me at Pittsburgh, Pennsylvania, on various days, commencing with November 25, 1969, through January 14, 1970 (12 hearing days were required to hear this case); all parties were afforded full opportunity to call and examine and to cross-examine witnesses, to argue orally, and thereafter to submit briefs. Exhaustive briefs were submitted by the parties which were carefully considered and which were helpful to me. On June 16, 1969, Bianchi filed a charge alleging that the Company committed unfair labor practices and that he was unlawfully terminated because of his union activities. There is no labor organization actively involved in this matter. Complaint and notice of hearing alleging violations of Section 8(a)(1) and (3) were issued by the Regional Director on October 15, 1969.1 Upon the entire record 2 in the case, including my evaluation of the reliability of the witnesses based upon my observation of their demeanor, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Pennsylvania corporation, is engaged in the retail sale of drugs and related items at its various retail drugstores located in several States of the United States. During the 12 months preceding the issuance of this complaint, Respondent had a gross volume of business in excess of $500,000 and received goods and materials valued in excess of $50,000 for use at its Pennsylvania retail outlets, directly from points outside the Commonwealth of Pennsylvania. It is alleged and I find that Respondent is and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE UNIONS References are made in the course of this Decision to the Office and Professional Employees International Union, AFL-CIO, and Retail, Wholesale and Department Store Union, Local 101 , AFL-CIO, hereinafter referred to as the Unions, and these Unions are now, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Statement White Cross Stores, Inc., is engaged in the retail sale of drugs and health and beauty aid products. It first came into existence in 1961. It presently operates 135 stores with 96 pharmacies in 11 States. It maintains its central office in Monroeville, Pennsylvania. The instant proceeding is concerned only with the Braddock Avenue, Pittsburgh, Pennsylvania, facility of the Respondent's chain of stores and involves the activities of I All dates refer to 1969 unless otherwise indicated 2 On March 6, 1970, the General Counsel made a motion to correct the transcript which motion is directed to page 592, line 22 On March 11, 1970, Respondent's counsel submitted a response in opposition to the 493 George P. Bianchi, the Charging Party, which took place only at this store. B. Supervisory Hierarchy 1. Chain of command The Respondent in its answer admitted the supervisory status of Vice President of Pharmacies, Emanuel Zimmer- man. It was stipulated during the course of the hearing that Myron Zimmerman (nickname Spike), Stanley Perlow, and Irving Goldman were supervisors within the meaning of the Act. 2. Separation of functions of supervisors in Braddock store A pharmacy manager is in charge of the pharmacy and the Braddock store also has a store manager and an assistant store manager who are in charge of the health and beauty aid department and one of whom is always present whenever the facility is open. Each department is independently operated and has its own line of supervision. The pharmacist-manager and the store manager are never the same person and the pharmacy supervisors are not store supervisors. They also operate under different policies and procedures. The pharmacist-manager reports to a pharmacy supervi- sor whose office is located in his home. Pharmacists- managers also frequently report directly to the Vice President of Pharmacies when situations come up which require immediate attention. There are 6 pharmacy supervisors, each responsible for from 15 to 16 stores. Their duties are to generally oversee the pharmacies for which they are responsible. They also often relieve the pharmacist manager by taking the place of a particular manager in a pharmacy, for example, during the days off and vacations of the particular pharmacist-manager. The pharmacy supervisor reports to the Vice President of Pharmacies Emanuel Zimmerman, who is in charge of the Company's entire pharmacy operation throughout its chain. Emanuel Zimmerman's office is located at the central office in Monroeville. Director of Pharmacies Myron (Spike) Zimmerman assists Emanuel Zimmerman by coordinating pharmacy supervisors, working on special projects, investigating acquisitions, and occasionally, when necessary, acting in the place of a pharmacy manager. The store manager and assistant store manager report to a store supervisor. There are 20 store supervisors each responsible for from 6 to 8 health and beauty aid stores. The store manager and assistant manager report to a division manager, who, in turn, reports to Vice President of Operations Eugene Klein. The corporate secretary, C. William Moffitt, is responsi- ble for personnel, legal, and leasing matters on a companywide basis. Respondent contends that Moffitt actively participates with E. Zimmerman and Klein in the labor and personnel decisions in their respective areas. General Counsel's motion to correct the transcript which vigorously protests the making of the change requested by the General Counsel I hereby deny the General Counsel's motion to correct the transcript. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Secretary Moffitt, Vice President Zimmerman, and Klein report directly to Company President Donald Robinson. C. Description of Physical Premises The Braddock facility is segregated both physically and functionally into two separate departments, the store area and the pharmacy. The pharmacy area, which accounts for approximately 15 percent of the entire area floor space at Braddock Avenue, is physically separated from the store area by counters and walls. There is a common entrance to the store and pharmacy areas and there is no separate entrance to the pharmacy. The store and the pharmacy operations are not integrated in any manner. As is explained, supra, each is separately supervised and has its own displays, merchandising departments, and maintains separate payrolls and accounting practices. 1. Store hours The complete Braddock store is open from 9 a.m. to 9 p.m. on Monday, Friday, and Saturday, and from 9 a.m. to 5:30 p.m. on Tuesday, Wednesday, and Thursday. 2. Bianchi's hours Up until May 1969 Bianchi worked 46 hours per week on the following schedule: Monday, 4 p.m. to 9 p.m.; Tuesday through Thursday, 9 a.m. to 5:30 p.m.; Friday, 9 a.m. to 9 p.m.; and Saturday, 9 a.m. to 12:30 p.m. During the hours when Bianchi was not scheduled to work relief pharmacists were assigned to cover the pharmacy. For example, on Mondays the relief pharmacist worked from 9 a.m. to 4 p.m. and on Saturday from noon to 5:30 p.m. It is to be noted that Bianchi was not scheduled to work with another pharmacist except for the one half hour overlap period on Saturdays from 12 to 12:30 p.m. during which time he was occupied in completing the vast paper work required by Respondents. 3. Hours of Loretta Bittner Bittner was a store clerk who worked in the store area full time until she began to work in the pharmacy approximate- ly in January 1969. She began to work 10 hours a week on Mondays from 1 p.m. to 6 p.m. and Saturdays from 1 p.m. to 6 p.m. In March 1969 her hours on Saturday were changed so that she commenced work at 12 p.m. instead of 1 p.m. Prior to approximately January 1969 there was no clerk in the pharmacy area. The record indicates that Bianchi was seldom working during periods of time when relief pharmacists were in the store. This is self-evident because the function of a relief pharmacist is to relieve the pharmacist. Whatever overlap occurred during which time Bianchi might be present with a relief pharmacist was for a very short period of time and seldom for more than one half hour. D. Bianchi's Job Duties and Responsibilities 1. Professional responsibilities Bianchi was the State certified pharmacist in charge. Bianchi was issued a State permit certifying that the Braddock facility was under his management. Bianchi was the sole possessor of this permit for the Braddock store while he was employed there as the pharmacist. As a legal matter this certificate issues only to the registered pharmacy manager who is responsible for all operations involving the practice of pharmacy at a specific location. In order for the Respondent to comply with various Federal and State regulations, Bianchi was required to perform various tasks of a professional nature, including the completion of appropriate Government forms. These included maintenance of various records not otherwise discussed and the distribution of narcotics in accordance with Federal and State regulations. One of the requisites needed to operate the pharmacy in Braddock was for the Respondent to forward an applica- tion form to the State government. Bianchi signed this form a few weeks after he began to work for Respondent. Vice President Zimmerman informed Bianchi that he was to be the pharmacist-manager at the Braddock facility and that he was forwarding to him various forms for his signature. In addition, Bianchi was required to sign a power of attorney form which authorized him to order and utilize order forms required by Federal law for the purchase of narcotics. Additionally, in order to comply with various Govern- ment regulations, it was Bianchi's duty to maintain prescription files which contain records of poisonous drugs sold without a prescription. Bianchi was required to maintain copies of invoices relating to the purchase of so- called "abuse" drugs. Poison records, "abuse" drug invoices, as well as other records of narcotics kept at the pharmacy were open to inspection by various Federal authorities. It should be pointed out that although Bianchi was responsible for maintaining these records, this task entailed routine bookkeeping procedures. In accordance with Respondent's policy, which is exemplified by certain of General Counsel exhibits included in the record, Bianchi was required to comply with various State and Federal statutes and regulations relating to the issuance of drugs. He was specifically instructed to be aware of the narcotics laws in the Commonwealth of Pennsylvania. Respondent, for its part, promulgated specific policies in relation to the issuance of narcotics. While Bianchi did not refuse to sell a drug to a customer who presented him with a prescription, he did, on various occasions, refuse to sell exempt narcotics to various customers. In compliance with police requests, Bianchi refused to sell exempt narcotics to certain individuals who had been identified to him by the police as narcotic addicts. 2. Instructions concerning Bianchi's performance on the job a. Specific instructions with regard to regular duties Respondent frequently issued, on a regular basis, an almost bewildering series of written instructions in the form of pharmacy bulletins, inserts to be placed in a so-called Procedural Manual, pricing data, and numerous other written instructions which were mailed to all pharmacists. In addition to explicit written instructions which covered every conceivable aspect of the proper implementation of company policies with respect to the day-to -day operations WHITE CROSS STORES, INC. 495 of the Braddock pharmacy, Bianchi frequently received oral instructions. These were given to him by various company supervisors on their periodic visits to the Braddock pharmacy. Respondent provided Bianchi with detailed and mandatory instructions in many phases of his work. These instructions had their genesis from five distinct sources: (1) instructions received during Bianchi's training period; (2) verbal instructions of pharmacy supervisors; (3) Respondent's Procedural Manual; (4) pharmacy bulletins and (5) Respondent's Price Book which explicates the retail prices pharmacists-managers are required to charge for items which they sell. Respondent Secretary Moffitt substantially confirmed these facts when he testified that Respondent instructed its pharmacists-managers as to their duties and responsibilities through the training program, through procedure bulletins which came out in the form of additions to the Procedural Manual, and in pharmacy bulletins published by the Company. At the time Bianchi began his employment at the Braddock facility on December 4, 1967, his predecessor as pharmacist manager, Thomas Bishop, trained Bianchi in the various policies and procedures relating to all the job functions he would have to fulfill as a pharmacist-manager. During this 3-week period Bianchi also had several conversations with his pharmacy supervisor, Perlow, in which Perlow fleshed out in verbal instructions those matters that related to Respondent's policies and proce- dures that Perlow felt needed to be explained more fully than were set forth in the written instructions sent to Bianchi. The Respondent's Procedural Manual, which is included in the record, discloses that it contains a complete set of instructions as to practically all phases of a pharmacist- manager's responsibilities. Bianchi testified on direct examination that during the training period Bishop told him that the Procedural Manual was to be his "bible." The extent to which the manual itself was regarded by the Respondent as. a singularly important document is borne out by the following quotation from the manual which appears under date July 15, 1965, and provides that: (1) All Pharmacists are to carefully read and learn all procedures in the book. You will be questioned on all procedures in this book . It is imperative that procedures are carefully understood so as to avoid costly mistakes. An examination on a random basis of some of the pharmacy bulletins which were received into evidence discloses that they are complete sets of instructions issued on a weekly basis relating to those tasks which pharmacists- managers are required to perform and to general statements of policy. At one time during the course of Bianchi's employment Respondent required its pharmacists-managers to initial its bulletins after all the required tasks were completed and then forward such bulletins to the central office. Further, the record also contains some earlier bulletins which include a space in which the pharmacists-managers were required to place their initials, and by so doing the individuals indicated that they understood the particular instructions or policies. b. Prescription responsibilities The Company's operational procedurals were equally applied to all White Cross pharmacies, including its Braddock pharmacy. The bulletins which have been discussed, supra, were mailed out on a companywide basis and apparently received by all of the Company's pharma- cies operating under its centralized direction. In short, the duties of the pharmacists employed by Respondent included inventory and ordering; customer relations; sale of pharmaceutical supplies and equipment; and establishing the price for the various items sold in accordance with meticulously detailed instructions as to how the prices of the items sold were to be determined. The main function of Bianchi was to fill prescriptions. He testified that on the average he filled approximately 360 prescriptions per week. Although the actual filling of the prescription, i.e., the mixing of the proper chemicals, was clearly a professional task, the remainder of the procedure was a routine act to be accomplished in accordance with specific instructions contained in Respondent's Procedure Manual and pharmacy bulletins and through the verbal instructions which he received from his supervisors. In this connection it should be noted that whenever Bianchi had a problem concerning which he could not find a specific answer in the written instructions received from the Company, he did not hesitate to pick up the telephone and call Vice President Emanuel Zimmerman directly to receive final instructions. In accordance with the procedure set forth in detail in the documents referred to above, Bianchi said that when a customer approached the counter he was ordered to welcome the customer with a greeting such as "good morning" or "good afternoon." The importance of this approach was emphasized by the Respondent in numerous pharmacy bulletins. After obtaining the prescription from the customer, Bianchi was instructed to place the customer's name on a call-check form supplied by the Respondent. After returning a portion of the call-check to the customer, Bianchi informed the customer how long he would have to wait for his prescription. When the physical task of filling the prescription had been completed Bianchi obtained the price of the prescription in accordance with the method specifically required by the Respondent. Bianchi then stamped the front and back of the prescription with a machine which imprinted sequential numbers. He then typed on a label furnished by the Respondent certain information including the customer's name, the prescrip- tion number, the physician's name, the date of the prescription, the date it was filled, and the directions for its use. After these responsibilities had been discharged, Bianchi placed his initials and date on the front of the prescription form, and was instructed to doublecheck all the work he had performed. After he completed this doublecheck he placed his initials on the back portion of the form certifying that he had carefully checked the prescription for accuracy. The completed prescription was then placed in a white bag furnished by the Respondent, two parts of the call-check were stapled to the bag, and the price of the prescription was placed on the call-check. The bag was then placed in either one of two boxes labeled A to M or N to Z according to the initials of the customer's last 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD name. This entire procedure is spelled out in detail, including specific instructions on the use of a call-check, proper labeling of prescriptions, and doublechecking prescriptions for accuracy . The record contains exhibits which set forth what has been described , supra. Respondent also required Bianchi to follow particular policies on refilling prescriptions and, in this connection, specific instructions were communicated to him in relation to the proper handling of prescriptions containing various classes of narcotics. In conjunction with the filling of prescriptions, it was part of Bianchi's professional responsibilities to maintain prescription files . Three files were maintained: one for class "A" and "B" narcotics, one for "AB" drugs, and the other for all other prescriptions . These files, which consist of a collection of prescriptions , are filed in numerical sequence. Here again specific instructions on the setting up of the prescription filing cabinet are included in the Procedural Manual. c. Inventory responsibilities Bianchi was responsible for the proper maintenance of the pharmacy inventory, which contained both prescription and nonprescription products. Basically, there were five phases for this responsibility : stocking of shelves, monitor- ing the inventory, ordering products , receipt of products, and disposal of obsolete merchandise. Each phase of this job function was routine in nature and performed strictly in accordance with particular instructions issued by Respon- dent. (1) Stocking of shelves Stocking of prescription products is done on shelves which are arranged in alphabetical order by companies and within each company, the products are stocked in alphabetical order proceeding from right to left on the shelf. Bishop instructed Bianchi as to the operation of this plan during his training period and thereafter Bianchi received additional instructions of similar nature from pharmacy supervisors. In October 1968 Respondent moved his operation from its then address to a larger store located on the same street and very close to where the original store was situated. At the time Bianchi took over the new facility he found that pharmacy shelves had already been set up in the fashion described above by various pharmacy supervi- sors of Respondent. (2) Controlling the Inventory The record shows that Respondent obtains pharmaceuti- cal and nonpharmaceutical products from three prime sources: (1) the Redistribution store, (2) direct sources, and (3) wholesalers. The Respondent owns the Redistribution store where it repackages drugs from large sized containers into smaller size containers and distributes the latter to its pharmacies pursuant to specific order requests from the pharmacist-manager. For purposes of easy reference Respondent issues a listing of the products which are carried in the Redistribution store. Changes in this listing are announced in pharmacy bulletins. Wherever possible Respondent prefers that essential drugs be secured from the Redistribution store because this way a larger profit is assured to it since the Company makes purchases for the Redistribution store in large quantities and thus effects important savings. Direct sources are certain specific manufacturers such as Upjohn, Squibb, or Abbott with whom Respondent maintains accounts for the purchase of various items. Wholesalers are companies which sell products that have been manufactured by other companies. Bianchi was limited by instructions from the Director of Pharmacies so that he was authorized to deal with only two wholesalers : Federal Rice Drug Company and Tri-State Drug Company. Bianchi testified that in terms of dollar volume over half of his stock represented merchandise from the Redistribution store and approximately 30 percent from direct sources and less than 20 percent from the two wholesale sources. The Company established and maintains centralized control over all its pharmacies by means of reports which pharmacists-managers are obliged to submit at regular intervals to the central office at Monroeville . For example, it is a matter of policy that pharmacists-managers are required to purchase from the Redistribution store all items stocked by that store. The record shows that company policy requires that if the Redistribution store does not have the item in question, the pharmacist-manager is instructed to order it from a direct source. Merchandise may be ordered from a wholesale source or local jobber in only two instances ; where it cannot be obtained from either the Redistribution store or direct suppliers; when an item is needed on an emergency basis and is not readily available from the direct or redistribution sources . It should be noted that Respondent's pharmacy bulletins and the Procedural Manual set forth specific written instructions as to what goods are to be ordered from which sources . Ordering policies were originally explained to Bianchi during the training period and thereafter he was kept up to date by verbal instructions received from his supervisors and through his regular receipt of Respondent 's Procedural Manual and pharmacy bulletins. They were further amplified when Bianchi was instructed to order items from a direct source only if there was a sufficient order to guarantee prepaid postage. On the other hand, if the order was not sufficient to qualify for prepaid postage, Bianchi was instructed to order from the wholesale source . In large part all wholesale purchases were to be placed with Tri- State Drug Company except items that were needed on an emergency basis which were to be purchased from Federal Rice Drug Company . The record makes it clear that the Company established mandatory requirements with respect to which source the pharmacy managers went to in order to meet a particular need. This fact is demonstrated by the further requirement that the Company instructed Bianchi to mark on his invoice either an "R" or "D" indicating that the item in question should have been obtained from either the Redistribution store or a direct source. As a further indication of the strict controls which Respondent maintained over its policies with respect to the maximum amount of inventory that could be kept in stock from each particular source Bianchi was instructed to maintain certain maximum amounts of inventory during his training period and was told of them on subsequent WHITE CROSS STORES, INC. occasions by oral instructions of supervisors and/or by specific orders set forth in detail in pharmacy bulletins that he received at regular intervals . It should be noted that although Moffitt and Zimmerman , in the course of their testimony, characterized these requirements as guidelines there are quotations from numerous pharmacy bulletins which indicate clearly that pharmacists-managers are required to limit their orders so that the inventory, in terms of total weeks of supply from various sources, does not exceed the maximums which are set forth in these bulletins. The record includes an exhibit which states the following with respect to inventory:. We have run into an inventory problem due to improper ordering that is reaching crisis proportions. We just can't afford to have people ordering haphazard- ly. Every item ordered must be computed for movement by use of order system . I'm not going to say any more about this. I think enough has been said already, 100% cooperation is mandatory. The following maximums applies to all ordering: (1) local jobber-small porpor- tioned quantities until you can obtain the proper amount from the proper source (2) Tri-State 3 weeks supply (3) direct 4 weeks supply (4) Redistribution 7 weeks supply. [Emphasis supplied.] The above-quoted information, which is reproduced from a pharmacy bulletin, would appear to be a "hard" statement of mandatory requirements and is not phrased as though it represents a goal or some kind of flexible guideline with respect to maintaining inventory. The importance which Respondent attached to maintain- ing inventory maximums is further exemplified by the fact that pharmacists-managers in each of their weekly reports were questioned as to whether they were keeping within the inventory requirement , and in each supervisory checksheet pharmacy supervisors were required to physically check orders from each source to see that the inventory requirements were being maintained. So far as total inventory is concerned it should be further pointed out that the Company wanted its pharmacists-managers to maintain a 6-week supply. Reports were issued on a weekly basis to Bianchi informing him of the actual inventory on hand and the excess or overage which he maintained that week over the desired maximum of 6 weeks' supply. As an indication of the close monitoring which Respon- dent kept over the pharmacy inventory, Bianchi was instructed both during his training period and thereafter by various supervisors to use what is called the short book method of inventory control. The record contains an exhibit which explains how this method was to operate. Making allowances for certain variations , depending on the source in question, the requirement for keeping this short book inventory is routine in nature. For example, Bianchi testified that after he had used items on the shelf he would check the shelf to see if the supply of the item had fallen below the required inventory level set by the Company. If such was the case he would place the name, size, and strength of the item in question in a book called the general short book. By so doing he could record all items, irrespective of source, that were in short supply. And even beyond this Bianchi maintained a special short book to 497 record items in short supply which were to be ordered from direct and redistribution sources. (3) Ordering of products Respondent required Bianchi to maintain a certain quantity of inventory from each source and this quantity was expressed in terms of a number of weeks' supply of goods. Therefore, when Bianchi was ordering any products, his requirement was to purchase an amount necessary to bring Braddock up to the required level. The procedure established to accomplish this purpose involved merely the counting of bottles on a shelf. After noting from his short book that an item had to be ordered Bianchi would go to the shelf and take note of the date and the number on the last bottle of the item in question. For instance, if the label said March 1, followed by the number 20, Bianchi would know that on March 1 there were 20 bottles of the item on hand. If he checked the shelf on March 8 and found 16 bottles it was apparent that he had sold 4 bottles in 1 week. If the item was one requiring a 6-week supply he would figure that at a flow of 4 bottles per week he would need 24 bottles. In such a circumstance he would order 8 bottles to bring his supply up to the 24 bottle figure. This procedure was used for ordering from redistribution and direct sources. Attention is called to the fact that Bianchi would order from a wholesale source in only three circumstances: the Redistribution store and the direct source did not carry the item; such sources which did carry the item were temporarily out of it; or there was an emergency need for the item. The procedure followed in instances when ordering was being done was as follows: when ordering goods from the Redistribution store, Bianchi filled out a particular order form supplied by the Company. The Procedural Manual contains instructions on how the form was to be completed, including a description of what the entitled columns represent, and a detailed recitation of the procedure to be followed in completing the form upon receipt of the goods. It should be further noted that Bianchi mailed three copies of the form to Redistribution. He was instructed by Rubin Shore, who is the manager of the Redistribution store, that the forms had to be mailed by Monday evening because Shore was under the obligation to have all orders in by Wednesday morning. It is to be especially noted that Bianchi never discussed prices with personnel from the Redistribution source for the obvious reason that he was ordering from one of Respondent's own stores. The process of ordering from direct or wholesale sources was similar. In most cases the order was placed by making a telephone call. In such an instance Bianchi would identify his store and dictate to the clerk the name, size, and amount of the item desired. The price of the item to be ordered was neither negotiated nor discussed Where there was a written order to a direct source the same information that is described, supra, was included on such order form. (4) Procedure on receipt of goods Bianchi followed practically the same procedure on the receipt of goods as has been detailed above with respect to the ordering of goods . He would unpack and check to see 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the listed items which appeared on the invoice had in fact been received. So far as items received from direct and wholesale sources Bianchi would mark the retail price on the invoice. The price would be taken from Respondent's price book. When orders were received from Redistribution the retail price as set forth in the price book had been placed on the order form at the time of ordering. In all cases, if the item was not in the price book, Bianchi would divide the wholesale or direct cost specified on the invoice by .7, or by whatever percentage figure was specified by the Respondent for the classification of the item received and mark the resulting figure on the invoice . This procedure was detailed with specificity and included instructions on how to account for short and damaged items. Upon the completion of the duties described above, Bianchi placed a sticker on top of each bottle and filled it up in accordance with instructions set forth in the Respondent's Procedural Manual. Each item was then placed on the shelf, with the new bottles placed behind the old ones. When the last bottle was placed on the shelf, Bianchi marked a number on the sticker of the bottle, representing the total number of bottles of that item on the shelf as of that date . The record shows that finally after all of the Respondent's instructions had been followed Bianchi wrote "O.K." on each invoice. The purpose of this mark was to indicate that the retail price specified by the Respondent had been marked on the invoice and on the goods that came in on that invoice . In the event that Bianchi neglected to properly mark the invoices they were returned to him to make these notations. In addition, Bianchi placed the letter "R" or "D" on wholesale invoices to indicate that the product should have been ordered from Redistribution or from a direct source. (5) Callbacks, obsolete merchandise, and interstore transfer of merchandise Respondent kept a further check on inventory control in that it required Bianchi to remove unused or dead stock from his inventory by participating in callback, removal, and redistribution of obsolete merchandise. A callback is a return to the original source of unopened merchandise that had remained on the shelf beyond a specified time which was also set by the Company. Callbacks were announced in pharmacy bulletins and related to merchandise that was received from any source. Pharmacy bulletin dated March 25 , 1969, which appears in the record, specifically ordered the Braddock pharmacy to return all full packages dated October 1, 1968, or earlier to the direct supplier or Redistribution store from which they had been ordered . Instructions are set forth as to how to complete the callback and this too is included in the bulletin. In completing a callback Bianchi was required to fill out Respondent's credit memo forms . It should also be noted that Bianchi did not make any callbacks unless he received specific authorization from the Respondent. With respect to obsolete merchandise which could not be returned to his supplier because it had already been opened, such items were redistributed to other pharmacies. Here, again, the procedure involved in accomplishing the above purpose was spelled out with particularity by the Respondent in a Procedural Manual bulletin. d. Pricing responsibilities Bianchi was required to inform the customer of the price of the product which had been ordered and he determined that price in accordance with a specific procedure which is spelled out in detail: The determination of the retail selling price for any particular item involved the combined utilization of Respondent's retail price book, price charts, and included the addition of a surcharge which was specified by the Respondent. The Respondent's price book contained the retail price which Bianchi was required to charge for a given quantity of an item. From the price book, Bianchi could ascertain the price of 100 tablets (for solids) or 16 ounces (for liquids). Bianchi would use this information, in conjunction with Respondent's price charts. The charts were set up in a grid pattern with dollar amounts on the vertical line and drug quantities either in ounces or in tablets along the horizontal line. By using this chart, Bianchi could calculate the price to be charged the customer who ordered less than 100 tablets or 16 ounces. With respect to compound prescriptions , the chart stated 50 percent was to added to the calculated amount. The final element used by Bianchi in figuring out the retail price was the addition of a specified surcharge. In view of the fact that Respondent sought to make much of what it called Bianchi's power to determine the price at which various items were to be sold it is significant to note the following: a. The pricing procedure set forth above was explained to Bianchi during his training period and thereafter by verbal instructions of his supervisor or in various pharmacy bulletins as well as in the Procedural Manual. b. In both the Procedural Manual and the various pharmacy bulletins Respondent required that its pharma- cists-managers use the retail selling price established by it. The sole exception to these pricing policies was Respon- dent's insistence, as set forth in the Procedural Manual, that pharmacists-managers were never to lose a sale for any reason. Therefore, if necessary, pharmacists-managers were to mark down a price if this was necessary to beat a competitive price. It was testified without contradiction by Bianchi that there were two specific methods to be utilized when a customer complained about the prescription price that was quoted to him. If a customer had a nonspecific complaint in that he did not mention a particular competitive price but merely said, "It's too high," Bianchi was instructed to return to his counter and pretend to refigure the method he used to arrive at the quoted price . After taking this step he was to quote a price 10 percent off the previously quoted price making the excuse that he had made an arithmetical error. In the event that the customer mentioned a specific price of a competitor, Bianchi was instructed to pretend to refigure the cost and explain that he had made an error and quote a price 10 cents below the competition's quoted price. Vice President Zimmerman told Bianchi in a telephone conversation that in making markdowns Bianchi had the authority to lower the price to cost if this was necessary to beat the competitive price . The record also shows that if a price markdown was given, Bianchi was required to fill out a company form indicating the prescription number, the WHITE CROSS STORES, INC. retail selling price of the prescription , and the markdown price. Bianchi testified that with respect to the number of markdowns that he averaged in a week this came to approximately 3 original prescriptions and 10 to 15 refill prescriptions. It was further explained by Bianchi that he estimated that approximately one-third of the markdowns on a refilled prescription were in fact cumulative mark- downs, for example, once an original markdown was made on a refilled prescription , this markdown would be retained as long as the customer kept receiving the prescription. From this testimony it seems that reductions represented a small proportion of the Braddock pharmacy's prescription sales. On the average Bianchi filled approximately 360 prescriptions a week . The markdown sheets also include special items placed on sale by Respondent . As an example Bianchi explained that on one occasion he was instructed to sell aspirin at a certain price below the regular retail selling price. Each time the aspirin was sold Bianchi was required to make an entry on the markdown sheet . Finally, the markdowns were made pursuant to specific instructions received from the Respondent. It seems clear from the facts elucidated at length , supra, that Bianchi did not have authority to establish prices on the items sold by him. He routinely followed particularized instructions on how to determine pricing which came to him in a steady flow from Respondent 's main office in Monroeville. e. Customer relations Besides filling prescriptions for customers, Bianchi received instructions from the Respondent to cash checks in the amount of a given sale and to grant refunds where warranted. Bianchi was authorized to accept checks for the amount of purchases in the store area provided this was combined with purchases in the prescription area. A bulletin was issued by the Company on July 29, 1968, which instituted a policy as a result of which checks could be cashed for the exact amount of the sale. Bianchi testified that he accepted checks for merchandise purchased in the pharmacy for the amount of the sale only. Upon accepting such a check Bianchi said that he was required to put a stamp on the back of the check which contained various spaces for completing information as to the customer's identity. For example, there was a space for the driver license number along with other identifying information. After this information was filled out there was a space upon which Bianchi put his initials . Bianchi testified that he never refused to accept a check for lack of proper identification because he felt it was not his responsibility to ascertain whether the customer was tendering a good check. For example, he was not ever instructed to call any bank and inquire as to the balance in a customer's account. The policy of taking a check only for the exact amount of the purchase was stringently enforced and on one occasion Bianchi was reprimanded by a pharmacy supervisor for cashing a customer's personal check for $20 when the amount of the sale was for $15. With respect to refunds such action was taken by Bianchi on the specific authorization of the Respondent which authorization required that the item was purchased in the pharmacy area of the store . This could be determined by 499 examining the price sticker or cash register receipts. In granting the refund, Bianchi had the customer fill out a refund slip which listed the customer's name , telephone number, and address, the name and number of the product, and the reason for the refund request . Bianchi signed the form, placed a date on it, and clipped this information to the cash register receipt. There was a sign placed on each cash register which stated that refunds would be granted with cash register receipts for items purchased from the Company. In his testimony Bianchi said that he estimated he granted approximately two or three refunds per week. Bianchi testified that he never refused to grant a refund upon a customer's request. f. Responsibility for cash receipts Bianchi was responsible for ringing the cash register when a sale was made and accounting for the cash receipts. He rang the register in accordance with a specified procedure which was passed on to him in the form of verbal instructions from supervisors as well as from statements contained in various pharmacy bulletins and in the Procedural Manual. Thus, taxable items were totaled and then taxed, nontaxable items were then totaled, and the machine subtotaled. Bianchi then received the cash and thanked the customer. He was required to account for cash receipts on a daily basis. It should be noted that the procedure for accomplishing this purpose involved a routine bookkeeping operation designed to insure that money rung up on the register was accounted for in the cash drawer. The figures for the day were placed on a cashier's form which was stapled to the register tape and turned over to the store manager . These figures were included on a form provided by the Company . Later in the day Bianchi would give the cash to the store manager who would initial the form indicating that the store manager had received the cash. At the end of each working day Bianchi placed the money left in the register in a locked money bag, the key to which was placed in the pharmacy register. Bianchi would then turn the money over to the store manager who , in turn, placed it in the store safe. The record also shows that Bianchi did not know the combination to the safe. g. Welfare prescriptions Bianchi filled welfare prescriptions. He testified that during his training period and through other discussions with company officials he was instructed not to take welfare prescriptions from anyone who was not eligible. Eligibility could be determined by a card issued by the county which he was instructed to check . Once again a record was kept of these welfare prescriptions in that Bianchi was required to complete a company form which listed the number of the prescription and its dollar value. After the prescription was filled Bianchi was required to complete various Commonwealth and county forms. These welfare prescription forms were entered on a cover sheet once a month which listed the name of the pharmacy and the total number of welfare prescriptions which in turn was forwarded to the Commonwealth of Pennsylvania for payment. Some months later the Commonwealth of 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pennsylvania mailed a check to the Braddock pharmacy covering the submitted welfare prescriptions . When he received this check Bianchi rang it on the register, placed the register tape on the duplicate carbon of the welfare claim folder form, and forwarded these materials to the Respondent's central office at the end of the week. It should be pointed out that although at times Bianchi received checks from the Commonwealth for less than the claimed amount he never had conversations with Common- wealth or county officials concerning these shortages. The responsibility to make claims for such shortages rested with personnel in Respondent's main office in Monroeville. h. Completion of Company, Federal, State, and other reports relating to pharmacy operations In addition to what has been enumerated, supra, Bianchi was responsible for the completion of many of the report forms issued by the Company which concerned its own as well as Federal and State narcotic forms . Minute specific instructions were issued as to the completion of these reports. The reports merely involved the performance by Bianchi of routine bookkeeping duties. s s s s s It would unduly burden the instant Decision to also discuss in detail the many additional reports issued by Respondent for completion by Bianchi . Suffice it to say that the following are examples of types of forms required in connection with these forms: WCP-1 which is a blank copy of the form of which the record contains as separate exhibits a number of these forms. White-Cross Pharmacy Weekly Report White-Cross Pharmacy Weekly Report White-Cross Credit Memo Form White-Cross Monthly Prescription Report Markdown Reports Time Worked Reports Government Reports This last form had to be submitted on an annual basis and it is a Federal narcotics inventory. As to this form detailed instructions and a total procedure is carefully spelled out. To exemplify how this document should be handled a completed example is included with the form which was to be completed by Bianchi. Bianchi had certain additional miscellaneous responsibil- ities such as: a requirement to find out competitors' drug prices; a weekly report on which Bianchi was required to list Respondent's selling price as well as the lowest price of Respondent's main competitor; and it is significant to point out at this juncture that the duty to obtain the prices of competitors did not include any obligation to make recommendations regarding the price that should be charged for various items. On one occasion, upon specific instructions issued by the Respondent, Bianchi made general inquiries as to the availability for sale of various pharmacies in the Braddock area. Bianchi testified that in 1969 Spike Zimmerman instructed him to call three pharmacies and to ask the owners if they might be interested in selling their stores to Respondent. Bianchi found the owners of two pharmacies, identified himself, and informed them that he had been instructed to ask if they might be interested in selling their stores. Both owners said they were not interested. With respect to a third pharmacy the owner asked Bianchi how much Respondent would pay for the store. Bianchi replied that he did not know but that he would report the substance of his conversation to the proper officials of the Company. On this same day Bianchi called Vice President Zimmer- man and apprised him of the substance of his conversations with the owners of all three stores . Zimmerman, according to Bianchi, stated that he would handle the matter from there on out. Apparently Bianchi made no recommenda- tion to Zimmerman regarding the desirability of purchasing the pharmacy in question (Miller's Pharmacy) but proceed- ing further on Zimmerman's explicit directions Bianchi again contacted the owner of Miller's store in order to see what he could do in regard to the purchase of the pharmacy. Thereafter he attempted to reach Miller's on the phone and was told by the person to whom he spoke that it was not possible to give Bianchi much information. There is a conflict in the testimony with respect to Bianchi's version of his efforts in regard to the Miller Pharmacy and Respondent's version of this event as testified to by Vice President Zimmerman. I will defer making a credibility resolution at this point in the Decision , but there will be found below a more detailed section which deals with credibility problems and their resolution. For a short period of time Bianchi was made responsible for checking phone bills issued to the Braddock pharmacy. This duty too was in strict accordance with specific instructions issued by the Respondent in a pharmacy bulletin . Pursuant to these instructions Bianchi signed the telephone bills. This practice terminated approximately 2 or 3 months after it was started . With respect to matters concerning the use of the telephone the Respondent issued a pharmacy bulletin specifying the circumstances under which long-distance calls could be made. The Company maintained a suggestion box procedure, the use of which was designed to encourage pharmacist- managers to make suggestions to improve the operation of the stores they were assigned to. There is no evidence that Bianchi ever offered any suggestions under this procedure. It should be pointed out that Bianchi had practically no responsibility and less control over the security of the pharmacy area. The Braddock pharmacy was a part of the Braddock store. There was no separate entrance to the pharmacy area . Bianchi had no key to the front door of the facility and, therefore, after closing hours, had no access to the pharmacy area. Bianchi did lock the narcotics cabinet. He did not retain personal possession of the key but at the end of the day, again in accordance with Respondent's instructions, he emptied the register, locked the narcotics cabinet, and placed the key to the cabinet in the pharmacy bag which was turned then over to the store manager or assistant store manager. WHITE CROSS STORES, INC. 501 E. Bianchi's Union Activities Bianchi began active efforts to unionize pharmacists in the Pittsburgh area in the fall of 1968 . Early in September he spoke to a Mr. George Firth , president of the Office and Professional Employees International Union, and asked him what the requirements were to form a labor union for pharmacists. Firth informed Bianchi of the provisions of the National Labor Relations Act, supplied him with application cards, and in the beginning of October Bianchi composed and sent out an anonymous letter to all employees who were employed as pharmacists in chain stores in the Pittsburgh area. At the end of October Bianchi sent a second anonymous letter to pharmacists in the Pittsburgh area and also enclosed in these letters some additional application cards for the Office and Professional Employees International Union. Copies of the original two letters , which were sent to employees in the Pittsburgh area, are included in the record. In February 1969 a private meeting was held of all the pharmacists who had sent in application cards to the Union . At this meeting it was decided to elect a president and a secretary and thereafter to hold an open public organizational meeting. Such public meeting was an- nounced to be held on March 3 , 1969. The announcement of this meeting was made in a letter Bianchi composed and sent out to the chain store pharmacists which gave the location of this meeting and certain other items pertaining to union activity. The first private meetings were held at the Working Man's Beneficial Association on Boggs Avenue, Mt. Washington, Pittsburgh . The letter announcing the public meeting was signed by a Mr. Leon Panella, who had been elected president at the previously described meeting. Later in May and June 1969, after some discussions with Panella, the men interested in forming a union decided to switch their affiliation from the Office and Professional Employees International Union to the Retail Clerks, Local 101. In the beginning of June Bianchi composed another anonymous letter which contained application cards for the Retail Clerks, Local 101 and a request that all pharmacists fill out the cards and send them in. On the day the first union letter was delivered to the store Vice President Emanuel Zimmerman phoned Bianchi and asked him if he had received any unusual mail that day. Bianchi replied that he had received a letter from a union. Zimmerman asked Bianchi to send it to him and any cards that might have been enclosed because he, Zimmerman, would like to see this material . Pursuant to Zimmerman's instructions Bianchi prepared a separate envelope and placed the letter and cards in it . He asked the store manager to give him a stamp which he placed on the envelope and personally deposited in the mailbox. At the time Bianchi sent his second letter Emanuel Zimmerman again called Bianchi and asked him if he had gotten a letter from the Union to which Bianchi replied that he had. Once again Bianchi, in response to Zimmerman's request, forwarded this letter and the cards that were in it to Zimmerman. Bianchi testified that during the course of this conversa- tion Zimmerman asked him if he had sent in a card to the Union to which question Bianchi replied that he had. At this point Zimmerman said that he did not feel that professional employees could belong to a union and Bianchi replied that he felt that union membership was compatible with professionalism. Bianchi also testified that on February 26, 1969, he received a telephone call from Emanuel Zimmerman. Zimmerman informed Bianchi at that time that White Cross pharmacists were not permitted to take part in union activities ; that anyone who took part in union activities would be fired; and that anybody who went to the meeting which had just been announced would be considered in violation of company policy and would be liable for discharge. Zimmerman went on to say that if the Union came in, White Cross would refuse to negotiate with the Union. When Bianchi asked Zimmerman if a National Labor Relations Board election was held and the Union won what would happen, Zimmerman replied that White Cross would refuse to negotiate with any union and in fact would close its doors rather than deal with a labor union. According to Bianchi, Zimmerman also said in this same conversation that pharmacists at White Cross were considered a part of management and therefore were not eligible to take part in union activities because this would be regarded as a violation of company policy . Furthermore Zimmerman allegedly also said that the Company would know who had gone to the union meeting which had just been announced but he did not explain to Bianchi how Respondent would get such information. This conversation was concluded with Zimmerman's statement "We mean what we say." Thereafter Bianchi and other White Cross personnel received a letter signed by Emanuel Zimmerman, dated February 26, which threatened to discharge any pharmacist who took part in union activity. The original of this letter appears in the record. During the month of June 1969, approximately around June 5, shortly after the letter which was sent asking people to send cards into the Retail Clerks , Local 101 , Emanuel Zimmerman telephoned Bianchi at the store and asked him if he had received the company letter dated February 26. When Bianchi said he had received that letter Zimmerman allegedly reiterated, "we mean what we say, do you understand that." Bianchi replied in the affirmative. The circumstances surrounding Bianchi 's discharge by White Cross were as follows : On June 14, which was a Saturday morning, Bianchi was scheduled to work from 9 to 12:30 and the relief pharmacist was scheduled to come in at noon. In a somewhat unusual departure from normal practice he came in at 11:30 . Bianchi asked him why he had come in early and the relief pharmacist told Bianchi that Emanuel Zimmerman had instructed him to come in a half hour earlier. Bianchi testified that this was a most unusual circumstance which had never happened before. About 15 minutes later, Stanley Perlow, who was Bianchi's supervisor at the time, entered the store and after making several phone calls told Bianchi that before he left for the day Perlow would like to speak to him. A few minutes later, after Bianchi finished his paperwork, he asked Perlow what he wanted to say and they went into the back storeroom of the pharmacy . Perlow said that 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD White Cross was terminating his employment at the end of the day. When asked why he had been fired Perlow said that he was discharged for violation of company policy. Bianchi went home and telephoned Emanuel Zimmer- man at his home. Bianchi asked Zimmerman what violation of company policy he had committed and Zimmerman said he would not tell him at that time but would send him a letter that would answer and explain what company policy he had violated. The next week, Bianchi received a letter dated June 16 which stated that he had been fired for continuing to take part in union activities in violation of company policy. It should be noted that Emanuel Zimmerman, in the course of his direct examination, categorically denied that he had made any adverse comments in the course of his conversations with Bianchi concerning labor unions. He specifically denied that he had asked Bianchi to send him signed application cards for union membership in order to find out which pharmacists had joined the Union; that if a union came in he would refuse to negotiate with it; that White Cross would close its doors rather than deal with a union; that he intimated to Bianchi that the Company would know who went to the union meeting and that anyone who went to the meeting would be known to Respondent; further that these employees would be considered to have violated Respondent's policy and would be liable to discharge. The General Counsel contends that shortly after the public meeting held by the pharmacists on or about March 3, Respondent's Secretary William Moffitt and Vice President Zimmerman, in consultation with the Company's attorneys, began drafting the language of the pharmacy procedure bulletin which subsequently was issued to all pharmacists-managers and assistant pharmacists-managers on March 31. This bulletin purported to confer supervisory powers on Respondent's pharmacy managers and assistant pharmacy managers. In this connection it should be noted that the bulletin of March 31, which was described by Moffitt as merely being a restatement of the job responsibilities and duties of pharmacists-managers and assistant pharmacists-manag- ers, was issued in the normal course of Respondent's execution of its centralized policies. These emanated in a steady stream from Respondent's main office in Monroe- ville. The issuance of the said bulletin at the time and in the circumstances of its issuance was alleged by the General Counsel as an independent violation of Section 8(axl) of the Act. The timing of the bulletin is indeed suspicious and will be dealt with infra under section VI of the instant Decision. Similarly a detailed analysis and evaluation of this bulletin will also be discussed in the same section of this Decision. In view of the rather substantial conflict in the testimony of certain of the Respondent's witnesses and some of the General Counsel's witnesses all matters concerning credi- bility will be carefully analyzed and discussed in section IV of the instant Decision. Company Knowledge of Union Activities The record contains the following testimony given by William Moffitt in direct examination conducted by Respondent's counsel which appears in the record: Q. Now, Mr. Moffitt, when did the company first learn that attempts were being made to organize White Cross pharmacists managers and their assistants? A. This was in October of 1968. Q. Would you explain to the Trial Examiner, how the company learned of this development? A. We learned by certain managers and assistant managers, sending us this literature they had received in the mail, to us at the home office. Q. And what did you do when you received this literature? A. Well, we were naturally very concerned about the organizational drive that was going on, and we immediately contacted our labor attorneys, a law firm in New York, Jackson, Lewis, Schnitzler and Krupman, and told them of the organizational drive. They studied this, they studied the circumstances and duties of our managers, since the managers were the ones that were getting these materials through the pharmacy, and they advised us that this presented a very serious question, as to should a petition or demand for recognition be presented through one of the managers, could bind the company. Q. Did you take any action when you heard this? A. Yes, on the advice of our attorneys, we prepared a procedure bulletin, and sent it out to all of the pharmacy managers and assistant managers, outlining the procedures that they were to follow, in the event that an organizational drive were conducted, and a demand for recognition would be presented to them. The bulletin referred to by Moffitt was offered and accepted into evidence and appears in the record as Respondent's Exhibit 36. Q. Did you participate in the decision concerning his termination? A. Yes, I did. Q. Why was he terminated? A. He was terminated for participating in union activities, which we felt were inconsistent with his duties and responsibilities as a pharmacy manager. s $ s $ s Q. (By Mr. Schachter) Would you explain the circumstances surrounding Mr. Bianchi's termination, Mr. Moffitt? A. Yes, in June of 1969, we became aware through a reliable source outside the Company that Mr. Bianchi was using the Braddock facilities for the purpose of promoting a union for the pharmacists in this area. Moffitt continues his answer: Upon learning of Mr. Bianchi's activities and his active encouragement of other pharmacists to join the union, we again consulted with our attorneys and they again, investigated Mr. Bianchi's duties, this was as a result of our asking them whether or not we were permitted to discharge him, as I said, they investigated his duties, they advised us that we could discharge him. Q. Was this the first time that they investigated Mr. Bianchi's duties, or had they done this before? WHITE CROSS STORES, INC. A. Well, they investigated Mr. Bianchi's duties along with other pharmacists, prior to this time. Q. Did you ask your attorneys on pnor occasions to investigate Mr. Bianchi's duties? A. No. Q. So when was the first time that you asked about Mr. Bianchi, in seeking advice from your attorneys? A. This was in June of 1969. Q. When did you first learn of Mr. Bianchi's union activities, Mr. Moffitt? A. In June of 1969. Q. I show you Respondent's Exhibit 22, referred to as the March 31st memo, do you recognize this document? A. Yes, I do. Q. Are you familiar with its contents? A. Yes I am. Q. Now, were pharmacist managers ever advised of these responsibilities, outlined in that document, pnor to March 31st, 1969? A. Yes they were. TRIAL EXAMINER: May I ask a question, when was Mr. Bianchi informed, if ever? THE WITNESS: I would say that Mr. Bianchi would have been told, although I did not personally interview him. In answer to a question by Respondent's counsel as to whether there exists any established procedure as a result of which pharmacist-managers are advised of their responsi- bilities and duties, Moffitt's answer is summarized as follows: When pharmacist-managers are hired all their duties and responsibilities are explained to them. In addition, it is the Company's practice to instruct new employees during their training program. Further instruc- tions concerning the duties and responsibilities of pharma- cists-managers are published and sent to them in the form of procedure and pharmacy bulletins. Moffitt made the following explanation with respect to the circumstances that lead to the writing of the bulletin dated March 31. He said that during the past few years the Company has experienced a tremendously rapid growth and as a result of this it has never really had the opportunity to put into one document the job description of many of its jobs. One of these was the job of pharmacy managers. At the time the union organizing campaign began the Company realized its deficiency, and counseled with its attorneys. They investigated the particular jobs in question and instructed the Company that it should publish a job description containing the duties and responsibilities as they existed at that time. This was in February 1969. After completion of the bulletin the Company then had in one self-contained document a complete listing of the duties and responsibilities of the pharmacy managers. Moffitt also testified with respect to the employees who were working in the pharmacy department at the Braddock pharmacy. He said that there are a number of employees besides the pharmacist-manager and he described them as an assistant-pharmacist-manager and a clerk. In answer to a question from me as to whether these two people are 503 employed at all times while Bianchi was on duty Moffitt said no, the clerk was working on a part-time basis. It was also testified by Moffitt that Bianchi signed timecards for himself, Charles Brown (a relief pharmacist), and Loretta Bittner, a pharmacy clerk. These timecards were submitted by Respondent for the purpose of proving that Bianchi determined the working hours of the above- described employees. The record contains many pages of testimony by Moffitt as to companywide practices with respect to such things as scheduling hours, keeping time records upon which the employees in the White Cross system are paid, scheduling vacations (on this point he was evasive), marking of invoices, and other data already described in extenso supra. For the most part Moffitt's testimony dealt with general company practices. He admitted that he had no direct personal knowledge of the practices engaged in by Bianchi. In so far as Moffitt attempted to explain Respondent's general practices as secretary of the Company in charge of personnel and legal matters the evidence sheds little light on the specific company procedures employed at the Braddock pharmacy. It should be noted that Moffitt admitted his lack of personal knowledge concerning these practices and the further fact that he had no direct knowledge concerning Bianchi. He was clearly incompetent in the evidentiary legal sense of this word and his testimony did little to advance the course of the hearing. Further, it should be noted that when Moffitt gave testimony concerning Braddock specifically he was both inaccurate and a trifle misleading. For example, I asked Mr. Moffitt if there were any employees employed in the pharmacy department at Braddock. He answered that there were. To the further question if these employees were in addition to the managing pharmacist he said, "Yes." I then asked who they were and the witness said there is an assistant pharmacist-manager and a clerk. I then asked whether these two are employed at all times. In answer to this question the witness said, "No." The clerk is on a part- time basis and the assistant manager is on a relief basis. As originally stated Moffitt's testimony seemed to indicate that there were both a clerk and an assistant pharmacist- manager employed together with Bianchi at Braddock. This, of course, is not correct and it took some additional questions to elicit the correct answers from Moffitt. Moffitt did give some helpful information with respect to the supervisory structure of Respondent's operations in a general way. The pharmacist-manager reports to pharmacy supervisors and on occasion he reports directly to the Vice President of Pharmacies. There are approximately 6 pharmacy supervisors and these men are responsible for between 15 and 16 stores each. The responsibility of the pharmacy supervisor is to oversee in general all of the pharmacies under his jurisdiction to see that the operation is being conducted in conformance with the policies and procedures established by the Company; that the pharma- cies are adequately staffed and, on occasion, he (the supervisor) would provide actual relief for pharmacy managers or assistant managers. He would do this by actually physically taking over the job of pharmacy manager or assistant pharmacy manager and fulfill the functions performed by these employees. This would occur 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in instances of sickness, time off at the end of a shift, vacation, holidays, and in other situations of that nature. The pharmacy supervisor reports directly to Vice President of Pharmacies Emanuel Zimmerman. Zimmerman's re- sponsibility is to operate and control all of the pharmacies in the Company and to formulate policies and procedures in connection with that operation. Spike Zimmerman is the Director of Pharmacies. He is subordinate to Manny Zimmerman. He is responsible for assisting Manny Zimmerman in his functions and specifically working on special - projects such as the recently established new Redistribution center and he also implements the Compa- ny's policies and procedures . He is also active in the acquisition of new drugstores and coordinating the functions of the various supervisors throughout the Company's many locations situated in about 11 States. On some occasions Spike Zimmerman acts in place of a pharmacy supervisor. This situation would occur where one of the Company's supervisors was away due to illness or on vacation or doing relief work. Spike Zimmerman would take over the supervision of that particular pharmacy during such periods. Bianchi's direct supervisor while he was a pharmacist- manager at Braddock was Stanley Perlow . Perlow was responsible for overseeing between 16 and 18 stores. Manny Zimmerman reports directly to Company Presi- dent Don Robinson and he also consults with Moffitt with respect to personnel matters. At the level of the individual store the person in charge of the health and beauty aides products is the store manager or the assistant store manager . The store manager or assistant store manager is responsible for the proper operation of the nonpharmacy portion of the store. There are approximately 20 store supervisors . They have under their jurisdiction from six to eight stores but not more than eight. The store supervisor reports to a division manager- the Company has four division managers and each has a group of supervisors under him. The responsibility of the division manager is to coordinate the activity of his supervisors and to see that the policies and procedures as they apply to the nonpharmacy operation are properly carried out . The division manager reports directly to Vice President of Operations Eugene Klein. Klein is responsible for the proper operation of all the nonpharmacy stores within the Company. He is also responsible for the nonpharmacy Distribution centers and other such facilities. Klein reports directly to Company President Don Robinson. The pharmacist-manager and the store manager are completely separate . They report to different lines of supervision, they have different policies and procedures except that occasionally there may be a transaction between the two such as the store manager ordering merchandise through the pharmacy manager or the pharmacy manager having merchandise transferred into the pharmacy. However, even in these cases, such transactions are treated as a buy and a sell between two different separate entities . The pharmacy supervisor and the store supervisor have never been one and the same person. Apart from the store manager and the pharmacist- manager there is never anyone else present who occupies a position superior to these individuals in the separate stores. The store manager and pharmacy manager have separate accounting systems . Note in this connection when Loretta Bittner worked 40 hours all told, 30 in the store proper and part time for 10 hours as a pharmacy clerk, she was paid with only one check. This salary check was authorized and paid by the store manager and her pay as a part-time pharmacy clerk was included in the store check. How this could be done in consonance with Moffitt's description of the complete separation of the store and pharmacy entities is not explained in the record. The conclusion is inescapable that Bittner was in fact regarded by Respon- dent as an employee of the store and simply helped out for one-fourth of her working time in the pharmacy. It should be noted and it is not disputed that Bianchi worked from December 4, 1967, until approximately January 1969 without any pharmacy clerks assisting him. It was not until approximately January 1969 that Loretta Bittner began to work for Bianchi on a part-time basis. The General Counsel contends that Bianchi was never informed by a pharmacy supervisor or other management official that he had the authority to exercise any supervisory powers. Specifically, Bianchi denied being informed that he had the authority or power to hire, transfer, lay off, suspend, recall, promote, discharge, reward, discipline, or adjust the complaints of employees. Furthermore, he denied being informed that he had the power to recom- mend the exercise of any of the aforementioned powers. Vice President Zimmerman testified that at Bianchi's preemployment interview he informed Bianchi that he would be the boss of the pharmacy, that he would have control over employees, that he could hire or fire any clerks that he wanted, and that he had control over pharmacists working at the Braddock store. Bianchi, on the other hand, testified that Zimmerman never informed him at the preemployment interview that he had any of these powers. Zimmerman also testified that in November 1968, after making a personal visit to the Braddock facility, he phoned Bianchi in order to complain about the dirty condition of the pharmacy area. When Bianchi stated that he could not get any help, Zimmerman said he told Bianchi to place an ad in the newspaper and hire a clerk. Bianchi admits conversing with Zimmerman concerning the cleanliness of the pharmacy, but flatly denies that Zimmerman instructed him to place an ad in a newspaper in order to hire a clerk. According to Bianchi, Zimmerman informed him that the pharmacy would have to be cleaner. Bianchi replied that he had previously asked the store manager to send in a stockboy whose usual practice in the past had been to clean the store and that he, Bianchi, would make this request again. The General Counsel further contends that the evidence establishes that there were no clerks working in the pharmacy when Bianchi was hired. Secondly, it is clear that Bianchi did not have the authority to hire a clerical anytime he wanted one. Thus, Secretary Moffitt testified that the extent to which clerical help was authorized depended on three factors: (1) the weekly sales volume of the pharmacy; (2) whether the store was downtown or suburban; and (3) whether there was an overlap of pharmacists, i.e., whether WHITE CROSS STORES, INC. there was more than one pharmacist working at any given time. Respondent maintained a chart which indicated the number of clerical hours authorized in any particular situation based on the three factors enumerated above. Since the Braddock store was deemed the downtown store and since it had no overlap, it is possible by examining one of the exhibits included in the record to determine the weekly dollar volume necessary for the hiring of a clerical. Thus, it is clear that Bianchi did not have the authority to hire a clerical at his own whim. The authority so to do is based on objective factors specified by the Respondent. Moreover, it is clear that Zimmerman could not have told Bianchi in November 1967 (the time when Bianchi had his preemployment interview) that he had the power to hire a clerical. As shown in the record the weekly dollar volume at the Braddock store for that month was $935. According to another exhibit proffered by the Respondent no clerical could be hired at that low volume. Thus, according to Respondent's own figures and chart, there was no authority to hire a clerical at that time. It should be noted in this connection that Moffitt testified that the chart is followed virtually all of the time. Accordingly, it is clear that Zimmerman could not have told Bianchi at the time of his hire that he had the authority to employ and supervise clericals. The weekly dollar volume of the store simply did not warrant such action. If there could be no clerical employee there could obviously be no supervision of a clerical. Similarly, it is difficult to believe that Bianchi would have been given supervisory control over other pharmacists. The schedule at the Braddock store was so arranged that there were practically no overlapping hours between Bianchi and relief pharmacists. Under these circumstances it is clear that Bianchi could not supervise pharmacists in circumstances where he did not work with other pharmacists. The Respondent places considerable reliance on the procedure bulletin dated March 31, 1969, which on its face purports to confer complete supervisory powers on pharmacists-managers. The General Counsel has succinctly collated the following information with respect to this bulletin: Emanuel Zimmerman testified that shortly after it was issued, he phoned Bianchi and asked whether he had received, read, and understood the bulletin. According to Zimmerman, Bianchi replied that he had. Bianchi, on the other hand, denied the fact that Zimmerman ever queried him about the March 31 procedure bulletin and further testified that no member of the Respondent's supervisory hierarchy ever brought the March 31, 1969, bulletin to his attention. Bianchi also testified that he never saw the procedure bulletin in his Procedural Manual at the Braddock facility. He explained that after he became experienced, he looked at the Manual only when particular problems came up. Since he had never been called upon to exercise any supervisory authority, he never specificaly looked for such a bulletin. Bianchi testified that he learned of the existence of the bulletin in a telephone conversation with a fellow employee, Pharmacist Manager Bishop. Bianchi testified that Bishop informed him that he (Bishop) had received a bulletin which stated that pharmacist- managers could recommend pay raises for employees. 505 However, Bishop also told Bianchi that Myron Zimmer- man had informed him that the bulletin was put out by the legal department and that it did not mean anything. Bishop corroborated Bianchi's testimony and said that the conversation with Bianchi took place early in April on the evening that Spike Zimmerman had informed him that the procedural bulletin was a mere technicality issued by the legal department and could be ignored. Thus, though aware of the bulletin, Bianchi was never informed of it by any management official. His knowledge of it was a statement by Bishop in the course of which Bishop read the document to him and told him that Zimmerman said the bulletin did not mean anything and did not have to be followed. To further buttress his argument the General Counsel pointed out that the Respondent attempted to show that Bianchi was aware of his power to hire through the use of a pharmacy bulletin, which states that when clerks are hired various forms are to be sent to the central office. Although the bulletin does in fact refer to a power to hire, it is clear that this power is only exercised when the pharmacy reaches a certain volume . Furthermore, it is clear that Bianchi was never otherwise notified that he had the power to hire anyone nor was he informed directly by the Company that he had the power to hire even when his volume reached a certain level. It is also clear that when a clerk was hired at Braddock someone other than Bianchi did the hiring and no employment forms were completed and sent in by Bianchi . In this connection it might be mentioned that the Respondent introduced into evidence 73 exhibits and if there had been any employment forms signed by Bianchi when he allegedly hired Bittner it is clear that such a form would have also been offered in evidence by the Respondent. No such form was offered and it is clear that no such form was executed by Bianchi. G. Loretta Bittner Loretta Bittner began to work for White Cross as a clerk in October 1968 and is still employed by White Cross as a clerical employee. She secured her job initially when a Mr. Shoenfelt came into the Sun Drug Store in Braddock where she was then employed and she asked Shoenfelt if he needed any help in his store. Shoenfelt at that time was the manager of the Braddock facility and he said, "Yes," he could use some more help. He suggested that Bittner fill out an application. Shoenfelt told her that she would be paid $1.60 an hour. He also told her what her hours would be. She started to work for White Cross the following week. Shoenfelt explained that she would be working in the general store running the register and cleaning up. At the time of her initial employment in October 1968 Bittner testified that she had no conversations with Bianchi concerning the facts about her hiring. She was, in fact, hired by Ian Shoenfelt. Bianchi played no part in her hiring. When she first started to work she performed her duties in the general merchandise part of the store. She did not work in the pharmacy area at this time. When she began her employment her boss was Ian Shoenfelt. She said that in the early part of 1969 Craig Carroll, the new manager of Respondent's Braddock store, asked her if she wanted to work 10 additional hours. Bittner accepted 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this offer. Carroll said that her work would be in the pharmacy area of the store and he told her that her days would be Monday and Saturday. The hours on Monday would be from 1 to 6 and on Saturday from I to 6. After accepting this assignment Carroll sent Bittner back to see Bianchi. She asked Bianchi what she would have to do in the pharmacy and he told her that she would have to clean the shelves, wait on the customers; when a customer would come in for a prescription take the bottle, if it was a refill, go back to the filing cabinet, get the prescription out, and hand it to the pharmacist. Thus, Bittner testified that Bianchi did not inform her concerning the hours of her employment but that Carroll, the manager of the store, both gave the assignment and told her what hours she would be expected to work. At the commencement of her employment Bianchi did not give her any instructions. Bittner stated that Bianchi gave her no orders and on one occasion when he did tell her there were some boxes in the pharmacy area Bittner volunteered to take them down to the cellar. Bianchi said don't do that work that's the stockboy's duty. However, Bittner did take the boxes down despite the instruction not to do so received from Bianchi. The record then contains the following testimony given by Bittner: Q. Did Mr. Bianchi ever give you any other orders, while you were working in the pharmacy? A. No. Q. Has Mr. Bianchi ever corrected any of your work? A. No. Q. Did Mr. Bianchi ever reprimand you? A. No. Q. Did Mr. Bianchi ever discipline you in any manner? Q. Do you know Eugene Davis? A. Yes, he was a relief pharmacist at the store. Q. Did you and Mr. Davis have a good relationship a good working relationship? A. No. Q. Could you describe your relationship with Mr. Davis to us? A. Well, one day he disciplined me for talking too long to a customer, and another time, he wanted me to count the pills and I told him that I didn't know how, and I refused. Q. How did Mr. Davis discipline you? A. Well he said that it was my duty to [count pills ] and he bawled me out in front of a customer. Q. Did you speak with Mr. Bianchi about your relationship with Mr. Davis? A. A couple of days after that, yes. Q. Can you tell us the substance of the conversa- tions? A. I told him what happened, and he said well it wasn't my duty to count the pills, and that is all that was said. Q. Did Mr. Bianchi say anything else to you that you can recall? A. That was all that I can recall. Q. Did you ever hear Mr. Bianchi criticize Mr. Davis for the way that he ran the pharmacy? A. Not that I remember. Q. Did you ever hear Mr. Bianchi tell Mr. Davis, that he would try and have him transfered out of the store? A. No. Q. When did this problem with Mr. Davis arise, in terms of time? A. About a week before he left, about a week before Mr. Davis left. A. No. Q. When was your conversation with Mr. Bianchi Q. How do you know what work to do in the about Mr. Davis? pharmacy area? A. About the same time. A. It was all routine work. Q. How did you know when to perform various s s s duties, that you described? A. Just like I said, it was all routine, and I did it when it had to be done. Q. When did you speak with Mr. Bianchi about the Q. While you were working at the pharmacy, did your hours ever change? A. Yes, they changed on a Saturday, I used to go in at one o'clock, I started then, George asked me if I could come in at twelve on Saturday, because we were busier that hour, and I said yes, it would be all right, so I came in at twelve and worked until five. Q. Did you ever ask Mr. Bianchi to be excused from work on a Saturday? A. The Saturday before Memorial weekend I asked him if I could have that Saturday off, and he said yes, that it was all right with him. Q. Did you make up the time? A. The following week, I made up those hours on my day off. Q. Do you recall any other occasions that you took off on Saturday? A. That is the only time that I can recollect. trouble with Mr. Davis? A. As I recall I think it was a day or two after that, after the incident happened. Q. All right now, did you ever hear Mr. Bianchi say anything to Mr. Davis about having him transferred from that store? A. I heard Mr. Davis say that he didn't like working in the store and he was going to ask for a transfer. [Emphasis supplied.] Q. When was this conversation? A. It happened before he and I had the words. Q. Now, how do you get paid, Mrs. Bittner? A. By check. Q. How do you receive your check? A. The store manager gives it to me. Q. Does your check include pay for your work in the store area, as well as the pharmacy area? A. Yes. WHITE CROSS STORES, INC. 507 Q. Do you receive any benefits as an employee of White Cross? A. Yes. Q. Did you receive any other raises while working at White Cross? A. No. Cross-Examination Q. From whom did you receive approval to take a vacation? A. The store manager. Q. Did Mr. Bianchi recommend that you be hired? A. Not that I know of. Q. Did Mr. Bianchi ever transfer you? A. No. Q. A. Q. sion? Did Mr. Bianchi ever recommend your transfer? No. Did Mr. Bianchi ever recommend your suspen- A. No. Q. Were you ever laid off? A. No. Q. While working at White Cross? A. No. s : * s s Q. Did Mr. Bianchi ever promote you? A. No. Q. Did Mr. Bianchi ever recommend a promotion for you? A. No. Q. Did Mr. Bianchi ever discharge you? A. No. Q. Did Mr. Bianchi ever recommend your dis- charge? A. No. Q. Did Mr. Bianchi ever reward you in anyway for your work? A. No. Q. Did Mr. Bianchi ever recommend that you be rewarded? A. No. Q. Did Mr. Bianchi ever recommend that you be disciplined? A. No. Q. Did Mr. Bianchi ever adjust any of your complaints about working at White Cross? A. I never had any complaints except about Mr. Davis. [Emphasis supplied.] Q. Have you had any raises since working at the Braddock Store? A. Yes, about two months ago, either a month and one half or two months ago, I got a nickel raise. Q. Would you tell us the circumstances under which you got the raise? A. Mr. Lang the [Respondent's store] Supervisor was in the store one day, and I asked him how long you had to work at the store to get a raise, and he said a year, he asked me how long I had worked there, and I said approximately a year, he said that I was entitled to a five cent raise, five cents an hour, and I was to tell Mr. Egan, the store manager, and he would put in for the five cent raise for me. [Emphasis supplied.] Q. (By Mr. Schachter) When did you start working in the pharmacy? A. The beginning of 1969. Q. And what hours did you work on Mondays and Saturdays? A. From one to six. Q. Did those hours ever change? A. Just that one time, when George asked me if I could start a half hour earlier on Saturday, because they were busier during that hour, and I started at twelve, instead of one. Q. Was it Mr. Bianchi that asked you if you start earlier? A. [positive answer] Yes. Q. Did the store manager ask you at all about those hours, the change in hours? A. Not that half hour, no. Bittner testified that she never had any grievances that she took up with Bianchi except for a run-in that she had with relief pharmacist Eugene Davis which will be described infra. Bianchi never recommended any changes in Bittner's employment status. Bittner did say that on the Saturday before Memorial Day she asked Bianchi whether she could be excused from work for the holiday weekend. Bianchi said that she could and she took the day off. She made up this time by working an additional day in the pharmacy during the following week. On one subsequent occasion in the spring of 1969 Bianchi testified that he granted Bittner a Saturday off pursuant to her request so that she could have a weekend to enjoy a holiday. Bittner also testified without contradiction that she was never informed that Bianchi was in charge of the pharmacy or that she was responsible to him. Emanuel Zimmerman, at one point, informed Bianchi that he was to work 9 to 12:30 p.m. every other Saturday and 9 to 9 every other Friday. Thus, beginning on May 10, Bianchi and Bittner worked together every other week an additional 4- 1/2 hours. This state of affairs remained operative for only a short period of time because Bianchi was fired on June 14, 1969. Bittner's work was routine. She performed various tasks when she felt they had to be done. She testified that she never asked Bianchi what he wanted her to do when she came to work. She could recall only two instances, excluding her initial conversation with Bianchi, when he ever gave her any instructions. She said that on one occasion Bianchi told her not to take some boxes from the pharmacy area down to the cellar. Butner ignored Bianchi's instructions and took the boxes down to the cellar anyway. On one other occasion Bittner testified Bianchi requested her to go to a competitor's drugstore and ask the pharmacist there whether he would loan Bianchi some pills. Bittner said that Bianchi never corrected any of her work nor did he ever reprimand or discipline her in any way. Bittner said that Bianchi never transferred her, laid her off, promoted her, discharged her, rewarded her, disciplined 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her, or adjusted her complaints. As a matter of fact Bittner said that she never had any complaints which were taken up with Bianchi. Bittner was approached in December 1968 by the Braddock store manager and asked if she desired additional work. She agreed to accept a part-time assignment of 10 hours per week in addition to her regular work in the store proper. Zimmerman said this would be OK with him provided she did not leave the store section during the Christmas rush. When this was over Zimmerman gave his permission for Bittner to work part time in the pharmacy area. Bittner testified that when she asked Bianchi what he wanted her to do in the pharmacy he replied that she was to clean the shelves and wait on customers. In addition, when a customer came in for a prescription she was to take the bottle (if it was a refill), go back to the filing cabinet, get the prescription, and hand it to the pharmacist. Bianchi said that he showed Bittner how to pull a prescription from the file. On or about December 20, 1968, Spike Zimmerman informed Bianchi that the Company was going to provide him with a clerk to assist him in the pharmacy area. This was suggested because by this time Bianchi's dollar volume in the store entitled him to receive clerical assistance of 10 hours of work per week. Bianchi testified that Zimmerman said when he (Bianchi) reached an average of $1,500 per week he would be authorized 13 hours of clerical help and that when he reached the dollar volume of $1,600 per week on the average he would be authorized to receive clerical assistance of 18 hours per week. Zimmerman instructed Bianchi that the clerk was to work during the busiest hours of the week. Zimmerman asked Bianchi what the busiest hours of the week were and Bianchi replied that they were Monday and Saturday afternoon from 1 to 6 p.m. Zimmerman said the clerk should work these hours. Zimmerman also informed Bianchi that it would be the clerk's duty to ring the register, clean the shelves, take out prescription files, and wait on customers. Since at this time it had not been determined which clerk would be assigned to the pharmacy, Bianchi testified that Zimmerman had a discussion with Store Manager Carroll and subsequently informed him that Bittner would be the clerk assigned to the pharmacy. In the beginning of her work in the pharmacy area Bittner worked Mondays and Saturdays from 1 to 6 p.m. Bittner worked with Bianchi 2 hours a week from 4 to 6 p.m. on Mondays. Zimmerman instructed Bianchi that the clerk should work the busiest hours in the pharmacy and since the relief pharmacist, Charles Brown, told Bianchi that the pharmacy was much busier from 12 to I than from 5 to 6 Bianchi, pursuant to Zimmerman's instructions, requested Bittner to change her hours on Saturday so that she would report for work in the pharmacy at 12 p.m. instead of 1 p.m. Under this new arrangement Bianchi and Bittner worked together an additional half hour a week from 12 to 12:30 on Saturdays. Subsequently, on May 10, Bianchi's hours were changed by Zimmerman. H. Relief Pharmacists Some relief pharmacists worked at the Braddock pharmacy during the course of Bianchi's employment but only during the hours when Bianchi was not working. Thomas Bishop and Eugene Davis were the only two of these relief pharmacists who testified at the hearing. 1. Thomas Bishop Bishop testified that he worked as a relief pharmacist at the Braddock facility beginning in February or March 1968. The pharmacy supervisor, Perlow, told Bishop that he was to serve as the relief pharmacist at Braddock on Monday from 9 a.m. to 4 p.m. Consequently Bishop and Bianchi never worked together and this fact was corrobo- rated by Bishop. Bishop testified that Bianchi never assigned him any work and that he never criticized, disciplined, or reprimanded him in any way while he was working at the Braddock facility. Bianchi never directed his work in any fashion. 2. Eugene Davis The predecessor to Bianchi at the Braddock pharmacy was Eugene Davis. Davis worked as a relief pharmacist on Mondays from 9 a.m. to 4 p.m. He held this position until the time that Bishop assumed it. Davis' hours did not overlap those of Bianchi. It is impossible to credit Davis' testimony that Bianchi attempted to show him what to do in view of the fact that Davis did not work at the Braddock pharmacy at a time when Bianchi was employed there. Their shifts did not overlap. On one occasion Bianchi reported to his shift to relieve Davis and found that the pharmacy counter was cluttered with bottles. Bianchi asked Davis how he could work in such a mess and Davis explained that he had no time to clean the counter because he had been attempting to contact a certain physician in order to obtain an authorization for a refill prescription. Bianchi testified that the prescription in question was marked "PRN" (meaning unlimited refills authorized). During the course of this discussion some friction developed between Bianchi and Davis. It is apparent from the record that there was a difference of opinion between Davis and Bianchi with respect to certain professional practices that related to whether or not a pharmacist had an affirmative obligation to call a physician on every prescription which was not marked refill. Davis felt that a pharmacist had this responsibility but whatever the difference of opinion between them Davis confirmed in his testimony that Bianchi did not issue any instructions to him as to what the proper procedure was to be in regard to obtaining authorizations to refill certain prescriptions. It is important to note that Bianchi did not impose any discipline on Davis for the method in which he handled these types of prescriptions and never notified any higher management official of the differences between his (Bianchi's) and Davis' practice in this regard. In fact Davis testified that after this conversation with Bianchi he (Davis) continued to adhere to his past practice of obtaining authorizations for a refill prescription. It is thus clear from the record that whatever differences these two men had Bianchi did not tell Davis what to do. WHITE CROSS STORES, INC. 509 3. The Transfer of Davis Sometime late in April 1969 Braddock Store Manager Egan informed Bianchi that Davis and Bittner had had an argument that day and another one the previous week. When Bianchi asked Bittner about the matter she said that she and Davis had a squabble; that Davis had criticized her in front of customers and had greatly embarrassed her. She said she could not work with Davis and she would rather quit than continue the way things were. Two days later, on a Wednesday, Bianchi asked Bittner whether she had changed her mind. She replied that she had not. Bianchi then told her that he would have to call a supervisor and ask what should be done. Bianchi telephoned Vice President Emanuel Zimmerman and told him that there had been some difficulty between Bittner and Davis. Bianchi asked Zimmerman what should be done about the matter. According to Bianchi, Zimmerman then informed him that there were plans to transfer Davis. Davis would be sent to the Homestead, Pennsylvania, store on the following Monday. Bishop would be sent to the Braddock store as the replacement for Davis. Bianchi denied flatly that he suggested to Zimmerman that Davis be transferred. Zimmerman, on the other hand, testified that Bianchi called him and demanded that Davis be transferred out of the Braddock pharmacy. Zimmerman said he then asked what was wrong and Bianchi replied that Davis was not filling prescriptions quickly enough, not putting items away properly, and not following pharmacy instructions. At this point Zimmerman allegedly replied that Bianchi was the manager and if that was what he wanted Davis would be taken out even though Zimmerman felt that Davis was a pretty good pharmacist. In accordance with this conversa- tion, Zimmerman said he would comply with Bianchi's demand and he decided to transfer Davis. Zimmerman said that there was no discussion about a squabble or a fight or an argument between Bittner and Davis. Bianchi specifical- ly denied Zimmerman's version of this conversation. The record shows through other testimony that Davis had previously requested a transfer from the Braddock store. For example, Bianchi testified that during his discussion concerning the cluttered pharmacy counter, Davis said he did not like working in the Braddock facility and that he was going to ask for a transfer. According to Bianchi this statement was made approximately 3 or 4 weeks before Davis was transferred and before the conversation between Bianchi and Zimmerman had taken place. Bittner testified that before her difficulty with Davis he had informed her that he did not like working in the Braddock store and he was going to ask for a transfer. From these conversations and this testimony it can be seen that there is internal evidence in the record indicating that both Bittner and Bianchi corroborated the fact that Davis had stated his intention to ask for a transfer quite some time before the telephone conversation between Zimmerman and Bianchi. IV. CREDIBILITY OF THE WITNESSES A. Vice President Emanuel Zimmerman There are numerous references in the Respondent's brief to the effect that Bianchi was an incredible witness because he was hostile and biased. For example, the brief states, "Where the General Counsel relies upon a single witness who was blatantly hostile to the Respondent, and whose testimony is uncorroborated by objective circumstances the Board has rejected such testimony." Respondent cites in support of this proposition the case of Williamson-Dickie Manufacturing Company, 115 NLRB 356 (1956), involving a terminated supervisor named Thompson and the General Counsel's most important single witness . This witness gave damaging testimony against the Respondent. Her bias against the employer was evident. There then appears m Respondent's brief a quotation from the above-described case in which the Board stated it was unwilling to give any probative value to those portions of Thompson's testimony which are denied and which are not corroborated by objective circumstances or the testimony of other credible witnesses. In further support of his position Respondent also cites the case of the Hot Point Co., 120 NLRB 1768, where the Board used almost the same language as appears in the Williamson-Dickie case. These citations are inapposite for the simple reason that the testimony of Bianchi was corroborated by both Bittner and Bishop both of whose testimony I credit. Furthermore, it could hardly be said that Emanuel Zimmerman's testimony was not biased. As Vice President of the Company who made the decision to discharge Bianchi he had as much of an axe to grind as Bianchi did, if not more so. It is significant to remark that during the course of Zimmerman's direct testimony he did not speak as someone who had just recovered from an illness as had been stated on the record, but on the contrary, he spoke on direct examination in a vigorous tone of voice. He gave his testimony in what at first appeared to be a convincing manner. However, when Zimmerman was cross -examined, his entire demeanor changed and his forthrightness, which had been so evident in the course of his direct examination, evaporated. He became evasive, he spoke in such a low voice that I had to continually admonish him to raise his voice because what he said could not be heard. The record shows that Zimmerman had described the Procedural Manual as requiring strict observance. This was further corroborated by a statement in the said Procedural Manual that instructions received in the Manual were mandatory. In cross-examination a new version of instructions in the Manual developed. Under vigorous cross-examination, and in a very soft almost inaudible voice, Zimmerman testified that the information sent to the pharmacists in the Procedural Manual were only guides or yardsticks but were not to be followed rigidly. These instructions were merely to offer guidance. Furthermore it is clear from the record that Zimmer- man's testimony was shot through with serious inconsisten- cies. The testimony with respect to inventory guidelines, for example, was that a 3-week supply from the wholesale source, a 4-week supply from a direct source, and a 7-week supply from a redistribution source were regular require- ments which were passed on to the various pharmacist managers and were to be followed on the basis of 100 percent "mandatory cooperation." In his cross-examina- tion Zimmerman became very evasive and even refused to 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admit that there were any inventory guidelines at all that still existed. In this latter testimony he said that the figures given merely represented the Respondent's idea of optimum levels that should be striven for. After extended cross-examination Zimmerman admitted that the Respon- dent did in fact set "goals" for his pharmacists with respect to inventory levels. At this point in his testimony he said that despite what the Respondent's own exhibits demon- strated he refused to admit that the goals were rigid or required. On direct examination Zimmerman testified that at the time of Bianchi's initial preemployment interview he informed Bianchi that he could hire or fire employees and that he was the boss of the pharmacy. On cross-examina- tion he changed his story and admitted that he informed Bianchi that weekly sales volume would determine when he could have clerical assistance at the Braddock facility. From the foregoing, and there are other examples that might be mentioned, Zimmerman was found to have misrepresented the truth and continued to stay with his inaccurate statements until he was challenged on cross- examination. The fact that he ultimately told the truth on cross-examination does not minimize the importance of the fact that some of his direct testimony was false. One of the additional significant aspects of the testimony offered by Zimmerman which proved that it was inaccurate and self-serving was his statement that Bianchi hired Bittner. The credible testimony of both Bianchi and Bittner established that Bianchi played no part whatever in either the hiring of Bittner at the store or her subsequent assignment to the pharmacy. Thus there is no testimony to support Zimmerman's assertion that his version of Bittner's hire was correct. I was also impressed with the fact that Zimmerman said Bianchi phoned him and "demanded" that Davis be transferred. It should be borne in mind that a pharmacist-manager of 1 store in a 120-store chain could hardly be expected to demand of his boss that an employee be transferred. This is especially so since Bianchi was speaking to the second highest ranking officer of a huge chain of stores. For Zimmerman to further testify that he acquiesced in Bianchi's demand without investigation and without making any further inquiry as to whether or not the version of the difficulty between Davis and Bittner was correct seems patently false on its face. Furthermore there is corroborating testimony from Bittner that Davis told her that he had already requested a transfer even before they had their difference of opinion and that he was only awaiting word until his transfer became effective. At another point in his testimony Zimmerman stated that it is difficult to get pharmacists, and therefore he had to comply with Bianchi's "demand" in order to keep him happy. I repeatedly requested that Zimmerman speak in a loud enough voice to be heard and despite my frequent requests to raise the level of his voice during cross-examination Zimmerman spoke in such a soft voice that, even though I was sitting right close to him, I could hardly hear him. My overall impression about Zimmerman is that he was an incredible witness. I do not credit his testimony. His demeanor, at the very least, was unconvincing. B. William Moffitt On the whole Moffitt's testimony, while it seemed colored by his concern for the Respondent's financial interests, seemed to be fairly convincing . The difficulty with the testimony is that Moffitt was without personal knowledge as to the specific jobs performed in the Braddock pharmacy and knew nothing about Bianchi or his performance on the job or any other details which go to the nub of the instant case. Moffitt's knowledge of the functions, authority, and responsibility of the pharmacist-managers was through "pieces of paper" rather than through direct knowledge and observation. This is further substantiated by the fact that Moffitt admitted he was never at the Braddock facility when Bianchi was there and he had no personal knowledge as to how Bianchi ran the pharmacy. In legal parlance while Moffitt had a great deal to say about the Company's general practices, since he was the Company's personnel manager, the fact still remains that he was an incompetent witness. C. Eugene Davis Davis seemed to have a fairly large size bias directed against Bianchi. This was manifested by the tone he assumed-especially when he was subjected to cross- examination by the General Counsel. One instance of the kind of inconsistency that appeared in the course of Davis' testimony can be found in the fact that he stated Bianchi told him Bianchi would price the welfare prescriptions on Thursday evenings when Bianchi was in the store. This was completely inaccurate because Bianchi could not have possibly worked on Thursday nights as the entire facility was closed at 5:30 p.m. on Thursdays. In general, and with regard to the demeanor manifested by Davis while he was testifying, it is my opinion that he did not testify truthfully, and that he was motivated by bias against Bianchi. Even more important he appeared to be testifying in a manner which seemed to be designed to curry favor with the Company. I do not credit Davis' testimony. D. The General Counsel's Witnesses 1. Bishop Bishop was not only an impressive witness because of his demeanor but it should be remarked that, at the time of the hearing, he was still employed by Respondent. Much of his testimony was adverse to Respondent's interest. By offering it he might have exposed himself to reprisals. Thus the evidence adduced through him had an added ring of authenticity. His testimony was convincing, his recital of matters was within his personal knowledge, and it was corroborative of what Bianchi testified to concerning the bulletin of March 31, 1969. In this connection it should be emphasized that Respondent also found Bishop a credible witness and I concur in the Company's appraisal of his testimony. To briefly recapitulate concerning the bulletin of March 31, 1969: Bishop said that Spike Zimmerman, after first telephoning his home office to make certain, came back to where Bishop was standing and stated that the bulletin was a technicality and should be ignored. In other words this WHITE CROSS STORES , INC. 511 bulletin, which contains a close paraphrase of the Act's Section 2(11) definition of a supervisor, consisted of some pieces of meaningless paper and should be forgotten and ignored. I credit Bishop's testimony. 2. Bittner Bittner testified without hesitation, truthfully, and convincingly. Additionally, at the time of the hearing, Bittner was still employed by White Cross and insofar as her testimony was contrary to the Respondent's interest it consisted of an account of Bianchi's lack of supervision of her work . Her testimony potentially might be expected to arouse the ire of Respondent and thus possibly expose her to reprisals. This fact adds another cubit to the veracity of what she stated. Also, and significantly, although Respon- dent sought to attack Bittner's testimony on cross-examina- tion, in its brief Respondent relies on her testimony and credits it. Here again, I agree with the Respondent who apparently found Bittner to be a credible witness . Her straightforward account states unequivocally that Bianchi never supervised her, that she was assigned to work with Bianchi by her store manager (Carroll). (In this regard the store manager's action was authorized by Zimmerman.) Without burdening the record unduly with repetitious material Bittner said he never reprimanded her, she never discussed grievances with him, and in fact when Bianchi did ask her if she had any trouble with Davis, Bianchi unsuccessfully attempted to smooth her ruffled feathers. He asked her to reconsider her statement that she would not work with Davis . Bianchi then telephoned Emanuel Zimmerman to ask what he should do with this personnel problem. She also stated, in flat contradiction to Davis, that Davis told her he requested Respondent for a transfer. This testimony countervails the argument advanced by Respondent that Bianchi "demanded" that Davis be transferred . On one or two instances (the record is not entirely clear on this point) Bianchi admittedly permitted her to shift a Saturday assignment to her day off so that Bittner could go away for a weekend . The intermittent exercise of a single or at most two instances when Bianchi changed Bittner 's assignment is not an indication that he was a supervisor or acted with supervisory authority. I credit Loretta Bittner. 3. Bianchi The testimony given by Bianchi represents approximately 201 pages out of a total transcript of 1,162 pages a disproportionate amount of the balance of which record was consumed in lengthly and frequently inordinate and unnecessary argument by both the Respondent and the General Counsel. This information is included in the record to indicate that Bianchi was on the stand much longer than all the other witnesses combined. The General Counsel states in this brief that Bianchi's testimony took a total of 14 hours. As a consequence of the strain he was under there are a number of inconsistencies in Bianchi's testimony. However none of the inconsistencies are significant. The overall impression created by Bianchi as a witness was of an individual whose knowledge of the operation of the Braddock store was little short of encyclopedic. Under these circumstances, and making allowances for the human factor of fatigue, it is not surprising that in certain instances Bianchi's memory failed him. For the most part Bianchi testified in a straightforward manner. Whatever inconsis- tencies appear in the record do not adversely affect Bianchi's overall testimony which was given in a clear, direct way. I credit Bianchi's recital. Even under the gruelling cross-examination to which he was subjected, Bianchi's story stood up remarkably well. The principal thrust of Respondent's attack on Bianchi's credibility centered around a theory, expressed a number of times on the record, that Bianchi was a supervisor and/or a managerial employee who, while he admittedly was discharged because of his union activities , was not an employee within the meaning of the Act. Therefore, he was not protected by Section 8 of the said Act. Stated otherwise it was Respondent's main argument that Bianchi was hired initially as a pharmacist-manager who knew he was "boss" over the pharmacy , did in fact supervise employees but deviously sought the shelter and protection of the Act by deliberately refusing to exercise those supervisory responsi- bilities entrusted to him by the Respondent. I regard this theory as untenable on the facts in the instant case. V. BIANCHI'S ALLEGED SUPERVISORY AND MANAGERIAL STATUS A. Bianchi's Alleged Supervisory Status Pricing, Pledging Respondent's Credit, Hearing and Adjusting Grievances Without again reiterating the minutiae of what appears, supra, in this case concerning pricing and the pledging of Respondent's credit it is apparent that Bianchi did not exercise independent judgment in these particulars. The scientific excellence of Respondent's centralized control over its manifold operations is exemplified in its numerous detailed written instructions to the pharmacy managers in the form of pharmacy bulletins, the Procedural Manual, oral instructions by visiting pharmacy supervisors, and telephone directives frequently made to Bianchi on an almost day-to-day basis. This represents clear evidence that little was left to the imagination or judgment of Bianchi. He testified that his predecessor instructor, Bishop, under whom he was trained, repeatedly referred to the written directions inclusively as Bianchi 's "bible." There is no proof in the record that Bianchi was clothed with the authority to price either his purchases or his sales. To the contrary, it is evident that Respondent, from its centralized office and through the lips of its pharmacy supervisors, gave Bianchi something more than guidelines as to these functions . In fact, Bianchi was given formulas, which when correctly followed, provided Bianchi with all the informa- tion that anyone would need to quote the price of a product to a customer. With respect to credit , approximately half of what Bianchi purchased for sale in the Braddock store came from the Redistribution center. Bianchi was instruct- ed to secure these items from this source. The Redistribu- tion center is owned and operated by Respondent. Direct and wholesale sources were never communicated with by Bianchi on the basis of his requesting them to quote a price 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or his bargaining about the price of the items which he was requesting them to send him. The testimony is clear that Bianchi stated he never discussed price because, for the most part, bills for the items purchased were sent to the Respondent's main office in Monroeville for payment. Furthermore, such items purchased by Bianchi were paid for by the Respondent. Consequently, there was no need for Bianchi to discuss prices with the sources of the Braddock store's supplies. Similarly, with respect to cashing customer's checks, welfare checks, stocking the shelves, and the other duties which Bianchi performed, these tasks were routine in nature and required the exercise of no supervisory or managerial authority on Bianchi's part. Any reasonably intelligent professional man, like a pharmacist, does not have to be told what labels to put on bottles to show when his supply was running low. The fact that occasionally Bianchi was reprimanded by visiting supervi- sors and occasionally by Spike Zimmerman because he had not followed instructions to the letter is not relevant to this case because he was not discharged for being an inefficient pharmacist. He was discharged because he engaged in union activities. It is not disputed that from December 4, 1967 (when Bianchi commenced his employment with White Cross), until approximately January 1969 Bianchi worked alone in the pharmacy. While he was spelled by various so-called assistant pharmacy managers when he was off duty it was also not disputed that for the most part, the working time of relief pharmacists did not overlap Bianchi's working time. From January to the date of Bianchi's discharge, June 14, 1969, Bittner was in effect loaned part time to work with Bianchi 10 hours per week out of the 40 hours she worked for Respondent. She was for practical purposes loaned by the store manager to help out in the pharmacy. This conclusion is borne out by the admitted fact that as between the store proper and the pharmacy each maintain separate accounts and accounting systems. It is uncontrad- icted that Bittner received one paycheck a week and this check included payment for time, worked both in the pharmacy and in the store. For approximately 13 months Bianchi's volume of business did not warrant his receiving any clerical assistance. During the time that Bittner did work with Bianchi she testified he never gave her any instructions nor did he tell her what to do and her duties were so uncomplicated that she did not require any instructions. For example, a woman who had worked in the store proper as long as Bittner had did not have to be told when to clean the shelves. It is therefore reasonable to conclude that during the time that Bittner worked with Bianchi she looked to and received both her supervision, if any was needed, and pay from either the store manager or the assistant store manager. The sine qua non of the exercise of true supervisory functions is that the alleged supervisor must have someone to supervise! It is interesting to note that in the organization chart of White Cross stores operations, which is included in the record as an exhibit, there is no indication anywhere that the Respondent had in its employee any pharmacists. The testimony in the record is replete with numerous references about pharmacy managers and assistant pharmacy manag- ers, but apparently there do not appear to be any employees who are carried on the Company's records as plain pharmacists. The Respondent supplied certain pharmacy employees with titles. It provided these certain employees with the external trappings of supervision but not the substance to go along with the titles. It is hombook law that the bestowing by a company of the title of pharmacy manager or assistant pharmacy manager does not denote the status of such employees. What determines whether or not an employee is a supervisor is to be found from the duties performed by the Company's employees and not by the title that they may be operating under. The Respondent in its brief attempts to make much of the fact that Respondent was the highest official in the Braddock pharmacy. The reason for this is self-evident. For many months he was the only pharmacy employee working in the Braddock store. It should also be noted that Bianchi did not have the keys to the store which had only one entrance. These keys were in the possession of and under the control of the various store managers. Furthermore, Bianchi did not have the combination to the store safe. This information was only entrusted to the store manager. From all of the above it seems very clear that Bianchi was never a supervisor within the definition of Section 2(11) of the Act. This is so despite the valiant effort made by the Respondent to classify him as such and then to incorporate into the bulletin of March 31, 1969, a paraphrase of Section 2(11)'s various definitions of a supervisor. B. Bianchi's Alleged Managerial Status Respondent devotes a portion of its brief to a contention that Bianchi, if not a supervisor, was certainly a managerial employee. The concept of managerial employee status originated with the Board, rather than with Congress. While the Act specifically excludes from its coverage those employees designated as "supervisors"-Section 2(3) and (11), it nowhere mentions "managerial employees." The Board, however, has developed the concept of managerial employee to cover those who do not exercise sufficient discretion to be termed "supervisors" and yet whose interests are so closely allied with those of management as to make their inclusion in bargaining units with normal employees destructive of the policies of the Act. It is in terms of appropriate bargaining units that the managerial employee concept has evolved. Consequently, the cases do not discuss in detail the managerial employee's status in unfair labor practice situations. In 1966, the D.C. Circuit Court attempted to crystallize the criteria developed by the National Labor Relations Board in determining whether an employee could be characterized as managerial. Retail Clerks International Association v. N.L.R.B. [Agents and Organizers Assn.], 366 F.2d 642, 644-645 (C.A.D.C.), cert. denied 386 U.S. 1017. The Retail Clerks formula has been cited as summarizing the managerial employee tests in two subsequent Trial Examiner Decisions, both of which were affirmed by the Board: North Arkansas Electric Co-op, Inc., 168 NLRB No. 122, and Iowa Industrial Hydraulics, Inc., 169 NLRB No. 27. WHITE CROSS STORES, INC. 513 The Seventh Circuit inJournal-Register, Inc. v. N.L.R.B., 412 F.2d 37, 41, has paraphrased the Retail Clerks case: In Retail Clerks International Assn. v. N.L.R.B. the court notes that there seem to be two fundamental tests for determining whether an employee is a managerial employee and therefore excludable under Board policy from bargaining units. The first test is to determine whether an employee is so closely related to or aligned with management as to place the employee in a position of potential conflict of interest between his employer on the one hand and his fellow workers on the other. If an employee is found to lbe in such a position, he is not, under Board policy, entitled to be represented in the collective process. The second managerial employee test is to determine whether the employee is formulating, determining and effectuating his employer's policies or has discretion, independent of an employer's established policy, in the performance of his duties. If an employer cloaks an individual with such authority or such discretion, that individual would be a managerial employee and would be deprived of the right of representation by a bargaining unit. To be a "supervisor," the court said, an employee must have control over fellow employees, that is, other employees of the supervisor's employer. The Board's doctrine has been developing since the original Wagner Act. Although it may be argued that the NLRB has actually amended the Act by expanding the definition of "supervisor," the Board has seen justification for its action in the Act itself. In Palace Laundry Dry Cleaning Corp., 75 NLRB 320, 323, footnote 4, decided just a few months after the 1947 amendments to the Wagner Act, the Board said: We have in the past, and before the passage of the recent amendments to the Act, recognized and defined as "managerial" employees, executives who formulate and effectuate management policies by expressing and making operative the decisions of their employer, and have excluded such managerial employees from bar- gaining units. We believe that the Act as amended, contemplates the continuance of this practice. As discussed, supra, and as epitomized in the quotation from Palace Laundry, the managerial employee concept has developed essentially with relation to appropriate bargain- ing unit determinations. The Board has not thus far had occasion to pass on the issue of the insulation of managerial employees from the commission of unfair labor practices. This past June, the Eighth Circuit decided N.L.R.B. v. North Arkansas Electric Cooperative, Inc., 412 F.2d 324. In that case, the Board, affirming the Trial Examiner, found that an employee allegedly discharged in violation of Section 8(a)(3) was neither a supervisor nor a managerial employee. 168 NLRB No. 122. The court disagreed. It held that Lenox, the employee involved, was a managerial employee, and therefore reversed and remanded the case to the Board. ... with specific instructions to it to determine whether or not the discharge of Lenox, as a "managerial employee" under all the circumstances of the case, was or was not violative of the Act. [71 LRRM at 2602.] The Board was thus squarely presented with the issue involved here. Although it was given the opportunity to decide the issue previously, it preferred not to do so. In the North Arkansas case, the Trial Examiner had considered the applicability of the Act to managerial employees, but the Board preferred not to become involved in the issue: As we agree with the Trial Examiner that Lenox is not a managerial employee, we do not reach the issue or pass upon the Trial Examiner' s statements concerning the applicability of the Act to the Union or other concerted activities of managerial employees. [Board Decision, fn. 1.] From the above it is clear that the Board has not passed upon the question as to whether or not a managerial employee is entitled to the protection of the Act in an unfair labor practice case. The determination of whether Bianchi's duties and responsibilities were of such a nature as to qualify him for the designation of a managerial employee is a question of fact. Based on the record I conclude that his duties were not such as to entitle him to be characterized as a managerial employee. In Journal-Register, the question was whether certain "district men" were managerial employees. The court found that the "district men" had the following duties and responsibilities: Overseeing distribution of company's newspaper; hiring, training, working with carriers; han- dling delivery complaints; adjusting, remitting sales receipts to Company; promotion of new subscriptions; attending sales meetings ; recommending discounts for delivery routes; organizing, determining routes within districts; contracting news dealers; leasing substation space within districts; and making various small purchases. The court held, in light of the Retail Clerks tests that these employees were not managerial: While the district man has various responsibilities, they are minor in nature and not tantamount to those of an employee who formulates, determines and effectu- ates his employer's policies. The scope of his authority in the area of significant management policy is limited in nature and as the Regional Director aptly notes "the discretion and initiative which these men are expected to exercise fall within relatively unimportant areas. [71 LRRM at 2671.] The Court emphasized that while the district men could recommend discounts, redistricting, campaign strategy, and the like, the ultimate decisions were made by others. The court also laid stress on the fact that district men were not supervisors; the newspaper carriers were independent contractors rather than fellow employees of Journal- Register. From the above discussion of the adjudicated cases it appears that the Board has not yet passed upon the question as to whether a managerial employee is entitled to the protection of the Act in an unfair labor practice case. The Trial Examiner is bound by the decisions of the Board when such decisions are made. Since the position of the Board is unclear at this time it becomes necessary to view the testimony of Bianchi with respect to his duties against the yardsticks that have already been established and attempt to project what might be expected when, and as if 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board issued a decision on this issue . In any case it must be emphasized that, based on my credibility findings, I have discredited the testimony of Emanual Zimmerman concerning Bianchi and his duties and I have credited Bianchi. According to Bianchi's testimony, his duties clearly do not fall within the area that could qualify him as a managerial employee even within the limited conclusions that are now available. Applying the facts as exemplified by the record before me it is crystal clear that Bianchi was not such an employee empowered with sufficient discretion to be termed a supervisor and yet one who is so closely allied with management as to make him a managerial employee ineligible for inclusion in bargaining units with normal employees. We have only before us the evaluation of the language of the Board as it relates to questions involving the inclusion or exclusion of so-called managerial employ- ees in appropriate bargaining units under representation decisional material. Using the language of the Court in the Retail Clerks International Association v. N.LR.B., supra, Bianchi has never been so closely related to or allied with management as to place himself in the position of potential conflict of interest between his employer on the one hand and his fellow workers on the other. It is also clear, and this is crucial to the case at bar, that there is no credible evidence in the record to support the conclusion that Bianchi was involved in formulating, determining, and effectuating his Employer's policies or had discretion independent of this Employer's strict controls in the performance of his duties. Respondent, in its brief, places heavy reliance on its interpretation of the facts of record to the effect that Bianchi was closely identified with management and aided in the formulation of company policy because he on one occasion did investigate the possibility of buying out a neighborhood drugstore. In this isolated instance Bianchi did visit the Miller drugstore but it is to be carefully noted that after he completed his visit he telephoned Vice President Emanuel Zimmerman and expressed the opinion that it seemed wise to Bianchi that the Company give favorable consideration to purchase all the prescription files of this drugstore and incorporate them within the operation of the Braddock store. It is especially significant to note that all Bianchi did was to provide a conduit to channel information to Zimmerman with respect to the desirability of White Cross possibly acquiring this store. However, even in this case, Bianchi only made a recommendation to Zimmerman and left the decision to be made by Vice President Zimmerman . This instance is a far cry from clothing Bianchi with managerial authority to determine whether or not White Cross should acquire the Miller store. It is to be further noted that in the Journal-Register case, supra, under a statement of facts which have been detailed, supra, and in a situation where the so-called "district men" had a great deal more authority than Bianchi ever had, the court held that "district men" were not managerial. Reference is again made at this point to the quotation which appears, supra, in which the court explained its reasons for excluding "district men" from the appellation of managerial employees. Significantly , the court's opinion does state as follows: "The scope of the district man's authority in the area of significant management policy is limited in nature and, as the regional director aptly notes, `the discretion and initiative which these men are expected to exercise fell within relatively unimportant areas.' " See Journal-Register, supra. Based on the above I find that Bianchi was not a managerial employee. VI. ALLEGED 8(a)(l) VIOLATIONS (1) During February 1969, by telephone and by letter, Emanuel Zimmerman threatened Bianchi with discharge if he participated in union activities. (2) During February 1969 Zimmerman stated over the telephone to Bianchi that the Company would know who among its pharmacy employees were attending union meetings. By this remark Zimmerman created the impres- sion among his employees that Respondent was engaged in surveillance of the union activities of its employees. (3) Zimmerman stated over the telephone in February 1969 that the Respondent would refuse to negotiate with any union and would close its doors if the employees selected a union as their collective-bargaining representa- tive. (4) I also find that when Respondent promulgated the procedural bulletin on or about March 31, 1969, it committed an independent violation of Section 8(a)(1) of the Act. This document was ostensibly drafted to codify the job responsibilities of pharmacists-managers and assistant pharmacists-managers. Respondent sought to create an itemization of duties in language lifted from Section 2(11) in such a way as to make it appear that Bianchi was in fact a supervisor. It is not disputed that the Company was fully aware of the fact that an organizational effort was in progress in an attempt to encourage membership in a labor organization of pharmacists in February 1969. It was at this time that the first of a series of annonymous letters was sent to all pharmacists in the Pittsburgh area by Bianchi. Moffitt testified that when Emanuel Zimmerman became aware of the effort at organization then taking place he notified his attorneys to seek their advice. They came to Monroeville, conducted their own investigation, concluded that pharma- cist-managers were supervisors and could be discharged without exposing Respondent to a charge of committing unfair labor practices. As the result of this counsel, Moffitt and others prepared, drafted, and circulated to all the Company's pharmacist-managers and assistant pharmacist- managers the bulletin of March 31. The timing of the issuance of this document creates the reasonable and unmistakable inference that it was conjured up with the purpose and intention of interfering with and coercing its employees not to join a labor union. Then couple the investigation made by Respondent's labor counsel with the circularization of Emanuel Zimmerman's broadside letter sent to all his pharmacist employees on February 26, 1969, in which Respondent's Vice President warned its employees that if they joined a labor organization they would be fired for violating company policy. The conclusion is inescapable that Respondent, by the above acts, sought to nip incipient unionization in the bud by the issuance of the bulletin and thereby violated Section 8(a)(1). WHITE CROSS STORES, INC. 515 VLL PROCEDURAL ISSUES AND RULINGS ON EVIDENCE A constant bone of contention arose during the days the instant hearing was in progress. Respondent sought to adduce testimony involving the Company's practices in certain of its stores in addition to the evidence pertaining to the Braddock Avenue store. As each such effort was made the General Counsel interposed a running series of objections. For the most part the objections were addressed to the General Counsel's contention that the only matter encompassed in the complaint concerns events which it was alleged had occurred at the Braddock location. For this reason the gravamen of the General Counsel's objections revolved around the question of relevancy. I permitted certain testimony in principal part offered through the lips of Respondent Director of Personnel William Moffitt. In my opinion, evidence which exemplified certain facts concerning the general practices of the Company with regard to personnel-labor matters was germane and this evidence was admitted in order to accord Respondent the opportunity to attempt to prove a pattern of behavior. Over and beyond this line of inquiry Respondent wished to adduce testimony from certain individual pharmacist- managers who are employed in other stores operated by the Company. For example, I permitted the Respondent to introduce the testimony of the pharmacist-manager of the Altoona, Pennsylvania, store, Philip Kardon. At the end of Kardon's recital I questioned him with regard to the comparability of the Altoona store as against the Braddock facility. It seemed to me that if the Respondent were successful in satisfying me as to certain indicia of comparability, i.e.: gross volume, number of pharmacists, and number of clerical employees who were assigned to the pharmacy-that such testimony might well be relevant. At the conclusion of Kardon's testimony, it developed that Altoona was a much larger store than Braddock, had and has a regularly assigned crew of both assistant pharmacists and pharmacist-clerks and had a considerably larger volume of business than Braddock at comparable periods of time. Further, Respondent argued vigorously that he was prepared to show that Kardon not only possessed true supervisory authority but exercised it with Respondent's approval by hiring and firing employees, recommending and granting wage increases and, in other ways, he appeared to be implementing many mdicia of 2(11) authority. When Kardon's testimony was in the record the General Counsel made a motion to strike because Respondent had not satisfied the comparability yardstick urged by me. I granted the motion to stake this testimony. Upon reflection I hereby reverse my prior ruling and now permit Kardon's testimony into the record because it does throw some light on how certain of the Respondent's other stores operate with respect to the question at bar. A careful reevaluation of this testimony, within the framework of the total proceeding, convinces me that although the testimony has now been admitted it does not change the result as set forth in other places in this Decision. Respondent in his brief takes the position that Board precedent supports reference to other locations in order to determine supervisory status. Two cases were cited to me viz: Heck's Inc., 156 NLRB 760, in which the Board compared 8(a)(3)'s with department heads in out-of-state stores (156 NLRB at 64). Katz Drug, Company, 123 NLRB 1615, 1616-17, in which the Board viewed several separate store locations in determining the 2(11) status of depart- ment managers; found that the store volume affected the frequency of the exercise of supervisory functions, and further found that the store managers were supervisory within the meaning of 2(11). Respondent frequently stated during the course of the instant hearing that his client's case was being prejudiced by the exclusion of evidence concerning other stores because, in his opinion, this matter was critical to the Respondent's defense concerning both the 2(11) status of Bianchi and also had bearing on Bianchi's credibility. The Company also moved that the case be remanded to take additional testimony of this nature. I hereby deny the said motions and/or requests for remand and/or the reopening of the record. The monumen- tal record in the instant case provided Respondent with more than adequate opportunity to prove his case. The General Counsel's brief counters the argument made by Respondent and takes the position that the exclusion of testimony with respect to other stores was, in the first place, proper, and in the second place the Trial Examiner's rulings were not prejudicial. It was argued by the General Counsel that my rulings on this problem were correct because in noncomparable stores, the pharmacy manager would have a chance to exercise authority quite differently even if the said pharmacy manager was a 2(11) employee. Bianchi would not be a supervisor because the store where he was employed comprised a small pharmacy where the dollar volume did not warrant the employment of a full-time clerk. Furthermore, this would not shed light on Bianchi's authority because Bianchi worked alone. There is the further distinction that the store where there were regular clerical employees involved would not illumine the situation in the Braddock store because the Braddock store had clerical help only 10 hours a week. Therefore, evidence concerning the 2(11) status of similar employees would not be relevant to the case at bar. The Respondent's reliance on the Katz case is inapposite because of the following reasons: 1. The Katz case is an R case and not an unfair labor practice case. 2. The petition in the Katz case was for a unit of employees in three separate stores. 3. Because of point 2 above, it was necessary to consider employees in other stores, but this is not the case in the instant matter. 4. This supports the General Counsel's contention that the finding that some pharmacist-managers have 2(11) authority but others did not is not relevant or controlling. It is thus clear that the mere fact that a pharmacist at one store is a supervisor does not establish that pharmacists at other stores have the same status. The Heck's case, also extensively cited in Respondent's brief, is readily distinguishable from the case at bar for the following reasons: 1. In this case the Board considered the duties of other department heads in the same store. 2. It was noted by the Board that the 2(11)'s in question had duties similar to department heads in the store in 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD another town. It should also be noted that the employees at the other stores had been found to be 2(11)'s in the prior Board case and therefore this issue was res judicata, and this provided the ground for the Board's consideration. Besides, the Board did not rely on the other 2(11)'s as the primary reason for its conclusion. 3. The issue of comparability was raised in the Heck's case. It seems the Board would not have considered the employees in noncomparable stores. Even so, no prejudicial error was made in excluding this testimony. The erroneous exclusion of evidence is considered prejudicial only where its admission would have been so significant as to alter the disposition of the issues in the case. (Spector Freight System, Inc., 141 NLRB 1110.) "Note also that the facts in the above stores were comparable as distinguished from the facts in the case at bar." See also the following cases: 3 In further explication the Katz case involved a unit which was sought by the union representing employees of three of the employer's stores: The Board did grant such a unit. As all three stores in Des Moines, Iowa, are centrally controlled, are subject to centralized labor relations, employ the same classifications of employees under the same rates of pay and working conditions, and as they are all located in the Des Moines, Iowa, metropolitan area in close geographical proximity, we find that the multistore unit sought by the Petitioner is therefore appropriate. [123 NLRB 16161 In view of the above it seems clear that the General Counsel's position is supported by the Katz Drug Company case. In the Heck's case it was alleged that an employee was an 8(a)(3) dischargee and the Respondent claimed that he was a supervisor under Section 2(11) of the Act. Here, again, it appears that the General Counsel was correct in his argument. In addition, the Board considered comparability with other managers only as partial, and not determinative evidence. Also the Board discussed the duties of the alleged 2(11) individuals. In connection with the general problem of relevance and competence attention is called to the following: ... any legally competent evidence which, when taken alone or in connection with other evidence, tends to prove or disprove a material or controlling issue .. . and sheds any light upon or touches the issues in such a way as to enable the [fact-finder] to draw a logical and reasonable inference with respect to the matter or a principal fact in issue, is relevant. As thus defined, relevancy means the logical relation between the proposed evidence and a fact to be established. [29 Am. Jur. 2d. § 252; footnotes omitted.] ... evidence of collateral or other facts which are incapable of affording any reasonable presumption or inference as to a principal fact or matter in dispute, or evidence which is too remote, is irrelevant and inadmissible. [citation 29 Am. Jur. 2d., supra] ... as a general rule, the commission of an act cannot be proved by showing the commission of similar acts by the same person or his agents or employees at other times and under other circumstances, unless the acts are connected in some special way, indicating a relevancy beyond mere similarity as to some particulars. [29 Am. Jur. 2d. § 298; footnotes omitted.] It is to be noted that the above rule would permit evidence where what is being introduced tends to show purpose, character of occurrence under scrutiny and if it helps determine probability of future occurrences in which event the essential physical conditions must be the same and both the events must be separated only by a short interval of time . Generally speaking it is inadmissible to permit the introduction of the above kind of evidence in order to establish conditions in one place, to show that conditions elsewhere are the same, unless the showing includes a manifestation of the connection between the places. The articles below with citations from Wigmore are paraphrases of the actual material contained therein. I Section 203: Evidence of prior acts admissible to show reputation, type of character, but not to prove that the defendant did a particular act at this time. II Section 306: Prior acts are admissible to show motive , identity, if this is inseparable from the act charged. III Section 377: Wigmore -Vol. 7. Evidence is admissible to show habit, course of business, or custom, design, or system. Where a general authority to do an act is alleged, and the plaintiff relies on the defendant's having held out the third person as his agent , other instances of the plaintiff's having treated the person as agent for such an act are receivable to show a general holding-out of that person as agent. In discussing an offer of proof of contracts with others to evidence the existence, or the meaning of the contract in issue Wigmore further states: Here, obviously, though the principle remains the same, the other instances must be more marked in their similarity in order to be admissible to evidence a general plan or habit, because the element of a different personality is often so important in affecting the making of the terms of a contract that the likelihood of making a similar contract with different persons is relatively much smaller. It thus happens that the Courts are generally inclined to exclude such evidence.. . . There is merely a question in each instance of the probative value of the particular facts offered. [2 Wigmore On Evidence § 377.] VIII. CONCLUDED FINDINGS AND ANALYSIS While it is true that it is possible to find some cases on both sides of the question as to which duties performed by an individual constitute a person being regarded as a supervisor within the meaning of Section 2(11) of the Act, the following discussion of two illuminating cases has been cited by the parties: 3 See Silverwood's, 92 NLRB 1114-a representation case ; S. G. Tilden, cases may even advance the General Counsel 's point regarding Heck's for Inc. 172 NLRB No. 83, to be read in conjunction with The Southland Corp., the reason that the very issues in the cases required consideration of other 170 NLRB No. 159. Both of these cases involve joint employers. These stores and this is obviously not the case in the instant proceeding. WHITE CROSS STORES, INC. Chicago Osco Div'n. of Jewel Companies, Inc., which was cited by General Counsel and Revco D. S., Inc., which was cited by the Respondent. The Chicago Osco case, which was decided on April 29, 1969, identified by 13-RC-11742, and upon which the General Counsel places considerable reliance is clearly apposite and concerns the following facts: The employer has 75 drugstores . Forty-eight stores are self-service operations connected with food stores. Twenty- seven of the stores are "free-standing" drugstores. Two of them have no pharmacies. The union in this case seeks a unit of pharmacists. There is no issue concerning profes- sional status or the appropriateness of the unit. The disagreement between the parties concerned the following elements: 1 . Scope of the unit (geographically). '!. Inclusion of head pharmacists. 3. Inclusion of nonregistered graduate pharmacists. With respect to head pharmacists each store has a drug or store manager and assistant manager who are usually nonpharmacists . The ultimate authority for the establish- ment of the responsibility for the store operation is further discussed as follows: Each store has a head pharmacist. Because the drug license must be carried in the name of a pharmacist the head pharmacist also has the employer's power of attorney. The only employee in the store who has authority to buy narcotics is the head pharmacist. This individual must see that the pharmacy is properly stocked. The head pharmacist reports to the pharmacy division director who reports to the vice president of pharmacies (drug managers report to zone managers who report to division managers who in turn are responsible to the vice president of operations). All full-time pharmacists work 45 hours a week. The store is open 79 hours a week. There is little overlap in working hours. Al most, there are 3 pharmacists in each store but , for the most part, there are usually 2; in 13 stores, only I pharmacist is employed and this man divides his time with a part-time relief pharmacist. Purchases are made from Jewel or distributors when speed is required and under these circumstances purchases are regularly made from approved sources. Bills are paid through the central office. Orders are reviewed by drug managers, who may veto purchases. Head pharmacists may work out schedules for pharma- cists , but this is usually done by mutual convenience. Head pharmacists earn $500 to $600 a year more than the second pharmacist and this is computed on the basis of base pay. Bonuses are based on profits which are split 60 percent-40 percent. Stock clerks are sometimes assigned to the pharmacy by the drug manager and he is directed by the head pharmacist (permanent clerks are employed in high volume stores); the head pharmacist does not adjust clerks' grievances. Discipline: The vice president says that head pharmacists have 517 authority to recommend discipline . Some head pharmacists said they had no such authority. In some cases discipline was imposed based on the head pharmacist's recommendation , but only after investigation; the discipline in each case was never carried out personally by the head pharmacist. Some duties apparently appear to be within the framework of 2(11) status and are duties no one else could exercise. Based upon the ratio of supervisors to employees, the fact that there is a store level authority and responsibili- ty is placed in a store manager, the limited discretion required, the professional status of both the head pharmacist and his assistant , and the absence of authority to make effective recommendations, I find them to be nonsupervisory employees and include them in the unit . ( Eastern Camera and Photo Corp., 140 NLRB 569, 571.) The Respondent urges that the case he has cited, Revco D. S., Inc., 7-RC-5757, July 8, 1963, involves a situation analagous to the case at bar: The employer has 15 drugstores. The employer employs 27 registered pharmacists-15 "pharmacist managers" and 12 "assistant managers." Each store has 3-6 clerks. Ten stores are open 87 hours a week. The stores have a pharmacist-manager and an assistant pharmacist-manager, each of whom works on one shift. Three stores are open 93 hours a week. One has three pharmacists and two have two pharma- cists. One store is open 48 hours a week and this store employs one pharmacist. One store is open 60 hours a week and employs one pharmacist. Stores are managed from the central office. Three supervisors, each responsible for five stores are assigned for the purpose of maintaining uniform practices; each visits each one of the stores under hisjurisdiction from two to three times a week. During the rest of the time that each store is open, the pharmacist-manager or assistant manager is the only representative of management on the store premises. [Emphasis supplied.] The pharmacists-managers get $25 a week more than the other employees. During the time that each pharmacist (be he the manager or the assistant manager) is working as the only pharmacist on duty in his store, he is in sole charge of the store's operations. [Emphasis supplied.] The duties of the pharmacist-manager are as follows: Directs clerks; Stocks stores; Makes sure store is clean and properly stocked; Has the keys to the store and the combination to the safe; Is responsible for cash and merchandise; Initials corrections on the employees timecards; Alters working hours for employees and assigns overtime; 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reprimands employees and reports misconduct to higher levels; Adjusts customer complaints. The Board held that the above pharmacists-managers are supervisors within the meaning of Section 2(11) of the Act and cites as authority for this opinion the following cases: Save-On Drugs, Inc., 138 NLRB 1032, and Fanny Farmer Candy Stores, 112 NLRB 299, 301. The rationale to support the conclusion that the employees in the Revco case are supervisors is set forth as follows: To find that they are not supervisors, it is significant to note, would result in the employees working without any responsible supervisory representative of the Employer being on the premises with them during the major portion of their working hours. See the following case: Remington Rand Corporation, 141 NLRB 1052. It hardly needs discussion to indicate that the case cited by the Respondent is not apposite to the facts in the case at bar. Without extended additional discussion it is sufficient to point out that the Braddock facility is presided over by a store manager and an assistant store manager who are always present on the premises and who represent the highest authority in the store. It should also be pointed out that the case cited by the General Counsel appears to be on all "fours" with the instant matter. The crux of the matter is that I have found Vice President Emanuel Zimmerman to be an incredible witness. There- fore, his mere asseveration that Bianchi had certain clear supervisory powers and his further statement that Bianchi exercised these powers is simply contradicted by Bianchi and I believe the testimony of Bianchi and do not credit Zimmerman. Based on the facts of record it is clear that the duties and responsibilities exercised by Bianchi persuade me that Bianchi was neither a supervisor nor a managerial employee and therefore his discharge was violative of Section 8(a)(3) and (1) of the Act. Respondent operates 98 stores in several States, Pennsyl- vania, Maryland, Virginia, etc. Many of these stores consist of a store which vends many items such as shaving creme, hair preparations, toothbrushes, etc., and a pharmacy. We are here concerned with one store located on Braddock Avenue, Pittsburgh, Pennsylvania, which store sells both general merchandise and pharmaceutical materials. The store part at Braddock has a store manager, an assistant manager, approximately three clerks and about six to eight stockboys. For the period from December 1967 to June 14, 1969, the pharmacy had one pharmacist with the title of pharmacist-manager. At times when the pharmacist is not in the store-after his tour of duty has been completed and on his days off-a relief pharmacist takes his place who enjoys the title of assistant pharmacy manager. During the time critical to the instant case, from December 1967 to June 14, 1969, George Bianchi was the pharmacist manager at Respondent's Braddock Avenue, Pittsburgh, Pennsylvania, store. In his initial employment interview he was assigned to the store with the title assistant pharmacy manager in training. After a 2-week break-in period during which Tom Bishop taught him the ropes, Bianchi became the pharmacy manager. It should be noted that when he was hired his starting salary was $175 per week. This also proved to be his ending salary. The alleged change in the status from assistant manager to pharmacy manager carried a change in title, but no change in Bianchi's duties or in earnings. The sole issue in the case is the narrow one of determining whether Bianchi was either a supervisor and/or a managerial employee. This is so because Bianchi was warned in a series of letters sent to him by the Respondent on February 26, 1969, not to engage "in union" activities because this was against company policy, was disloyal and would not be tolerated because as a supervisor and/or a managerial employee he was not protected by the National Labor Relations Act. When Bianchi persisted in his efforts to organize the pharmacists in the Pittsburgh area-including many who worked in pharmacies other than those operated by Respondent-he was summarily discharged on June 14. Respondent advances an interesting and somewhat novel theory in defense of its discharge of Bianchi. It is stated that from the commencement of his employment Bianchi was always a supervisor, vested with supervisory authority which he deliberately neglected to assert. This failure to exercise the duties of a supervisor, Respondent insists, was Bianchi's calculated plan to insulate himself from discharge for organizational activity. As a nonsupervisory employee Bianchi sought to shelter himself within the protection of the Act. The General Counsel takes the position that Bianchi never was and never became a supervisor and/or a managerial employee and thus was discriminatorily discharged within Section 8(a)(3) and (1) of the Act. Respondent's position strains credulity and progressively evaporates as the facts of this case are disclosed. It is my opinion that the 1,105 page transcript and 73 exhibits proffered by the Respondent represent an attempt by its able counsel to obfuscate the record by an avalanche of irrelevant testimony. The one overriding conclusion that emerges from the welter of testimony and the exhibits is that Bianchi presided over pills but not people. CONCLUSIONS OF LAW 1. By discharging George Bianchi on June 14, 1969, and thereafter failing or refusing to reinstate him, in order to discourage union activities, Respondent has discriminated in regard to hire and tenure of his employment, in violation of Section 8(a)(3) and (1) of the Act. 2. By threatening to discharge Bianchi if he persisted in his efforts to unionize the employees of White Cross Stores, Inc., Respondent violated Section 8(a)(l) of the Act. 3. By further stating to Bianchi on the phone that Respondent would close its stores rather than deal with a labor union; that by creating the impression of surveillance the Company would know who among its employees attended labor union meetings; that by promulgating and issuing a bulletin erroneously stating that Bianchi was a supervisor and therefore was not an employee protected by the Act from being discriminated against for engaging in organizing efforts on behalf of a labor organization, and by WHITE CROSS STORES, INC. 519 other acts and conduct, Respondent engaged in independ- ent violations of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY The Recommended Order will contain the conventional provisions in cases involving findings of interference, restraint, coercion, and discriminatory discharge, in violation of Section 8(a)(1) and (3) of the Act. These will require Respondent to cease and desist from the unfair labor practices found, to offer reinstatement with backpay to the employee discriminated against, and to post a notice to that effect. In accordance with usual requirements, reinstatement shall be to the discriminatee's former or substantially equivalent position, without prejudice to his seniority and other rights or privileges. The discriminatee shall be made whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from his date of discharge (June 14, 1969), to the date of offer of reinstatement, less net earnings if any during such period, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended, in view of the nature of the unfair labor practices Respondent has engaged in, that it cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. RECOMMENDED ORDER4 Upon the foregoing findings of fact and conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, it is recommended that Respondent, White Cross Stores, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Retail, Wholesale, and Department Store Union, Local 101, AFL-CIO, or in any other labor organization of its employees by discriminating against any employee because of his relationship with the Union by discharging him. (b) Threatening to discharge any employee or threatening any other reprisal against any of our employees for seeking the assistance of a labor organization to represent the employees. (c) Threatening to discharge an employee because of his union sympathies or activities. (d) Questioning any employee concerning his union sympathies or activities. (e) Engaging in activities which create the impression that it is keeping the activities of its employees under surveillance. (f) Threatening to refuse to negotiate with any labor union which may, in the future, be designated as the collective-bargaining representative of its employees. (g) Threatening to close its doors if its employees select a labor union to represent them in collective bargaining or engaging in any other unfair labor practices as prohibited in Section 8(a)(1) and (3) of the Act. (h) Promulgating an official company bulletin at a time and in circumstances designed to thwart unionization efforts by its employees. (i) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in any other concerted activities for the purposes of collective bargain- ing or other mutual aid or protection or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer George Bianchi immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay which he may have suffered as a result of the discrimination against him in the manner set forth in the section herein entitled "The Rededy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its Braddock Avenue store, located in Pittsburgh, Pennsylvania, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's 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 it to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.6 4 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 5 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." 6 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 6, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL offer to George Bianchi immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges previously enjoyed, in accordance with the recommendations of the Trial Examiner's Decision. WE WILL notify George Bianchi if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act, as amended, after discharge from the Armed Forces. WE WILL make whole George Bianchi for any loss of pay suffered by him by reason of the discrimination practiced against him, in accordance with the recom- mendation of the Trial Examiner's Decision. WE WILL NOT threaten to discharge any employee because of his union sympathy or activities. WE WILL NOT question any employee concerning unions in a way to interfere with union activities. WE WILL NOT engage in surveillance of employee union activities nor will we create the impression that we are engaging in surveillance of the union activities of our employees. WE WILL NOT threaten to refuse to negotiate with any union which may in the future be entitled to represent our employees for the purpose of collective bargaining. WE WILL NOT threaten to close our doors if our employees select a union to represent them in collective bargaining. WE WILL NOT promulgate or issue a company bulletin at a time and in circumstances designed to interfere with and thwart unionization efforts by our employees. WE WILL NOT threaten to discharge any employee or threaten any other reprisal against any of our employees for seeking the assistance of a labor organization to represent them. WE WILL NOT threaten to discriminate against employees because of their union activities, or in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to form, join, or assist any labor organization, to bargain 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 from any and all such activities. WHITE CROSS STORES, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Penn- sylvania 15222, Telephone 412-644-2977.