Andersen Pharmacy

ANDERSEN PHARMACY 301 Andersen Pharmacy ; ' Bennett's Pharmacy ; Broadway Drug; Burlingame Drug Co.; Carlmont Pharmacy; Collins Pharmacy; Hansen's Prescription Pharma- cy; Key Pharmacy; Los Prados Pharmacy ; Medical Arts Pharmacy ; McClard's Drugs of San Mateo; Peninsula Prescription Pharmacy ; Plank's Pharma- cy and Retail Clerks Union Local No. 775,2 Retail Clerks International Association, AFL-CIO, and California Pharmaceutical Clerks,3 Party to the Contract. California Pharmaceutical Clerks and Retail Clerks Union Local No. 775, Retail Clerks International Association, AFL-CIO. Cases 20-CA-4942, 5811-1; 20-CA-4943, 5811-2; 20-CA-4944, 5811-3; 20-CA-4945, 5811-4; 20-CA-4946, 5811-5; 20-CA-4947, 5811-6; 20-CA-4948, 5811-8; 20-CA-4949, 5811-9; 20-CA-4950, 5811-10; 20-CA-4951, 5811-12; 20-CA-4952, 5811-11; 20-CA-4953, 5811-13; 20-CA-4954, 5811-14; and 20-CB-2124 December 17, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On August 7, 1970, Trial Examiner David E. Davis issued his Decision in the above-entitled proceeding, finding that Respondent Employers and Respondent Guild had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Coun- sel filed a letter and limited exceptions to the Trial Examiner's Decision. Respondent Guild filed excep- tions only. The Charging Party aid Respondent Employers filed exceptions and supporting briefs, and the latter also moved to reopen the record. 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 and briefs, the letter, and the motion, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. I Respondent Employers listed in the caption constitute the San Mateo Pharmacy Owners Association herein called Employers Association 2 Herein called Retail Clerks S Herein called Guild 4 Midwest Piping & Supply Co, Inc, 63 NLRB 1060 5 City Cab, Inc, 128 NLRB 493 187 NLRB No. 23 The Trial Examiner found on the basis of the Midwest Piping doctrine,4 and we agree, that by executing a collective-bargaining agreement with the Guild on or about May 15, 1968, Respondent Employers violated Section 8(a)(1) and (2) of the Act. The latter contend, inter alia, that Midwest Piping is "inapplicable" and that the Board's decision in City Cabs requires a finding that the aforesaid conduct was not unlawful. We find no merit in Respondent Employers' position for the following reasons: The Employers Association has on behalf of its members recognized and bargained with the Guild since 1954. On October 4, 1967, Louella Costaglio, president of the Guild,6 sent a letter to the Employers informing them that a Guild meeting scheduled for that evening could not be held "with an attendance of only 5 girls (not a quorum)." Costaglio also stated that "unless something is done on your part to bolster interest and attendance, the Guild is soon going to dissolve." (Emphasis supplied.) On October 23, 1967, Michael Aaronson, attorney for the Guild, sent the Employers a letter together with that of Costaglio and a summary of the record of attendance at six Guild meetings held in the period since February 1967.7 Aaronson wrote in part as follows: Unless the interest of the employees can be dramatically revived, and unless their attitude is drastically changed in reference to the payment of dues, and unless the employers themselves are willing to co-operate more fully in providing information regarding the names and addresses of their employees that are or should be members of the Guild . . . the only [practical] advice that I can suggest is that the [Guild] . . . take steps to dissolve.. . . In the preceding month, William E. Radcliff, business representative of the Retail Clerks, com- menced an organizational campaign. By the close of March 1968, 20 employees had signed authorization cards for the Retail Clerks.8 On January 17, 1968, Jean Bashaw, an employee at McClard's Pharmacy, was elected president of the Guild at a meeting held at the Benjamin Franklin Hotel in San Mateo. Nelcina Barlow, an employee of Collins Pharmacy, suggested that a representative of the Retail Clerks be invited to address the meeting. 6 Costagho is an employee of Medical Arts Pharmacy r The total attendance for all the meetings was 28 or an average of less than 5 per meeting 8 Radcliff testified that he was told by "the people in the stores" that the total number of unit employees therein was "between 35 and 40." Lawrence L Plagman , owner of the Burlingame Drug Store , testified that he ascertained in mid-March 1968 the number of employees totaled 44 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Costaglio expressed her opposition and, after some further discussion, the suggestion was rej ected.9 On the following day, Reed Jensen, a coowner of Medical Arts Pharmacy, telephoned Bashaw at work and told her that he heard that she wanted to "go into the Retail Clerks." Jensen also declared that if any one of his girls joined the Retail Clerks he would fire every one of them.10 A day or two after the Guild meeting, Joseph Giubbini, owner of Collins Pharmacy, told Barlow that he had heard from another employee that Barlow had taken it upon herself to bring representatives of the Retail Clerks to the meeting and that he was very angry that she had done so. Despite Barlow's denial, Giubbini pointed to two employees who were talking to each other and said, "If you merge with the Retail Clerks there will be no more of that. I will crack the whip and will crack it every minute of the day. There will be no more standing around. They will work and they will do things my way or else." The next day, Giubbinf summoned Barlow to his office where he told her that he was becoming increasingly angry about the movement to merge with the Retail Clerks and that he would discontinue his customary practice of paying extra commissions on certain items." Giubbini also told Barlow, "I wish you would quit because if you don't I'm going to make it . . . miserable for you . . . and the other girls . . . because I want . . . no organization or anyone else telling me how to run my business." 12 On February 13, 1968, the Guild notified the Employers that "pursuant to the terms of the existing contract, which will expire on May 15, 1968, the Guild intends to negotiate a new contract, and this notice is intended as a notice required to be given to you sixty . . . days prior to the expiration of the existing contract." On February 28, 1968, the Guild held another meeting at the Benjamin Franklin Hotel where a vote was taken by secret ballot on a resolution to merge with the Retail Clerks.13 The tally was 15 for and 6 against the merger, with I void ballot. By the terms of the resolution, the Retail Clerks was assigned all rights to "collective bargaining [and] all contracts." 14 On March 11 and 12, 1968, the Retail Clerks sent letters to each of the Employers, notifying them that 9 According to the credited testimony of Barlow, 21 persons were present at the meeting 10 The Trial Examiner found, and we agree , that Jensen's interrogation and threat of discharge violated Sec 8(a)(1) of the Act As conceded by the General Counsel , the "evidence does not substantiate that Jensen was an officer" of the Employers Association at the time he engaged in this conduct We therefore hold Medical Arts Pharmacy, but not the Employers Association , accountable for Jensen 's unlawful statements Accordingly, we deny as unnecessary Respondent Employers ' motion to reopen the record for the purpose of adducing evidence concerning Jensen's status in the Association in January 1968 11 On January 23, 1968, Giubbmi made an announcement to that effect and also set forth more stringent working rules the Guild had merged "into the Retail Clerks" and requesting a meeting for the purpose of negotiating a new contract. On March 20, 1968, the attorney for the Employers notified the Retail Clerks that they would not recognize that Union as the successor of the Guild and that they had a "good faith doubt" as to whether the Retail Clerks represented "an uncoerced majori- ty" of the employees. Thereafter, Costaglio and two other employees of the Medical Arts Pharmacy prepared a petition, dated March 28, 1968, and, upon securing the signatures of 23 employees, presented it to Jensen. The petition, which was captioned "To Whom It May Concern," read as follows: We, the undersigned, Pharmaceutical Clerks will conduct all bargaining and negotiations with our employers as a group. We do not want to be represented in any way by Retail Clerks. On April 19, 1968, Retail Clerks filed charges against the Employers alleging an unlawful refusal to recognize and bargain with that Union. The Employers concluded principally on the basis of the March 28, 1968, petition that the Guild represented a majority of the employees in the unit and, on April 25, 1968, entered into negotiations which, as indicated above, culminated in a collective- bargaining agreement with the Guild on May 15, 1968. Thereafter, the parties entered into Settlement Agreements requiring, inter alia, the Employers to withhold recognition from the Guild until it was certified by the Board as the representative of the employees. However, as the Employers repudiated the Settlement Agreements and reinstated the aforesaid contract about November 19, 1969, the Trial Examin- er found that both the original execution of the contract and its reinstatement constituted violations of Section 8(a)(2) and (1) of the Act by the Employers. As noted above, the Trial Examiner relied on the Midwest Piping doctrine in finding the conduct of the Employers to be unlawful. According to that well- established doctrine, an employer faced with conflict- ing claims of two or more rival unions, which give rise to a real question concerning representation, may not recognize or enter into a contract with one of these 12 The Trial Examiner found, and we agree , that Giubbim's conduct constituted violations of Sec 8(a)(l) and (3) of the Act for which Collins Pharmacy was accountable Il About 30 employees attended the meeting but Guild membership was about 22 At Costagho's insistence, four or five employees were "turned away" because they were not paid-up members and four or five other employees walked out in protest against the merger 14 Jensen was present in the lobby just outside the meeting room The Trial Examiner found, and we agree, that he engaged in surveillance of protected union activity in violation of Sec 8(a)(1) of the Act For reasons given in fn 10, supra, we hold only Medical Arts Pharmacy accountable for this conduct of Jensen ANDERSEN PHARMACY 303 unions until its right to be recognized has fully been determined under the special procedures provided in the Act. However, in City Cab, which is cited by the Employers, it was held that where there exists a collective-bargaining agreement which under the Board's contract-bar rules has an insulated penod,15 the Midwest Piping doctrine is inapplicable to conduct occuring during that period, unless there is on file at the beginning of that period a petition which raises a real question concerning representation. In a subsequent case, Hart Motor Express, 16 the Board took into account the representative status of the incumbent union during the insulated period. In that case, the Board adopted the Trial Examiner's Decision which contained the following: I am unable to believe or conclude that under any and all circumstances . . . during the last 60 days of [the] contract term, the Board intended, by its Deluxe Metal decision, to foreclose employees from then discharging [the incumbent] union as their future representative and instead to shackle them for a further 3-year term with a representa- tive that they do not want. Such indiscriminate application of Deluxe Metal would do violence to the rights guaranteed employees by Section 7 of the Act. City Cab . . . is distinguishable and inapposite .. . . What was lacking there , and [is ] present in [Hart Motor] is evidence that before the contract was executed, the incumbent union had been shorn of its authority to negotiate the new agreement in behalf of the employees involved. In the instant case , there is ample evidence that the Employers were aware that the status of the Guild as the bargaining agent of the employees was open to serious question . Thus, as early as October 1967, the Employers were informed by Guild President Costag- lio and its attorney that attendance at meetings was exceedingly poor and that the Guild was "soon going to dissolve" unless the Employers did something "to bolster interest and attendance ." The Employers also knew of the organizational campaign of the Retail Clerks . Jensen and Giubbini , who were pharmacy owners, were so concerned about the inroads made by the Retail Clerks among the employees that they engaged in coercive conduct in an effort to forestall that union from displacing the Guild as the bargain- ing agent. 15 DeLuxe Metal Furniture Company, 121 NLRB 995 16 164 NLRB 382, 384-385 17 We find merit in the General Counsel's limited exceptions with respect to the Trial Examiner's apparent oversights in Appendix A and Appendix B We shall therefore make the appropriate changes 1s Andersen Pharmacy, San Mateo, California , Bennett's Pharmacy, San Mateo, California , Broadway Drug, Burlingame, California, Although a majority of those present at the Guild meeting of February 28, 1968, voted to merge with the Retail Clerks, the Employers refused to bargain with the latter union because of its alleged good-faith doubt as to whether the Retail Clerks represented "an uncoerced majority." Yet the Employers had no doubt about the petition of March 28, 1968, which was circulated by Costaglio, a persistent opponent of the Retail Clerks who had warned the Employers that the Guild was so weak as to be on the verge of dissolution. Finally, it is significant that the Employ- ers entered into negotiations with the Guild in the face of refusal-to-bargain charges filed with the Board by the Retail Clerks. It is clear from the foregoing that the Employers knew that the very existence of the Guild was in jeopardy in October 1967 and that its members on February 28, 1968, voted to merge with the Retail Clerks which had conducted a vigorous organization- al campaign since September 1967. In view of this knowledge, the Employers could not properly arro- gate to themselves the decision to give no weight to such evidence and to give full weight to the Costaglio petition as definitive proof of the majority status of the Guild. Accordingly, we find that under the circumstances herein City Cab and Deluxe Metal are inapposite and conclude in accord with Midwest P ping that the Employers violated Section 8(a)(2) and (1) of the Act by resolving the question concerning representation in favor of the Guild and entering into a new contract with that organization. ORDER i7 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. Respondent Employers,18 their agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Recognizing California Pharmaceutical Clerks as the bargaining representative of their pharmaceuti- cal clerk employees for the purposes of collective bargaining unless and until said labor organization has been certified by the National Labor Relations Board as the exclusive representative of such employ- ees. (b) Giving effect to the labor agreement of May 15, 1968, with California Pharmaceutical Clerks, or any Burlingame Drug Co , Burlingame, California, Carlmont Pharmacy, Belmont, California, Hansen's Prescription Pharmacy, Burlingame, California, Key Pharmacy, San Bruno, California , Los Prados Pharmacy, San Mateo, California, McClard's Drugs of San Mateo, San Mateo, California , Peninsula Prescription Pharmacy, San Mateo, California, Plank's Pharmacy, Belmont, California 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD renewal or extension thereof, unless and until said labor organization has been certified by the National Labor Relations Board as the exclusive representative of such employees. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Withdraw and withhold recognition from California Pharmaceutical Clerks as the bargaining representative of their pharmaceutical clerk employ- ees for the purposes of collective bargaining unless and until said labor organization has been certified by the National Labor Relations Board as the exclusive representative of such employees. (b) Cease giving effect to the labor agreement of May 15, 1968, with California Pharmaceutical Clerks, or any renewal or extension thereof, unless and until said labor organization has been certified by the National Labor Relations Board as the exclusive representative of such employees. (c) Post at each of Respondent Employers' stores at their respective locations in California copies of the attached notice marked "Appendix A." 19 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by an authorized representative, shall be posted by each of them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereaft- er, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent Employers to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. B. Respondent Collins Pharmacy, its agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating their employees con- cerning their union activities. (b) Threatening employees with discharge because they assist or support Retail Clerks Union Local No. 775, or any other labor organization. (c) Recognizing California Pharmaceutical Clerks as the bargaining representative of its pharmaceutical clerk employees for the purposes of collective bar- gaining unless and until said labor organization has been certified by the National Labor Relations Board as the exclusive representative of such employees. 19 In the event that this 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" United States Court of Appeals (d) Giving effect to the labor agreement of May 15, 1968, with California Pharmaceutical Clerks, or any renewal or extension thereof, unless and until said labor organization has been certified by the National Labor Relations Board as the exclusive representative of such employees. (e) Requesting any employee to resign because the employee assisted or supported Local No. 775. (f) Threatening or imposing upon its employees more stringent rules and working conditions because they assist or support Local No. 775. (g) Withholding customary commissions on certain sales from employees to deter them from assisting or supporting Local No. 775. (h) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Withdraw and withhold recognition from California Pharmaceutical Clerks as the bargaining representative of its pharmaceutical clerk employees for the purposes of collective bargaining unless and until said labor organization has been certified by the National Labor Relations Board as the exclusive representative of such employees. (b) Cease giving effect to the labor agreement of May 15, 1968, with California Pharmaceutical Clerks, or any renewal or extension thereof, unless and until said labor organization has been certified by the National Labor Relations Board as the exclusive representative of such employees. (c) Reinstate the practice of paying commissions to its employees for certain items in accordance with its practice prior to January 23, 1968, and reimburse its employees for commissions lost since January 23, 1968, in the manner described in The Remedy section of the Trial Examiner's Decision. (d) Post at its San Mateo, California, store copies of the attached notice marked "Appendix B." 20 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by an authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. Enforcing an Order of the National Labor Relations Board." 20 See fn 19, supra ANDERSEN PHARMACY 305 C. Respondent Medical Arts Pharmacy, its agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating its employees concern- ing their union activities. (b) Threatening employees with discharge because they assist or support Retail Clerks Union Local No. 775, or any other labor organization. (c) Engaging in surveillance of the meetings of its employees. (d) Recognizing California Pharmaceutical Clerks as the bargaining representative of its pharmaceutical clerk employees for the purposes of collective bar- gaining unless and until said labor organization has been certified by the National Labor Relations Board as the exclusive representative of such employees. (e) Giving effect to the labor agreement of May 15, 1968, with California Pharmaceutical Clerks, or any renewal or extension thereof, unless and until said labor organization has been certified by the National Labor Relations Board as the exclusive representative of such employees. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Withdraw and withhold recognition from California Pharmaceutical Clerks as the bargaining representative of its pharmaceutical clerk employees for the purposes of collective bargaining unless and until said labor organization has been certified by the National Labor Relations Board as the exclusive representative of such employees. (b) Cease giving effect to the labor agreement of May 15, 1968, with California Pharmaceutical Clerks, or any renewal or extension thereof, unless and until said labor organization has been certified by the National Labor Relations Board as the exclusive representative of such employees. (c) Post at its San Mateo, California, store copies of the attached notice marked "Appendix C." 21 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by an authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. D. Respondent California Pharmaceutical Clerks, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Giving effect to the collective-bargaining agree- ment entered into with Respondent Employers on or about May 15, 1968, or any extension, renewal, or modification thereof. (b) Acting as the exclusive collective-bargaining representative of any of Respondent Employers' employees for the purpose of dealing with said Respondent Employers concerning wages, rates of pay, hours of employment or other conditions of employment, unless and until it be certified by the Board as the exclusive collective-bargaining repre- sentative of such employees. (c) Threatening employees with loss of jobs or attempting to cause any of Respondent Employers to discriminate against employees because said employ- ees do not become members or pay dues to California Pharmaceutical Clerks. (d) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Reimburse all past and present members dues or initiation fees paid by them on or after October 27, 1968, in the manner set forth in The Remedy section of the Trial Examiner's Decision. (b) Mail to each of its members copies of the attached notice marked "Appendix D.'122 Copies of said notice on forms provided by the Regional Director for Region 20, after being duly signed by authorized representatives of California Pharmaceuti- cal Clerks, shall be mailed immediately upon receipt thereof. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 21 See In. 19, supra. 22 See In. 19, supra. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT assist or support California Pharmaceutical Clerks. WE WILL no longer give effect to the agreement we signed on May 15, 1968, with California Pharmaceutical Clerks, or any extension, renewal, or modification of that agreement. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights to organize yourselves, to form, loin, or assist Retail Clerks Union Local No. 775, or any other labor organization that you may choose as your representative. WE WILL withdraw and withhold recognition from California Pharmaceutical Clerks, or any successor thereof, unless and until it has been certified by the National Labor Relations Board as your exclusive representative for the purposes of collective bargaining. You are all free to engage in concerted activity for your mutual aid or protection , to become or remain metribers of a labor organization, or to refuse to engage in such activities except to the extent that such rights may be affected by a lawful agreement conforming to Section 8(a)(3) of the National Labor Relations Act, as amended. ANDERSEN PHARMACY, BENNETT'S PHARMACY, BROADWAY DRUG, BURLINGAME DRUG CO., CARLMONT PHARMACY, HANSEN'S PRESCRIPTION PHARMACY, KEY PHARMACY, Los PRADOS PHARMACY, MCCLARD'S DRUGS OF SAN MATEO, PENINSULA PRESCRIPTION PHARMACY, PLANK'S PHARMACY (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, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-3197. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT assist or support California Pharmaceutical Clerks. WE WILL NOT question you concerning your activities. WE WILL NOT threaten you or impose more stringent rules and working conditions because you assist or support Retail Clerks Union Local No. 775. WE WILL NOT withhold customary commissions on certain sales from you to deter you from assisting or supporting Retail Clerks Union Local No. 775. WE WILL reinstate the practice of paying commissions to you for the sale of certain items and reimburse you for all commissions lost since January 23, 1968, together with interest at 6 percent per annum. WE WILL NOT threaten you with discharge because you assist or support Retail Clerks Union Local No. 775, or any other labor organization. WE WILL NOT request any employee to resign because the employee assisted or supported Retail Clerks Union Local No. 775. WE WILL no longer give effect to the agreement we signed on May 15, 1968, with California Pharmaceutical Clerks, or any extension, renewal, or modification of that agreement. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights to organize yourselves, to form, loin, or assist Retail Clerks Union Local No. 775, or any other labor organization that you may choose as your representative. WE WILL withdraw and withhold recognition from California Pharmaceutical Clerks, or any successor thereof, unless and until it has been certified by the National Labor Relations Board as your exclusive representative for the purposes of collective bargaining. You are all free to engage in concerted activity for your mutual aid or protection , to become or remain members of a labor organization, or to refuse to engage in such activities except to the extent that such rights may be affected by a lawful agreement conforming to Section 8(a)(3) of the National Labor Relations Act, as amended. COLLINS PHARMACY (Employer) ANDERSEN PHARMACY 307 Dated By Dated By (Representative ) (Title) (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, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-3197. APPENDIX C NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT assist or support California Pharmaceutical Clerks. WE WILL NOT question you concerning your union activities. WE WILL NOT threaten you with discharge because you assist or support Retail Clerks Union Local No. 775 or any other labor organization. WE WILL NOT engage in surveillance of your union meetings. WE WILL no longer give effect to the agreement we signed on May 15, 1968, with California Pharmaceutical Clerks, or any extension, renewal, or modification of that agreement. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights to organize yourselves and to form, join, or assist Retail Clerks Union Local No. 775, or any other labor organization that you may choose as your representative. WE WILL withdraw and withhold recognition from California Pharmaceutical Clerks or any successor thereof unless and until it has been certified by the National Labor Relations Board as your exclusive representative for the purposes of collective bargaining. You are all free to engage in concerted activity for your mutual aid or protection, to become or remain members of a labor organization, or to refuse to engage in such activities, except to the extent that such rights may be affected by a lawful agreement conforming to Section 8(a)(3) of the National Labor Relations Act, as amended. MEDICAL ARTS PHARMACY (Employer) 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, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-3197. APPENDIX D NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten you with loss of your job if you do not become a member or retain your membership in California Pharmaceutical Clerks. WE WILL NOT act as your exclusive bargaining representative in the following stores: Andersen Pharmacy, Bennett's Pharmacy, Broadway Drug, Burlingame Drug Co., Carlmont Pharmacy, Col- lins Pharmacy, Hansen's Prescription Pharmacy, Key Pharmacy, Los Prados Pharmacy, Medical Arts Pharmacy, McClard's Drugs of San Mateo, Peninsula Prescription Pharmacy, and Plank's Pharmacy, unless and until we have been certified by the National Labor Relations Board as such representative. WE WILL NOT give effect to the collective- bargaining agreement entered into on or about May 15, 1968, with the above-named stores, or to any extension or renewal or modification thereof. WE WILL NOT in any other manner interfere, restrain, or coerce you in the rights guaranteed to you by Section 7 of the Act to freely choose a bargaining representative, to become or remain a member of this labor organization, or any other labor organization, or to refuse to do any of these things except to the extent that such rights may be affected by a lawful agreement conforming to the provisions of Section 8(a)(3) of the Act. WE WILL reimburse all past and present employ- ees of the above-named stores for any dues and initiation fees paid to California Pharmaceutical Clerks for membership or retention of member- ship on or after October 27, 1969, together with interest at 6 percent per annum. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CALIFORNIA PHARMACEUTICAL CLERKS (Labor Organization) 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, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-3197. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID E. DAVIS, Trial Examiner: These proceedings under Section 10(b) of the National Labor Relations Act, as amended, herein called the Act, were heard pursuant to due notice by the Trial Examiner, at San Francisco, California, on March 31 and April 1, 1970. A consolidated complaint' issued on February 13, 1970, based on initial charges filed in behalf of Retail Clerks Union Local 775, Retail Clerks International Association, AFL-CIO, herein sometimes called Retail Clerks or Local 775, on October 28, 1969, and amended on January 22, 1970, against 13 employers who operate pharmacies in and around Burlingame, California.2 The consolidated complaint also included allegations against California Pharmaceutical Clerks, herein sometimes referred to as the Pharmaceutical Clerks or the Guild, based upon a charge filed by Local 775 on November 12, 1969, in Case 20-CB-2124. These proceedings, in addition, also involved charges filed by Local 775 against the identical individual I G C. Exh. l(eeeee). 2 The establishments and locations named in the charges and consolidated complaint are as follows Anderson Pharmacy 20-CA-5811-1 San Mateo , Calif. Baanett ' s Pharmacy 20-CA-- 5811-2 San Mateo , Calif. Broadway Drug 20-CA--5811-3 Burlingame, Calif. Burlingame Drug.Co. 20-CA-5811-4 Burlingame, Calif. Carlmont Pharmacy 20--CA-5811-5 Belmont, Calif. Collins Pharmacy 20--CA-5811- 6 San Mateo . Calif, Hansen ' s Prescription 20-CA-5811-8 Burlingame , Calif. Pharmacy Bay Pharmacy 20-CA--5811--9 San Bruno, Calif. Los Prados Pharmacy 20-CA--5811--10 San Mateo . Calif. Medical Arts Pharmacy 20-CA-5811--12 San Mateo, Calif. McClard ' s Drugs of 20--CA-5811- 11 San Mateo, Calif. San Mateo Peninsula Prescription 20-CA-5811--13 San Mateo , Calif. Pharmacy Planl.'s Pharmacy 10--CA-5811-- 14 Belmont , Calif. Respondent pharmacies on April 9, 1968, and September 16, 1968.3 A settlement agreement of the 1968 charges was entered into on May 19, 1969, and approved by the Regional Director for Region 20 of the National Labor Relations Board on May 29, 1969. By order of the said Regional Director, dated February 13, 1970, approval of the above settlement agreement was withdrawn, the cases reopened, and consolidated with the instant proceedings. Upon the entire record, including the briefs filed by the parties, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENTS The consolidated complaint, as amended at the hearing, alleges and the amended answers of Respondents4 admit that the individual Respondent-employers are, and were members of the San Mateo Pharmacy Owners Association, herein called the Association, and that the Association is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondents likewise admit specific allegations of the complaint that during the past year the Association members sold goods and products valued in excess of $500,000 and that $10,000 worth of such goods and products originated and were shipped to them from points outside the State of California. I find on the basis of the evidence adduced at the hearing that the Respondent- employers are engaged in the operation of retail pharmacies and that they have, through the Association, engaged in multiemployer collective bargaining with the Pharmaceuti- cal Clerks for approximately 15 years .5 At the outset of the hearing, Respondent-employers raised the question whether or not the Board should assert jurisdiction because the Association was not named as a party Respondent in the complaint, nor was the Associa- tion named in any of the charges. At the hearing, I ruled that the Board decision in O'Keefe Electric Co.6 was controlling and that assertion of jurisdiction was warrant- ed. I adhere to this ruling and find that Board jurisdiction J Anderson Pharmacy 20--CA--4942 San Mateo, Calif. Bennett's Pharmacy 20-CA--4943 San Mateo, Calif. Broadway Drug 20--CA- 4944 Burlingame, Calif. Burlingame Drug Co. 20--CA--4945 Burlingame, Calif. Carlmont Pharmacy 20--CA--4946 Belmont , Calif. Collins Pharmacy 20-CA--4947 San Mateo, Calif. Hansen' a Prescription Pharmac 20-CA--4948 Burlingame , Calif. y key Pharmacy 20-CA-4949 San Bruno , Calif. Los Prado Pharmacy 20--CA-4950 San Mateo, Calif. Medical Arts Pharmacy 20--CA-4951 San Mateo , Calif. McClard's Drugs of San Mateo 20--CA--4952 San Mateo , Calif. Peninsula Prescription 20-CA--4953 San Mateo , Calif. Pharmacy Plank's Pharmacy 20--CA--4954 Belmont , Calif. 4 Reference to Respondents will hereafter encompass both the employers and the Pharmaceutical Clerks 5 See testimony of Lawrence L Plagmann . It was stipulated during the course of the hearing that the individual Respondent-employers together constitute the entire membership of the Association 6 158 NLRB 434, enfd. 391 F 2d 589 (C A. 9) ANDERSEN PHARMACY 309 over the individual Respondent-employer is warranted because of his membership in the Associationj for it is the impact on interstate commerce of the entire Association, not of the individual employers , that is determinative of Board jurisdiction . Accordingly, I find that the Board should assert jurisdiction over each of the Respondent- employers and that it would effectuate the purposes of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The consolidated complaint alleges, the answer, as amended at the hearing, admits, and I find that the California Pharmaceutical Clerks, herein sometimes re- ferred to as the Guild or Pharmaceutical Clerks, and Local 775 are each labor organizations within the meaning of Section 2(5) of the Act. III. THE ISSUES 1. Did the Respondent-employers or any of them engage in unfair labor practices in violation of Section 8(a)(1) and (2) by recognizing Pharmaceutical Clerks and executing a contract containing a union security clause with that organization at a time when a bona fide question concerning representation existed? 2. Did Respondent Union engage in conduct violative of Section 8(b)(I)(A) and (2) by maintaining and enforcing its May 15, 1968, contract with Respondent-employers? 3. Did Respondent-employers, or any of them, engage in conduct violative of Section 8(a)(1) by threats, interroga- tion, surveillance, and withholding of benefits? 4. Was there a merger effectuated between Pharmaceu- tical Clerks and Local 775? IV. THE UNFAIR LABOR PRACTICES A. Preliminary Findings It is admitted by Respondents that since 1954, and at all times material herein, Respondent-employers have been members of the Association and that since 1954, and at all times material herein, the Association has recognized and bargained collectively on behalf of the employer-members with Pharmaceutical Clerks. The evidence shows that a series of collective-bargaining agreements were entered into and that the current agreements was entered into on May 15, 1968, and expires on May 15, 1971. B. Events Preceding Execution of Current Agreement On October 4, 1967, Louella Costaglio, president of the Pharmaceutical Clerks, sent a letter to employer-members of the Associations in which she informed them that a scheduled meeting for members of the Guild was attended by only five members, an insufficient number to constitute a quorum. The letter went on to say, "We have the feeling r It is clear that collectively the Respondent-employers do in fact constitute the Association 8 G.C Exh 7 9 G C Exh. 18 . There is some dispute whether Costaglio mailed this letter to the Employers 10 It shows that the total attendance for all six meetings was 28 or an that unless something is done on your part to bolster interest and attendance, the Guild is soon going to dissolve." Attached to the letter was a record of the number of employees of each employer who attended any of six regularly scheduled meetings from February 14 to October 4, 1967.10 The letter concluded with the statement, "We offer you the information and await your comments and instructions." On October 23, 1967, Michael Aaronson, attorney for the Guild, sent a letter in which he enclosed Costaglio's letter and the attendance record. (I conclude from Plagmann's testimony that he did receive this letter with the enclosures. I also conclude that Aaronson did send the letter to each Employer who was a party to the Guild agreement, I believe that Aaronson's heading of the letter clearly shows that it was forwarded to each of the employer-members of the Association.) ii Aaronson, in his letter, stated that unless the interest of the employees can be "dramatically" revived, their attitude "radically" changed with regard to payment of dues, and unless the employers cooperate more fully in providing the names and addresses of employees that are or "should be members of this Guild," he would advise dissolution of the organization. Apparently the above communications failed to obtain the desired results. However, Local 775 about this time commenced an organizational campaign among the employees of the employer-members of the Association.12 By the close of March, 1968, Local 775 had obtained signatures of employees to 20 authorization cards.13 During the period Local 775 was attempting to organize the employees of Respondent-employers, the Pharmaceuti- cal Clerks, in January 1968, at a meeting in the Benjamin Franklin Hotel in San Mateo, California, elected new officers. Jean Bashaw was elected president and immediate- ly took office. During this meeting, a request was made that a representative of Local 775 be permitted to address the membership. After some discussion, the request was denied. According to Bashaw's credited testimony, Reed Jensen, a co-owner of Medical Arts Pharmacy and secretary of the Association, called Bashaw on the telephone the next day while Bashaw was at work and said that he heard that Bashaw wanted to "go into the Retail Clerks." Bashaw replied that it was up to the girls and she didn't have to give him an account because he was not paying her salary.14 Jensen then told Bashaw that if any of his girls joined the Retail Clerks, he would fire everyone of them. Bashaw credibly testified that on February 21, 1968, she mailed a notice to all members of the Pharmaceutical Clerks that a meeting would be held at the Benjamin Franklin Hotel on February 28, 1968, at which time an amendment to the organization's bylaws would be average of less than five per meeting. ii G.C. Exh. 17. 12 William E Radcliff, business representative of Local 775, testified he commenced organizing efforts in September 1967. is Charging Party's Exh 2(a-t) i{ Bashaw was employed by McClard's Pharmacy. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proposed which would allow the Pharmaceutical Clerks to merge with Local 775.15 Subsequently, Carl E. Cohenour, in a letter dated February 27, 1968, requested Bashaw's permission to attend the February 28 meeting to address the members on the advantages of joining Local 775.16 Bashaw testified that the meeting commenced about 9 p.m. and lasted till approximately 11:30 p.m., and that it was attended by about 35 members.17 There was some question raised by attorney Aaronson prior to the meeting whether the proceedings of the meeting should be recorded on tape. A tape recorder was brought into the meeting room and taken from the meeting room. However, the proceedings were not recorded as Bashaw pointed out that no previous meeting had been recorded, and those present voted against recording the proceedings. At the meeting, after talks by two representatives of Local 775 and by Aaronson, a secret ballot was taken on a resolution to merge with Local 775. The tally was 15 in favor of the merger, 6 opposed with one void ballot. By the terms of the resolution adopted, Local 775 was assigned and assumed all rights of "collective bargaining representation, all contracts, all the assets and property and all outstanding obligations of the California Pharmaceutical Clerks Association." 18 Bashaw, in her testimonial account, acknowledged that the meeting notice mailed to members on February 21, 1968, was prepared and mailed with the assistance of representatives of Local 775. Nelcina Barlow testified that at the meeting of the Pharmaceutical Clerks on January 17, 1968, Jean Bashaw was elected president; Irene Church, secretary; and Marjorie Simmons, treasurer; that a few days prior to the meeting she spoke to her supervisor, Joseph Giubbini, owner of Collins Pharmacy, and mentioned to him that Aaronson thought it might be wise to dissolve the Guild and go into the Retail Clerks because of the small turnout at meetings. A day or two after the meeting of January 17, 1968, Giubbini told Barlow that he understood she had hauled representatives into the January 17 meeting. Asked to explain, Giubbini said that he was told by Marie Hendrix, an employee at Collins Pharmacy, that the turnout for the meeting of January 17 had been the best in years,19 and that union representatives20 were there ready to be called into the meeting. Giubbini said he was very angry that Barlow would take it upon herself to do this. Barlow replied that she had talked it over with employees in several stores and they had felt that Barlow would know whom to contact. Barlow then went to Hendrix and confirmed that Hendrix had indeed told Giubbini about the meeting. Later in the same afternoon, Barlow sought out Giubbini and again explained to him that she had not "taken it upon myself to do it," that others had approved it. Giubbini replied by pointing to two employees standing in front of the store talking to each other, and said, "If you merge with the Retail Clerks there will be no more of that. I 15 GC Exh 2 i6 Actually, this request was made orally some days earlier, the letter was a more formalized request 11 Bashaw testified that there were 40 members of the Guild at that time and about 35 attended It is clear, however, that membership and attendance was actually less I conclude from all the evidence especially Nelcina Barlow's testimony , that the membership was about 22, and that about 30 employees attended the meeting Four or five employees were not permitted into the meeting because they were not paidup members and will crack the whip and will crack it every minute of the day. There will be no more standing around. They will work and they will do things my way or else." The following day, Giubbini summoned Barlow to his office and said that the more he thought about the matter the angrier he got. He told Barlow that from then on he would stop paying extra commission on certain items as had been his custom for years. He also told Barlow that he had no legitimate reason to discharge her but preferred that she would quit. Barlow refused to quit and Giubbini continued, saying, "I wish you would quit because if you don't I'm going to make it as miserable for you as I can and the other girls, too, because I want my store run the way I want it run. I want no organization or anyone else coming in and telling me how to run my business." True to his promise, Giubbini discontinued extra commissions on January 23, 1968, in a memorandum to employees embodying more stringent working rules.21 Reed T. Jensen, co-owner of Medical Arts Pharmacy and secretary of the Association, testified that at the request of Jean Brown, one of officers of the Pharmaceutical Clerks, he rented a tape recorder and gave it to her for use at the meeting of the Pharmaceutical Clerks on the night of February 28, 1968, at the Benjamin Franklin Hotel. Jensen dropped into the Hotel about 11 p.m. and stated that he found the meeting was in progress. He left but returned about midnight. Shortly before 1 a.m., Brown returned the tape recorder to him in the lobby of the hotel. Brown then informed him that the Pharmaceutical Clerks had voted to merge with the Retail Clerks but that she was dissatisfied with the vote. Jensen further testified that the day after Bashaw was elected president of the Pharmaceutical Clerks,22 he called Bashaw on the telephone and told her that the contract with the Pharmaceutical Clerks required that all employees have to be members of the Pharmaceutical Clerks in order to continue their employment, that if they did not belong to the Pharmaceutical Clerks, "we should terminate them as employees.1123 Reed testified that the reason he called Bashaw was that he did not want the Retail Clerks in his store. Louella Costaglio, an employee of Medical Arts Pharma- cy and a former president of the Pharmaceutical Clerks, testified that with the assistance of Irene Church and Jean Brown, she prepared a document dated March 28, 1968, and circulated it among employees of the employer- members of the Association. The document was prefaced with the following legend: To Whom It May Concern: We, the undersigned, Pharmaceutical Clerks will conduct all bargaining and negotiations with our employers as a group. We do not want to be represented four employees walked out in protest Is G C Exh 14 19 According to Barlow's credited testimony, 21 persons were in attendance at the January 17, 1968 meeting. 20 Local 775 representatives 21 G C Exh 15 22 Bashaw was elected president on January 17, 1968 23 The transcript, p 185, reads "employers." It is hereby corrected to read "employees " ANDERSEN PHARMACY 311 in any way by Retail Clerks Local 775, RCIA, AFL-CIO. Costaglio testified that the legend was typed by Mary Malone, an employee of Medical Arts Pharmacy, on a typewriter at her store and circulated by Brown, Church and herself. After securing the signatures (23), Costaglio presented the document to Jensen. On February 13, 1968, the Pharmaceutical Clerks had requested that the employer-members of the Association commence negotiations for a new contract as the then existing contract was due to expire on May 15, 1968.24 Thereafter, as detailed above, the Pharmaceutical Clerks, at the special meeting called for February 28, 1968, had voted to merge with Local 775. On March II and 12, 1968, Local 775 sent letters25 to each of the employer-members of the Association, notifying them that the Pharmaceutical Clerks had merged with Local 775 and would thereafter operate under the name of Local 775, as the successor Union. It also requested a meeting to negotiate a new agreement. On March 20, 1968, attorney Norman I. Book, Jr., notified Local 775 that he represented each of the pharmacies and that they would not recognize Local 775 as the successor to the Pharmaceutical Clerks. Book also questioned whether Local 775 represented a majority of the employees and refused to meet or bargain with Local 775. On April 19, 1968, after receiving Book's letter declining to recognize and bargain with Local 775, the initial charge26 against employer-members of the Association was filed. The charges alleged violations of Sections 8(a)(1) and (5) because of the failure to accord recognition to and bargain with Local 775. According full faith and credit to the document 27 presented to Jensen by Costaglio on March 28, 1968, the Association concluded that the Pharmaceutical Clerks represented a majority of the employees in the association unit.28 Accordingly, negotiations were engaged in between representatives of the Association and the Pharmaceutical Clerks on April 25, May 8, and May 15, 1968, which culminated in the collective-bargaining agreement in evidence as General Counsel's Exhibit 7.29 C. Events After May 15, 1968, to May 19, 1969 On September 16, 1968, Local 775 filed amended charges against each of the Respondent-employers alleging viola- tions of Section 8(a)(1) and (5). The acting Regional Director for Region 20, on September 20, 1968, refused to issue a complaint on the 8(a)(5) charges and dismissed that segment of the charges.30 Thereafter on May 29, 1969,31 the Regional Director approved informal settlement agree- ments entered into between the Charging Party (Local 775) and the Respondent-employers. The Pharmaceutical Clerks, named as party to the contract , joined in the settlement agreements.32 The settlement agreements re- quired posting of notices to all employees in the Respon- dent-employers' establishments . It further required the Respondent-employers to withhold recognition from the Pharmaceutical Clerks as the exclusive representative of the employees until the Pharmaceutical Clerks was certified33 by the Board as the representative of the employees. Another item required that the Respondent -employers would not give effect to the May 15, 1968, labor agreement with the Pharmaceutical Union.34 The settlement agreements also contained a provision that the Respondent-employers would not "in any other manner" interfere with, restrain, or coerce employees in the exercise of Section 7 rights. D. Events from August 26, 1969, to Filing of Instant Charges On August 20, 1969, the Regional Director notified the parties to the settlement agreement that the provisions of the settlement agreement had been satisfactorily complied with and that the file was closed and "will be continued as a closed case so long as the present status of compliance continues. Subsequent violations may become the basis of further proceedings despite the formal closing of the case. "35 On September 26, 1969, the Pharmaceutical Clerks filed a representation petition with the Regional Director for Region 20 of the Board, seeking certification as the collective-bargaining representative of pharmaceutical clerks employed by the employer-members of the Association.36 On October 8, 1969, Local 775 filed four representation petitions for pharmaceutical clerks in the employ of Plank's Pharmacy,37 Carlmont Pharmacy,38 Los Pradas Pharmacy,39 and McClard's Drugs.40 A petition naming Broadway Drug4i was filed by Local 775 on October 23, 1969. All the foregoing representation petitions were consoli- dated by the Regional Director for hearing scheduled on October 23, 1969. During the course of the representation hearing, Phyllis A. Collins, an employee of Bennett's Pharmacy, and treasurer of the Pharmaceutical Clerks, was called as a witness by Local 775. She testified that currently the May 15, 1968, labor agreement42 was in force.43 Thereafter, the Hearing Officer conducting the consolidat- ed representation hearing read a telegram into the record in which Local 775 asked the Regional Director to set aside the settlement agreement because of alleged breaches of it. The Hearing Officer, thereupon, indefinitely postponed the representation hearing. Shortly thereafter, as detailed at the outset of this Decision, charges of unfair labor practices 24 Resp Exh 3 33 Emphasis supplied 25 G C Exhs 4 and 5 26 G C Exh l(ss) 34 G C Exh 7 55 Resp Exh 6 [Emphasis supplied.] 27 Resp. Exh 2 36 Resp Exh 1(b) 28 See tr pp 196, 203, and 204 37 Resp Exh I(c) 29 Stipulated by the parties, tr p 33 M Resp. Exh 1(d) 30 On January 3, 1969, the General Counsel, upon appeal, affirmed the 39 Resp. Exh 1(e) acting Regional Director's dismissal of the 8(a)(5) aspect of the Charges 40 Resp. Exh 1(b) 31 A consolidated complaint had been issued on February 20, 1969 41 Resp. Exh I(a) G C Exh I(aaaaa) 42 G C Exh 7 32 G C Exh 11, 12, and 13 43 Transcript of R-case hearing, Resp. Exh 1(g) 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were filed by Local 775 against the Respondent-employers named herein, and against the Pharmaceutical Clerks. E. Evidence and Conclusions as to Violations in Cases 20-CA-5811-1 through 1444 and 20-CB-2124 It is essential to initially determine whether or not Respondent-employers have in fact complied with the terms of the settlement agreements entered into on May 19, 1969, and approved by the Regional Director on May 29, 1969. If there has been a breach of the terms of the settlement agreements, setting aside of the settlement agreement is warranted and consideration must be given to the unfair labor practices charged in the series of earlier cases filed in 1968. Likewise, it would then be necessary to consider the complaint issued pursuant to the charges filed against the Pharmaceutical Clerks. Initially there is the testimony of Phyllis Collins at the representation hearing. I believe that in testifying at the representation hearing she was giving a truthful account of her understanding. Although she attempted to qualify that testimony in the instant hearing, her belated qualification, even if credited, is of no assistance to Respondents. In her original testimony at the representation hearing she testified that "We have our California Pharmaceutical Contract, which is in force right now." In response to a question for the term of the contract, she replied, "May of 1968 to May of 1971." At the instant hearing, she testified as follows: Q. (By Mr. Book) On page 16, line 10, the question was: Do you have any labor contracts which are in force. Is it your testimony at this time that in fact a labor contract was in force at the time that question was asked. MR. ORENSTEIN: I will object. The testimony speaks for itself in the RC case. TRIAL EXAMINER: I will overrule the objection. Answer the question. THE WITNESS: At that time, that was my testimony. Q. (By Mr. Book) I'm asking you now at this time your testimony today. A. No. TRIAL EXAMINER : How would you answer that question now? THE WITNESS: I would answer that question now by saying that the contract was in force except for the period when the notices were posted as per the agreement.45 On November 13, 1969, the president of the Association wrote a letter46 to the Regional Director stating that unless an agreement was signed within 5 days , and an election held within 30 days of the letter, the Association would give effect to the provisions of the collective-bargaining agreement with the Pharmaceutical Clerks. In the same vein, the attorney for the Pharmaceutical Clerks notified the Regional Director by letter dated December 8, 1969, that because of Local 775's attempt to "frustrate the election process which has not met with any resistance from the Regional Office we have no other choice but to withdraw from the Settlement Agreement as the parties have already done.47 We therefore intend to enforce the current collective-bargaining agreement we have with the Employ- ers, unless and until such time as such actions are shown to be unlawful."48 Significantly, the foregoing letters neglected to mention that the officers of the Pharmaceutical Clerks had already taken steps to enforce their agreement, for on October 27, 1969, the Pharmaceutical Clerks forwarded to all employ- ees, to all employers and to its attorney, Thesing, an announcement that they would request employers to dismiss employees who did not pay their dues as required. I note also that Alvin F. Slaight, Jr., representing the Employers at the representation hearing, told the Hearing Officer, when informed that the hearing would be adjourned to afford the Regional Director an opportunity to investigate the alleged breaches of the settlement agreement, that he was going to recommend that the Employers give effect to the 1968 collective-bargaining agreement with the Pharmaceutical Clerks. Indeed it would appear that counsel for Respondent Clerks conceded in his opening statement that the settlement agreement was repudiated by the Pharmaceuti- cal Clerks stating that "After the Retail Clerks Union withdrew from the settlement agreement and the Employ- ers withdrew from the Settlement agreement, at that point my organization withdrew from the settlement agreement also." 49 In view of the foregoing, I conclude that the Association, in behalf of its employer-members, failed to adhere to the requirements of the settlement agreement entered into by the parties on and after November 19, 1969. Clearly the settlement agreement required the Association and its employer-members to: (1) Withhold recognition from the Pharmaceutical Clerks of May 15, 1968-unless and until the Pharmaceutical Clerks was certified as the collective- bargaining representative of the employees in the appropri- ate unit. The General Counsel contends, as do the Respondents, that the appropriate unit consists of the Association. The evidence, I find, sustains this contention: The charges filed by Local 775 named the individual employer-members of the Association and not the Association itself. All of the employer-members named as individual Respondents were and are members of the Association and there are no other employer-members of the Association. As these facts were stipulated by the parties, it seems rather strange that the Association was not named as a party Respondent in the consolidated complaint. In consideration of all the facts, it seems to me that the absence of a specific charge against the Association would not foreclose the inclusion of the Association as a party Respondent in the complaint. It seems a basic proposition that the whole is equal to all its parts, and, that the converse proposition is also true, i.e., that all the parts are equal to the whole. At any rate, rather 44 Omitting 20-CA-5811-7 48 G C Exh 9 45 The terms of the settlement agreement required compliance until 49 Tr., p. 40. Allegations by the Retail Clerks Local 775 that the Pharmaceutical Clerks was certified settlement agreements had been breached hardly constitutes a withdrawal 46 G.C 8 by Local 775 from the settlement agreements 47 Emphasis supplied. ANDERSEN PHARMACY than exceed the literal language of the consolidated complaint, I shall not deem the Association, as an entity, to be a party Respondent, but shall direct my attention to the individual employer-members with the proviso that activity engaged in by the Association constitutes the action of the individual members because the Association is their duly chosen spokesman and agent. Under the above rationale, I find that when the Association repudiated the settlement agreement and reinstated its contract with the Pharmaceutical Clerks, each of the individual employer-members of the Association, the Respondent-employers, herein, violated the terms of the settlement agreement of May 29, 1969. Having so found, I find that the Regional Director was justified when, on February 13, 1970, he set aside the settlement agreements approved by him on May 29, 1969. Under long-established Board precedent, a representa- tion hearing or a scheduled Board election may be postponed when a charge is filed alleging conduct which may render the representation proceedings nugatory. It is self-evident that a party to a representation heanng or a prospective Board election cannot arrogate to itself the selection of the date of the election. Rather it is for the Board, or in this case, the Regional Director, to select the date of election with a view of fixing a time when a fair election can be conducted. To accomplish that objective, it is plain that bona fide charges must be investigated. Of necessity, the Regional Director has some discretion when confronted with unmeritonous charges that may be filed for the sole purpose of delaying an election for the selection of a collective-bargaining representative. In the instant case, it is rather clear that the charges filed by Local 775 were properly considered by the Regional Director as raising serious matters requiring proper investigation. The reaction of the Respondent-employers and the Pharmaceu- tical Clerks to the postponement of the representation heanng to permit investigation of the charges was completely unwarranted. The implication in their letters to the Regional Director that extraordinary favors were being extended to Local 775 lacks substance. Unfounded accusations of this character display an antipathy toward sound Board practices. I find, under the circumstances, that the reasons given by Respondents for renunciation of the settlement agreements and the reinstatement of the contract with the Pharmaceutical Clerks are specious and without merit. Accordingly, it is concluded that Respon- dent-employers by renunciation and reinstatement of the May 15, 1968, agreement independently violated Section 8(a)(1) and (2) of the Act. It is further found that Pharmaceutical Clerks by attempting to enforce the agreement on or about October 27, 1969, and December 8, 1969, violated Section 8(b)(1)(A) and (2) of the Act. Having found that the settlement agreement was properly set aside and that the Respondents violated the Act as alleged in the consolidated complaint, it is now necessary to consider the allegations of the consolidated complaint which refer to the charges filed in the 1968 cases. 50 If Jensen were not a co-owner of an establishment but merely an officer of the Association, his agency in behalf of all the employer- members would be clear The fact that, in addition to being an officer of F. The 1968 Charg1 as Reflected by the -Consolidated Complaint 313 As detailed above, Jensen, an officer of the Association, called Bashaw on January 18, 1968, and interrogated her concerning the details of the Pharmaceutical Clerks' meeting of January 17, 1968. During this conversation, Jensen threatened to discharge any girl that joined Local 775. I conclude that Jensen was acting in behalf of the Association and therefore was speaking in behalf of each of the employer-members of the Association. I find Jensen's conduct to be violative of Section 8(a)(1) of the Act. I conclude, under the circumstances, that each of the Respondent-employers are accountable for Jensen's con- duct and therefore I find each of them to be in violation of Section 8(a)(1) of the Act S0 Jensen admitted he was present on February 28, 1968, at the Benjamin Franklin Hotel when the Pharmaceutical Clerks conducted a meeting called to discuss a merger with Local 775. His presence at I I p.m., his return at midnight, and his interest in hearing the results of the meeting can only lead to the conclusion that he engaged in unlawful surveillance of protected union activity. Accordingly, I find that Respondent-employers, and each of them, violated Section 8(a)(l) of the Act by reason of Jensen's surveil- lance. The evidence does not establish that Giubbini was an officer of the Association. Giubbini's conduct, therefore, is not chargeable to any other of Respondent-employers. The evidence, as detailed heretofore, shows that Giubbini engaged in extended interrogation of Barlow, one of his employees, and threatened her as well as other employees with more arduous working conditions if they exercised their rights under Section 7 of the Act by joining or assisting Local 775. I find that the interrogation, threats and his request that Barlow resign, each constituted independent violations of Section 8(a)(1) of the Act for which Collins Pharmacy is accountable. I further find that Giubbini withdrew and withheld certain commissions from his employees, commencing January 23, 1968, and continuing to date, for the purpose of discouraging membership in, and adherence to Local 775. I, therefore, find that Collins Pharmacy, by Giubbini's conduct as recited above, violated Section 8(a)(1) and (3) of the Act. The evidence recited heretofore shows that in the latter part of 1967 the employees of Respondent-employers had little interest in Pharmaceutical Clerks. With the selection of Bashaw as president of the Pharmaceutical Clerks, a movement was inaugurated to merge with Local 775, and on February 28, 1968, there was a vote in favor of such a merger. Thereafter, Local 775 notified the Association and each of the employer-members of the Association, Respon- dent-employers herein, that it represented the employees and wished to engage in collective bargaining. On the strength of a petition favoring Pharmaceutical Clerks, circulated on March 28, 1968, among employees by Costaglio, and assisted by Church and Brown, which was the Association, he is a co-owner of one of the Respondent -employers, should not, thereby, result in a different conclusion as to his agency in behalf of all the employer-members. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presented to Jensen with 23 signatures, the Association opened negotiations with the Pharmaceutical Clerks and entered into the May 15, 1968, labor agreement. These facts manifest a classic situation where an employer has arrogated to itself the determination of the majority status of one of two rival labor organizations.51 Plainly, the claim of Local 775 was neither frivolous nor insubstantial. At the very least, the Association was faced with a real question concerning representation 52 Accordingly, it is found that the recognition of the Pharmaceutical Clerks and the execution of the labor agreement on May 15, 1968, containing a union shop clause with the Pharmaceutical Clerks by each of the Respondent-employers constituted a violation by each of the Respondent-employers of Section 8(a)(1) and (2) of the Act. While a finding against the Pharmaceutical Clerks by virtue of the execution of the agreement is barred by the limitations of Section 10(b) of the Act, nevertheless, the reinstatement of the agreement and the attempt to enforce the agreement on October 27, 1969, and December 8, 1969,53 are within the six-month penod of the charge filed against the Pharmaceutical Clerks.54 I find that by continuing the contract in effect, and attempting to enforce the labor agreement at a time when it had full knowledge of the rival claim of Local 775, and at a time when it was party to the settlement agreement which prohibited employer- members of the Association from recognizing it or giving effect to the contract, the Pharmaceutical Clerks were and are in violation of Section 8(b)(1)(A) and (2).55 G. Concluding Findings Counsel for Local 775 in his brief requests a bargaining order which would direct the Respondent-employers to recognize and bargain with Local 775. Reliance is placed upon (1) the vote by Pharmaceutical Clerks to merge with Local 775 on February 28, 1968, and (2) the majority status of Local 775 as exemplified by the authorization cards in evidence. While I consider that the cards56 show that Local 775 did have a showing of preference from 20 employees, the presence of a majority has not been clearly established in that evidence of the number of employees in the employ of Respondent-employers was not satisfactorily shown. More- over, the petitions filed by Local 775 do not include all the employer-members of the Association, nor the Association itself. The contention that Local 775 is a true successor-union to Pharmaceutical Clerks must also be rejected. The General Counsel, in January, 1969, declined to honor the merger vote and refused to issue a refusal to bargain complaint. I cannot second-guess the General Counsel even if I were inclined to do so. Accordingly, the request for a bargaining order is denied. 51 Midwest Piping is Supply Co, Inc, 63 NLRB 1060, While Front, Sacramento, Inc, 166 NLRB 44 52 This is not to minimize the dependence of the Pharmaceutical Clerks on employer assistance as Costaglio's and Aronson's letters of 1967 demonstrate Ss G.C Exh 9 This document by the representative of the Pharmaceutical Clerks constitutes an admission of the fact 54 Case 20-CB-2124 was filed on November 12, 1969. 55 Hart Motor Express, Inc, 164 NLRB 382. Fant Milling Co 309 U S. Counsel for the Pharmaceutical Clerks argues in his brief that the letter of October 27, 1969, is completely proper and legal if the May 15, 1968, contract is valid. He then contends that the contract is valid and therefore the complaint against the Pharmaceutical Clerks must be dismissed. Counsel fails to define his definition of "validity." While it may be true that the contract when read in a vacuum is not invalid, per se, nevertheless, when the events leading to the contract are considered in context and attention is directed to the fact that the Pharmaceutical Clerks became a party to the settlement agreement, it is self-evident that the contract lacked "validity" unless and until the precondition of the settlement agreement was met, i.e., certification of the Pharmaceutical Clerks as the collective-bargaining representative of the employees. Having failed to meet this condition, arising from a voluntary undertaking, the Pharmaceutical Clerks, like the Respondent-employers, cannot properly now proclaim the "validity" of the contract as a defense. Counsel also argues that neither the letter of October 27, 1969, nor that of December, 1969, was authorized. Even if I were to credit Phyllis Collins, that the membership criticized her for sending out one or both of these letters, I would not reverse my findings as at no time was the membership or the employers notified that the statements contained in the letters were unauthorized or withdrawn. Moreover, it is undisputed that the contract was actually reinstated, a fact sufficient by itself to support the violations of Sections 8(a)(1) and (2) and 8(b)(1)(A) and (2) that are found herein.57 Upon the basis of the above findings of fact and upon the entire record in this case, I reach the following: CONCLUSIONS OF LAW 1. The Association is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 Each of the Respondent-employers of the Associa- tion, by virtue of their membership in the Association, are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Local 775 and Pharmaceutical Clerks are labor organizations within the meaning of Section 2(5) of the Act. 4. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed them by Section 7 of the Act, by threatening employees with discharge because of their union activity and by engaging in surveillance of a meeting of employees, each of the named Respondent-employers has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. 5. By executing and maintaining the labor agreement with the Pharmaceutical Clerks on or about May 15, 1968, which contained a union security provision and at a time when there was a real question concerning representation, 350, where the United States Supreme Court said, "The Board is not precluded from dealing adequately with unfair labor practices which are related to those alleged in the charge and which grow out of them while the proceeding is pending before the Board" citing National Licorice Co, 309 U S 350 56 Charging Party's Exh 2(a-t) 57 Phyllis Collins in her revised testimony asserted that the contract was in force except for the 60-day posting penod ANDERSEN PHARMACY each of the named Respondent-employers engaged in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. 6. By repudiating the settlement agreement approved by the Regional Director on May 29, 1969, and by reinstating the labor agreement of May 15, 1968, on or about November 19, 1969, and at a time when the Pharmaceutical Clerks was not the certified bargaining representative of their employees, each of the named Respondent-employers engaged in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act. 7. By repudiating the settlement agreement of May 29, 1969, to which it was a party and by maintaining and attempting to enforced the May 15, 1968, contract containing a union-security provision on or about October 27, 1969, the Pharmaceutical Clerks engaged in unfair labor practices within the meaning of Section 8(b)(I)(A) and (2) of the Act. 8. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed them by Section 7 of the Act, by threatening employees with more arduous tasks if they assist or support Local 775 and by requesting an employee to resign because of assistance and support to Local 775, Collins Pharmacy has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. By withholding and terminating commissions to employees on about January 23, 1968, to deter assistance and support to Local 775, Collins Pharmacy has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (I) of the Act. 10. The Regional Director for Region 20 was justified in setting aside the Settlement Agreement approved by him on May 28, 1968, in Cases 20-CA-4942, 4943, 4944, 4945, 4946,4947,4948,4949,4950,4951,4952,4953,4954,4955. 11. The aforesaid unfair labor practices are unfair practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents, set forth in Section III above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate and substantial relations to trade, traffic and commerce among the several States, and tend to lead to, and have led to, labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent-employers and each of them have engaged in unfair labor practices in violation of Section 8(a)(1) and (2) of the Act, it will be recommended 315 that the Board issue the Recommended Order set forth below requiring the Respondent-employers and each of them to cease and desist from said unfair labor practices and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent-employers and each of them unlawfully recognized and executed a labor agree- ment containing a union security clause with the Pharma- ceutical Clerks on May 15, 1968, and unlawfully reinstated the aforesaid labor agreement on or about November 19, 1969, it shall be recommended that the Respondent- employers and each of them withdraw and withhold recognition from the Pharmaceutical Clerks as the exclusive representative of their pharmaceutical clerk employees and cease giving effect to the labor agreement entered into on May 15, 1968, with the Pharmaceutical Clerks, unless and until the aforesaid Pharmaceutical Clerks are certified as the exclusive collective-bargaining representative of their employees in the appropriate bargaining unit. Having found that Collins Pharmacy has engaged in independent unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, in addition to the violations of Section 8(a)(1) and (2) of the Act by virtue of its membership in the Association, it will be recommended that the Board issue the Recommended Order set forth below requiring Collins Pharmacy to cease and desist from said unfair labor practices and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Collins Pharmacy unlawfully termi- nated and withheld certain commissions from its pharma- ceutical clerks on and after January 23, 1968, it shall be recommended that it reinstate the practice of paying commissions on certain items sold by its pharmaceutical clerks and make them whole for any loss of commissions which they may have lost since January 23, 1968. Back payments shall be reimbursed with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Having found that Pharmaceutical Clerks unlawfully attempted to enforce the agreement of May 15, 1968, on October 27, 1969, and December 8, 1969, it will be recommended that the Board issue the Recommended Order set forth below recommending that the Pharmaceuti- cal Clerks cease and desist from said unfair labor practices and take certain affirmative action designed to effectuate the policy of the Act including reimbursement of all dues and initiation fees paid by any past and present employees of Respondent-employers to become or retain membership in the Pharmaceutical Clerks on or after October 27, 1969, with interest at the rate of 6 percent per annum.58 [Recommended Order omitted from publication.] 58 It was contended that there was actually no enforcement of the union-security provisions of the contract I regard this fact, even if true, as immaterial as the mere threat of enforcement of the union-security provisions constitutes unlawful coercion and is violative of the Act