Musselman's Apothecary

MUSSELMAN'S APOTHECARY Stufeld Corporation t/a Musselman's Apothecary and Retail, Wholesale Department Store Workers Un- ion, AFL-CIO. Case 4-CA-5173 January 25, 1971 DECISION AND ORDER BY MEMBERS FANNING , BROWN, AND JENKINS On October 6, 1970, Trial Examiner A. Norman Somers issued his Decision in the above-entitled pro- ceeding, 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 at- tached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in answer to the Respondent's exceptions and brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the ex- ceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and rec- ommendations of the Trial Examiner? ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Respondent, Stufeld Corporation t/a Musselman's Apothecary, Philadelphia, Pennsylva- nia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended order.' i In reviewing the testimony presented by Respondent concerning the alleged misconduct of Sokolow in handling multiple prescriptions , the Trial Examiner, in In. 16 of his Decision, infers from the testimony of Mrs. Baum- gartner that none of the alleged misconduct occurred in the month before Sokolow's discharge. We conclude, however, that it is clear Mrs. Baumgart- ner was referring in her testimony to the month prior to the hearing , rather than to a period prior to Sokolow's discharge. In our view, this discrepancy is not material to the disposition of this case as the record as a whole would not substantiate a finding that Sokolow had previously engaged in this mis- conduct, and, moreover, even if it did, we would agree with the Trial Examiner's conclusion that the discharge of Sokolow was substantially moti- vated by his role in the Union and thus violative of the Act. 2 Respondent's request for oral argument is hereby domed, as the entire record in this case, including the exceptions and briefs, adequately present the issues and positions of the parties. 105 3In footnote 22 of the Trial Examiner's Order, substitute "20" for "10" days. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A. NORMAN SOMERS, Trial Examiner: On a charge filed March 25, 1970, the General Counsel on March 31, issued a comp jt alleging that Respondent, in violation of Sec- tion 8(a 1 and (3 of the Act, had threatened to discharge and thereafter on March 3, 1970, discharged Gilbert Soko- low because of his union activity. The defense is that Res- pondent acted as it did toward Sokolow because of his misbehavior and attitude and not union activity, and that Sokolow in any event was a supervisor "and/or a manage- rial employee,' and thus hot protected by the Act. The hearing was held in Philadelphia, Pennsylvania, 1970, be- cause a portion of the testimony had not been transcribed due to a malfunctioning of the official reporter's transcrib- ing apparatus.' Theparties waived oral argument, and the General Coun- sel and: Respondent have filed briefs, which have been duly considered. On the entire record (as abridged, supra, fn. 1, but including a minor correction in the transcript as stip- ulated by the parties), and my observation of the witnesses, I hereby make the following: FINDINGS OF FACT I BUSINESS OF RESPONDENT Respondent Stufeld Corporation is a Pennsylvania cor- poration where it owns and operates a drugstore in Philadel- phia under the trade name of Musselman's Apothecary. The store's gross sales annually exceed $500,000 and its receipt of goods that originate outside of Pennsylvania , exceed $5;000 a year. It is not disputed and I find that Respondent is engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATION INVOLVED The Charging Party, Retail, Wholesale Department Store Workers Union, AFL-CIO, is a labor organization within the meaning of the Act, and so also is its Local 1099, Profes- sional Pharmacists Guild of Delaware Valley. III THE UNFAIR LABOR PRACTICES A. Issue: synoptic statement Gilbert Sokolow, a registered pharmacist, was discharged on March 3, 1970. On that day he had shown Stuart H. Feldman, president and owner of Respondent store , a news- paper article describing an interview that Sokolow had had the evening of March 2 with a newspaper reporter concern- ing a meeting held on March 1 by a recently formed union ' The official reporter informed the parties of this after May 13. The record as transcribed indicated that the omission occurred during cross- examination of Stuart H . Feldman, president of Respondent. On consent of the parties, the Trial Examiner issued an order reopening the hearing for resumption of Feldman's cross-examination. The date set for the reopened hearing had been postponed because of the illness of the Trial Examiner, and during the postponement, the General Counsel filed a motion to close the record as it stands without recalling witness Feldman . No objection being filed, on July 27, 1970, I granted the the motion to close the record and set a date for the filing of briefs. 188 NLRB No. 18 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employee pharmacists (termed the Professional Pharma- cists Guild of Delaware Valley). At that meeting, the Guild voted to affiliate with the "AFL--CIO" (i.e., the Charging Party) and nominated as its president, Sokolow (who had founded the Guild and had until then been its president pro tem). The article also noted Sokolow's description of the purposes of the Guild. At one stage, in referring to Sokolow, the article stated the name and place where Sokolow was employed. In October 1969, Feldman had admonished Sok- olow against "link[ing]" him or the store with the union by one Sol Turnoff, another retail pharmacy owner in Philadel- phia. (Turnoff is a member of the State Board of Pharmacy, and Feldman was then in difficulties before that body be- cause it disapproved of his advertising methods.) Sokolow replied he was "committed" with going on with the organiz- ing project, but that consistently with it, he would try not to 'involve" Feldman. On December 24, 1969, Feldman was in the process of discharging Sokolow because he was uncooperative toward nonprofessional help and he was con- stantly talking about the union. Feldman canceled Sokolow's discharge on obtaining from Sokolow the prom- ise, that he would be cooperative and would no longer talk at the store about the union during working time. On March 3, when Feldman discharged Sokolow after the latter showed him the newspaper article, Feldman, according to Sokolow's testimony, placed the discharge explicitly on the ground that he held Sokolow responsible for having linked the store's name with the union. Feldman's testimony was that the interchange at the time of discharge ended with a statement by Sokolow, "Let's get the record straight .... Are you firing me for union activity?" to which Feldman, as Feldman testified, replied, "I am firing you for your behavior over the 2-year period." The General Counsel's position is that the cause assigned by Respondent for discharging Sokolow, that did not relate to the union, was a pretext, but even if genuine, Sokolow's union activity was at least a contributing cause of the dis- charge. Repondent claims that Sokolow was discharged solely because of his "misbehavior" and his "attitude" and, in any event, that Sokolow was a supervisor "and/or a managerial employee." and thus outside the Act's protec- tion. B. Facts 1. Nature of relationship Feldman bought Musselman's Apothecary in December 1966. Before this he and Sokolow had been employees of the store under the prior ownership. (Sokolow, a registered pharmacist since 1958, was hired there in 1962. Feldman, a registered pharmacist since 1961, had started there in 1957, at age 29, as a clerk.) The two became friends, and before Feldman bought the store, he had spoken with Sokolow about their buying the store together, but this never mate- rialized. However, immediately before acquiring the store, Feldman told Sokolow he would raise his salary by $100. When he became owner, he gave Sokolow the raise (from $150 to $250) and said he would want Sokolow to "help him manage" the store. To telescope matters, after Sokolow's discharge, Feldman, in testifying before the State Unem- ployment Compensation Board, stated he had thought Sok- olow might become his manager but he soon found out Sokolow was not qualified to manage the store. Reflecting this disenchantment was the fact that by December 1969 or January 1970, Sokolow's salary was no higher than that of Sidney Spillerman, the second seniormost pharmacist at the store, who along with Sokolow, handled the "front counter," and who is conceded to be a rank-and-file em- ployee. Sokolow was put at the front counter in April 1969, after being in the "mail division" from December 1966. Feldman, when he bought the store, assigned Sokolow to the mail division because it had been run down under the poor handling by the prior owner. The handling of prescri tions is subdivided among three sections, which are de- scribed below .2 Respondent claims that Sokolow's functions at the mailroom were supervisory. Respondent admits Sokolow had no power to hire, fire, suspend, or assign pharmacists, or supervise the performance of phar- macists, for as Feldman indicated, pharmacists are profes- sionals and work independently. Neither did Sokolow recommend their hiring, or pass on their performance, nor were the pharmicists subject to direction or criticism by anyone other than Feldman. Feldman testified that when he assigned Sokolow in the mail department, he had stated that he wanted him to improve its procedures. The two nonpro- fessionals assisting in the mail-order work were a typist and the store's bookkeeper. Respondent acknowledges-Sokolow had no power to hire, fire, suspend, or promote them either, and acknowledges further that these nonprofessionals had other duties in the store than handling mail orders. Respon- dent states, however, that "in matters concerning the mail- room Sokolow directed them." What the direction consisted of is not specified. When the prescriptions were completed, the typist would do the typing needed for mailing the pre- scriptions out. The other would handle the mailing. So far as appears, the girls received the requisite instruction or "orders" by the particular pharmacist who filled the pre- scription. Respondent relies heavily, however, on the testi- mony of Delores Farrar, who was employed at the store from August 1967 to September 1969. She testified she con- sidered Sokolow "more or less my boss" because when she was first hired "he taught me what to do." She acknowl- edged, however, that l en she was new, she also received instructions from others concerning what to do, such as Mrs. Baumgartner, who instructed her concerning how to answer the telephone, filing, and general clerical work. Mrs. Farrar, whom Respondent put on the stand also as a witness on Sokolow's handling of nonprofessional help-a matter to be later discussed-manifested a pronounced hostility toward Sokolow. As to his giving her' orders," she avoided specifically answering whether the second pharmacist in the r The "front counter" is where prescriptions are brought in by the customer "from the street" and they are filled by two pharmacists. Beginning April 1969, the two "front counter" pharmacists were Sokolow and Spillerman (except that Feldman fills in for them as each is having his lunch ). The "mail department" fills the prescriptions that are mailed out to the customers, and since Feldman bought the store in December 1966 it has been done by two pharmacists. (Under the prior owner, the mad division had only one pharma- cist. He filled prescriptions that were compounded , while the prescriptions for brandname medicines manufactured by pharmaceutical companies, were filled by nonprofessionals in the person of the prior owner's wife or other clerical help. Feldman changed this to require all prescriptions-whether compounded or calling for medicines made by pharmaceutical companies, to be filled by a pharmacist . Under that change, there have been two pharma- cists filling prescriptions for mad orders.) From December 1966, the two pharmacists handling the mail orders were Sokolow and the juniormost pharmacist in the store. When Sokolow was transferred from there to the front counter, he was replaced by pharmacist Leon Weisaberger. The other pharmacist in the mad department has been Julian Fine , who was hired about April 1969 (after another junior pharmacist had left). The "pick up" area, which is the third subdivision, is when the prescrip- tions are phoned in. During Sokolow's tenure, he filled the "pick up" pre- scriptions in addition to being one of the two pharmacists in the other two areas, i.e., the mail division from December 1966 to April 1969 , and from then on until his discharge, as "front counter" pharmacist. MUSSELMAN'S APOTHECARY mail division, too, did not give her "orders" in respect to the prescriptions that he filled. She added, however, that when some question arose, it was Sokolow that she turned to because he was the "boss." The question, then, was who was her "boss" during her last 5 months, beginning April 1969, when Sokolow was transferred to the "front counter" and replaced by Weissberger at the mail-order division (supra, fn. 2). Mrs. Farrar, in her answers, praised Weissberger as "nicer" and having done "a better job" than Sokolow. She finally acknowledged that however more highly she thout of Weissberger's performance, "they were the same kind of orders" she received from Weissberger as she had received from Sokolow. There is no claim that Weissberger's func- tion as successor to Sokolow in the mail room was other than that of a rank-and-file employee . Additionally, since Sokolow was no longer filling mail-order prescriptions for the last 11 months of his employment , that work, whatever its characterization, is mooted so far as Sokolow is con- cerned. However, Respondent claims that the period beginning December 1966, in which Sokolow performed at the mail- room is interwoven with his general functions of "helping manage" the store. That is to say, that Feldman had as- signed Sokolow in the mailroom to work out procedures that would improve performance in that department over that which prevailed under the store's prior ownership. What that new procedure consisted of other than that which Feldman himself instituted, in having all prescriptions, whatever their character, filled by pharmacists, thus calling for two pharmacists instead of one at the mail -order func- tion (supra, fn. 2), does not appear. The only specifics that appear is Feldman's own testimony in explaining to Soko- low, who had demurred to his being sent to the mailroom, that he wanted him there as a "trouble shooter ." Feldman gave a comparable explanation for his putting Sokolow in tie front counter in April 1969. He stated that the new location (on Walnut Street), had a greater volume of trade coming in "from the street," thus calling for "more acuity and more experience ... to handle the work more proficient- 1y at the [front counter]," and consequently Sokolow ` would be more valuable working in the front of the store than in the mail room." However, S illerman, secondmost in seniority to Sokolow, was in the Trront counter also, and as stated, beginning with the last 3 or 4 months before Sokolow's discharge, their salaries were the same.' Respondent, however, states that Sokolow had other functions, which gave him a status as either supervisor or "managerial employee" or "executive employee '-a char- acterization which Feldman expressed throughout his ref- erence to Sokolow during his testimony. Feldman testified that "my interest was, sir , at the time of the purchase of the store, that he would be an executive person over and above the other employees and that he would help to share the responsibility of the actual in anage- ment of the store with me" and added that although "after a period of time lapsed that I was disappointed with his performance that [he] never relieved him of any of the re- 3 Feldman testified on direct that Sokolow's salary, when he was dis- charged, was $280 a week, and that this was the highest of any employee On cross, when asked what Spillerman's salary was, Feldman replied to this in terms of the hourly rate, even though the pharmacists are paid by a weekly salary. He testified Spillerman's hourly rate was $5 .50. Since the workweek for each was 51 hours, Spillerman's salary thus was the same as Sokolow's. Despite this, Feldman testified he still could not say what Spillerman 's week- ly salary was. The arithmetic total was finally confirmed for us by Spillerman himself. He testified it was $281 weekly . Respondent's brief, somewhat in- comprehensibly, still states Sokolow had the highest salary of anyone in the store. 107 spponsibilities or of a position which he enjoyed which was different from that of other employees." The differences consisted of the following: a. Appearance of Sokolow's name on certain papers Holmes Protective Service: About a month after Feldman bought the store, he subscribed to an alarm service, in which he named Sokolow as the person to be called in the event of an emergency if Feldman could not be reached. Inspection Reports: Respondent produced two documents showing Sokolow had signed reports certifying to the in- jection made by two governmental authorities. One was the inspection by the City's Bureau of Weights and Meas- ures. On December 26, 1967, Sokolow, under the designa- tion "Owner or Agent in Charge," certified that the inspection was made on that day of the apothecary scales, weights, and measures. The other was the notice of inspec- tion by the State Department of Health's "Behavioral Prob- lems and Drug Control." Sokolow, on August 1, 1969, signed the notice certifying to the inspection during the store's new location pursuant to the State's Drug, Device, and Cosmetic Act. Though Sokolow averred that the other pharmacists had signed such reports, the evidence indicates that there had been no inspections of that kind other than the ones specified on their respective dates. It is not alto- gether clear whether no other pharmacist in the store could have signed them, but it will be assumed that this was the kind of inspection that only Sokolow could sign. b. Other alleged managerial attributes of Sokolow As to what else made Sokolow a managerial employee, Feldman stressed the following : (i) Sokolow had a key to the store. Pharmacist Spillerman testified he too had one. It was stressed that Sokolow was responsible for opening the store in the morning. He had no authority to close it, and since Sokolow's discharge, Mrs. Ungar, the cashier of the store has on occasion opened the store ; (ii) Feldman testified that "whenever a new employee was hired, I (Feldman) general- ly discussed the employee's performance with Sokolow, and I valued his opinion in that respect," and "on several occa- sions he (Sokolow) interviewed applicants for jobs [which] ranged from maintenance personnel to clerical to pharma- cists." The only evidence to that effect is Sokolow's testimo- ny that shortly after Feldman bought the store, Feldman after interviewing a pharmacist, told Sokolow, "He seems like a nice young fellow, why don't you talk to him and see what you think of him." whereupon Sokolow did so and said to Feldman he agreed with him. All three of Respondent's employee witnesses had been hired after Feldman acquired the store. They are pharmacist Julian Fine (su ra, fn. 2), Mrs. Farrar (who had testified she re- garded Sokolow as her "boss" when he had been in the mailroom) and Mrs. Baumgartner, who had broken in Mrs. Farrar in the general clerical work, when Mrs. Farrar was hired. Respondent never sought to elicit from any of its employee witnesses the suggestion that they had been inter- viewed by anyone other than Feldman himself, when they were hired. Sokolow's testimony is credited that except for the young pharmacist hired in 1966 or early 1967, he had never interviewed any applicant, professional or nonprofes- sional, or been asked by Feldman to do so." 4 Respondent bore down on the claim that Sokolow had hired a mainte- nance man by the name of Wade What it came down to was that at the old Continued 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (iii) Feldman testified that when he was not in the store Sokolow took over. Feldman, however, was virtually con- stantly in the store . The specific instance was elicited by Respondent from Sokolow. In December 1966, when Feld- man took over the store, Sokolow gave him a pair of theatre tickets. Feldman asked, "How can I take off when I've just bought the store," and Sokolow, eager to have Feldman see the show, assured Feldman, "Don t worry, everything will be all right." As to the rare occasions in which Feldman was not in the store, Pharmacist Spillerman testified that since Sokolow was a senior pharmacist (as Spillerman is now) he thought of Sokolow as "acting boss." (In the later described incident of December 1969, Feldman himself described Sokolow's functions as that of the "senior pharmacist"). (iv) Feldman insisted that there was no facet of the bus- iness in which he had not confided to Sokolow . In that connection, he stressed that Sokolow had the combination to the safe. But so too did Spillerman. Feldman also testified that when the store changed location, he showed the archi- tectural plans only to Sokolow . (Feldman had made plans entirely on his own, without consultation with Sokolow con- cerning the layout. He showed Sokolow the blueprints and asked him whether he liked them.) Feldman also testified that in January 1970, when he publicized the new price structure, Sokolow had asked him what the markup was on each item, and that Feldman answered Sokolow's question because he "valued Sokolow's opinions on these things." Feldman also testified that he had conferred with Sokolow on the design for stationery and labels in the store, and tactics to be employed in our general merchandising ap- proach concerning unusual source of obtaining merchan- dise," because "I have thought that perhaps in the future he would have some role in the purchase of the materials." This thought was something of a mirage, since during Sokolow's 3-1/4 ears under Feldman, the only time Sokolow pur- chased supplies for Respondent was in 1966 when he bought a shipment of mailing boxes . Nor did Sokolow ever pledge the credit of the store. Some indication of how Feldman, as Respondent now claims, confided with Sokolow "regarding the financial structure" of the store and had made him privy to "every intimate detail of the financial structure of the business' appears in the fact that among the delinquencies imputed to Sokolow as a basis for discharging him was the belief, based on admittedly circumstantial evidence, that he must have pried into the store's payroll records during some peri- od after he organized the Pharmacists Guild. (v) Still another basis for the claim that Sokolow was "managerial" was that though Sokolow worked 51 hours a week, like the other pharmacists, he had privileges the oth- ers had not, such as, for example , a longer lunch hour than the others. At the same time, Feldman claimed the long lunch hours were among Sokolow's delinquencies account- ing for his discharge. Feldman additionally claimed that he had given Sokolow a longer vacation than the other employ- ees and that when Sokolow was in the hospital in 1968 as a result of a back injury, he had several weeks of sick leave with pay. There was no indication that was an aspect of his function in the store as distinguished from a personal act of location the floor one morning had become flooded. At Feldman's suggestion that he get some one to mop it up, Sokolow called on Wade who was then employed at a nearby bar, whereupon he paid Wade out of petty cash for cleaning the floor. When this occurred again, during a snowstorm, Sokolow called Wade in to shovel the snow. However, when Wade became a regular employee of the store it was Feldman who hired him Pharmacist Weissber- ger testified that he too had taken on a nonprofessional (a typist) for tempo- rary work during an emergency. generosity to Sokolow. Feldman further testified that Soko- Iow was exempted from performing "menial" tasks, more specifically that he had been relieved of doing inventory work. The evidence indicates he was relieved of this in consequence of his back injury for which he had undergone surgery in 1968. 2. Conclusions concerning claim that Sokolow was a supervisor or a managerial employee a. Sokolow as alleged supervisor It is clear that Sokolow had no supervisory authority within the meaning of Section 2(11) of the Act . Sokolow had no power "to hire, transfer, supervise, lay off, recall, pro- mote, discharge, assign, reward or discipline other employ- ees, or responsibility to direct them, or to adjust their grievances or effectively to recommend such action" or if he had any "authority" at all, it was his routine one, as "senior pharmacist" and in all instances depending on the authori- zation of Feldman, the owner.5 b. Whether Sokolow was a "managerial employee" and whether even if he were so he was nevertheless protected by the Act Nor was Sokolow's function that of either a "managerial" or "executive" employee. The basic test as stated in Retail Clerks International Association v. N.L.R.B., 366 F.2d 642, 644-645,6 cert. denied 386 U.S. 1017, subject, is twofold. The first is whether the employee "is so closely related to or aligned with the management" as to "present a conflict of interest between the employee and the workers." The sec- ond is whether the employee determine[s] and effectuate[s] an employee's policy ... and ha[s] discretion in the perform- ance of [his] job, but not if the discretion must conform to an employer's established policy." The court cited as illustrative of the first "employment interviewers who have authority in hiring (citing New England Telephone, 90 NLRB 639), or timekeepers and expediters" (citing Bendix Aviation Corp., 47 NLRB 43). In that connection, the Court cited the kind of function which is not "managerial"-such as "an office manager and record keeper who has no confidential informa- tion about other employees" (citing Burke Brewery, Inc., 54 NLRB 1061). This is to be compared with Sokolow's case, where the belief that he had probably seen the payroll re- cords is relied on by Respondent as an aspect of misbehav- ior culminating in Sokolow's discharge. The second is where an employee, even if called a "manager," sets prices but under the policy set by the employer. Sokolow neither set prices nor formulated policies, but even if he did, the record abounds in the showing, derived from Feldman's own testi- s As applied to pharmacists , the Board in Lane Drug Co., 160 NLRB 1147, held that a pharmacist endowed with the title "chief pharmacist " was not a supervisor even though , contrary to Sokolow in the instant case, the chief pharmacist was under a superior different from those of the other pharma- cists, worked less hours and not on Sunday, as the others did, reviewed merchandise and drug levels, and requisitioned drugs. Walgreen Louisiana Co., 182 NLRB No. 79, illustrates the kind of authority which vests a pharma- cist with supervisory power . The pharmacists, which were there held to be supervisors, were in sole charge of the store for substantial periods (ranging from 3 to 16 hours a week), the assigned jobs, supervised and counseled employees, interviewed and rated job applicants , had authority to approve special and employee discounts, and approve and sign payrolls. 6 In a unanimous opinion by then Circuit Judge (now U.S Chief Justice) Burger. Cited and applied in Illinois Journal Register, Inc. v. N.L.R.B, 412 F.2d 47 (C.A. 7); see also Westinghouse Elec. Corp. v. N.L. R. B., 424 F.2d 1151 (C.A. 7) MUSSELMAN'S APOTHECARY mon , that it was Feldman alone who formulated policy, and Sokolow even if he set prices, as he did not, would still have been completely subject to Feldman's direction on these matters. Sokolow's function did not fall into either category and so he was not a "managerial" employee. Even if he could conceivably have been regarded as falling in that category, it would not have been the answer to whether he has the protections of the Act, so as to be entitled to redress under Section 8(a)(3) and (1) for discharge or other discrimination because of union activity. The Board has so held in its recent decision in North Arkansas Electric Cooperative, Inc., 185 NLRB No. 83. This was on remand from the Eighth Circuit, 412 F.2d 324, 328, where the court had decided (contrary to the Board) that the dischargee was a "manage- rial employee" within the meaning of the Board's polic establishing that classification, and accordingly, whether hi y s right to redress for a discharge because of union activity hinged on whether he nevertheless enjoyed the protection of the Act. The Board held that the complainant 7s status as a managerial employee did not deprive him of the protection of the Act. The Board noted that it had established the category of "managerial employee" in determining whether certain individuals, although employees, nevertheless have that close a relationship to management as to exclude them from a bargaining unit. The Board in the North Arkansas case noted that the term it thus evolved in representation cases was not precisely defined because of the "difficult process which we face constantly in evaluating `community of interest' in many kinds of unit determinations." The Board noted that the touchstone, "community of interest," as used in representa- tion cases, is not completely applicable in an unfair labor practice case involving reprisal for engaging in union activi- ty. The Board indicated that in such a situation, a distinc- tion is drawn between the kind of community of interest involved. The Board stated: An employee may not have the requisite community of interest with other employees to be included with them in a proposed unit, and yet clearly be an employee entitled to the protection of the Act as a Section 2(3) "employee." On the other hand, some persons we have traditionally excluded as "managerial' might more ac- curately have been termed "employers" within the defi- nition of Section 2(2), which defines employers as including "any person acting as an agent of an employ- er." The Board noted that in "this initial consideration" of such an issue, it would not attempt "an inflexible compre- hensive definition," but it deemed it relevant "to focus our attention upon whether the employee here had either real or apparent authority to speak as an `employer' in a labor relations or employee relations context. The Board while noting that the complainant there had many functions which were different from the ordinary employee, observed, however, that "there is nothing in the record to suggest that he participated in the formulation, determination, or effec- tuation of policy with respect to employee relations matters, " (emphasis the Board's) or "that his status in the [employer's] organization was such as to lead any em loyee reasonably to believe that Lenox (the complainant had substantial responsibilities in this area, so that views which he might express would be taken as a reflection of the considered position of the Cooperative (the employer)." The Board further noted that ... there is nothing in this record to suggest an inconsis- tency or conflict of interest between Lenox's proper performance of his job and the implementation of his 109 right to engage in or refrain from engaging in concerted activit . The Boar accordingly held that the employee there en- joyed the protections of the Act and his discharge for union activity was a violation of Section 8(aX3) and (1) of the Act for which a remedial order was called for. In the case at bar, the union involved consisted only of employee pharmacists. The "community of interest" between Sokolow and his fel- low employee pharmacists was such as to entitle him to be included in a bargaining unit of employee pharmacists. But even if it were otherwise, then here as in the North Arkansas case, there was not the remotest basis for his fellow pharma- cists-or any other employee for that matter-thinking that he spoke for Feldman in labor relations matters . (The narra- tive of events will indeed demonstrate the contrary.) The conclusion is that Sokolow was not a supervisor but an employee. It is further found that he was not a "manage- rial employee," but even if he could be considered such, his functions fell within that of an employee as defined in Sec- tion 2(3) of the Act rather than that of an employer as defined in Section 2(2) of the Act. C. The Events Culminating in the Discharge 1. Preliminary observation Feldman's talk with Sokolow, beginning with the time in October 1969 when he admonished Sokolow not to "link" the store with the Union and ending March 3, when he discharged Sokolow, after being shown the newspaper arti- cle reporting the interview with Sokolow concerning his nomination as president of the union and stating his name and place of employment, comes rather close to being direct evidence that Sokolow's role in the Union contributed to the discharge, whatever other reasons Feldman may have had for discharging him. Though Feldman in the concluding words of their collo- quy on March 3, under Feldman's version, said it was be- cause of Sokolow's "behavior" over the last 2 years, Respondent admits that the first "confrontation" was in August 1969. This, to be sure, was before the Guild was founded, or in any event before Feldman learned of it. 2. The incident in August The August confrontation occurred when Feldman be- came exasperated with the "untelligible" response of Soko- low to cashier Ungar's questions , in which four times in the course of 15 minutes she asked him why a prescription for which a customer had been waiting had not been filled. After the question was asked of Sokolow the fourth time, Feldman came to the counter and asked Sokolow, "How would you like to have two weeks off and sever your rela- tions with the firm?" Sokolow, as Feldman testified, asked "Am I doing my job," to which Feldman retorted, "You may be doing your job but I don't like your attitude." The two then had a private session in Feldman's office at Sokolow's request. Their versions agree that the conversa- tion ended with Feldman apologizing over his outburst to Sokolow in the presence of employees and customers, and with a mutual exchange of views concerning how each could improve his behavior. Feldman told Sokolow he had been annoyed by Sokolow's "attitude." However , he was recep- tive to Sokolow's comments on how Feldman's demeanor toward employees could stand improvement. (Sokolow cit- ed as an example Feldman's failure on arriving at the store to greet Spillerman, the secondmost senior pharmacist.) 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Their testimonies diverge over the reason Sokolow gave for the delay over filling the prescription. Sokolow testified that in all four instances cashier Ungar (who was also the recep- tionist and to whom waiting customers make their com- plaints), asked him what was holding up the prescription, and that Sokolow replied that it needed the doctor 's authori- zation, but in all these calls he had gotten a busy signal. Sokolow also testified that in the talk they had in rivate, Sokolow explained this to Feldman , whereupon Feldman apologized. Feldman testified Sokolow made no such ex ppla- nation either at the front counter or in their private talk. I must state that at the hearing, Sokolow, over a matter which has since turned out to be not material but which I deemed relevant at the time (specifically, whether other pharmacists also signed inspection reports of the character previously discussed), Sokolow did indeed respond in an equivocal manner. If that is a fair sample of Sokolow's style, he may well have given Mrs. Ungar some hard moments over what was holding up that prescri tion . Mrs. Ungar did not testify. She was described as a middleaged somewhat fretful wom- an whose problems are aggravated by her heavy responsibil- ities in handling cash and mollifying customers. Feldman testified he observed the interchange between Sokolow and Mrs. Ungar for some time . He also testified he heard it throughout all the four times Mrs. Ungar made her inquiries of Sokolow. While it seems unlikely that Feldman actually heard it, he saw enough to have impelled him to come to the front counter to ask what was going on or as Sokolow quoted Feldman, to have asked Sokolow whether "we're playing games here." I am also satisfied that at the front counter Sokolow's answer was sufficiently enigmatic to have provoked Feldman's outburst about which he later apologized to Sokolow. I am, however, persuaded that in the conversation in Feldman's office, Sokolow for the first time made clear what in the front of the store he had shrouded in mystery-that he had indeed been calling the doctor but to no avail because the wire was busy. In any event, this episode achieved finality in the hand- shake in Feldman's office, and, so far as appears was not again alluded to even in the December 24 encounter in which Feldman first discharged and then canceled his dis- charge of Sokolow. 3. The discussion in October concerning Sokolow's role in the Union In between the August and December encounter, there was the one in October. This concededly involved only the union or Guild. Sokolow had by then already formed the Guild and was soliciting membership in it among his fellow F harmacists. Some time in October, Feldman received a call rom Drugstore Owner Turnoff, and immediatedly af- terwards he called Sokolow to his office and described the conversation to him. Sokolow's and Feldman's versions of Turnoff's talk with Feldman over the telephone were sub- stantially similar. In substance, Turnoff informed Feldman that a union of employee pharmacists was being organized and Turnoff had told Feldman in no uncertain terms that he was opposed to it. The reason for Feldman's concern was that Turnoff, as stated, is a member of the State Board of Pharmacy, and he had the day before actually appeared before that State board, in Harrisburg, under charges con- cerning his advertising methods.' Sokolow in his version, 7 Feldman explained that the members of the state board consisted of owners of small retail drugstores of a "conventional type, operated by one said Feldman quoted Turnoff as having said that "if that man [i.e., Sokolow] worked for me you know what I would do." Feldman's version was that Turnoff, in that call, in- formed him that two of his employees, Spillerman and Sok- olow, were forming a union and that he responded, "I'm very much surprised. There both satisfactory employees," and that he "could not even fathom, you know, that they would be involved in union activity without me knowing about it, particularly since Mr. Sokolow and I have such close relationship." Feldman, as earlier stated, then imme- diately called Sokolow into his office and recounted to Sok- olow his conversation with Turnoff. Feldman testified that Sokolow replied "that it was true, that he (Sokolow) was forming a guild or a union,"-which indicates that Turnoff, in his call to Feldman, focused his attention on Sokolow, if indeed Turnoff mentioned Spillerman at all. Feldman fur- ther testified that he asked Sokolow why he had never told him about it, and that Sokolow replied "he didn't think that I would be interested." Feldman also testified he told Soko- low "I thought that I should have been told about it since pressure was now being brought upon me with regard to this formation of the union by the Board of Pharmacy." Feld- man continued, "I expressed to Gilbert the concern at that point that these would possibly exert some pressure on both Gilbert Sokolow and myself, knowing the past history of my position with them, now that this situation came to the fore . that Mr. Turnoff and the Board of Pharmacy, or Mr. Turnoff singly, with whatever powers he had, was trying to interfere with Mr. Sokolow's rights or anybody's rights." Feldman did not deny and indeed partially confirmed Sokolow's testimony, here credited, that in that conversa- tion Feldman said that he "didn't want the store's name linked with the union because of this pressure that Mr. Turnoff had mentioned," whereupon Sokolow said he in- formed Feldman that "there were many men in the city who were becoming interested. I [Sokolow] was committed to them and could not stop my guild activities nor did I choose to, but that I would try not to involve the store in the Guild."s Feldman at this stage stated he would discuss the matter with his attorney. Feldman testified that on that day he did consult with counsel and added that Sokolow both on that day and several days later "inquired of me as to what [Attor- ney] Linsenberg's findings were in the matter," but that "the matter never went any further than that." This somewhat cryptic response would indicate that as of that time at least, there was no thought that Sokolow was either a "supervisor" or a "managerial employee" or "executive em loyee," as belatedly claimed after Sokolow's discharge. Had it been otherwise, then Feldman would necessarily have challenged Sokolow's right to engage in that activity in view of the status Respondent now imputes to Sokolow. This bears not only on Sokolow's status as already passed upon but has some bearing on the credibility of Feldman's testimony. pharmacist or perhaps one other employee." Feldman testified the State board "has never been very kindly towards me since we have a large prescrip- tion operation," and as a result, many of the pharmacists are jealous of my operation, since we're extremely competitive price-wise and we do a lot of business .... So I find myself . . . usually harassed anytime I do any type of advertising whether it be legal or questionable ; and I'm subjected to more inspections and more pressures than the average store. In answer to the Trial Examiner's question to Sokolow of what he was conveying by his assurance that he would try not to "involve the store," Sokolow explained that in view of the pressure from Turnoff, "I was, of course, worried for him and for the business and I thought that in some way I could stop this pressure. I didn't know exactly how-if there was a way that I could, I would be glad to, if it would not mean my giving up my guild activities on behalf of the men." MUSSELMAN'S APOTHECARY 4. Discharge of Sokolow on December 24 and its cancellation the same day Toward noon of December 24, Feldman called Sokolow into his office and told him he was discharged. Sokolow testified: Well, I said to him "Why. Is it because of my union activities" and he said, "Yes, that and other things." Sokolow testified that he asked whether "there [was] anything wrong with [his] work," and Feldman after speak- ing in highest praise of his competence as a pharmacist in which he mentioned that Sokolow did the work of two men (supra, fn. 2), branded Sokolow as "a disruptive force," since he "was always talking about the union," and that "the two other pharmacists, who did not join [Fine and Weissbergerl were the ones who seemed to be disturbed by this.." Feldman told Sokolow, in addition, that he was uncooperative to the nonprofessional employees, most spe- cifically Mrs. Ungar, the cashier, who because of her job in which "she was under constant pressure" called for efforts by the others to try to make her job easier , yet sokolow was "more rude to Mrs. Ungar than anyone else."10 Sokolow further quoted Feldman as saying that "he was opposed to unions,' that he "thought that a union or our Guild would only hurt him and hurt is business ," and that "unions only allowed employees to extort money from employers." Soko- low further testified that Feldman said to him that Sokolow was an "unhappy" employee and Sokolow said he was not unhappy, but that even if he was, then as long as he was doing his work that was no reason to discharge him, and that Feldman agreed with that observation . Sokolow prom- ised he would no longer talk about the union at work and further that he would be cooperative . Feldman said he wanted to do the fair thing, that he was not sure that firing him at the time was fair, and that he was going to give it more consideration. (Feldman at that time was indeed upset and told Sokolow that he was near tears.) Later that af- ternoon, toward closing time, he called Sokolow in again, saying it would not have been fair to discharge him. Feldman testified substantially to the same effect but with a reverse emphasis. Feldman testified that what pro- voke him before he called Sokolow the first time on Decem- ber 24, was that one employee reported to him that Sokolow had been "berating" Feldman for having purchased a new car, despite business being so bad (albeit, in previous in- stances, as Feldman testified, Sokolow had told the employ- ' Spillerman, along with Sokolow joined the Guild from the outset. Soko- low, from the time he founded the Guild in early fall of 1969, solicited the membership of Weissberger and Fine , and although they first showed interest they finally rejected Sokolow's overtures. Fine, though testifying for Respon- dent concerning other matters, was not asked about Sokolow's manner of soliciting him for the Union or his reaction thereto . Weissberger testified that Sokolow started by compiling a list of pharmacists in the Delaware Valley area and asked if he knew of anyone who would be interested . Weissberger testified that Sokolow, after he compiled the list, would ask Weissberger if he would attend the next meeting, and he would call attention to newspaper coverage of settlements of contracts of other unions , such as for example, plumbers or electricians, and compare their wages with those of pharmacists. Weissberger testified he said he was "not interested," but Sokolow "contin- ue[d] to discuss this matter with [him]," and Q. Did you ever complain to Mr . Feldman about this matter? A. I did not voice an [sic] complaint. I brought it up in conversation. It was getting to the point where it was annoying. to Sokolow, on direct examination, had not mentioned what the "other things" than the Union consisted of. However on cross -examination, he admitted that Feldman "may have" mentioned his being uncooperative to Mrs. Ungar and other nonprofessional employees. I find that Feldman did mention this in their talk on December 24. Ill ees the store was prospering but the employees were not participating in its benefits). Feldman testified that he ther- eupon called Sokolow in and showed him two severance checks that he had jjust prepared for Sokolow, and told him he was discharged. Feldman testified he explained to Soko- low he was "extremely displeased with his attitude , partic- ularly since he was the senior employee and he had responsibilities which the other employees did not have." Feldman explained that Sokolow was uncooperative with most of the other employees," that he was "critical of em- ployees who were tiring to do a conscientious job," and that he, Feldman, had received complaints from some of the employees about [Sokolow's] solicitation of them to join the union. See supra, fn. 9. Feldman testified he told J oin that "by his soliciting them during working hours-it was impairing their ability to do their job, and it was a constant annoyance to them." Feldman testified that Sokolow asked, "Are you going to throw me out on Christmas Eve?" and told Feldman he would do anything that I wanted him to do if I would let him keep the job." Feldman further testi- fied that though he was extremely displeased with Sokolow's behavior and his attitude, nevertheless, since Sokolow had been with the store so long and he knew Sokolow's wife and children, he `llust wasn t sure what the fair thing to do was," and so he told Sokolow he would give him an opportunity to remain employed "on the condition that his attitude would change and that he would not harass or talk to any of the employees in the store who did not want to be talked to." Feldman added that Sokolow "briefly men- tioned something about his union activities, but I can't re- member specifically what the conversation consisted of." This, as I find, referred to Feldman's expression of opposi- tion to the union at that time, which was mentioned in Sokolow's testimony and which is hereby credited. Feldman testified that the discussion concluded with his statement that their rsonal relationship was now ended and "that whatever [Sokolow] did on his own time was his own bus- iness with regard to union activity or anything else," but that "he was not to annoy any of the employees nor interfere with the operation of the pharmacy in any way." Sokolow agreed to this condition.t 1 Thereupon, as Feldman testified, "I shook hands with him" and "to seal the bargain I gave him a $ 100 cash Christmas present." 5. The discharge on March 3 As earlier stated, on March 1, the Guild (whose member- ship had now grown to 200) had a meeting, where it voted to affiliate with the "AFL-CIO" and nominated Sokolow as president. On the evening of March 2, Sokolow had an interview with a reporter of The Evening Bulletin of Phila- delphia. The article reported the action taken by the Guild at the meeting and quoted Sokolow's statements concerning the purposes of that union in improving employee pharma- cists conditions, such as the pay of pharmacists (which was lower than "plumbers and other workers"), the long work days of 10 to 12 without overtime.pay for the hours in excess of 8 a day, the absence of a set time for lunch, the scarcity of fringe benefits, and the absence, except in a few instanc- es, of any retirement plans or health insurance . A sentence toward end of the article reads as follows: Sokolow, employed at the Musselman Apothecary, 1522 Walnut t., said his unit will be an independent pharmacist local RWDSU. The next morning, Sokolow asked the reporter not to 1 On this occasion too, as in the conversation in October, Sokolow told Feldman he was "committed" to the union-the Guild's membership having by then increased from 50 to 100 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mention his place of employment in the article . The reporter replied there was only a passing reference to the store's name and he was sure "your boss won't find it objection- able," but in any event it was now too late-"the story has been filed and the paper will be on the street at 12:00 o'clock." At noon, Sokolow went out for lunch and bought a copy of the paper . He returned from lunch at 12:30. Feld -man was then at the front counter filing in for Spilerman (who was then at lunch , see supra, fn. 2). Sokolow, who, as he testified, was worried about someone else showing Feld- man the article before Sokolow did, waited about 15 min- utes when there was a "slight lull" in the otherwise busy luncheon period . At about 12:45, Sokolow, who was then typing the labels as Feldman was filling the prescriptions, said to Feldman, "Stu, our Guild finally has some good publicity." Feldman turned toward him, and Sokolow add- ed, "But unfortunately your name's mentioned." Feldman exclaimed "What?" Sokolow then placed the article for Feldman to see and explained his futile effort with the news- paper reporter to have his name and place of employment omitted. Feldman, looking "upset and angry," was silent and "curt." Later that afternoon Feldman called Sokolow into the office and discharged him. As both of them testi- fied, Feldman, in substance, told Sokolow he held him re- sponsible for linking the store with the union, and when Sokolow again explained his effort to have the reference to his place of work omitted, Feldman told him he was still responsible and Sokolow answered, "I must agree it was my responsibility." This, as Sokolow testified, was the whole conversation. Feldman testified that when Sokolow mentioned the arti- cle, Sokolow "threw the newspaper down on the counter," and it touched the prescription. (Sokolow denied this and I credit Sokolow's denial.) Feldman testified he "scanned" the article when Sokolow showed it to him and being ex- tremely upset and disturbed over what happened , took "an exceptionally long lunch" in which he `deliberated the problem." He then called Sokolow back to the office and discharged him. Feldman acknowledged that there was a discussion in which Sokolow said that the naming of the store in the article was not his "fault," and when Feldman retorted "if it was not [Sokolow's] fault, well then whose fault might it be," Sokolow stated, "Well, if you put it that way, then it's my fault." Feldman indicated there was more to this conversation. He testified that he told Sokolow that he had not kept the promise he had made to him on Decem- ber 24, "and it Was on this basis that I was dismissing him," Feldman testified that there was discussion in which Soko- low said that "if he had been compensated adequately his behavior might have been different," to which Feldman retorted that "the American way was to achieve first and then you would be compensated, not to be compensated first in order for you to perform better," and this was his, Feldman's "philoso hy," Feldman testified they closed with Sokolow stating, "Lpet me set the record -let me just ask you a question for the record : are you firing me for union activity'?" and Feldman's answer was, "I am firing you for your behavior over the two year period." The role the article played in discharging Sokolow was stated by Feldman in describing his reaction to the article after he `scanned" it when shown it by Sokolow at the front counter. Feldman testified: I was particularly disturbed at the time in the manner in which the newspaper was presented to me . I took it as an affront. I considered the fact that the paper was thrown before me as insubordinate behavior, consider- ing the context of the article, naming Mr. Sokolow an official of the union . And I interpreted the entire dem- onstration to indicate to me that he now had some superior power over me since prior to that I was in charge. I particularly considered his behavior at that time to be insubordinate. TRIAL EXAMINER Anything further? THE WITNEss: No. It was upon consideration of his behavior at that time that I later dismissed him. D. Appraisal This last statement that "it was upon consideration of his behavior at that time that I later dismissed him," does not square with Feldman's later statement that he told Sokolow he was dismissing him because he had not kept the promises he made on December 24, and further that it was because of his misbehavior "over the two year period." Even if these other factors played a part in the discharge on March 3, so too did Sokolow s role as the newly elected president of the union. This last is apparent in Feldman's own statement of the context of the article ( namin Mr. Sokolow an official of the union" which "indicat[edI to me that he now had some superior power over me") as contributing to his re- garding Sokolow's manner of showing the article as "insub- ordinate" and "it was upon consideration of his behavior at that time that I dismissed him." Feldman's testimony that Sokolow "threw" the paper down at him and that it touched the medicine as earlier stated is not credited as against Sokolow's denial that this occurred. Feldman's testimony to that effect was the product of a profound resentment of Feldman to the content of the article . Even Feldman's ver- sion of what was said between them when he discharged Sokolow gives no indication that Sokolow's manner of showing Feldman the article played any part in the dis- charge. The thrust of the conversation, when Feldman told Sokolow he was discharging him, as testified to by Sokolow and substantiall y corroborated by Feldman, was that Feld- man held Sokolow responsible for having , by this article, associated the store with the union activity . This was contra- ry to Feldman's admonitions to Sokolow in October after his call from Sol Turnoff, in which Turnoff, a member of the State Board of Pharmacy, informed Feldman that Soko- low was organizing a pharmacists union and that if Sokolow was his employee he would know what to do with him. Respondent, in its brief, suggggests, somewhat strangely, that the pressure which Turnoff placed on Feldman against the Union bestowed an immunity on Respondent for dis- charging Sokolow because of it. This is contrary to the principle, in effect since the earliest days of the Act, that pressure from other sources is not a valid excuse for an employer's invading the employee's rights under the Act.12 This would be so even if it were true, as Respondent con- tends, that Respondent was not itself opposed to the Union. As to this last, the contrary is indicated by Feldman's ex- pressed opposition to the union , if not in the October con- versation, then in the discussion which Feldman had with Sokolow on December 24, and indeed on March 3 itself. As is manifest from the March 3 incident itself, Sokolow's union activity was at least a contributory reason for Feldman's discharging him. This rendered the discharge vulnerable under the established principle that "a discharge 12 Star Publishing Co., 4 NLRB 495, 508, enfd, 97 F.2d 465, 470 (C.A. 9), cited with approval by the Supreme Court in N.L.R.B. v. Erie Resistor Corp., 373 U.S 221, 229, fn. 8. See also Marydale Products Co., 133 NLRB 1232, enfd, 311 F.2d 890 (C.A. 5), cert. denied 375 U.S. 817; Madison Glass Special- ty Co, 135 NLRB 901; Combustion Engineermn 130 NLRB 154, enfd. 321 F.2d 807 (C A. 8). MUSSELMAN'S APOTHECARY which is partiall motivated by the employee's protected activity violates the Act despite the concurrent existence of an otherwise valid reason.' N.L.R.B. v. The Princeton Inn Co., 424 F.2d 264 (C.A. 3).13 In the light of this, Respondent's recital of the multiple delinquencies attrib- uted to Sokolow, not merely from the time of the August 1969 incident, previously described, and admitted by Res- ondent to be the "first confrontation," but indeed from as far back as 6 months after Feldman acquired the store, need hardly be labored here. These consist of such matters as, for example, that Sokolow, when he had been in charge of the mailroom, used to take strolls in the afternoon which ex- ceeded the time period allotted for lunch. Sokolow, corro- borated by pharmacist Spillerman, indicated that it was not unusual for the lunch hour to spill over the allotted half hour. Feldman admitted he had never reprimanded Soko- low for taking these strolls, whatever their length. He further testified that though Sokolow, after the strolls, would com- plete all the prescriptions, they would accumulate so that the typist could not complete all of them by closing time and their mailing held up until the following day. Though Feld- man testified this had been "called to his attention on se- veral occasions," there was no indication he had ever complained about this either.14 At all events whatever Sokolow's shortcomings in respect to other than his qualities as a pharmacist, which Feldman indicated he never disputed, they were condoned in the conversation on December 24, when Feldman placed cer- tain conditions to the retention of his job. The March 3 incident hardly violated those conditions, since these condi- tions consisted of his being cooperative to his fellow em- ployees and not speaking to his fellow pharmacists about the Union during working hours. Nor during the period between December 24 and March 3, had Feldman given any indication to Sokolow that he thought Sokolow had violated these conitions - even the legally questionable one of speaking to fellow pharmacists about the Union regard- 13 Citing Hugh H Wilson Corporation v NLRB., 414 F 2d 1345, 1352 (C.A 3); N.LR B. v. Rubber Rolls, Inc, 388 F.2d 71 (C.A 3); N.L R B v G & J Company, 346 F.2d 960 (C.A. 3) l4 The testimony that Sokolow's tardy returns from his afternoon strolls overloaded the typist with prescriptions which she could not complete until the following day, came from Mrs. Farrar . Admittedly, she had never com- plained to Feldman about this until some time after she quit her job, this last having occurred in September 1969 Feldman and Mrs Farrar testified that some time after she quit, she came to the store and told Feldman of her having received in the afternoon more prescriptions than she could type up before closing time and that she had quit the job principally because of Sokolow (As earlier appears, Sokolow had already been transferred out of the mail department some 5 months before Mrs . Farrar left.) Mrs Farrar testified that the reason she had not complained to Feldman before about this was the special relationship she understood Sokolow had with Feldman. While this would explain her silence before she quit, it would not serve to explain why she was still silent about it at the time she quit. Mrs. Farrar's testimony is marked by a pronounced hostility to Sokolow. She testified that Sokolow had made remarks which she regarded as racist. (This was not particularized other than that "he was always talking about controversies" and that "everything he said to me at that time was always degrading.") Although she had earlier testified that because of her understanding concern- ing Sokolow's relationship with Feldman, she had not during her employ- ment spoken at all to Feldman concerning Sokolow, she now testified that when Sokolow made an allegedly racist remark , she was upset and com- plained about it to Feldman Asked what Feldman's response was, she rep- hed, "He said okay." This is hardly the kind of response one would expect from Feldman if Mrs. Farrar had made a complaint of that kind to him or which Mrs. Farrar would have tolerated from Feldman Mrs Farrar's testi- mony regrettably abounds in contradictions and improbabilities, which pre- vents reliance upon it Even if it were to be credited, Feldman's failure to communicate any of these complaints to Sokolow indicates that Feldman placed no reliance on them. 113 less of whether this was interfering with their work. ls Res- pondent, however, imputes to Sokolow an accumulation of delinquencies during that period to account for the dis- charge which are treated below and which are rejected as not constituting the reason for the discharge, and in an event in being at most contributory reasons along with Sokolow's prominence in the Union as motivating the dis- charge. 16 Finally, Respondent, through Mrs. Baumgartner, intro- duced into the record copies of an "ad," which Respondent had been carrying on successive Sundays for a pharmacist. Mrs. Baumgartner testified that Feldman had told her that the ad was intended as a replacement for Sokolow. The ad read: PHARMACIST -PROFESSIONAL Immediate opening for recent graduate . Apply in per- son ONLY Monday 7:30 P.M. No telephone calls. Musselman Pharmacy 1522 Walnut St. Mrs. Baumgartner testified that she had put in that ad for two Sundays prior to March 3, the most recent one appear- 15 Cf N.L.R.B. v. Hecks, Inc., 418 F.2d 1177, 1180 (C.A.D C.); State Chem- ical Co., 166 NLRB 455; The Was. H. Block Company, 150 NLRB 341; Pepsi Cola Bottlers of Miami, Inc., 155 NLRB 527. 16 Feldman testified that in the last 2 weeks preceding March 3 , Sokolow offended because of- (a) excessive personal calls received by Sokolow on the telephone, and (b) Sokolow's not turning over to the cashier all the "multiple prescriptions" ordered by customers. As to (a), Feldman testified Sokolow was recieving 8 to 20 personal calls a day . Sokolow testified he was receiving his usual calls of 2 or perhaps 3 a day from home, usually his wife. Pharmacist Spillerman testified Sokolow did not receive any more telephone calls than any other employee. As to (b), the "multiple prescriptions" matter, Feldman testified that although a customer might order, say, five prescriptions, Soko- low would hand over to the cashier only four, and later the customer would return and in asking for the missing prescription, take the resentment out on the cashier, Mrs Ungar. Feldman characterized this as a "game" Sokolow was playing with the cashier. Though I struck this characterization from the record, the details Feldman later gave carried that implication . He testified that when Mrs. Ungar conveyed the customer's complaint to Sokolow, Soko- low derisively brushed this aside Pharmacist Spillerman explained that omissions in handing over to the cashier less than the full amount of "multi- ple prescriptions" are not unusual, and occur where one pharmacist is ban- dlmg the "refills" that can quickly be done, while the other pharmacist handles the new prescriptions, which takes time in having them priced and stamped The result is that "we could lose communication," and thus the quickly handled refills could be turned over to the cashier while the other pharmacist is still processing the new prescription. A fair indication of the belatedness of these imputations against Sokolow is the absence of testimony that Feldman at any time complained to Sokolow about a significant increase in the extent of his personal telephone calls or of the omissions on completion of orders for "multiple prescriptions " Since Feldman testified these omissions in "multiple prescriptions" were done by Sokolow out of malice, it is all the more strange that it would not at once have evoked some comment concerning them from the tense and rather volatile Feldman . As to whether any of the alleged offenses regarding "multiple prescriptions" occurred with- in the month preceding Sokolow's discharge on March 3 , as Feldman testi- fied, Mrs. Ungar who was the butt of the "game" that Feldman imputed to Sokolow, never testified. And Mrs. Patricia Baumgartner, who, on occasion filled in as cashier for Mrs. Ungar, testified she had first complained to Feldman about Sokolow's ommisspmissions of "multiple prescriptions," prior to the fall of 1969 and had no knowledge of anything of that character occurring within the last month. Another offense as earlier stated in another context, is-claimed to have been the belief, based admittedly on circumstantial evidence, that Sokolow must have looked at the Company's payroll records . This hardly compares with Feldman's assertion, in advancing his claim that Sokolow was a "mana- gerial employee," to the effect that Sokolow was in his confidence concerning all financial features of the store. Sokolow denied he had looked at the payroll records and the circumstantial evidence on which Respondent relies is rather gossamer in quality. Had Feldman genuinely believed this occurred, he would expectably have probed Sokolow regarding it 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing on Sunday, March 1. Feldman had interviewed appli- cants on Monday, March 2 in response to the one appearing on March 1. Sokolow testified in rebuttal that an ad to that affect had been appearing periodically for about a half year and that Feldman within the month before March 3, had said the store was "understaffed," and in that connection, had stated that he had run such an ad for 6 weeks in order "to make it easier on 'you fellows,"' but he could not get any appli- cants. Sokolow asserted the ad was intended in replacement of a pharmacist, one Mrs. Esther Bogash. She had been hired in the summer of 1969 and had lasted less than 2 months. Sokolow testified Feldman said he had fired her. Feldman, in rejoinder, testified that he had laid her off because there was not enough work for her. Feldman admit- ted, however, that he had carried that ad for some 6 months before March 1, and the purpose in each instance had been to replace Sokolow. Since the ad calls for a "recent gradu- ate," there was the question of how this was intended as a replacement of Sokolow, his senior pharmacist, and a reg- istered one since 1958. Feldman testified that this use of the term "recent graduate" was intended to exclude superannu- ated pharmacists , 60 or 70 years old, and to include appli- cants whose experience was no more than 10 or 15 years, because they would be familiar with new drugs of the kind Respondent uses. Mrs. Baumgartner, on recross-examination, testified that among those -Feldman interviewed on March 2 was one Stuart Rubin. He started on the job on March 5 or 6, after Sokolow's discharge. Mrs. Baumgartner testified, and the ad itself indicated, that Feldman saw applicants only on Monday-in this instance on March 2. From the foregoing, and Feldman's singular silence, when he discharged Soko- low, concerning any mention of Rubin, either result would follow. On the one hand, since, as Mrs. Baumgartner testi- fied and the ad indicated, Feldman interviewed applicants only on Monday, he must already have hired Rubin on Monday, March 2, and if he was a replacement for Sokolow, then on the next day, when he fired Sokolow, it would have been the natural thing to have mentioned to Sokolow that he had already replaced him. His silence on that point would indicate that Rubin, though already hired on March 2, was not a replacement for Sokolow. That Rubin was not such a replacement persuasively appears from Mrs. Baumgartner's testimony under recross examination as fol- lows: Q. Do you know if he [Rubin] is a registered pharma- cist. A. No. He is not registered yet. The above thus supports Sokolow's testimony that Feld- man was then seeking a "recent graduate" in order "to make it easier on [the other pharmacists]," and hence that the ad was not for the purpose of hiring a replacement for Soko- low. On the other hand, if the ad had been intended as a replacement for Sokolow, then Feldman's total silence to Sokolow concerning it the next day, would indicate that the applicants he saw on Monday , including the as yet not registered Rubin, did not meet Feldman's requirement for an adequate replacement for one of Sokolow s knowledge and ex erience . On Feldman's testimony, on Tuesday, March ), the day after he had interviewed the applicants, he was still undecided about whether to discharge Sokolow, and had taken the long luncheon to "deliberate the prob- lem." Since, on Feldman's testimony, it was a half year since he started placing the ad in contemplated replacement of Sokolow and had not yet replaced him, the fair inference is that Feldman found Sokolow a hard man to replace because of Feldman's appreciation of Sokolow's more than ordinary qualities as a pharmacist. Respondent, in its brief, states that the incident over the newpaper article which precipitat- ed the discharge, was merely "coincidental" to Feldman's contemplated replacement of Sokolow. But how long Feld- man would have continued to contemplate replacin gg Soko- low is left to pure speculation, and in view of Feldman's appreciation of Sokolow's competence, it could have con- tinued indefinitely. D. Concluding Findings 1. The discharge as a violation of Section 8(a)(3) and (1) of the Act It follows from the above and the totality of the evidence, that Feldman would not have discharged Sokolow on March 3 but for his resentment of Sokolow's rominet role in the union.17 As already appears, I have far from regarded Sokolow's testimony as being all wool and a yard wide. The principals in the controversy, Sokolow and Feldman, dem- onstrated that highly charged controversies of this character are "exposed to the sport of fugutive and biased recollec- tion,'Is and indeed cause the disputents at some points to be less than wholly candid. But as also stated by Judge Learned Hand, "It is no reason for refusing to accept ev- erything that a witness says because you do not believe all of it.... "19 My decision that the discharge of Sokolow was motivated in whole or in part by Sokolow's prominence in the Union, stems from established facts , including indeed Feldman's own admissions and the inferences reasonably flowing therefrom. The conclusion, on the basis of the pre- ponderance of the evidence, is that the discharge of Soko- low, was motivated in substantial part by Sokolow's promi- nent role in the Union. Respondent's discharge of Sokolow was thus in violation of Section 8(aX3) and (1 ) of the Act. 2. Alleged independent violation Section 8(a)(1) On whether Respondent independently violated Section 8(axl) of the Act apart from the discharge, Feldman's con- versation with Sokolow, on December 24, in which he dis- charged him and then revoked the discharge, was interwoven with Sokolow's espousal of the Union. When he spoke of Sokolow's rudeness to Mrs . Ungar, he also de- nounced Sokolow for always talking about the Union, with specific reference to his soliciting Weissberger and Fine, the two did not join. Feldman claimed it was interfering with their work . There was no such testimony from Fine. Weiss- berger testified that it was getting to be "annoying" and he had brought this up with Feldman in conversation . Supra, fn. 9. There had then been no rule against engaging in conversation at the store during working hours. Ina small establishment of that kind, where the pharmacists are not 17 Respondent claims that the fact that Feldman has retained Spillerman in his employ despite Spillerman's membership in the Union indicates that Sokolow's role in the Union played no part in his discharge. Even if the roles of these two pharmacists in the Union were on a panty, it would, under doctrine too well established to call for citation, not have indicated that Sokolow's role in the Union did not play a part in his discharge on the facts of this case. However, the roles of these two men in the Union were entirely different. On Feldman's own testimony , Sokolow's prominence in the Union plated a part in his deliberations preceding Sokolow's discharge. ,led Learned Hand in Art Metals Construction Company v. N.L.R.B., 100 F.2d 148, 150 (C.A. 2) 19 N L.R.B. v. Universal Camera Corp, 179 F 2d 749, 754 (C.A. 2), remand- ed on other grounds 340 U S. 474 MUSSELMAN'S APOTHECARY on any assembly line, there is of necessity a certain ex- change of comment concerning all varieties of subjects. As heretofore appears, Feldman at the same time that he in- cluded Sokolow's speaking about the Union as a reason for discharging him, coupled this with his expression of opposi- tion to the Union as such. The specific context in which Feldman referred to Sokolow's talking about the Union as a reason for discharge indicates that Feldman acted out of resentment of the cause espoused by Sokolow rather than out of a belief that he was interfering with the store 's opera- tions. I thus find that in that particular context, Feldman's linking his criticism of Sokolow's talking about the Union with his own expression of opposition to the Union was an invasion of Sokolow's rights under Section 7 and thereby violative of Section 8(a)(l) of the Act. The next question is whether the restriction imposed on Sokolow as a condition of his ob , that he not thereafter talk about the Union during working hours , was a violation of Section 8(aXl) of the Act. The general rule, under the prin- ciple enunciated since Republic Aviation Co. v. N.L.R.B., 324 U.S. 793, is that the employer, in the interest of the efficien- cy of his operations, may validly issue a rule forbidding employees to engage in union solicitation at the premises during working hours, but he may not issue a rule prohib- iting employees from engaging in union solicitation on the employer's premises during nonworking time . The rule is presum tively valid or invalid in the respective situations above descri bed, but is subject to rebuttal under particular circumstances. So a rule forbidding union solicitation on employer premises during working hours may be overcome by evidence showing that the em loyer's motive in issuing the rule was not in the interest of promoting efficiency but had a discriminatory motive---that of preventing or discour- aging membership or support of the Union. See Walton Mfg. Co., 126 NLRB 697, 698, enfd. 289 F.2d 177 (C.A. 5), and cases cited, supra, fn. 15. As applied to the circumstances here, I have indicated that the restriction imposed on Sokolow as a condition of employment, when considered in the particular circum- stances in which the restriction was imposed, had as its purpose discouragement of membership in the Union. See supra, fn.l5.Resppondent, in its brief, indeed cites as amon the g reasons for discharging Sokolow the fact that he talked about the Uniion with Spillerman, his associate at the front counter and himself a member of the Union. Had a rule of that breadth been in fact contemplated by Feldman, this would indeed have had a repressive purpose which would have rendered the restriction invalid within the principle of Walton and the other cases cited. However, the point of Feldman's complaint to Sokolow was his approaching those pharmacists who had already indicated they were "not in- terest." As thus limited, I would regard the restriction Feld- man thus imposed on Sokolow as one in which during working hours he was not to engage in union solicitation with the pharmacists who were not members . While the circumstances as a whole would suggest the restriction had a discriminatory purpose , the matter is sufficiently in doubt to entitle Respondent to the benefit of it, and I accordingly find that the restriction as thus limited was not a coercive one within the meaning of Section 8(a)(1) of the Act. In any event, since the remedy would involve a broad cease-and- desist order flowing from the finding that the discharge was discriminatory, it would by its nature encompass any no- solicitation rule having a discriminatory purpose or having a discriminatory application. In the given circumstances, Sokolow rendered that rule academic as to him because of his strict observance of that prohibition. 20 IV THE REMEDY 115 It having been found that Respondent discharged Soko- low because of his activity on behalf of the Union and had for a discriminatory purpose threatened him with discharge for discussing the coon, it will be recommended that Res- pondent cease and desist therefrom (the requirement being broadly stated since "discharge for union activity goes to the very heart of the Act." N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4)). As affirmitive action to effectu- ate the policies of the Act, it shall be recommended that Respondent offer Sokolow immediate and full reinstate- ment to his former or substantially equivalent position (Chase National Bank, 63 NLRB 656), without prejudice to his seniority and other rights and privileges , and make him whole for any loss in pay resulting from the discharge from date of discharge to date of offer of reinstatement, within the formula of F. W. Woolworth Company, 90 NLRB 289, with interest as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Nothing herein is intended to furnish Sokolow with a sinecure or a guarantee of permanent tenure because of his position in the Union. He is under the same obligation as are all other employees, to attend to business and to cooperate in the smooth running of its operations. On the basis of all the foregoing and the entire record, I hereby state the folowing: CONCLUSIONS OF LAw 1. 2Z scharging Sokolow because of his activity on be- half Union, Respondent discriminated against him in respect to hire and tenure, thereby discouraging member- ship in the Union within the meaning of Section 8(a)(3) and (1) of the Act. 2. By earlier announcing his discharge of Sokolow, among other reasons , because he was talking about the Union at the store, in the absence of any prior rule forbidding it, and for the purpose of discouraging or preventing membership in the Union, Respondent interfered with, restrained, and coerced employees in the exercise of their protected rights under the Act, thereby engaging in an unfair labor practice within the meaning of Section 8(a)(l) of the Act. 3. Said unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the findings and conclusions above and the entire record, I recommend that the Board issue the following recommended: ORDER Stufeld Corporation t/a Musselman's Apothecary, its of- ficers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee for the purpose, in whole or in part, of discourag- ing membership, support, activity, or leadership in Local 1 9, Professional Pharmacists Guild of Delaware Vall ey of Retail, Wholesale Department Store Workers Union, AFL- CIO, or any other labor organization. 20 As previously stated, Feldman, prior to his discharge of Sokolow on March 3, never indicated to Sokolow that he had not adhered to that prohib- ition. Pharmacist Fine, though a witness for Respondent , was never asked whether Sokolow between December 24 and March 3 , ever spoke to him about the Union. Weissberger answered yes to whether Spokolow had spo- ken to him about the Union. He stated this was in February, but he never explained it . Sokolow's explanation , undenied by suggesting to Sokolow there was a "need" for the Union. Sokolow responded he does not speak (Continued) 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Discharging, discriminating, or threatening to dis- charge or discriminate against any employee for speaking about the Union at the store where a purpose is to prevent or discourage membership, affiliation, or support of said union or any other labor organization. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer immediate and full reinstatement of Gilbert Sokolow to his former or substantially equivalent position, without prejudice to his seniority or other rights and privi- leges, and make him whole in the manner described in the Remedy portion of this Decision for any loss of earnings by reason of the discrimination against him. (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, person- nel, and all other records necessary to analyze the amount of backpay due under the terms hereof. (c) Post at its premises copies of the attached notice mark- ed "Appendix."21 Copies of such notice, on forms provided by the Regional Director of Region 4, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon recipt 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 the Respondent to insure that such notices are not altered, defaced, and covered by any other material. (d) Notify the Regional Director for Region 4, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith 22 about this any longer at the store, and Weissberger acknowledged to him that this was so. 21 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 In the event that the Board's Order is enforced by a judgement of a United States Court of Appeals, the words in the notice reading "Posted By Order of the National Labor Rela- tions 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." u In the event that this recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Re- gion 4, in wasting, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency Of The United States Government WE WILL NOT discharge or otherwise discriminate against any employee or threaten to do so for the pur- pose, in whole or in part, of discouraging membership in or support of Local 1099, Professional Pharmacists Guild of Delaware Valley, Retail, Wholesale Depart- ment Store Workers Union, AFL-CIO, or any other labor organization. WE WILL NOT discharge or discriminate or threaten to discharge or discriminate against any employee for speaking about the Union at the store in order to pre- vent or discourage membership, affiliation or support of said Union or any other labor organization. WE WILL NOT in any other manner interfere with, re- strain or coerce employees in the exercise of the rights guaranteed them under the National Labor Relations Act. WE WILL offer Gilbert Sokolow immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges and We Will make him whole for any loss ofppay he ma have suffered as a result of his discharge on March 3, 1970. STUFELD CORPORATION t/a MUSSELMAN'S APOTHECARY (Employer) Dated By (Representative) (Title) NOTE: We will notify said employee , if presently serving in the Armed Forces of the United States , of his right to fu# reinstatement uppon application in accordance wit the Se- lective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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, 1700 Bankers Securities Building, Walnut & Jupiter Street, Philadelphia, Pennsylvania 19107, Telephone 215-597- 7601.