Skaggs Drug Centers, Inc.

SKAGGS DRUG CENTERS, INC. 737 Skaggs Drug Centers, Inc. and Retail, Wholesale and Department Store Union, AFL-CIO. Cases 16-CA-3333 and 16-CA-3247 June 17, 1969 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On December 4, 1968, Trial Examiner David London issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions and brief in support, and the General Counsel filed an answering brief. 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, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein.2 The Trial Examiner found that on and after May 13, 1968, the Respondent refused to negotiate with the Union for a collective-bargaining agreement to become effective at the expiration of the old contract assumed by it in October 1965, and he recommended that the Respondent be ordered to bargain upon request. Although this Respondent has since December 1967 made certain unilateral changes in its employees' conditions of employment without consulting their bargaining representative, actions as to which we are affirming the Trial Examiner's findings of 8(a)(5) violations, we construe this record as showing that, in general, and particularly so far as a new contract was concerned, the Respondent was negotiating in good faith. As we analyze what occurred here, the Respondent began negotiating for a new contract shortly after the decertification petition was dismissed. This was a petition supported by 12 in a unit of approximately 15, filed at a time when checkoff authorizations under the contract had diminished to a low of 3 from a high of 14 in 1965, when the contract was assumed. In the 'Pursuant to the provisions of Sec . 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. 'We agree with the Trial Examiner that the Respondent's unilateral action in eliminating the ice cream department and precipitately discharging the two employees who manned it by preparing and selling ice cream cones, without discussion with the Union, constituted a violation of Sec. 8(axl) and (5) of the Act. In so doing we rely upon WUn-Dixk. Inc., 147 NLRB 788, enfd. as modified 361 F.2d (C.A. 5), art. denied 385 U.S. 935, where the cheese processing and packaging operation was terminated unilaterally, rather than the cases cited by the Trial Examiner. 176 NLRB No. 102 circumstances, the petition necessarily raised some doubt of continuing union majority. After the initial negotiating session, the Respondent promptly submitted a complete form of contract which was largely acceptable to the Union. Then the decertification petition was reinstated, a development which we view as tending to reinforce the Respondent's doubt concerning the Union's continuing representative status. Respondent immediately urged the Union to consent to an election. Despite the Union's refusal, the Respondent several days later agreed to extend the terms of the expiring contract "until this matter is settled" and accepted the Union's suggestion to make its proffered wage raise retroactive to May 10. In mid-June the Respondent again wrote to the Union, advising it of certain companywide benefits which would be applied to the Longview store in line with the Union's assent to earlier extensions of such benefits to Longview employees, and spoke of the Union's right to negotiate about these changes in the future. Thus, as we view what occurred here, the Respondent was prepared to and did negotiate for a new contract when the decertification petition was dismissed, but, when it was reinstated, became concerned anew by the apparent desire of the Union to thwart an employee election.3 We are not prepared to say, as the Trial Examiner has, that the fact that the Respondent negotiated at all is inconsistent with a good-faith doubt of majority, particularly when significant negotiations took place while the decertification petition was dismissed and the Respondent engaged in no activity intended to dissipate the Union's strength.' Nor do we think that the unilateral actions taken by the Respondent, which were widely spaced, indicate any overall plan or purpose to undercut the Union or diminish employee support for it. We conclude that the Respondent did in fact have a good-faith doubt of majority and for that reason alone ceased negotiating until the question of majority could be determined by its employees in an election procedure, or until its duty to bargain could be determined through the charges filed. We believe 'The decertification petition was reinstated on May 7, and on May 21 the Union filed a charge which had the effect of blocking it. The Trial Examiner viewed the Respondent's May 25 unilateral action eliminating the ice cream department and terminating employees Axberg and Sheehan, part-time employees, whose principal duties were the sale of ice cream cones, as an especially significant antiunion activity because similar to the action Respondent had agreed to forego in settling the March charge based on reducing break periods to the minimum specified in the contract. We note, however, that the store remodeling, which necessitated removal of the ice cream cabinets, had been planned many months before; that plans for the remodeling had been posted in the manager's office; that the two employees dismissed were told that they would be reemployed when the opportunity arose; and that although these were the two employees interrogated by the store manager a month earlier, no 8(aX3) discrimination was alleged as to them. We are requiring the Respondent to remedy these independent violations, including the recommended remedy of placing Axberg and Sheehan on a preferential hiring list, but we are not persuaded that these actions are meaningfully related to evasion of bargaining with the Union for a new contract. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that this doubt should be resolved before the Respondent is required to engage in further bargaining . Accordingly, we shall dismiss that part of the complaint alleging refusal to negotiate for a new contract, and we shall direct the Regional Director to reinstate and process the aforesaid decertification petition. ORDER The hearing herein was conducted at Longview, Texas, on August 28, 1968, at which the General Counsel, Respondent and the Union appeared and were afforded full opportunity to examine and cross-examine witnesses and to introduce evidence upon the issues of the case. Briefs subsequently filed by the General Counsel and Respondent have been fully considered. Upon the entire record in the case and my observation of the demeanor of the witnesses who testified, I make the following: Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, with the omissions indicated below, and hereby orders that the Respondent, Skaggs Drug Centers, Inc., Longview, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Recommended Order, as amended herein: Omit from paragraph 1(a) reference to "the Union" and substitute therefor "any labor organization that is the exclusive bargaining representative of our employees." Omit paragraphs 1(b) and 2(d), and renumber the remaining paragraphs consecutively. In the first indented paragraph of the Appendix delete reference to "Retail, Wholesale and Department Store Union, AFL-CIO, Local No. 587" and substitute therefor "any labor organization that is the exclusive bargaining representative of our employees." Omit the second and the last indented paragraphs of the Appendix. IT IS FURTHER ORDERED that the decertification petition in Case 16-RD-430 shall be reinstated by the Regional Director, and duly processed, and an election held after expiration of the posting period for the violations found herein. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID LONDON, Trial Examiner: Upon a charge filed in Case 16-CA-3247 on March 12, 1968, and a charge in Case 16-CA-3333 filed May 21, 1968, by Retail, Wholesale and Department Store Union, AFL-CIO, the Board's Regional Director, on July 24, 1968, consolidated the two proceedings and issued the complaint herein alleging that Skaggs Drug Centers, Inc. (Respondent) violated Section 8(axl) and (5) of the National Labor Relations Act, as amended (the Act). In substance, the complaint alleges that Respondent (a) unlawfully interrogated its employees concerning their union membership, activities and desires, (b) unilaterally, and without prior notification to, or consultation with, the collective-bargaining representative of its employees, changed the working conditions of said employees and similarly abolished the ice cream department in its store and discharged its employees therein. By its answer, Respondent denied the commission of any unfair labor practice. FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Utah, having its principal offices in Salt Lake City, Utah. It operates a chain of retail drugstores in several States of the United States, including the State of Texas. The only store involved in this proceeding is located in Longview, Texas. During the year preceding the issuance of the complaint herein, Respondent, in the course and conduct of its business operations, purchased goods and materials valued in excess of $50,000 from outside the State of Texas which were transferred to its stores in Texas directly from other States of the United States. During this same period, Respondent's gross volume of retail business exceeded $500,000. The complaint alleges, and Respondent admits, that at all times material herein it was an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Retail, Wholesale and Department Store Union, AFL-CIO, Local 587 (the Union), is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Status of the Union On or about May 12, 1965, Safeway Super "S" Division of Safeway Stores, Inc., hereinafter referred to as Super S, then the owner of the store in Longview, Texas, with which we are now concerned, entered into an agreement with, and recognized, the Union as collective-bargaining representative of the following employees: All regular full-time and all regular part-time registered pharmacists and nonregistered employees employed by Super S in its store in Longview, Texas, excluding the store manager, assistant store managers, trainees, office clericals, and supervisors within the meaning of the Act. That agreement was to remain in effect to May 12, 1968, and from year to year thereafter unless either party gave written notice to the contrary to the other party 60 days prior to May 12, 1968, or any subsequent anniversary date. It also prescribed the wages, hours and other terms and conditions of employment for the aforedescribed employees and contained a checkoff clause of union dues. The complaint alleges, and Respondent by its answer admits, that on or about October 15, 1965, Respondent purchased from Super S the physical assets, goodwill, name, accounts receivable and other trade assets of Super SKAGGS DRUG CENTERS , INC. 739 S including the Longview , Texas, store and assumed the liability theretofore incurred by Super S. Respondent's answer also admits that since on or about October 15, 1965, Respondent has operated said Longview store and has been engaged in substantially the same business operations formerly engaged in by Super S and has employed substantially the same employees as were employed by Super S. The answer further admits that at all times since on or about October 15, 1965, Respondent, as the successor to Super S , has assumed the duties and obligations of the collective-bargaining agreement described above. Though Respondent, in its answer , admitted that on or about May 12, 1965, a majority of the employees in the above-described unit had designated the Union as their collective-bargaining representative , at the opening of the hearing herein it amended its answer to deny that the Union had achieved this majority status on May 12, 1965. It admitted, however, that Respondent had granted recognition to the Union by adopting the aforedescribed contract with that organization . In any event, employee Bobbie Purvis testified , without contradiction, that in February or March 1965, she secured the signatures of a majority of the employees in the Super S store to cards designating the Union as their collective-bargaining representative . By reason of all the foregoing I find that, at the time of the execution and during the terms of the collective-bargaining agreement aforementioned, the Union was the duly designated collective-bargaining representative of the employees described in that contract. Shamrock Dairy, Inc., 124 NLRB 494, citing Hextron Furniture, 111 NLRB 342. B. The Change in the Rest Period Purvis also testified without contradiction, and Respondent in its brief admits, that for a long time prior to December 1, 1967, the employees had two daily rest periods of 15 minutes each . On December 1, 1967, however, a notice was posted on the bulletin board, signed by Don Sellars, Respondent's manager, reducing the break periods to 10 minutes each . Respondent having imposed this change without consultation or negotiation with the Union, the latter, on March 12, 1968 filed its charge in Case l6-CA-3247 alleging that this change was unlawfully made . On April 9, 1968, the Board's Regional Director approved of a settlement of that proceeding by the terms of which Respondent agreed to post a notice notifying its employees that it would not thereafter "unilaterally institute changes impairing the terms and conditions of employment" of any of its employees in the heretofore described unit, and to reinstate two rest periods of 15 minutes each workday. On July 15, 1968, following an investigation of the second charge filed against Respondent, Case 16-CA-3333, the Board's Regional Director set aside this settlement agreement entered in Case 16-CA-3247. It being hereafter found that Respondent engaged in further violations of the Act subsequent to the date of the aforementioned settlement, the action of the Regional Director rescinding and setting said agreement aside is hereby approved. Larrance Tank Corporation, 94 NLRB 352, as modified in Joseph's Landscaping Service, 154 NLRB 1384, sub. nom . Northern California Hodcarriers, 389 F.2d 721 (C.A. 9). Accordingly, I find and conclude that by reducing the rest periods on December 1, 1967, to 10 minutes without consulting or negotiating with the Union with respect thereto, Respondent violated Section 8(a)(1) and (5) of the Act. C. The Change in the Check Rule On February 12, 1968, Respondent, through Store Manager Don Sellars, posted the following notice: NOTICE Any employee who takes a second party personal check that is returned by the bank will pay for said check the same day it is received by the store. This will be in cash. There will be no exceptions including management. D. L. Sellars Respondent, in its brief, contends that the "so-called change in the check rules would seem to be something far different from a work rule," and that the change was in the exercise of a valid management prerogative in the conduct of its own affairs. I do not agree. By thereafter requiring its employees to pay for all returned second party checks taken by them, without prior notice to, or negotiation with, the Union, Respondent changed the wages, terms and conditions of employment of its employees thereby violating Section 8(a)(5) and (1) of the Act. Interrogation On April 26, 1968, at a meeting in Dallas between the parties, concerning which more will be said later, James Stewart, the union, reprensentative, told Sellars that an undisclosed number of employees who, on February 16, 1968 had filed a petition with the Board in Case 16-RD-430 seeking decertification of the Union, had again joined the Union.' Sellars testified that upon his return to Longview he asked his assistants if they were aware of this and was told that John Axberg and Daniel Sheehan, employed in Respondent's ice cream department and discharged about a month later as will hereafter appear, had again signed up with the Union. Sellars admitted that he thereupon asked both men if it was true that they had again signed up with the Union and they acknowledged that it was. On the entire record I find that by this interrogation of Axberg and Sheehan Respondent violated Section 8(axl) of the Act. E. The Elimination of a Department As part of its drugstore operations, Respondent maintained an ice cream department manned by employees John Axberg and Daniel Sheehan, whose principal task was to prepare and sell ice cream cones. Sellars testified that in November 1967 he received the original plans for remodeling the store which involved elimination of the ice cream department. Modified plans were submitted in January 1968 and again in March 1968. On Friday, May 24 or Saturday, May 25, he was notified that new fixtures for the space occupied by the ice cream department would arrive on May 26 and that remodeling of the store would begin on May 27. On May 25, Sellars notified Axberg and Sheehan that the ice cream department was being removed and that their jobs were being terminated that day. He told Axberg that as soon as 'Because of the pendency of unfair labor practice charges against Respondent, the decertification petition was subsequently dismissed by the Regional Director. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there was an opening, he would be rehired.' Respondent admits that the Union was never notified or consulted with respect to either the elimination of the department or the termination of Axberg or Sheehan. The General Counsel contends that this unilateral action was violative of Respondent's duty to bargain with the Union with respect thereto thereby violating Section 8(aX5) of the Act. I agree. Though there was no contention that the change of operations and terminations were discriminatorily motivated, the fact remains that the action was unilaterally imposed and without prior negotiation with the collective-bargaining representative of the employees involved. Dixie Ohio Express Company, 167 NLRB No. 172; Northwestern Publishing Company, 144 NLRB 1069, enfd. 343 F.2d 521 (C.A. 7). This violation takes on additional significance because it is the type of violation which Respondent, less than two months before, specifically agreed, under the terms of the settlement agreement of April 9, not to engage in thereafter. F. The Refusal to Negotiate a Contract In addition to the foregoing specific violations of Section 8(a)(5) of the Act heretofore found, the General Counsel contends that Respondent, since on or about May 11, 1968, has refused to bargain collectively with the Union for a collective-bargaining agreement concerning wages, rates of pay, hours of employment and other terms and conditions of employment for the term beginning May 12, 1968. In support thereof, the record establishes that on February 20, 1968, the Union gave Respondent timely notice of its desire to modify and amend the collective-bargaining agreement then in effect between the parties and suggested several specified dates for negotiations. Failing to receive a reply, the Union, on April 11, repeated that request suggesting three other specified dates for a meeting. In accordance with that demand, the parties met in a negotiation session on April 26. At that meeting, Ross Thoresen, Respondent's labor relations consultant, stated that Respondent "had reason to believe that the Union did not represent a majority of the employees" and that Respondent "should not be negotiating with the Union if it did not represent a majority of the employees." Notwithstanding this protest, Respondent gave consideration to the Union's proposal, a part of which met with Respondent's qualified approval. With respect to the remainder, Respondent agreed to submit its counterproposal, in writing, by mail. Respondent did so on May 3 by Thoresen's letter in which there was enclosed a complete draft of Respondent's proposed terms and covered practically all the terms generally found in collective-bargaining agreements. It specifically recognized the Union as the sole collective-bargaining agent of the same employees that were covered by the expiring contract and accepted much of what the Union had proposed. The Union replied to Thoresen on May 6 accepting unconditionally nine of the twelve articles in Respondent's proposal of May 3. The only article requiring further discussion or negotiation was classification and wages which the Union wished to discuss further when Respondent made its proposal in respect to the length of the contract. In sum, the Union and Respondent were close to reaching agreement on a new collective-bargaining agreement. 'Sheehan did not testify. On June 19, Kent White, Respondent's vice president, wrote the Union as follows: REGISTERED - Return Receipt Requested Mr. James Stewart, Jr. Retail, Wholesale and Department Store Employees Union 1602 North Haskell Dallas, Texas 84204 Dear Mr. Stewart: We are planning to make improvements in some of the programs in effect at our store in Longview. The enclosed booklets will detail these improvements. In prior bargaining with your union, these company benefit programs have been accepted under our contract, and recent bargaining did not propose a change in this arrangement. The changes would be companywide and we plan to make them effective July 1, 1968. The employees will benefit by these improvements. If you have any questions concerning this matter, we will be happy to try to answer them for you. The changes will not affect or alter your right to negotiate concerning any of these programs in the future. Yours very truly, /s/ Kent T. White KENT T. WHITE Vice President Stewart answered White on June 27, expressing a desire to discuss Respondent's proposal of June 19 and "other matters pertaining to wages and other terms and conditions of employment" and specified three alternate dates for that purpose. On July 8, Thoresen, in behalf of White, wrote Stewart stating that in Respondent's belief "it would not be appropriate to meet and discuss these matters" until after the Board had taken final action on the decertification petition. There have been no further negotiations between the parties. The decertification petition, in which 12 of Respondent's 14-15 employees joined, filed on February 16, 1968, was originally dismissed by the Board's Regional Director on April 2, presumably because of the filing of the charge in Case 16-CA-3247 on March 12. It was reinstated on May 7, but again dismissed by the Regional Director on July 25 following the charge in Case 16-CA-3333,' filed on May 21. On July 29, the Union notified Respondent of this dismissal and asked that negotiations be resumed. Insofar as the record discloses, Respondent made no reply thereto nor have any further negotiations occurred. It is of course well established that, following the expiration of a collective-bargaining agreement with a union, if an employer has a good-faith doubt of a union's continuing majority status, he may decline to further recognize that organization as collective-bargaining representative of its employees. Guidelines for determining whether -or not such a good-faith doubt existed are prescribed by the Board's decision in Celanese Corporation of America, 95 NLRB 664, 673, as follows: By its very nature, the issue of whether an employer has questioned a union's majority in good faith cannot be resolved by resort to any simple formula. It can only be answered in the light of the totality of all the circumstances involved in a particular case. But among SKAGGS DRUG CENTERS, INC. 741 such circumstances, two factors which seem to be essential prerequisites to any finding that the employer raised the majority issue in good faith in cases in which a union had been certified. There must , first of all, have been some reasonable grounds for believing that the union had lost its majority status since its certification. And, secondly , the majority issue must not have been raised by the employer in a context of illegal antiunion activities, or other conduct by the employer aimed at causing disaffection from the union or indicating that in raising the majority issue the employer was merely seeking to gain time in which to undermine the union.' Here, the only ground suggested for that required good-faith doubt was the filing and service upon Respondent on or about February 16, 1968, of the decertification petition to which was attached a similar petition purporting to be signed by 12 of Respondent's 14-15 employees. I have not been cited to a single authority holding that the mere filing of the decertification petition is, per se, sufficient to justify a good-faith belief that the Union no longer enjoys the majority status and recognition it achieved by the execution of the 1965 contract. Here, no testimony was offered pertaining to the circumstances under which that petition was initiated and procured . Here, it stands undisputed that the petition was subsequently dismissed. In any event, and assuming, arguendo, that the filing of the decertification petition gave Respondent a reasonable, good-faith belief that the Union had been rejected by the employees, Celanese requires more before Respondent may be absolved of the duty to bargain with the Union. It commands that the issue "can only be answered in the light of the totality of all the circumstances involved in the particular case." Among those circumstances are the events of April 26, more than two months after the decertification petition was filed, at which time the parties engaged in actual negotiation . Though Thoresen, during the course of that meeting, voiced a doubt of the Union's majority status, Sellars' own testimony establishes that Stewart, the Union's representative, then informed Respondent that "some of the employees [who] had signed a decertification petition were [again ] members of the Union ." Almost immediately thereafter, Sellars, as has previously been found, admittedly questioned an employee as to whether this was true and learned that at least two employees had again "signed up with the Union ." Without speculating whether similar inquiries were made of, and answers received from, other employees, Sellars' conduct found above is a circumstance that must be considered in determining whether Respondent thereafter reasonably and in good faith believed that a majority of its employees no longer desired representation by the Union. Related to the circumstance just discussed is Respondent's most incongruous conduct in continuing thereafter to negotiate with the Union if it in good faith and reasonably believed that the Union was no longer authorized to negotiate in behalf of its employees. Thus, as has heretofore been found, Thoresen, on May 3, only a week after he had voiced his doubt concerning the Union's majority status, submitted a complete draft of a contract proposal for Respondent. The two-page single space letter which accompanied the draft is devoted exclusively to a discussion of Respondent' s proposal . It contains not a 'Though Celanese involved a certified union, it is now well settled that the same rule applies to a noncertified, incumbent union. C & P Plaza Department Store, 163 NLRB No. 97. word, or suggestion, that either he or Respondent adhered to, or entertained, the doubt expressed by him at the meeting of a week before. All of Thoresen's correspondence was on the stationary of the "Industrial Relations Council," engaged in the business of "Service to Management - for better employee relations," an organization presumably well versed in employer rights and wrongs, as Thoresen also appeared to be in his conduct of the hearing herein . Also inconsistent with Respondent's present claim is the June 19 letter of Kent White, its vice president, specifically recognizing the Union's right "to negotiate concerning - benefits" to its employees then proposed by Respondent. I find it incredible to believe that Respondent would engage in the protracted negotiations heretofore described if it, in good faith, on and after April 26, believed that the Union no longer had any right to bargain for its successor contract. The Board found similar incredulity on facts closely resembling those found here, in Bally Case and Cooler, Inc., 172 NLRB No. 106 (July 10, 1968). The Celanese case also dictates that the good faith belief in question "must not have been raised by the employer in a context of illegal antiunion activity, or other conduct by the employer aimed at causing disaffection from the union." Here, Respondent unlawfully interrogated its employees concerning their union membership and activities . It also unlawfully changed the terms and conditions of their employment by reason of which the employees could reasonably be led to believe that there was no advantage in maintaining their adherence to, and representation by, the Union. The unilateral termination of the ice cream department on May 25 is especially significant because it is the same type of violation that Respondent, less than two months before, specifically agreed under the terms of the settlement agreement of April 9, not to engage in thereafter. Also worthy of note, is a prior similar violation by Respondent found by the Board in Skaggs Drug Centers, Inc., 150 NLRB 518, of which I have taken official notice. By reason of all the foregoing I find and conclude that by refusing to negotiate with the Union for a collective-bargaining agreement to become effective on and after May 13, 1968, Respondent violated Section 8(aX5) and (1) of the Act. Having concluded that Respondent had no good-faith doubt of the Union's continuing majority status, I further find that Respondent on May 25 violated Section 8(a)(5) and (1) of the Act by unilaterally terminating its ice cream department and discharging its two employees. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular full-time and part-time registered pharmacists, and all nonregistered employees, employed by Respondent at its store in Longview , Texas, exclusive of the store manager, assistant store manager , trainees, office clericals, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein , the Union was the exclusive representative of Respondent's employees in the 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit described immediately above for the purpose of collective bargaining with respect to wages, hours, and other terms and conditions of employment. 5. By changing the terms and conditions of employment of the employees in the above-described unit without notifying or negotiating therefore with the Union, Respondent violated Section 8(ax5) and (1) of the Act. 6. By refusing to bargain with the Union for a contract for the term beginning May 12, 1968, Respondent violated Section 8(a)(5) and (1) of the Act. 7. By interrogating its employees concerning their union membership or activities Respondent violated Section 8(a)(l) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I recommend that it be required to cease and desist therefrom and that it take certain affirmative action outlined below which I find necessary to remedy and to remove the effects of the unfair labor practices, and to effectuate the policies of the Act. With respect to the unilateral termination of the ice cream department and its two employees , while there is no allegation or contention that this was discriminatorily imposed, it was nevertheless a violation of the Act. To remedy that violation , I recommend that Respondent be required to place the two employees on a preferential hiring list requiring that they be employed at the first opportunity when work which they are capable of performing is available. Upon the foregoing findings of fact , conclusions of law and the entire record, pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Skaggs Drug Centers, Inc., its officers, agents, representatives, and assigns, shall: 1. Cease and desist from: (a) Changing the wages, terms and conditions of employment of the employees in the unit described above without notifying or negotiating therefore with the Union. (b) Refusing to recognize or bargain with the Union for a new contract for the employees in the above-described unit covering wages, hours, and other terms and conditions of employment. (c) Interrogating its employees concerning their union membership or activities. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization , to form labor organizations, to join or assist the Union or any other labor organization , to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Restore the two daily rest periods to a duration of 15 minutes each. (b) Rescind its February 12, 1968, second-party check rule. (c) Place John Axberg and Daniel Sheehan on a preferential hiring list requiring that they be employed at the first opportunity when work which they are capable of performing is available and notify them , at their last known address, that they have been so placed. (d) Upon request, bargain collectively with the Union as the exclusive representative of all employees in the following described appropriate unit, with respect to rates of pay, wages, hours of employment and other terms and conditions of employment and, if agreement is reached, embody such agreement in a signed contract. The bargaining unit is: All regular full-time and part-time registered pharmacists, and all nonregistered employees, employed by Respondent at its store in Longview, Texas, exclusive of the store manager, assistant store manager, trainees, office clericals, and supervisors as defined in the Act, as amended. (e) Post at its premises in Longview, Texas , copies of the attached notice marked "Appendix."' Copies of such notice, on forms to be provided by the Regional Director for Region 16, after being duly signed by an authorized representative of Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced , or covered by any other material. (f) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith.' 'In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of the United States Court of Appeals the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to coeiply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT change the wages or other terms and conditions of employment of our employees in the appropriate bargaining unit described below without prior consultation , or bargaining with, Retail, Wholesale and Department Store Union, AFL-CIO, Local No. 587. WE WILL NOT refuse, upon request, to bargain collectively with the above-named Union, as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment , or other terms and conditions of employment. WE WILL NOT coercively interrogate our employees concerning their union membership or activities. •SKAGGS DRUG CENTERS, INC. 743 WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named labor organization or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL restore the two daily rest periods to a duration of 15 minutes each. WE WILL rescind our February 12, 1968, second-party check rule. WE WILL place John Axberg, and Daniel Sheehan upon a preferential hiring list requiring that they be employed at the first opportunity when work which they are capable of performing is available, and notify them that we have done so. WE WILL, upon request, bargain collectively with the above-named union, as the exclusive representative of all employees in the following described appropriate unit,, with respect to rates of pay, wages, hours of employment and other terms and conditions of employment and, if agreement is reached, embody such agreement in a signed contract. The bargaining unit is: All registered pharmacists and all nonregistered employees employed by us at our store in Longview, Texas, exclusive of the store manager, assistant store manager, trainees, office clericals, and supervisors as defined in the Act. Dated By SKAGGS DRUG CENTERS, INC. (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2941.