Potter's Chalet Drug

POTTER'S CHALET DRUG Potter's Drug Enterprises, Inc., d/b/a Potter's Chalet Drug and Potter's Westpark Drug and Retail Store Employees Local Union No. 631, Retail Clerks International Association, AFL-CIO. Case 19- CA-8856 October 18, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On June 22, 1977, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a brief which, in relevant part, supported his cross-exceptions, answered Respon- dent's brief, and supported the Administrative Law Judge's findings.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order, except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Potter's Drug Enterprises, Inc., d/b/a Potter's Chalet Drug and Potter's Westpark Drug, Yakima, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I Respondent has moved that we strike the materials submitted by the General Counsel as being untimely filed. We find this motion to be without merit and it is hereby denied. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. 3 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (196%2). DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This case was heard before me in Yakirma, Washington, on March 17, 18, and 21, 1977. The charge was filed August 27, 1976, by Retail Store Employees Local Union No. 631, Retail Clerks International Association, AFL-CIO (Union). The complaint, which issued October 18, was amended during the hearing, and alleges that Potter Drug Enterprises, Inc., d/b/a Potter's Chalet Drug and Potter's Westpark Drug (herein called Respondent) has violated Section 8(a)( 1), (3), and (5) of the National Labor Relations Act, as amended. The parties were permitted at the hearing to introduce relevant evidence, examine and cross-examine witnesses, and argue orally. Posttrial briefs were filed for the General Counsel and for Respondent. 1. JURISDICTION Respondent is a Washington corporation engaged in the operation of two drugstores in Yakima. Another Washing- ton corporation, Potter Drug, Inc., an entity apart from Respondent in name only operates drugstores in Ephrata, Moses Lake, Othello, and Quincy, Washington. The two corporations realize annual revenues exceeding $500,000, and annually purchase goods of a value exceeding $50,000 from suppliers in Washington who obtain them directly from outside the State. The complaint alleges, the answer admits, and it is found that Respondent is an employer engaged in and affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. ISSUES The complaint alleges that, upon taking over the operation of the two Yakima stores in August 1976, Respondent refused to hire seven named employees l of the former owner-operator to escape the seller's bargaining obligation, thereby violating Section 8(a)3) and (1). The complaint also alleges that Respondent refused to recognize the Union as the representative of its employees in the two Yakima stores in circumstances violating Section 8(aX5) and (1); and coincidentally established new conditions of employment for those employees without giving the Union a chance to bargain, further violating that section. The complaint alleges, finally, that William Wallace, to become general manager of the two Yakima stares, made Thomas Fischer, Janet Harrison. Betty Huck, Beata Johnson, Lois Marcy, Jewell Miller, and Phyllis Wade. 233 NLRB No. I 15 DECISIONS OF NATIONAL LABOR RELATIONS BOARD various comments to employees in late July 1976 that violated Section 8(a)(1). The answer denies any wrongdoing. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts On August 2, 1976, Respondent became the owner- operator of two Yakima drugstores formerly owned and operated by Tufts' Drug Company. The stores had been known as Tufts' Chalet Drug and Tufts' Westpark Drug. Respondent renamed them Potter's Chalet Drug and Potter's Westpark Drug, and installed William Wallace, formerly manager of the sister corporation's Ephrata store, as the general manager of both. Respondent remodeled and rearranged the two stores to some extent, but did not alter their basic character as purveyors of the manifold items associated with the contemporary drugstore - drugs, sundries, foodstuffs, cosmetics, books and magazines, toys and games, greeting cards, tobacco, etc. The two stores are about a mile apart. The changeover derived from an earnest-money agree- ment entered into July 20. The agreement specified that Tufts' last day of operation would be Friday, July 30; that the premises were to be inventoried over the weekend; and that Respondent would take over Monday, August 2. Other features of the agreement were that Respondent would acquire Tufts' leaseholds in the buildings housing the two stores; 2 all equipment, fixtures, and transferable licenses used in the operation of the stores; all inventory and accounts payable as of close of business July 30; and a Tufts indebtedness to the Small Business Administration of $135,000. Expressly excluded from the transfer were Tufts' accounts receivable and cash on hand as of July 30. Respondent was not to acquire any shares of Tufts' stock. The earnest-money agreement also contained this clause: Purchaser assumes no obligation between Seller and Seller's employees at said two businesses, nor between Seller and any union which represents Seller's employ- ees at said two businesses .... For some 10 years preceding Respondent's takeover, the Union had been the collective-bargaining representative of Tufts' sales and delivery employees in a single, two-store unit. The latest contract between the Union and Tufts' went into effect on February 1, 1975, and was to run until February 1, 1977.3 The unit consisted of 12 employees just before the changeover - 7 at Tufts' Chalet, 5 at Tufts' Westpark. All belonged to the Union. Of the 12 employees, 8 were full-time, or nearly full-time. Respondent retained only 5 of the 12: 4 of the 7 at the Chalet remained there, while another Tufts' Chalet em- ployee, Debra Brackett, was shifted to the Westpark store. The two Chalet employees not retained were alleged discriminatees Thomas Fischer and Betty Huck. Respon- dent rounded out its Chalet complement by hiring four 2 Respondent nevertheless negotiated new leases with the landlords. 3 The contract described the unit as "all employees coming under the jurisdiction of' the Union. The Union's chief executive officer, Paul Rickman, testified credibly and without refutation that this embraced "the retail sales force employed on the floor of the stores, in addition to delivery part-time employees not previously with Tufts' and by keeping Bob Scott, the store manager under Tufts', in a lesser capacity. None of the five unit employees at Tufts' Westpark - alleged discriminatees Janet Harrison, Beata Johnson, Lois Marey, Jewell Miller, and Phyllis Wade - survived the changeover. Respondent replaced them with three full-time and three part-time employees, of whom only Brackett had been with Tufts'. Concerning Respondent's heavy use of part-time help, its president, Jack Potter, testified: We use part-time help to supplement the hours because we do not have the volume to carry all full-time employees. We try to use high school girls as part-time help to help the kids out and get them started in life. ... They're usually good help. They work when you want them to work, and it gives them a start in life. That's my philosophy of it. Preliminary hiring plans regarding the Tufts' employees were worked out by Potter and Wallace in concert, purportedly deriving mainly from their assessment of the employees while anonymously visiting the stores a month or so before the changeover. Quoting Potter's testimony: There were some employees that I felt we should keep because they were friendly and were doing work when there was not customers in the store. There was others that I did not want to keep because they were not friendly and were not working when the customers were not in the store. Wallace testified similarly, asserting that, "because of our observation and because of people who we knew had told us of their treatment of customers - this type of thing," he and Potter "had discussed and decided that the majority of the people would not be retained at Westpark," but that all the Chalet employees "were pretty good." Wallace continued, with reference to the Westpark em- ployees: We had previously observed their work habits, had recommendations from salesmen who had called upon the stores, customers of the stores, and, in Mr. Potter's words, "they were a bunch of'sourpusses.' " Wallace expanded that the Westpark employees had "very poor work habits; poor customer relations; and, in general, the cleanliness of the store was very poor." Pointedly sidestepped by Potter and Wallace in their evaluation of the Tufts' employees were the opinions of Tufts' management. Acting on the advice of Wesley M. Wilson, a Yakima attorney specializing in labor relations and Respondent's counsel in this proceeding, Potter declined the offer of his Tufts' counterpart, Roy Tufts, to "go over the employees" and give "personal thoughts on each one." Even so, Roy Tufts testified that he "might service employees," and excluded, among others, office clerical employees. It is concluded that the retail sales and delivery employees at Tufts' Chalet Drug and Tufts' Westpark Drug, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act, constituted an appropriate unit for purposes of the Act. 16 POTTER'S CHALET DRUG possibly" have told Potter or Wallace that alleged discrimi- natee Miller had been one of his best employees; 4 and David Tufts, Roy's son and the manager of Tufts' Westpark, told Wallace that the Westpark employees "were all reliable." Roy Tufts in addition asked Potter that "special dispensation" be given Bob Scott. Discussions between Potter and Roy Tufts leading to the ultimate transaction began in April 1976. Tufts informed Potter at the outset that Tufts' employees were under union contract. In their subsequent discussions, however, that circumstance was "purposely avoided," according to Potter; or, as Tufts put it: "By mutual agreement, we agreed not to discuss it." Although the record fails to explain the subject's being off limits, it plainly was not because of Potter's indifference to the situation. He told Wallace in the early stages of discussions that the two stores "were union," confiding that he "didn't want to have a union representing the employees" should Respondent acquire them.5 The sister corporation's four stores are nonunion. Potter and Wallace first conferred with the aforemen- tioned Wesley M. Wilson in early July, and met with him twice later in the month. Potter's regular attorney had recommended that they see Wilson in view of the Union's incumbency at Tufts'. Potter and Wallace both were vague and evasive concerning their meetings with Wilson.6 Thus, despite the reason for their seeking him out, Wallace "stonewalled" that Wilson "never touched. . . not to my knowledge" on the possibility of a bargaining obligation to the Union, and even went so far as to say that he could not recall that "the subject of the Union" was discussed with Wilson. Potter was somewhat more forthright, conceding that, because Tufts' "had been union," he "wanted to know [from Wilson) whether I could hire employees and who I could hire and who I couldn't hire .... " Potter further conceded that Wilson "might have" explained - "I cannot say to a fact" - that Respondent could inherit a bargaining obligation to the Union, "depending on who you hire or how many people you hire." Astonishingly, however, Potter testified that this was of no moment to him "because I had already picked the people that I was going to hire." It was during one or the other of the Wilson meetings that Potter and Wallace were advised against seeking the opinions of Tufts' management about the employees.7 Wilson also went over a list of "do's and dont's" regarding labor relations matters, and made suggestions concerning a job application form and an interview outline to be used in the hiring process.8 As earlier stated, an earnest-money agreement was entered into July 20. Starting July 24, Respondent ran a help-wanted advertisement in the Yakima Herald-Repub- 4 Tufts testified that he always considered Miller "a very good employee." s Wallace's testimony that Potter so stated was rendered with greatest reluctance. He testified just before that he and Potter had newr discussed "the subject of the Union, or questions concerning or related to the fact that a union was a representative of the employees at Tufts'." 6 At no time, however, was the attorney-client privilege invoked. 7 Respondent tendered no explanation for this advice. s Wilson advised, among other things, that this question be deleted from the interview outline: "Are you a union member?" lic; and, on July 26, it provided job application forms for the Tufts' employees at the two stores. Six of the seven discriminatees, Fischer being the exception, filled out and returned the forms. All interviewing of applicants was done by Wallace, beginning July 27. Of 16 interviewed, only 2 - alleged discriminatees Betty Huck and Jewell Miller - were not hired. Wallace did not bother to interview the other four alleged discriminatees who submitted applications. They, along with Miller, had comprised Tufts' Westpark staff, and assertedly had been ruled out beforehand as "sour- pusses," etc., as mentioned above. Nor did he interview Fischer, purportedly because, there being no application from Fischer, Wallace "knew nothing of" him. Potter and Wallace decided in advance of the interviews that it would be "only fair" to tell the Tufts' employees being considered "that if they accepted employment . . . they would be working for a nonunion company." Asked why he felt that this would be "advisable or fair," Potter begged the question, testifying: "To be fair and honest with the employees." Wallace in this instance was the more candid, explaining that the Tufts employees "may have a preference whether they would prefer to work in our stores knowing" this.9 Wallace interviewed Huck on July 27, at 9:30 p.m. He began by saying he had dined with Huck's brother the night before,10 then stated: "We're not union and I hope that won't cause any problems." Huck responded by asking about wages and medical coverage. Wallace said that wages would remain as with Tufts' and that Respon- dent carried medical insurance for its employees. Huck asked to see a copy of the medical plan. Wallace excused himself to look for one, returning shortly to report no success. Huck asked, in that case, that he bring a copy to her at the store, and he said, "Okay." Wallace then stated that, although "the girls" at Tufts' Westpark would not be retained "because they weren't worth their salt," Respondent "needled] you." Huck understood the "you" in this instance to be a reference to the Tufts' Chalet employees generally, not to her specifical- ly. Wallace testified, on the other hand, that he made an explicit job offer to Huck, either then or later in the interview. Wallace told Huck that Eleanor Oberlander, a Tufts' Chalet employee interviewed just before, wanted to handle the greeting cards department, and that Donna May, a Tufts' Chalet employee yet to be interviewed, was to be assigned cosmetics. He asked if Huck would be interested in small appliances. She answered that she would like to "think about it," adding that she did not know much about appliances but would be "willing to learn." Huck reiterated her wish to examine a copy of Respon- dent's medical plan, coincidently stating: "I thought our union contract was binding." Wallace said it was not, s Potter and Wallace would have it that they decided to and did disclose only that Potter's Columbia Basin stores - i.e., the sister corporation's four stores - were nonunion; and that the disclosure was made to all applicants. not just Tufts' employees. The weight of evidence and plausibility leaves scant doubt, however, that the revelation was restricted to Tufts' employees and that its burden - whatever the precise verbal formulation - was that the Yakima stores were to be nonunion. o1 Huck's brother is a sales manager for McKesson & Robbins, a wholesaler in pharmaceuticals and related items. 17 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prompting Huck to ask: "Well, how are you going to get out from under it?" Wallace replied: "By numbers." The interview ended at or about that point." The next day, July 28, was Huck's day off. On July 29, at the Chalet in the evening, she asked Wallace if he had obtained a copy of the medical plan. He said he had not, and she asked again if he would get one for her. He replied that he would "speak to Mr. Potter about that." On July 30, after lunch, Huck learned from Tufts' Chalet manager, Bob Scott, that she was not scheduled to work the next - Respondent's first - week. She asked Wallace about it later in the afternoon. He answered: "Well, you just didn't seem to be very receptive to what I had to offer." Huck protested that she would not have pursued the matter of the medical plan had she not been interested. Wallace countered: "Well, I was in a hurry to make a decision, and I felt that Eleanor Oberlander and Donna May, with their departmental responsibility, would be more use to me than you would be." Huck asked if that was the only reason for her not being hired. Wallace said it was. As indicated earlier, Wallace interviewed Eleanor Ober- lander, a Tufts' Chalet employee, immediately before interviewing Huck. After Wallace had disclosed his plan to install Oberlander in greeting cards and Donna May in cosmetics, Oberlander inquired of his intentions concern- ing Huck and Molly Curtis, also a Tufts' Chalet employee. Wallace replied that he had Huck in mind for small appliances and foresaw Curtis as "the part-time girl" since she was receiving social security payments and did not wish to work full-time, Wallace then stated: "I hope that Molly is not hung up on the Union like Betty [Huck] is." 1 2 Similarly, while interviewing Curtis on July 29, after announcing that the Yakima stores would be nonunion, Wallace said he "hoped" that this would not be a "hang- up" with Curtis "like it was with Betty Huck." 13 Wallace testified that Huck was not hired because she failed to communicate a job acceptance to him in timely fashion, emphasizing that he had only a few days to get the stores staffed and ready for business. He conceded, based on Huck's interview, that he felt she "was probably stronger union than the rest of the employees interviewed," but insisted that this had nothing to do with her not being hired. Jewell Miller was interviewed by Wallace on July 28, in the morning. As the only Tufts' Westpark employee to be i" Huck's version of the interview is adopted. Wallace's denial that he made reference to numbers as a means of avoiding the Union is discredited. Although having a stake in the outcome, Huck was a forthnght and eminently believable witness. Wallace. by contrast and as elsewhere indicated, was lamentably self-serving and evasive under oath - so much so that it would be difficult to credit him in any instance of testimonial conflict on a significant point. Moreover, as is later developed. Jewell Miller credibly testified that Wallace made a like remark to her. Wallace also is discredited that he furnished Huck, and all other interviewees, with a written summary of Respondent's medical plan. Not only Huck, but others interviewed, denied that this happened. Wallace is discredited, finally, that Huck said she did not care whether she was hired or not "because she had her 10 years in for her union retirement," Huck having credibly denied so stating. 12 Oberlander's version of the interview is adopted. She also credibly testified that Wallace said to her, "You do realize that we are a nonunion store," after which he asked: "Do you have any objections?" Wallace's denial that he mentioned Huck's being "hung up on the Union" is discredited. Oberlander came across as a conscientious and capable witness. while Wallace, as noted before, was markedly to the contrary. Respondent's argument that Wallace could not have made the comment because he had interviewed, she evidently was spared the "sourpuss" appellation given generally to the Westpark people.14 Wallace began by asking if Miller was interested in working for Respondent. She answered that she "definite- ly" was; that she was self-supporting. Wallace said: "You realize we are not union." Miller replied: "Our union has been good to us," to which Wallace stated: Well, you understand the position we're in, we can only hire 49 percent of the help back, because we don't want the Union to have a majority. Miller commented that she was just short of qualifying for a 10-year pension with the Union, and that she did not want to jeopardize that. She quickly added, however, that she had another 2 years in which to gain the additional time in a union store, so that was of no great concern. To Wallace's asking what Miller considered her virtues to be, she said she was "honest, fair, and hardworking"; and, when Wallace asked what departments she would be interested in, she mentioned cosmetics and small appli- ances, excluding greeting cards because that was Beata Johnson's department at Tufts' Westpark. This prompted Wallace to say that the Westpark clerks were "very unfriendly." Miller asked where he got that impression, and he replied: "It's our general observation." The interview ended with Wallace saying he would contact Miller the next day and with her giving him her home telephone number.' s Miller was home sick the next day, July 29. Wallace did not call. On July 30, at or about 5:30 p.m., still having heard nothing from Wallace, she telephoned him at the Chalet asking if she had a job. He said: "No, we don't need you at this time." Miller said she needed the work, but Wallace persisted: "Well, we just can't use you at this time." Wallace testified that, as with Huck, Miller was not hired because she did not communicate a timely acceptance. Thomas Fischer, a high school student, had been one of two part-time delivery boys employed by Tufts'. Kyle Braden was the other. Both were nominally assigned to Tufts' Chalet, but worked out of the Westpark store as well. Because of the in-and-out nature of his work, Fischer never learned that application forms were available. Several times during Tufts' last week, however, and particularly on yet to interview Huck, and thus had no means of forming such an impression, ignores that Wallace dined with Huck's brother the night before and the myriad other indirect ways he might have formed that opinion of her. 13 Curtis is credited that Wallace so spoke. Wallace also stated to Curtis, much as he had to Huck, that Respondent was not going to hire "any of the girls at Westpark because they weren't worth their salt." 14 It will be remembered that Roy Tufts considered Miller to be "a very good employee," and "might possibly" have so informed Potter or Wallace. In addition, Wallace testified: "[W le felt that there may be one person that we may retain, if any, at Westpark." This presumably was a reference to Miller, although the record does not say. 1i Miller's version of the interview is adopted. Wallace's denial that he made the remark about hiring only 49 percent of the Tufts' employees is discredited for the reasons previously given and for the further reason that Miller projected conviction while testifying. Wallace is also discredited, in the face of Miller's denials, that he expressly offered her a job, that he told her that a job could not be held open for her because of time strictures, and that he instructed her to call him later in the week rather than saying he would contact her. 18 POTTER'S CHALET DRUG July 30, he asked Bob Scott if he would be retained by Respondent. Scott's answer, invariably, was to the effect that he had "no idea." On August 2, seeing that his name was not on the work schedule, Fischer "assumed" that he was not needed and made no further inquiry about his status. Respondent has had only one delivery boy since taking over, that being Braden initially.' 6 Braden was required to work virtually full time the first week or so, reverting to his usual part-time hours when Respondent implemented its plan to discontinue certain deliveries to the Yakima hospitals. In June 1976, the Union brought a wage grievance against Tufts' on Fischer's behalf, which was still unre- solved when Respondent took over. Potter and Wallace credibly denied any knowledge of that matter; and, as mentioned previously, Wallace testified that he "knew nothing of Fischer," period. By letter dated August 24, 1976, to Wallace from Paul Rickman, the Union's chief executive officer, the Union demanded "immediate recognition and compliance with the current Agreement .. ." and requested that a represen- tative of Respondent meet with Rickman on August 26 "to discuss the existing Agreement and labor relations prob- lems relating to same." Attorney Wilson sent a responding letter, dated August 25, stating in part: Since Potter Drugs is not a successor to the seller, and apparently a majority of the employees of Potter Drugs do not desire to be represented by any union, we do not see any need to meet with the union. Of course, any collective bargaining agreement which the seller may have had with a union does not apply to Potter Drugs. Except for maintaining the wage levels of at least some of Tufts' employees that it did hire, Respondent made no point of adhering to the terms and conditions of employ- ment extant between Tufts' and the Union; and at no time contributed for the employees to the Union's health and welfare and pension plans as had Tufts'. B. Analysis The refusal to hire: It is concluded that six of the seven alleged discriminatees - Fischer being the exception - were denied employment at least in part to enable Respondent to disinherit Tufts' bargaining relationship with the Union, and that Respondent consequently violated Section 8(aX3) and (1) as to all but Fischer. This conclusion rests on a number of mutually consistent considerations: (a) Potter's disclosure to Wallace, early in the discussions with Roy Tufts, that he "didn't want to have a union representing the employees" should Respondent acquire the two stores; and their later decision to tell the Tufts' interviewees that the stores would be nonunion. An early and ongoing predisposition to avoid the Union was thus shown. (b) The pointed exclusion of the union situation from the prechangeover discussions between Potter and Roy Tufts. Although this presumably was intended to create an illusion of Potter's indifference to the situation, its very pointedness worked to the contrary. (c) Respondent's studied, counsel-advised avoidance of the opinions of Tufts' management about the Tufts' employees, while assertedly relying on the opinions of salesmen and customers and going to the pains of personal observation. In the context of Respondent's other conduct and Potter's stated desire to elude the Union, this calculated disregard of the most obvious source of information about the employees suggests that Respondent was not so much interested in enlightenment as in advancing a strategy of unlawful elimination. (d) Respondent's blanket condemnation of the Westpark employees as "a bunch of sourpusses," without citation to specific incident or employee and without according any but Miller so much as an interview. In overall context, this indicates an indiscriminate "smear" in further advance- ment of a strategy of unlawful elimination. (e) Wallace's revelation to Jewell Miller that Respondent could "only hire 49 percent of the help back, because we don't want the Union to have a majority," and his remark to Betty Huck that Respondent would avoid Tufts' union obligation "by numbers." So saying, Wallace revealed for the first time how Respondent proposed to carry out its antiunion design. (f) Respondent's in fact hiring just less than a majority of Tufts' employees - 5 out of 12; or, accepting Wallace's assertion that Respondent knew nothing about Fischer, 5 out of 11. The plan disclosed in Wallace's remarks just cited thus was followed to the letter. (g) Potter's and Wallace's frequently evasive, self-serving, and mutually self-contradicting testimony. This betrayed their awareness that Respondent's interests would not be served by the truth. Some additional observations are necessary concerning Huck, Miller, and Fischer. Respondent's defense that Huck would have been hired had she but communicated a timely job acceptance is rejected. Not only was the delay induced by Wallace's failure to deliver a promised copy of the medical plan, but he admittedly thought Huck to be strongly prounion. Moreover, he was troubled by her union "hang-ups," as witness his remarks to both Eleanor Oberlander and Molly Curtis. It is altogether inferable that this anxiety about Huck's union sympathies, in combina- tion with Respondent's determination generally to elude the Union, was a prominent factor in Wallace's foot- dragging over the medical plan. Respondent's claim that Miller, too, would have been hired if only she had made a timely acceptance is likewise rejected. It presupposes that she received an unequivocal offer. The credited evidence establishes, however, that her interview ended with Wallace saying he would contact her later - which he failed to do. Wallace induced delay here much as he did in the Huck situation; and remembering Miller's interview comment that "our union has been good to us," it is no less inferable here than there that perceived union sympathies were a contributing factor. '6 Braden, unlike Fischer, did submit an application. 19 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is not to say that Respondent violated the Act concerning Huck and Miller only because Wallace's motivation in nurturing the delays was unlawful. The delays, whatever their motivation, were no more a reason for the nonhire of these two than being "sourpusses" was a reason for the nonhire of the four Westpark employees denied interviews. The real reason was Respondent's imposition upon itself of the carryover quota to escape Tufts' bargaining obligation. Six of the Tufts' employees were foredoomed. Which six is irrelevant; the underlying antiunion purpose tainted the winnowing process, regard- less. As the Supreme Court observed in Howard Johnson Co., Inc. v. Detroit Local Joint Executive Board Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, 417 U.S. 249, 262, fn. 8 (1974): Of course, it is an unfair labor practice for an employer to discriminate in hiring or retention of employees on the basis of union membership or activity .... Thus, a new owner could not refuse to hire the employees of his predecessor solely because they were union members or to avoid having to recognize the union. [Emphasis added.] See also N.L.R.B. v. Burns International Security Services, Inc., et al., 406 U.S. 272, 279-280 (1972); Houston Distribution Services, Inc., 227 NLRB 960 (1977); Macomb Block and Supply, Inc., 223 NLRB 1285 (1976). Regarding Fischer, it is concluded that a violation has not been shown. He failed to submit an application, lending credence to Wallace's story that he knew nothing about Fischer; and Respondent quickly eliminated the need for a second delivery boy in any event. See Houston Distribution Services, Inc., supra, fn. 2. The refusal to recognize: The Tufts' unit consisted of 12 employees. Five of them were retained by Respondent, while it increased the complement to an arguable 14.17 As just concluded, Respondent improperly failed to retain six others from the Tufts' unit. All of the Tufts' employees belonged to the Union. It thus is apparent that, but for Respondent's misconduct, the Union's majority would have survived Respondent's takeover of the two stores. That, together with Respondent's continued operation of the stores at the same locations and in substantially the same manner as before, compels the result that it is a legal successor of Tufts' with respect to Tufts' bargaining obligation to the Union. Quoting from N.LR.B. v. Burns International Security Services, supra at 406 U.S. 279-280: It goes without saying, of course, that Burns was not entitled to upset what it should have accepted as an established union majority by . . . committing the unfair labor practice of which it was found guilty by the Board. Respondent therefore violated Section 8(aX5) and (1) by disavowing Tufts' obligation to the Union.18 Respondent also violated that section by unilaterally departing from certain terms and conditions of employ- 1T The parties are in disagreement as to the unit status of 3 of the 14 - Wallace's wife and son and Bob Scott. For purposes of this decision, it is assumed without deciding that they were in the unit. 18 The changes made by Respondent in the operation of the two stores ment in effect between Tufts and the Union, coincident with its takeover. Again extracting from the Supreme Court's Burns decision (at 294-295): Although a successor employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor, there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees' bargaining representative before he fixes terms. [Em- phasis supplied.] The emphasized portion of this passage is not descriptive of the present situation only because of Respondent's predis- position to hire less than a majority of the Tufts' employees for an unlawful reason. Consequently, to "prevent Respon- dent from reaping financial gain from its unlawful conduct," 9 the principle must obtain. Respondent's successorship status was never sufficiently inchoate in point of law to entitle it to set initial terms of employment. It follows that Respondent is under a present obligation to bargain with the Union, on request, concerning any terms and conditions of employment over which it would have been required to bargain had the Union's lawful status been acknowledged on August 2, 1976 - the date Respondent assumed operation of the two stores. Bachrodt Chevrolet Co., 205 NLRB 784 (1973). See also Donn Products, Inc. & American Metals Corporation, 229 NLRB 116, 117 (1977). The Wallace remarks: It is concluded that Wallace violated Section 8(a)(l) substantially as alleged by: (a) Telling prospective employees that the Yakima stores would be nonunion. (b) Asking prospective employees if they had any objections to the stores' being nonunion, or if it would present any problems, or words to that effect. (c) Telling Miller that Respondent could "only hire 49 percent of the help back, because we don't want the Union to have a majority"; and telling Huck that Respondent would avoid Tufts' union obligation "by numbers." CONCLUSIONS OF LAW I. By telling prospective employees that its Yakima stores would be nonunion and asking them if they had any objections or if that would present any problems, and by telling prospective employees that it would hire less than one-half of the former employer's employees "because we don't want the Union to have a majority," as found herein, Respondent in each instance violated Section 8(a)(1) of the Act. 2. By failing to hire Janet Harrison, Betty Huck, Beata Johnson, Lois Marey, Jewell Miller, and Phyllis Wade, as found herein, Respondent in each instance violated Section 8(a)(3) and (1) of the Act. 3. By disavowing its bargaining obligation to the Union, and by departing from preexisting terms and were not sufficient to preclude successorship. First Food Ventures, Inc., 229 NLRB 1228, 1229-30(1977). 19 Ellis Tacke Company, 229 NLRB 1296 (1977). 20 POTTER'S CHALET DRUG conditions of employment, as found herein, Respondent violated Section 8(a)(5) and (I) of the Act. 4. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent's failure to hire Thomas Fischer did not violate the Act as alleged. Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(b) of the Act, I hereby issue this recommended: ORDER 2o The Respondent, Potter Drug Enterprises, Inc., d/b/a Potter's Chalet Drug and Potter's Westpark Drug, Yakima, Washington, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Telling employees or prospective employees that its Yakima stores will be nonunion, and asking them if they have any objections to that or if that will present any problems; and telling them that it will hire less than a majority of the former employer's employees "because we don't want the Union to have a majority." (b) Refusing to hire, or otherwise discriminating against, employees to avoid bargaining with a union. (c) Refusing to recognize Retail Store Employees Local Union No. 631, Retail Clerks International Association, AFL-CIO, as the exclusive collective-bargaining represen- tative of its employees in this appropriate unit: All retail sales and delivery employees at Potter's Chalet Drug and Potter's Westpark Drug, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. (d) Making changes in the working conditions of the employees in the above unit without notice to and consultation with said union. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain with the above union as the exclusive representative of all the employees in the above unit concerning their terms and conditions of employment; and, if an understanding is reached, embody it in a signed contract if asked to do so. (b) Upon request of the above union, cancel any departures from working conditions that existed immedi- ately before its takeover of Tufts' Yakima stores, making the employees whole for any losses of pay or benefits suffered as a result of such departures. (c) Offer immediate and full employment to Janet Harrison, Betty Huck, Beata Johnson, Lois Marey, Jewell Miller, and Phyllis Wade, without prejudice to their seniority and other rights and privileges, discharging if necessary employees hired from sources other than Tufts' Chalet Drug and Tufts' Westpark Drug to make room for them; and make them whole for any loss of earnings and benefits they may have' suffered by reason of the unlawful failure to hire them. 21 (d) Post at its stores in Yakima, Washington, the notice which is attached and marked "Appendix." 22 Copies of the notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that that portion of the complaint concerning Thomas Fischer is dismissed. 20 All outstanding motions inconsistent with this recommended Order hereby are denied. In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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. 21 Backpay to be computed in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The "make-whole" portion of this paragraph is to be applied consistently with par. 2(b), immediately preceding. 22 In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the Unted States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The hearing held in Yakima, Washington, on March 17, 18, and 21, 1977, in which we participated and had a chance to give evidence, resulted in a decision that we had committed certain unfair labor practices in violation of Section 8(aX I), (3), and (5) of the National Labor Relations Act, and this notice is posted pursuant to that decision. The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activity except to the extent that the employees' bargaining representative and employer have a collective- bargaining agreement which imposes a lawful requirement that employees become union mem- bers. WE WILL NOT tell employees or prospective employ- ees that our Yakima stores will be nonunion, nor will we ask them if they have any objections to that or if 21 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that will present any problems; and WE WILL NOT tell them that we will hire less than a majority of the former employer's employees "because we don't want the Union to have a majority." WE WILL NOT refuse to hire, or otherwise discrimi- nate against, employees to avoid bargaining with a union. WE WILL NOT refuse to recognize Retail Store Employees Local Union No. 631, Retail Clerks Inter- national Association, AFL-CIO, as the exclusive collective-bargaining representative of our employees in this appropriate unit: All retail sales and delivery employees at Potter's Chalet Drug and Potter's Westpark Drug, exclud- ing office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. WE WILL NOT make changes in the working condi- tions of the employees in the above unit without notice to and consultation with said union. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in their exercise of rights under Section 7 of the Act. WE wuLL, upon request, bargain with the above union as the exclusive representative of all the employ- ees in the above unit concerning their terms and conditions of employment; and, if an understanding is reached, embody it in a signed contract if asked to do so. WE WILL, upon request of the above union, cancel any departures from working conditions that existed immediately before our takeover of Tufts' Yakima stores, making the employees whole for any losses of pay or benefits suffered as a result of such departures. We WILL offer immediate and full employment to Janet Harrison, Betty Huck, Beata Johnson, Lois Marey, Jewell Miller, and Phyllis Wade, without prejudice to their seniority and other rights and privileges, discharging if necessary employees hired from sources other than Tufts' Chalet Drug and Tufts' Westpark Drug to make room for them; and WE WILL make them whole for any loss of earnings and benefits they may have suffered by reason of our unlawful failure to hire them. POTrER DRUG ENTERPRISES, INC., D/B/A POTrER'S CHALET DRUG AND POTTER'S WESTPARK DRUG 22