NRTA-AARP Phamacy

RETIRED PERSONS PHARMACY Retired Persons Pharmacy, t/a NRTA-AARP Phar- macy and Metropolitan Guild of Pharmacists. Case 5-CA-6108 April 30, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On October 30, 1973, Administrative Law Judge George J. Bott issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief,' and General Counsel filed a memorandum in reply to Respondent's exceptions and brief. 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, findings, and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. 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 Respondent, Retired Persons Pharmacy, t/a NRTA-AARP Pharmacy, Washing- ton, D.C., its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. I The Respondent has requested oral argument . This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties 2 We agree with the Administrative Law Judge that the nonsecret poll conducted by the attorneys for Respondent violated Sec . 8(a)(1) of the Act, whether conducted for the purpose of testing the Union's continued status as ntaJonty representative of the employees herein or as part of Respon- dent's preparation for trial . With respect to the latter aim, we agree with the Administrative Law Judge for the reasons stated by him that the inquiries in the questionnaire used by Respondent's attorneys far exceeded the "area of permissible inquiry." As for the use of the same questionnaire to determine whether the Union continued to enjoy majority support, we find that, in the circumstances of this case, the Respondent had no reasonable basis for doubting the Union's continued majority status at the time it refused to bargain with the Union and denied it further recognition, and therefore, 443 could not, after taking such action, rely on evidence of employee dissatisfaction disclosed through the expediency of a poll of its employees, whether or not such was conducted in accordance with Siruksnes standards An employer may not withdraw from a bargaining relationship without adequate objective evidence to justify its action, and thereafter utilize a poll, the results of which may well have been skewed by the employer's own unlawful withdrawal of recognition, to attempt to justify that self-same unlawful withdrawal Such a "bootstrap" defense is not, in our view, well founded. DECISION STATEMENT OF THE CASE GEORGE J. BoTT, Administrative Law Judge: Upon a charge and an amended charge of unfair labor practices filed by the above-named Union on May 17 and 22, 1973, respectively, against Retired Persons Pharmacy, herein called Respondent or Employer, the General Counsel of the National Labor Relations Board issued a complaint on July 2, 1973, alleging that Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein called the Act. Respondent filed an answer and a hearing was held before me at Washington, D.C. on August 14 and 15, 1973, at which all parties were represented. Subsequent to the hearing, the Respondent and the General Counsel filed briefs which have been considered.' Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION OF THE BOARD Respondent, a corporation located in the District of Columbia and engaged in the sale and distribution of drugs, received materials directly from places located outside the District of Columbia valued in excess of $50,000, and sold and shipped goods valued in excess of $50,000 to points located outside the District of Columbia, during the 12 months preceding the issuance of the complaint. Respondent is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Metropolitan Guild of Pharmacists, herein called the Guild, is a labor organization within the meaning of the Act. i General Counsel's unopposed motion to correct the transcript is granted. 210 NLRB No. 65 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues are: 1. Whether Respondent's withdrawal of recognition from the Guild on April 19, 1973, was in good faith, based on objective considerations and a reasonably grounded doubt that the Guild no longer represented a majority of unit employees. 2. Whether Respondent violated the Act by interrogat- ing unit employees on May 21 , 1973, allegedly for the purpose of preparing a defense to the refusal to bargain charge. 3. Whether Respondent violated the Act by unilaterally changing the hours of unit employees. 4. Whether Respondent was deprived of due process because of the Administrative Law Judge's rulings on evidence and because of an asserted inability to prepare for trial by reason of the issuance of the complaint attacking its interviewing of unit employees. B. Basic Findings of Fact Respondent's pharmacists having chosen the Guild by a vote of 20 to 10 in a Board election, the Board, on November 29, 1971, certified the Guild as the collective- bargaining representative of all registered and/or graduate pharmacists of the Employer at its Washington, D.C. location, but excluding supervisors and the other usual exclusions.2 Respondent and the Guild commenced negotiations, but a final agreement was not executed until September 1, 1972, effective from May 29, 1972, to May 29, 1973. The contract contains no union-shop clause , and no dues- checkoff provision. Contrary to Respondent's contention, I find that there were no substantial changes in the composition of the unit during the life of the contract. This is evident from a comparison of the Excelsior list, which the Employer supplied the Board in connection with the election, and a list of employees in the unit on April 19, 1973, when Respondent ceased recognizing the Union. It appears that 24 employees out of 28 in the unit were employed when the election was held and remained employed on April 19, 1973. I also find, contrary to Respondent's contention, that the Guild and its members remained active to Respondent's knowledge during the life of the contract. Paul Woods, one of the Guild's grievance committeemen, testified, without contradiction, that he handled a number of grievances with Supervisor Brault, and one with Manager Altman during the life of the agreement. Two employees were members of the board of directors of the Guild, and the credited testimony is that they and unit employees participated in many Guild meetings on and off Respondent's premises. During the life of the contract, at least 6 meetings, generally attended by approximately 20 unit employees, s Four ballots were challenged in the election . The challenges were not resolved smce they were not determinative of the results , but it now appears that three of the persons challenged were supervisors. were held on Respondent's premises during lunch or break periodS.3 On March 7, 1973, the Guild notified Respondent's attorney of its intent to terminate the agreement at its expiration date and to modify certain of its terms through collective bargaining. After further correspondence a meeting between Respondent's attorney Lewis and Guild attorney Lechner took place in Washington, D.C. on April 19, 1973. During the meeting, Lewis advised Lechner that the Employer felt that the Guild no longer continued to have the support of a majority of the pharmacists and intended to file a petition with the Board for a new election. Lechner opposed such a course and asked Lewis what evidence the Employer had to support its belief. I credit Lechner's testimony that he received no response to his inquiry about what Respondent's belief was based on. On April 20, 1973, Respondent filed a representation petition with the Board, which was not accompanied by any evidence to support its expressed belief that the Guild no longer had majority support, and on May 2, 1973, the petition was dismissed as untimely, since it was filed during the insulated period of the contract. It was stipulated that since April 19, 1973, Respondent has refused to meet and bargain with the Guild. The first charge of refusal to bargain was filed by the Guild on May 14, 1973, and served on Respondent on May 17. On May 21, 1973, Attorneys Giovannetti, G. Harrison Darby and Peggy L. Braden, from the law firm which has represented Respondent throughout, interviewed all unit employees at Respondent's premises , using the same introductory statement and questions. The prefatory statement and the questions used by the attorneys are in evidence and are also attached hereto as "Appendix A." The introductory statement, read to all unit employees at the commencement of the interviews states, in part, that the Employer does not feel that the Guild has the support of the pharmacists and that the interviewer would "like to ask you a few questions to assist in the preparation of a defense to unfair labor practice charges filed by the Guild." There are 46 questions in the questionnaire. The employees were interviewed separately, in private rooms away from the work area, after having been summoned from their stations by a management represent- ative. They were advised that they did not have to answer any questions and were free to leave. In addition, they were told there would be no reprisals if they did not cooperate. It was stipulated that of the 27 unit employees called for interviews, 16 answered most or all of the questions. It also appears that the Guild's attorney, having quickly learned that the employees were being questioned, counseled their plant representative to advise them to refuse to cooperate if they wished, but, if they feared reprisals, to comply, but to lie. Sometime in early May 1973, prior to the expiration of the collective-bargaining contract, Respondent's officials decided to reduce the workweek of unit employees by 2 hours. This decision was implemented on May 30, 1973, the day after the contract expired, and it was stipulated 3 The findings on "viability" and Respondent's awareness of it are based on the credited testimony of employees Woods and Meszaros. RETIRED PERSONS PHARMACY 445 that it was done without notice to and bargaining with the Guild. Respondent presented certain evidence in support of its contention that its refusal to bargain with the Union since April 19, 1973, was based on its good-faith belief that the Union no longer had the support of a majority of employees. Manager Altman testified that his belief that the Guild did not have majority support of the pharmacists was based, in part, on his inability to observe any Guild activity among the employees, but I have found that the Guild was sufficiently active, and that Respondent knew it. Altman also testified that certain employees expressed dissatisfac- tion with the Guild to him. He said that "probably in the fall of 1972" employee Avella stated to him that he could not understand why the employees wanted the Guild because it had done nothing for them, but, in fact, had lost them money. He also had two talks with employee Johnson, he said, one of which occurred before the election. In the second conversation, which he said took place in "the first part of this year," Johnson told him that he should spend more time trying to get rid of the Guild than in attempting to "pacify" it. On or about April 1, employee Turner showed him a list of employees divided into two columns, Altman said. There were 14 names listed in each column, and Altman said that Turner stated that one group were those whom she "believed" were members of the Guild and the other those who were not "in favor of the Guild." Altman took employee Levy to dinner in October 1972 in appreciation for extra production, he said. He testified that during dinner Levy commented that he did not need the Guild to represent him, and preferred to represent himself. In addition to the four conversations he had with employees, as just set out, Altman said that Supervisor Brault told him that he had spoken to "many" employees and that they were "unhappy with the Guild." These conversations with employees, which Brault reported to him, and his own, "indicated the Guild did not enjoy the full support of the pharmacists," nor did they have majority support of the pharmacists," Altman stated. Pharmacy Manager Brault testified that he had many conversations with employees about the Guild after the election but prior to April 19. There were 28 pharmacists employed on April 19, and Brault testified, without contradiction, that 14 of them expressed dissatisfaction with the Guild to him. The names of the pharmacists and the essence of their remarks, as Brault described them, follow: Avella: He was "quite outspoken, asking me on numer- ous occasions why we didn't get rid of the Guild . . . why don't you get rid of those bastards ...... Campbell: One conversation, in "early April," in which she expressed strong displeasure with the treatment of a fellow employee (Kim) by the Guild. This statement could have been made "three or four months ago," according to Brault. Downward: More than one conversation in which he would ask, "What are the Guild boys up to now?" On other occasions he said he "had nothing personal against the Guild, but he did not need it." Garofalo: He also complained about the Guild treatment of employee Kim around the same time employee Campbell did, and he also stated that he had no use for the Guild. Griffen: Many conversations at unspecified times be- tween the election and April 19, in one of which he stated that although he had nothing personal against the Guild, "he just couldn't use them." At other times he voiced annoyance over the "noise" in the pharmacy and asked Brault if he could not get the "Guild people" to quiet down. Goldman: At some unremembered time, "some time ago," but "definitely" prior to April 19, Goldman replied that he had "no use for them" when Brault asked him if the Guild "was bothering him." Johnson: Was in Brault's office frequently, before and after the election, at one time complaining about Kim's treatment by the Guild, and asking, something "to the effect," if there was anything the Employer could do to get the Guild "off her back." Kim: During the first 3 months of the year many conversations with her in which she complained about the Guild people interfering with her work and trying to get her tojoin the Guild. . Levy: From shortly after the election to "early this year," he complained about the Guild interfering with his work and stated that he wanted to be "left alone to do his own work the way he wanted to." Lewis: Having been told by his assistant that the Guild was now "going after Lewis," Brault asked her if anyone was bothering her, and she replied that "she didn't bother with the Guild at all." Maciulla: Told Brault that he "didn't want any part of the Guild." Also in early 1973, when he returned to work after a severe illness, stated that he had never been involved with the Guild before and so they were not "going to bother him." This remark was triggered by Brault's expressed concern over whether the Guild was "bothering" the employees. Testamark: Asked at time of Kim incident whether she was being "bothered" by the Guild, she answered that she "had no time for the Guild." Turner: In latter part of 1972 she was disillusioned with the Guild and did not want any part of it. Wolf:: Three or four conversations prior to April 19, complaining "about the noise and the meetings, the gatherings that were going on (that) he attributed to the Guild people." Once when Brault said he would speak with the Guild about the problem, Wolf told him to forget the grievance because the Guild would do nothing about it. Brault testified that he frequently discussed the conversa- tions he had with employees about the Guild with Altman, at staff meetings or other times. C. Analysis, Additional Findings and Conclusions 1. The claim of "good faith doubt" of the Guild's majority status The parties agree that it is well established that a 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certified union, upon expiration of the first year following its certification, enjoys a presumption that its majority representative status continues.4 Once the presumption is shown to be operative, as here, a prima facie case is established that an employer is obligated to bargain and that its refusal to do so is unlawful. The prima facie case may be rebutted if the employer affirmatively establishes that its refusal was predicated upon a "good faith and reasonably grounded doubt of the union's continued majority status."5 The presumption may also be rebutted if the employer can show by competent evidence that the union in fact no longer enjoyed majority representative status .6 With respect to the first of these methods of rebutting the presumption, that is, "good faith doubt," no "simple formula" exists for testing the issue, and the question "can only be answered in the light of the totality of the circumstances involved in a particular case." 7 Since I have discredited Altman's testimony that he had reason to believe that the Guild was dormant,8 and because there is no evidence of any substantial change in the unit upon which Respondent can rely,9 there remains for examination only the conversations that Altman and Brault had with unit employees, sometime prior to Respondent's refusal to continue recognition, in order to determine whether that evidence is of such character that Respondent could on the basis of it reasonably believe that the Guild no longer maintained "majority representative status," which is defined as "a majority of employees in the unit wish[ing] to have the union as their representative for collective bargaining purposes." 10 Brault testified about conversations he had with 14 unit employees, the content of which, Respondent contends, led it to objectively and reasonably conclude that the Guild had lost the support of a majority of the pharmacists." In my opinion, the evidence found in the remarks of at least six employees who spoke with Brault is not sufficient to overturn the Guild's presumption of continued majority support because the statements are not clear or firm enough indications that the employee did not want the Guild to repret ent him as to reasonably justify Respondent believing that such was the case. Not only was Brault unable to fix the time he spoke with Campbell, but her comments amount to no more than a criticism of what she apparently thought was unfair treatment of employee Kim by Guild members. Similarly, employee Johnson merely asked Brault, something "to the effect," whether Respondent could get the Guild "off Kim's back." In neither Campbell's nor Johnson' s state- 4 Automated Business Systems, A Division of Litton Business Systems, Inc, 205 NLRB No. 35; Emerson Manufacturing Company, Inc, 200 NLRB No. 33; Terrell Machine Company, 173 NLRB 1480, enfd. 427 F.2d 1088 (C.A 4, 1970). "Presumptions in the law are a procedural substitute for evidence (and they are based upon) the probability of fact . . " N.LR.B. v. Tragniew, inc., 470 F.2d 669, 674 (C A. 9, 1972). 5 Terrell Machine Co., supra. B Id at 1480-81. 1 Celanese Corporation of America, 95 NLRB 664, 671-673. 8 Not only were employees Meszaros and Woods persuasive on this point, but Supervisor Brault, who Altman said briefed hun on conversations he had with employees about their attitude toward the Guild, testified that employees complained to him on numerous occasions about Guild activity ments of disagreement with Guild member action is there a clear indication that the speaker did not want to be represented by the Guild. Disagreement with the policies of a representative does not mean that one has abandoned support of that representative.12 Supervisors having apparently reported to him that Guild members were talking to fellow employees in the unit, Brault approached some of these employees and questioned them. He said he asked Lewis if anyone was "bothering her," and that she replied that she "didn't bother with the Guild at all." Testamark responded to his inquiry by stating that "she had no time for the Guild." Laying aside the possible impropriety of Brault's question- ing of Lewis and Testamark, as well as Lewis' apparent avoidance of the main thrust of Brault's question, I find that their responses did not rise to the level of evidence which would reasonably support a belief that they did not desire Guild representation . Not "bothering with" or having "no time" for the Guild are equivocal statements which can be interpreted as meaning "no time" for active support, such as, attendance at union meetings or payment of dues rather than as not desiring representation at all. Brault also asked employee Goldman if the Guild was "bothering him," which is not the same as asking whether he wanted to be represented by the Guild, and although Brault said Goldman indicated no "use for the Guild," Brault's qualification of the response as being "basically" what' the employee stated robs it of any probative value. Employee Wolf complained to Brault a number of times about "Guild people" making too much noise in the pharmacy, apparently while holding Guild meetings. Brault was unable to fix the time of these statements except to say that they were both before and after the Board election. In addition to the uncertainty about the dates of Wolf's criticisms of Guild activity, I find that his remarks do not constitute probative evidence fairly showing that Wolf did not want the Guild to represent him for the purpose of collective bargaining.13 I find that the evidence is insufficient to overcome the presumption of continued majority support because in at least six of the instances of conversations with employees about the Guild the evidence does not meet the Board's standards of objective considerations sufficient to support a reasonable doubt of the Guild's majority. I find, therefore, that Respondent did not in good faith believe that the Guild had lost its majority even if the other 8 employees in the unit of 28 who talked to Brault had withdrawn their support from the Guild and clearly stated such to Respondent's officials.14 in the pharmacy. 9 Cf. Convair Division of General Dynamics Corporation, 169 NLRB 131, 134-135. i° Terrell Machine Co, supra at 1481, fn. 3. 11 Altman testified to conversations with four employees, but they were among the 14 Brault heard from. i2 Gulf Machinery Co, 175 NLRB 410, 413. is Davis & Hemphill, Inc., 177 NLRB 282, 285. i4 Altman testified that Brault had, or made, many "lists" of employees, who were "for," "against," or "in between." Brault did not mention these "lists" in his testimony, and they were not produced. Aside from the question this raises about Altman's testimony, it is significant that even on Brault's "lists," there were some persons "in between," and no majority RETIRED PERSONS PHARMACY 447 2. Respondent's poll of employees to determine whether the Guild in fact represented a majority of employees The prima facie case based upon the presumption that majority status continues after the expiration of the certification year may also be rebutted if the employer can affirmatively establish by competent evidence that at the time of the refusal to bargain the union "in fact no longer enjoyed majority representative status." 15 Although its arguments in support thereof tend to overlap or even merge, Respondent defends its interroga- tion of unit employees on two grounds, the first being that its attorneys, by speaking with employees, wanted, at the hearing, "to be able to present [evidence of ] no majority [in fact] on the date of the refusal ...." 16 Respondent admittedly had no independent evidence that the Guild, in fact, no longer enjoyed majority support, and it is clear to me, therefore, despite some confusion engendered by Respondent's reliance on the principle that Respondent is entitled to prepare a defense to an unfair labor practice charge,-a matter to be handled next-that one thing at least Respondent's attorneys were doing on May 21, when they questioned unit employees about their membership and activities in the Guild, was conducting a nonsecret poll or survey intended to gather evidence to support an alternative contention that the Guild no longer in fact represented the employees, if its other position that it had a good-faith doubt, based upon objective considerations, that the Guild did not enjoy majority support was found legally unsupportable.17 The Board has long been confronted with the problem of how an employer may determine that union claims to represent a majority of his employees are honest claims. In Blue Flash Express, Inc.,18 the Board found systematic interrogation of employees, accompanied by certain safeguards, to determine whether in fact employees supported the union, to be a lawful poll, although nonsecret. In Struksnes Construction Co, Inc.,19 however, the Board revised its Blue Flash criteria and held that the following standards must be met when testing a union's claim of majority: Absent unusual circumstances, the polling of em- ployees by an employer will be violative of Section 8(a)(1) of the Act unless the following safeguards are observed: (1) the purpose of the poll is to determine the truth of a union's claim of majority, (2) this purpose is communicated to the employees, (3) assurances against reprisal are given, (4) the employees are polled by secret ballot, and (5) the employer has not engaged in indicated as "against " In Taft Broadcasting, WDAF-TV, AM-FM, 201 NLRB 801, the Board noted that a secret poll of employees, which the employer took, which showed the employees evenly split on the question of union support, only weakened the presumption of majority support. 15 Terrell Machine Company, 173 NLRB 1480, 1481 16 Resp. br., p. 31, quoting Attorney Darby's testimony at the hearing. 17 At the hearing, Respondent's counsel stated that he "assumed" at the time that Respondent "probably" had objective considerations to support its refusal, but since he had not "investigated it thoroughly" or "at all," he was preparing "an alternative defense" of no majority in fact. He testified that the "purpose of (the interviews was not) to ascertain objective considerations for the pharmacy's refusal to bargain " is 109 NLRB 591 unfair labor practices or otherwise created a coercive atmosphere. Respondent's attorneys' poll of employees was defective on two grounds. First of all, it was not secret because each employee was asked to state his or her name before the interview began. In addition, the true purpose of the poll was not communicated to the employees. The only legitimate purpose of such a poll is to determine whether employees wish a union to continue as their representa- tive.20 In their introductory remarks, the attorneys, reading from a prepared statement, advised the employees that they were advised by the management of NRTA that they did not feel "that the Guild has the support of the pharmacists [and] therefore would like to ask you a few questions to assist in the preparation of a defense to unfair labor practice charges filed by the Guild." This was far from being a simple statement of the question, coupled as it was to an equally unclear reference to "a defense to unfair labor practices," and the numerous questions which the interviewers then proceeded to ask could only serve to blur the issue further. It would appear, therefore, that under Struksnes the poll was coercive and a violation of Section 8(axl) of the Act, unless it was excused on another ground. Starting from the premise that a refusal to continue recognition of an incumbent is not an unfair labor practice if an employer is able to show by clear evidence that a union does not in fact enjoy the support of a majority of employees, and then relying on certain cases which recognize the right of employer to interview employees to ascertain facts to assist it in preparation of its defense in case a complaint is issued, Respondent contends that its interrogation here was for that purpose and was permissi- ble as a matter of law21 I find that the cases upon which Respondent relies do not apply as a matter of principle or are factually distinguishable. In Johnnie's Poultry Co.,22 the Board noted that "Despite the inherent danger of coercion therein," it and the courts had held that "where an employer has a legitimate cause to inquire," he may interrogate employees on matters involv- ing their Section 7 rights without violating the Act. The Board described the purpose which had been held to be legitimate as being of two types: "the verification of a union's claimed majority status to determine whether recognition should be extended . . . and the investigation of facts concerning issues raised in a complaint where such interrogation is necessary in preparing the employer's defense for trial of the case." In its discussion of the first type of situation, that is, 19 165 NLRB 1062, 1063. In N.LR B. v. Gissel Pack,ng Co., 395 U.S. 575, 609 (1969), the Supreme Court cited the Struksnes standards with apparent approval. In Taft Broadcasting, supra, the employers action in conducting a secret poll of employees on the majority issue was not attacked as being in violation of Struksnes standards. 20 Struksnes Construction Co., supra 21 N.LR.B v. Katz Drug Ca, 207 F.2d 168 (C.A. 8); Joy Silk Mills v. N LR B., 185 F.2d 732 (C.A.D C); N LR B. v Neuhoff Brothers Packers, Inc., 375 F.2d 372 (C.A. 5, 1967); Johntue's Poultry Co., 146 NLRB 770; enforcement denied on other grounds 344 F.2d 617 (C.A. 8); May Department Stores Co., 70 NLRB 94, 95. 22 Supra at 774-775. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testing a union's claim of majority representation, the Board, in summarizing its policy of permitting interviewing of employees in order to determine whether recognition should be granted, relied on Blue Flash Express, Inc.,23 a situation involving polling of employees , but as pointed out earlier, Blue Flash Express was modified in Struksnes to preclude nonsecret polling of employees . The poll conduct- ed by Respondent's attorney in this case was nonsecret, and it cannot be made less of a poll by attempting to squeeze it under the principle covering the second situation, preparation for trial, because it does not fit there. In my opinion, Respondent is attempting to improperly blend principles designed to cover different kinds of cases in order to legitimatize its nonsecret poll. If this can be done then Struksnes is no longer viable, because all that an employer need do to avoid its sanction is to label its nonsecret interviews "preparation for trial" after it denies a union's request for recognition or refuses to continue bargaining with an incumbent. But even if Respondent's attorneys' questioning of employees is judged on the basis of the rule in Johnnie's Poultry Co., it is clear that the questions in the question- naire used by them, viewed in the light of the guides set forth by the Board and the courts in the cases where the issue was considered, all exceeded the "area of permissible inquiry." The Board has held, with court approval, that in such situations certain safeguards "designed to minimize the coercive impact of such employer interrogation" must be observed. Not only must the employer communicate the purpose of the questioning to the employees, assure them against reprisals, and obtain their cooperation on a voluntary basis, but "the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employ- ee's subjective state of mind, or otherwise interfering with the statutory rights of employees." 24 In Joy Silk Mills v. N.L.RB., the court described the Board's standards in these cases as "reasonable . . . and aptly designed to carry out the purposes of the Act." 25 Noting that "the fact that the fruits of the questioning are to be used in preparation for a hearing does not make the interrogation any less coercive," the court interpreted the Board's rule to mean that despite the coercive nature of the interrogation "a limited amount of such questioning" is permitted in fairness to the employer despite the "possible restraint which may result." 26 The employer, however, in the court's view, "is restricted to questions relevant to the charge of unfair labor practices and of sufficient probative value to justify the risk of intimation which interrogation as to union matters necessarily entails ." 27 It has also been ss It at 773. 94 Ibid. 25 Supra at 743. The court set forth the Board's policy as the Board had stated it in May Department Stores Ca, 70 NLRB 94, 95. In that case, the Board, in addition to the restrictions laid down in Johnnie's Poultry, held that the interrogation must not "discuss the nature or extent of union activity." 2e Ibid 27 Ibid 28 Texas Industries, Inc. v. NLRB., 336 F.2d 128, 133 (C.A. 5, 1964). 29 N.L.R.B. v. NeuhoffBrothers Packers, Inc., supra at 377. so Terrell Machine Company, supra at 1481, In. 3. 31 Par. 8(b) was amended at the hearing to add the allegation that observed that there is "a delicate balance between the legitimate interests of the employer in preparing its case for trial and the interest of the employees in being free from unwarranted interrogation . . . for . . . any interrogation by the employer relating to union matters presents an ever present danger of coercing employees in violation of their Section 7 rights." 28 "Consequently, the process of investi- gation through interrogation of employees must be a carefully conducted one lest that very activity--or the prospect of it-inhibit employees ...: 1 29 Since, in seeking bargaining, the Guild was not relying on authorization cards or other documentary evidence but on the presumption that its Board certification entitled it to, the only relevant inquiry in interviews designed to determine whether it continued to have majority support in fact was "do you wish the [Guild] to represent you for purposes of collective bargaining ?" 30 But, as pointed out earlier, this question was never posed, although the questionnaire was designed and the interviewer attempted to explore almost every other area of employee union activity. Thus, all questions in the questionnaire fail the test of relevancy. The questionnaire is also defective because it delves into the union activities of employees, their fellow employees, and possible nonemployee members or officers of the Guild.31 Employees were asked if they were members of the Guild; what they did to become members; whether they were paying union dues; whether and how often they attended union meetings; who the officers of the Guild and the shop steward were; whether they ever had a grievance handled by the Guild, and, if so, whether it was handled satisfactorily. These inquiries about employee union activity and the activities of others, disregarding as they do the "delicate balance" that must be observed in a "carefully conducted" investigation, suggests an attempt to undermine the Guild's status as collective-bargaining representative rather than a legitimate effort to prepare for trial.32 Other questions are irrelevant as a matter of law even if the right question had been asked. The questions about membership and dues are irrelevant because there is no necessary correlation between these items and the number of union supporters.33 Some of the questions are improper because they probe into matters which involve the subjective state of mind of the employee. Examples are: Do you actively support the Guild; was your grievance handled satisfactorily, if you had one; and what provisions of the Guild's constitution do you remember. Finally, apart from the motive of their draftsmen, Respondent illegally interrogated employees with regard to other employ- ees' membership in and activities on behalf of the Guild , as well as with respect to their own . As appears from the discussion of this subject, infra, the amendment is factually supported by many of the questions in the written questionnaire. 32 They also suggest, contrary to Respondent's testimony at the hearing, that the questionnaire was designed to discover support for Respondent's position that it believed the Guild to be inactive and that this was an "objective consideration" supporting its belief that the Guild did not represent a majority. 33 Terrell Machine Co., supra at 1481; Barrington Plaza and Tragniew, Inc., 185 NLRB %2,%3. RETIRED PERSONS PHARMACY practically every inquiry is so remote from the issue in the can as to have no probative value in determining the question of whether the Guild enjoyed continued majority support. These inquiries, as indicated earlier, are directed to such matters as membership, dues, attendance at meetings, and the names of officers or stewards of the Guild, but they also delve into such extraneous matters as how and to whom an employee pays dues ; increases in dues and imposition of assessments ; number and kind of Guild communications to members ; address and telephone number of the Guild ; and the employee's awareness of the provisions of the Guild's constitution and the labor agreement's expiration date, "The evidence which could be garnered from that questioning would be of so little probative value as not to warrant the risk of infringing upon employee rights." 84 Respondent's interrogation was wide ranging, mostly irrelevant, delving deeply not only into employee states of mind but into their most intimate activities with respect to the Guild. I find that it exceeded by far the limitations laid down in the cases and therefore violated Section 8(a)(1) of the Act. 3. The refusal to bargain by withdrawing recognition and by the unilateral change in working hours Having found that Respondent's refusal to bargain with the Guild was not predicated on a good-faith and reasonably grounded doubt of the Guild's continued majority status, and having also found that Respondent's interrogation of employees was a violation of the Act and not a permissible effort to prepare a defense to the refusal- to-bargain charge, it follows that Respondent violated Section 8(a)(1) and (5) of the Act by refusing to meet with and recognize the Guild on and after April 19, 1973, and by, on May 21, 1973, without notice or bargaining with the Guild, interrogating its employees in the appropriate unit with regard to their membership and activities and the activities of others on behalf of the Guild. I also find that by changing the hours of unit employees from 42 hours to 40 hours unilaterally and without notice to the Guild, Respondent also violated Section 8(aX5) and (1) of the Act. 94 Joy Silk Mills v. N.L.R B., supra at 744. Respondent's counsel's arguments that all questions were relevant because, in effect, an answer given to one would throw light on the significance of answers to others, allowing counsel to make a judgment as to whether the employee was a member of or supported the Guild is not only unimpressive but, in my view, makes the interrogation more offensive . Counsel was engaging in a form of cross-examination, and, in effect, conducting a kind of a lie detector test, using "control" questions to gauge the truth of employees' answers. For example, counsel states that questions about the amount of dues and method of payment were relevant because "the responses to these questions would assist in weighing the accuracy of a pharmacist's statement that he was paying dues." Counsel was not willing to accept evidence of employee support for the Guild obtained from answers to some of its questions without testing those responses with other questions, the significance of which only counsel and not the subjects of the survey understood at the time. The final determination then as to whether the Guild maintained majority support would depend on counsel's subjective evaluation of the responses. This is not the kind of clear evidence that must be presented to show that a union does not represent a majority in fact, and it was, 449 4. The due process contentions Following the interviewing of pharmacists of May 21, 1973, the Guild filed an amended charge complaining about the matter, and, on July 2, 1973, the General Counsel issued the complaint in this case which included an allegation that the interviews were violative of the Act. Respondent argues that General Counsel interfered with its right to interview employees by issuing the complaint and subsequently indicating that the complaint would be amended if Respondent continued to interrogate employ- ees. Consequently, Respondent concludes, Respondent was deprived of due process of law.U I find Respondent's position to be completely without merit. General Counsel's amended complaint did not allege that any legitimate polling or interviewing of employees was illegal, and Respondent was free, with the assistance of competent counsel, to make an informed judgment with respect to what interviewing would be proper under the cases. Respondent cannot shift the responsibility for any failure on its part to prepare its defense to the General Counsel because he saw illegality in its past conduct . The General Counsel, acting under the provisions of the Act, has a responsibility for making legal judgments with respect to conduct charged to be a violation of the Act equal at least to counsel's obligation to adequately prepare a defense for trial. If General Counsel errs in his view of the facts or the law, the operations of the statute-hearing, appeal, Board decision, and appellate review-provide a means for correcting those errors, but the initial responsibility to make the jud$fnent remains his and may not be "chilled" or "inhibited' by counsel's fears that if he engages in proper preparation for trial in his contacts with employees General Counsel may erroneously complain about it .36 Respondent also argues that it was deprived of its constitutional rights by not being permitted to introduce testimony at the hearing from the pharmacists to prove that on April 19 the Guild did not in fact represent the pharmacists, and by the rejection of its offer to prove that "if these people were called the majority of the employees would indicate and would testify, would state under oath, that on the 19th of April they did not support the Union and they were not members of the Union.' s'r Prior to making its offer of proof, Respondent had moved to dismiss the allegation of the complaint alleging illegal interrogation of employees on the grounds that the moreover, a patently unfair advantage taking of employees who might have infact desired continued representation by the Guild. 35 On July 12, Respondent sought a "protective order or order of severance" from an administrative law judge, requesting that General Counsel be enjoined from further amending the complaint to allege additional violations of the Act, if counsel for Respondent engaged in additional interviews of employees in preparation for trial , or, in the alternative, that the issue of interrogation be severed from the other issues and immediately set for trial . The motion was denied, and the Board denied Respondent's request to appeal the ruling. In General Counsel's opposition to Respondent's motion , General Counsel alluded to counsel's interrogation of employees, which I have concluded violated the Act, and stated that such conduct "if repeated would clearly warrant amendment of the complaint." 9e It is also not clear just what additional interviewing Respondent claims it would have engaged in if General Counsel had not amended his complaint. It had exhaustively interviewed all willing employees on May 21, and if it repeated those interviews the employees presumably would respond in the same fashion. 37 Counsel's offer of proof quoted in Resp . br., p. 7. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interrogation was in preparation for its defense and that its preparation had been interrupted by the issuance of the complaint. Counsel stated that if the motion to dismiss were granted Respondent "would interview our employee witnesses prior to calling them to the stand." It was further explained that additional interviewing was necessary in order for "us to ascertain whether the [original] employee's answers that were given us were truthful and whether and which employees we should call as witnesses." Another of Respondent's attorneys explained, in support of the motion, that since the employees were interviewed on May 21, interviews which I have found to be coercive, no one had spoken to those persons. At another point in the record counsel repeated that no one had spoken to or discussed the issues with employees since the May 21 interviews and, because the employees had been advised by the Guild to he in the interviews, it "is difficult for us to ascertain, even at this time when calling them, whether in fact what was ever said to us was true." The Administrative Law Judge did not grant Respon- dent's motion to dismiss, and counsel for Respondent then stated that he would call as witnesses all unit employees and ask them if they supported or were members of the Guild on April 19, as bearing on the "majority in fact" issue. The Administrative Law Judge advised counsel that he would not permit those inquiries, but would permit questions bearing on whether any employee had indicated in anyway to any management representative, prior to April 19, that he did not support the Guild. In the light of my ruling counsel stated that he would not call any unit employees as witnesses, repeating that he had not spoken to employees since May 21. It is obvious from counsel's statements that he had no facts in his possession to support his offer of proof that a "majority of the employees would indicate and would testify . . . that on the 19th of April they did not support the Union and were not members of the Union." This is so because if "no one" had spoken with the employees since the May 21 interviews, Respondent had no information on the majority-in-fact issue other than that gathered in the interviews. Aside from the fact that any data obtained from Respondent's interrogation was tainted and unrelia- ble because of its illegality, there is no evidence, and no one suggests that there is, that a majority of employees interviewed indicated that they did not want the Guild to represent them; indeed, as has been stated before, they were not even asked that question. Counsel had no factual basis to support his offer, and this is one reason for rejecting it. It appears, therefore, to use the shop-wom phrase, that counsel was proposing a fishing expedition, hoping to gather some evidence to support Respondent's position. Even if this were permissible under other circumstances, the coercive nature of the investigation and the unreliabili- ty of anything that could result from it are other reasons for denying it. Four months after Respondent had refused to bargain 38 This is not like asking an employee whether he signed a union card and what was said to him by the solicitor, when a union relies on cards as evidence of majority support. But even in those cases an examination of an employee's subjective motivation is not permitted, and it is recognized that with the Guild, employees would be examined and cross- examined in open court, in the presence of Respondent's officials and the attorneys who had previously interrogated them, on how they felt about Guild representation before the Respondent rejected the Guild . Even if Respondent would be required to accept the first answers of the witnesses, the,Guild and the General Counsel would not, and cross-examination would then probe deeply into the question of how the witness had manifested a desire not to be represented, if that was his answer. Was it actually before April 19, or not; did he inform anyone else about his mental state? Attempts at impeachment might then follow. This process obviously would, without justification, infringe on employees' Section 7 rights. The fruits of it would also be unreliable because credibility findings would have to be made in many cases on whether or not the witness really did or did not want the Guild to represent him 4 months earlier.38 Respondent's due-process arguments here are also based on a number of false premises . The first is that by issuing a complaint charging Respondent with a violation of the Act by interrogating employees, General Counsel "chilled" Respondent's efforts to prepare its defense, but I have found this position untenable. The Respondent also argues that I should have granted its motion to dismiss that allegation so that it could start interviewing employees again, but because I did not, it was again prevented from preparing its defense, another position which I find to be logically unsupportable. On the basis of those premises, Respondent contended at the hearing that it was "shack- led" and that its last alternative was to call all the employees as witnesses, for it had no other way of defending itself. This is not the fact, because nothing prevented Respondent from engaging in legal interviews with employees, and the law, as we have seen, permits an employer to poll his employees, if the poll is secret and other standards are met.39 Respondent chose not to poll its employees on the simple question of whether they wanted the Guild to represent them, and it also declined to accept my invitation to call any employee who could testify that he gave any evidence of Guild unacceptability to manage- ment prior to April 19. It seems that what Respondent's due process contention really comes down to is that it has been prevented from coercively interrogating employees in an attempt to buttress its initial and shaky position that Respondent had reasonable grounds to believe that the Guild no longer represented a majority of employees on April 19, when recognition was withdrawn. I find that Respondent was not deprived of due process of law in this proceeding. IV. THE REMEDY Having found that Respondent violated Section 8(axl) and (5) of the Act, I shall recommend that Respondent cease and desist from engaging in such unfair labor practices and from like or related unfair labor practices and to take certain affirmative actions which I find will "employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the union ..." N LR B v. Gissel Packing Co., 395 U.S. 575, 608. 39 Struksnes, supra, Taft Broadcasting, supra RETIRED PERSONS PHARMACY effectuate the policies of the Act. I shall also recommend that Respondent bargain collectively, upon request, with the Guild as the exclusive bargaining representative of employees in the appropriate unit, and to embody any understanding reached in a signed agreement. Upon the basis of the foregoing findings of fact and on 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 the Act. 2. The Guild is a labor organization within the meaning of the Act. 3. By refusing on or about April 19, 1973, and at all times thereafter, to meet and bargain with the Guild as the exclusive representative of employees in the appropriate unit, Respondent violated Section 8(axl) and (5) of the Act. 4. By coercively interrogating employees in the unit on May 21, 1973, without notice to the Guild, Respondent violated Section 8(a)(1) and (5) of the Act. 5. By unilaterally and without notice to and bargaining with the Guild, reducing unit employees' working hours, Respondent violated Section 8(a)(l) and (5) of the Act. 6 The aforesaid unfair labor practices affect commerce within the meaning of the Act. Upon the foregoing findings of fact, conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER40 Respondent, Retired Persons Pharmacy, t/a NRTA-AARP Pharmacy, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating employees with respect to their union membership or activities or the membership or activities of others. (b) Unilaterally and without notice to the Guild, changing hours of work of unit employees or any other term or condition of employment. (c) Refusing to bargain with the Guild, upon its request, as the exclusive representative of the following appropriate bargaining unit: All registered and/or graduate pharmacists at the Employer's Washington, D.C., location, excluding office clerical employees, all other employees, guards and supervisors as defined in the Act. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Guild as the exclusive representative of the employees in the above- described appropriate unit and embody in a signed agreement any understanding reached. (b) Post at its place of business in Washington, D.C., copies of the attached notice marked "Appendix B."41 451 Copies of said notice, on forms to be furnished by the Regional Director for Region 5, shall, after being duly signed by an authorized representative of Respondent, be posted by Respondent immediately upon receipt thereof and maintained by it for a period of at least 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. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 4° 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. 91 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX A Statement Made by Attorney to Employees I am one of the attorneys representing NRTA. As you may recall, about 1-1/2 years ago there was an election conducted by the NLRB. Following the election, NRTA entered into a contract with the Guild of Pharmacists. I am advised by the management of NRTA that they do not feel that the Guild has the support of the pharmacists. I therefore would like to ask you a few questions to assist in the preparation of a defense to unfair labor practice charges filed by the Guild. I want you to know that you are under no obligation to answer any of my questions or even to speak to me. I assure you that anything you tell me will not affect your job in any way, under any circumstances, and you are free to leave now. Name How long have you been employed at NRTA? Are you a member of the Guild? When did you become a member? What did you do to become a member? Do you actively support the Guild? Are you presently paying monthly dues? How much are the dues? How do you pay these dues? To whom do you pay these dues? Were you paying dues in April 1973? Were you paying dues before April 1973? Were the dues ever increased? Have you ever received an assessment? When? What was the assessment for? How much was the assessment? Does the Guild hold regular meetings? How often are these meetings held? Have you ever attended any of these meetings? 451 DECISIONS OF NATIONAL LABOR RELATIONS BOARD How often do you attend? Did you attend meetings in April 1973? Did you attend meetings before April 1973? Does the Guild send out regular communications to its members? What kind of communications are sent? Have you ever received any communications from the Guild? How many times? Did you receive communications before April 1973? Who is the President of the Guild? Who are the other officers? Who is your shop steward? Do you know where the Guild is located? If so, what is the address? What is the telephone number of the Guild? Do you have a copy of the Guild's Constitution and By- laws? Where is this copy? When did you get the copy? Have you ever read the Constitution and By-laws? When did you read it last? What are the various provisions of the Constitution that you remember? Do you know the terms of your contract with NRTA? Do you have a copy of the contract? Did the Guild ever tell you about the contract? If so, when? Do you know when the contract expires? Have you ever had a grievance handled by the Guild? Was the grievance handled satisfactorily? APPENDIX B about their union activities or membership or about the union activities or membership of other employees. WE WILL NOT unilaterally and without notice to and or bargaining with the Metropolitan Guild of Pharma- cists reduce hours or change other terms or conditions of employment. WE WILL, upon request, bargain collectively in good faith with the Guild as the bargaining representative of all employees in the bargaining unit described below with respect to wages, hours and other terms and conditions of employment, and, if an understanding is reached, embody it in a signed agreement. The bargaining unit is: All registered and/or graduate pharmacists at our Washington, D.C., location, excluding office clerical employees, all other employees, guards and supervisors as defined in the National Labor Relations Act, as amended. RETIRED PERSONS PHARMACY, T/A NRTA-AARP PHARMACY Dated By This is anyone. an official (Representative) (Title) notice and must not be defaced by 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, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21201, Telephone 301-962-2822. NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate employees