Hub Pharmacy, Inc.

HUB PHARMACY, INC. Hub Pharmacy, Inc. and Retail Clerks Union, Local 648 Retail Clerks International Association, AFL-CIO. Case 20-CA-9175 January 7, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO On September 17, 1974, Administrative Law Judge Richard D . Taplitz issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, the Charging Party filed a response, and the General Counsel filed an answering 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 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, Hub Pharmacy, Inc., San Francisco, California, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. DECISION STATEMENT OF THE CASE RICHARD D. TAPLrrz, Administrative Law Judge: This case was tried at San Francisco, California, on July 18, 1974. The charge was filed on May 7, 1974, by the Retail Clerks Union, Local 648, Retail Clerks International Association, AFL-CIO, herein called the Union. The complaint issued on June 4, 1974, and, as amended at the opening of the trial, alleges that Hub Pharmacy, Inc., herein called Respondent, violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. I The unopposed motion of counsel for the General Counsel to correct the transcript of the record is granted as follows On p 28, 1 4, "1974" is hereby changed to "1973 " 2 Cf Bagel Bakers Council of Greater New York and its Employer- Members, 174 NLRB 622, 623, 628, enfd. in pertinent part 434 F 2d 884 (C A 2, 1970) 3 The parties stipulated and I find that "During the calendar year ending December 31, 1973, Broemmel Pharmacy, Bowerman Pharmacy, Burton Pharmacy, Cal-Medical Pharmacy, Golden Gate Pharmacy, Issue 69 The primary issue is whether Respondent refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act by repudiating an agreement that had been reached and withdrawing from a multfemployer bargaining unit after its bargaining agent had commenced negotia- tions with the Union. All parties were given full opportunity to participate, to produce relevant evidence , to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. Upon the entire record 1 of the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a California corporation engaged in the retail pharmaceutical business with its principal place of business in San Francisco, California. Respondent is a member of the San Francisco County Pharmaceutical Association, herein called the Association. For those members who authorize the Association to do so, it bargains on a multiemployer basis with the Union. About 60 percent of the Association's 100 members have granted such authority. The question of whether the Association is authorized to represent Respondent is a central issue in this case. The General Counsel has not alleged or proven that Respondent meets the Board's jurisdictional standards on an individual basis. The complaint alleges jurisdiction based on Respondent's participation in the Association's multfemployer bargaining unit. Jurisdiction is therefore established only if the General Counsel is successful in proving that Respondent is part of that multiemployer unit.2 The parties have stipulated to facts which establish that employer participants in the multiemployer bargaining unit are subject to the Board's jurisdiction.3 I therefore find that the Association and its employer- members who are part of the multiemployer bargaining unit mentioned above are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. My finding with regard to the status of Respondent is deferred until the issue of multiemployer bargaining unit is hereafter considered and resolved. 11. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. Hubbard Pharmacy, and Physicians Pharmacy were engaged in the operation of retail drug stores, were engaged in the retail sale of drugs and other merchandise, and were, among others, employer-members of the San Francisco County Pharmaceutical Association, and were part of the multi- employer bargaining unit described in paragraph VI of the complaint During the calendar year ending December 31 , 1973, said pharmacies, in the course and conduct of their business operations, sold goods at retail valued in excess of $500,000 and purchased and received goods valued in excess of $10,000, directly from suppliers located outside the State of California" 216 NLRB No. II 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Events 1. Background The Association conducts continuing educational pro- grams, represents the Association before government bodies, and performs many services required by its members. For the last 20 years the Association has engaged in multiemployer collective bargaining with the Union on behalf of those of its members that have authorized it to do so. About 60 of the Association's 100 members have authorized the Association to represent them in such collective bargaining. For many years the Association, on behalf of those members, has had successive collective-bargaining contracts with the Union. It is stipulated and I find that Respondent was bound by the 1970-73 contract. Respondent contends that since the expiration of that contract it has not been a part of the multiemployer unit. It was also stipulated and I find that the bargaining unit covered by the 1970-73 contract was: All employees of employer-members of the San Francisco County Pharmaceutical Association per- forming work and services connected with or incidental to the handling or selling of all merchandise employed by employer-members of Employer's Association, including Respondent, excluding culinary employees, retail delivery employees, office clerical employees, guards and supervisors as defined in the Act .4 It was further stipulated and I find that unit was and is appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. While conceding that the unit is appropriate, Respondent contends that it is not included within that unit. On October 2, 1970, Respondent, through its president, Michael Goldstein, executed an authorization which stated: I hereby ailthorize and empower the SAN FRANCIS- CO PHARMACEUTICAL association to negotiate on my behalf with Retail Clerks' Union, Local 648, and agree to accept and be bound by any modifications so negotiated after they have been approved by the San Francisco County Pharmaceutical Association. A copy of the authorization was given to the Union. The 1970-73 contract was executed by the Association and the Union on March 18, 1971, and was effective from November 1, 1970, to October 31, 1973. That contract provided for a year-to-year renewal unless a notice was given to modify or cancel at least 60 days prior to the expiration date. The contract contained a union-security clause and 98 or 99 percent of the employees who worked more than 30 days were members of the Union. About 300 employees are covered by the contract. 4 It is clear from the credited testimony of Alvin J. Pezner, executive secretary of the Association , that the expression "employer-members," It is the practice of the parties to have the contract signed by the Association rather than by the employer-members. 2. The 1973 negotiations On August 28, 1973, the Union sent to the Association a notice of its desire to change the contract. A copy of the notice was sent to the employer-members of the Associa- tion including Respondent. On June 12, 1973, in anticipation of the Union's notice, the Association held a meeting at which a negotiating committee was formed. Notice of that meeting containing questions relating to counterproposals had been sent to all the members of the Association including Respondent. On September 26, October 3, 10, 15, 24, and 31, and November 19 and 26, 1973, the Association and the Union met and bargained collectively with respect to the rates of pay, wages, hours of employment, and other terms and conditions of employment of the employees employed by the employer-members of the Association in the multiem- ployer bargaining unit. On November 13, 1973, the employer-members of the Association held a meeting in which the progress of negotiations was discussed. Notice of that meeting was sent to Respondent. At the November 26, 1973, meeting between the Association and the Union an understanding was reached on the terms of a collective-bargaining agreement for 1973- 76. It was further agreed that the understanding was subject to ratification and approval by the employees in the multiemployer bargaining unit and by the employer- members of the Association before it was to become final and binding. On September 26, 1973, when negotiations began, no new authorization cards had been signed by the employer- members of the Association authorizing the Association to bargain for them. At the end of October or beginning of November 1973 the Association sent out new authorization cards for signature by the employer-members. By Decem- ber 3, 1973, some 44 employer-members had signed ' the authorizations and by the date of the trial, July 18, 1974, about 60 employer-members had signed. As of the day of the trial, Alvin J. Pezner, the executive secretary of the Association and the owner of one of the employer- members, had not signed. He credibly testified that it was his practice to sign the authorization at the same time the contract was executed. Respondent is currently a member of the Association with paid-up dues, but it has not signed the 1973 authorization. There is no written rule in the Association's bylaws or anywhere else requiring members who want to be represented for bargaining to submit written authorizations. On December 4, 1973, the Association held a meeting with its members in which the November 26 agreement was discussed. A notice of that meeting had-been sent to Respondent. On or about December 5, 1973, the employ- ees in the multiemployer bargaining unit ratified and approved the agreement that had been reached on November 26 . Sometime in January 1974, the employer- when used in describing the collective-bargaining unit, referred only to those members who have authorized the Association to bargain for them HUB PHARMACY, INC. 71 members of the Association ratified and approved that agreement . Although the dual ratifications made the November 26 agreement a final and binding collective- bargaining agreement between the Association and the Union,5 the contract had not yet been executed as of the date of the trial. The Union had drafted its understanding of that contract but the Association disagreed with some of the language and that disagreement was still being discussed. The primary dispute related to the compensa- tion of certain relief pharmacists. Pezner, the executive secretary of the Association, credibly testified that the contract is retroactive to November 1, 1973, but as it was not yet executed, some of the members were voluntarily paying the increases and some of them might not be paying them. At the first negotiating session of September 26, 1973, the Union asked the Association for a list of the employer- members who were represented by the Association. William E. Price, Jr., the vice president of the Union, credibly testified that he sought a current list of whom the Association represented because there could have been stores opening or closing. The Association did not furnish a list at that time saying that it was being prepared. The Union requested the list on a number of occasions thereafter but it was not until about May 15, 1974, that the Association furnished the Union with a partial list. That was well after negotiations had been completed and the agreement ratified. The Association furnished the Union with a second list in early July 1974. Respondent's name did not appear on either list. The Union has not been supplied with copies of the new authorizations of any employer-members. 3. The discussions between the Respondent and the Union and Respondent's letter of March 5, 1974 William E. Price, vice president and business representa- tive of the Union, had conversations with a number of the employer-members of the Association while making his rounds as business representative. In mid-November 1973 (the negotiations with the Association had been going on since September 26, 1973), Price had such a conversation with William F. Campana, the executive vice president of Respondent.6 Campana said that he had heard that the Union was seeking double time on Sunday and holidays and an additional night premium,.and that it would be almost impossible for Respondent to live with that. They discussed the fact that the Union's proposals would only affect a relatively few stores in San Francisco. Campana said that he would go back to his committee and see if they could give them some relief.? Subsequently, Price discussed the matter with Eric C. Lyons, the president of the Union, and they decided that they would drop those proposals. In subsequent negotiations with the Association, they did in S This finding is based on the admission of Respondent in its amended answer 6 Campana, as well as Michael Goldstein, the president of Respondent, has authority to hire and discharge employees I find that they are both supervisors within the meaning of the Act. 7 These findings are based on the testimony of Price and Campana, which was in substantial agreement 9 These findings are based on the credited testimony of Price . Campana fact withdraw those proposals. Two or three weeks after Price's conversation with Campana, he saw Campana again and told him that the Union had dropped the proposals that Campana had objected to relating to night, Sunday, and holiday premiums. Campana replied, "Well, that's really great. That could certainly help us." Price replied, "Well, that's good," and left. In January 1974 (which was well after the November 26, 1973, agreement had been reached between the Union and the Association), Price had a third conversation with Campana. This time Michael Goldstein, Respondent's president, was also present. Campana and Goldstein told Price that they had objections to the contract and they did not feel that they could live with it. Price said that he thought their objections had been met as the Union had dropped the things they had objected to. Campana then said that his auditor told him that they could not afford to pay union wages. Price replied that they showed a lack of good faith in that the Union had dropped the proposals they had objected to and now they had further objections. Campana told Price that if they could have status quo and continue with the old contract, they would do so and pay the old rates. Price replied that an agreement had been negotiated .8 On' or about March 11, 1974, the Union received the following letter dated March 5, 1974, from Respondent: Pursuant to my conversation with Mr. William Price over the past 2 months, I am writing this letter to inform you that Hub Pharmacy, Inc. will not be renewing its Union Contract. All avenues of solution have been discuess [sic] with our accountants and auditors and the only one which can solve our financial dilemma is not to continue with the Union. Sincerely, /s/ Michael Goldstein President . A week or two after receipt of that letter, Price had another conversation with Goldstein. Price asked Gold- stein whether he had reconsidered and whether he intended to sign the contract. Goldstein replied that it would be financially impossible for hire to do so.9 4. Respondent's contentions The General Counsel's theory of the case is that Respondent attempted an untimely withdrawal from the multiemployer bargaining unit. Respondent, on the other hand, contends that there is no "withdrawal" issue in that Respondent had never been a member of the Association for the purposes of bargaining for the 1973-76 contract. Respondent therefore argues that the case law to be and Goldstein testified in substantial accord, but they also averred that Price asked whether they were going to sign the contract . Price acknowl- edged in his testimony that in a subsequent conversation he did ask Campana and Goldstein whether they intended to sign . I credit Prices' assertion that this subject was brought up in that subsequent conversation 9 This finding is based on the testimony of Price and Goldstein, which was in substantial accord 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD applied is that dealing with whether a company enters into a multiemployer bargaining unit rather than whether it withdraws from one. Pezner, the executive secretary of the Association, testified that prior to each contract the Association always sent out a request for new authorizations . He averred that there was no ongoing authorization and that the authoriza- tions for each separate contract expired with the contract. In substance, his testimony was that there was no continuing authorization from the 1970 authorizations that could apply to the 1973 negotiations . He averred that it was the practice of the Union to get stores who were not represented by the Association to sign or not sign on their own and that the Association only represented those stores that signed an authorization. Campana, an officer of Respondent, testified that he did not sign a 1973 authorization and that he had the understanding the Respondent would not be in the Association for bargaining purposes . He did not explain what his understanding was based on. Price, the vice president of the Union, acknowledged that he was familiar with the practice of the Association of requesting signed authorizations from employer-members and that he had seen such authorizations in the past. As indicated above, he repeatedly asked for a list of the employer-members represented by the Association but he was not shown it until after the November 26, 1973, agreement had been reached. In its brief Respondent argues that the Union attempted to have Respondent sign separately from the Association because it knew that Respondent had not authorized bargaining by the Association. I do not believe that the facts set forth above can support the conclusion that the Union engaged in any individual bargaining with Respon- dent. Respondent received a number of notices concerning the bargaining going on between the Union and the Association. When negotiations with the Association were nearing completion Respondent raised its objection to the premium pay proposals of the Union. The Union did not bargain with Respondent about those objections. The Union continued bargaining with the Association and withdrew those demands in the course of that bargaining. In January 1974 when Campana and Goldstein asked Price if they could continue with the old contract, which would have been on an individual basis, Price refused . Price did ask Goldstein whether he had reconsidered his letter of March 5, 1974, and whether he intended to sign the contract, but that was after Goldstein had notified the Union in writing that Respondent would not "continue with the Union." Price's reference to the signing of a contract was simply another way of asking whether Respondent had changed its mind since writing the letter. In determining whether this case involves a withdrawal from the multiemployer unit as opposed to an initial entry into that unit for the 1973 negotiations , the actions of the parties as well as the explanations concerning their subjective understandings must be considered. B. Analysis and Conclusions Multiemployer bargaining is consensual in nature. No such relationship can exist in the absence of assent by all the parties. A formal delegation of authority is not needed to establish a multiemployer bargaining unit as long as the members of the group have unequivocally indicated their intention to be bound by group rather than individual bargaining. N.LR.B. v. Dover Tavern Owners' Association, 412 F.2d 725 (C.A. 3, 1969). Respondent, in its brief, argues that the instant case is analogous to the situation in Don Mendenhall, Inc.; 194 NLRB 1109 (1972). In the Mendenhall case, the Board refused to find that an employer was bound by multiem- ployer bargaining where the employer did not submit a new power of attorney to an association. However, other factors in that case render it inapposite . In Mendenhall the prior contract had covered only the members of the Union. The Union was, therefore, not the exclusive representative of all the employees in the bargaining unit. The Board specifically noted that member-only recognition does not satisfy statutory norms. In addition, in the Mendenhall case the Association's bylaws required members to submit new powers of attorney before the negotiation of each new agreement. In the instant case, the Association's bylaws contain no such requirement. The Board has set forth rules to insure the stability of multiemployer bargaining units once they have been voluntarily established. Those rules were set forth in Retail Associates, Inc., 120 NLRB 388, 395 (1958), where the Board held: Among other things, the timing of an attempted withdrawal from a multiemployer bargaining unit, as Board cases show, is an important lever of control in the sound discretion of the Board to ensure stability of such bargaining relationships. We would accordingly refuse to permit the withdrawal of an employer or a union from a duly established multiemployer bargain- ing unit, except upon adequate written notice given prior to the date set by the contract for modification, or to the agreed-upon date to begin the multiemployer negotiations. Where actual bargaining negotiations based on the existing multiemployer unit have begun, we would not permit, except on mutual consent, an abandonment of the unit upon which each side has committed itself to the other, absent unusual circum- stances. The rules set forth in Retail Associates have been consistently followed by the Board. Beck Engraving Co., Inc., 213 NLRB No. 13 (1974); Connell Typesetting Co., 212 NLRB 918 (1974); The Evening News Association, 154 NLRB 1494 (1965), enfd. 372 F.2d 569 (C.A. 6, 1967); Sheridan Creations, Inc., 148 NLRB 1503 (1964), enfd. 357 F.2d 245 (C.A. 2, 1966). In the instant case, bargaining negotiations based on the existing multiemployer unit had begun before Respondent notified the Union that it did not desire to be bound by group bargaining. There was no consent on the part of the Union for Respondent to abandon the multiemployer unit. There are no "unusual circumstances" present to justify what would otherwise be an untimely unilateral withdraw- al. The fact that Respondent may have considered the results of the group bargaining economically undesirable does not amount to such "unusual circumstances." Tulsa HUB PHARMACY, INC. 73 Sheet Metal Works, Inc., 149 NLRBf 1487 (1964), enfd. 367 F.2d 55 (C.A. 10, 1966). There was no dissipation of the Association's membership which could'amount to "unusu- al, circumstances" as was present in Connell Typesetting Co., supra. io It remains to be considered whether Respondent did withdraw unilaterally from the Association in an untimely manner or whether Respondent was never part of the multiemployerrunit for the 1973 negotiations. Pezner's testimony that the 1970 authorizations did not constitute ongoing authority' for the Association to represerit the employer-members in the 1973 negotiations, as well as Campana's testimony that it was'his understand- ing that he would not be in the Association for collective bargaining because he did not sign the'! 973 authorization, must be weighed against the actions of both the Associa- tion and the Respondent. With regard to the Association, it began bargaining on September 26, 1973, at a time when it had not even requested its employe- members to sign authorizations for the 1973 negotiations. Many of the authorizations had not 'yet been signed at the time that the November 26, 1973, agreement was reached. Pezner was an employer-member . Hof the Association as well as its executive secretary and he spoke for the Association throughout the negotiations without having signed a 1973 authorization. As of the date of the trial he had still not signed one. In spite of this the Association, by entering into negotiations, led the Union to believe it (Respondent) had authority to act on behalf of employer-members. I am persuaded that Respondent's actions were such as to make the Union reasonably believe that the Association was authorized to represent it in a multtemployer unit. The authorization that Respondent had signed in 1970 was not limited to, the 1970 negotiations. It was completely openended and is continuing in nature. Respondent received a number of notices of meetings regarding the multiunit bargaining, but gave no indication to either the Association or the Union that it did not want to be part of that unit until well after negotiations had been underway. Respondent, in effect, participated in the multiemployer unit bargaining. In mid-November 1973, when Campana protested concerning the Union's demand for premium holiday and weekend pay, that protest was keyed to a demand the Union had made of the 'Association in bargaining in the multiemployer unit. The result of that protest was a withdrawal of that demand by the Union in subsequent negotiations with the Association in the multiemployer unit. The fact that Respondent did not sign a 1973 authoriza- tion is not controlling. The Association bylaws did not require such an authorization. None of the employer- members had signed when negotiations began and many had not signed at the time that the November 26, 1973, agreement was reached. Under all these circumstances I iu Respondent has not raised any question concerning whether the Union represented a majority of its employees However, even if the Union did not represent a majority of Respondent's employees there would have been no "unusual circumstances " Where a unit consists of all the employees on a multtemployer basis, the majority status must be keyed to the overall unit and not one part thereof Beck Engraving Co, Inc, supra i i This finding is based on the presumption of continued majority raised am persuaded that Respondent was a part of the multiemployer bargaining unit when negotiations began for the 1973 agreement and that it subsequently attempted to back out of that multiemployer unit because it did not like the-results of the bargaining. In sum, I find that the multiemployer bargaining unit described above, which included Respondent, is appropri- ate for the purpose of bargaining; that the Association and its employer-members, including Respondent, who are part of that multiemployer unit, are employers within the meaning of'the Act and meet the Board's jurisdictional standards ; that the Union represents a majority of the employees in that bargaining unit; ii that on September 26, •1973, when negotiations began in the multiemployer unit, Respondent was part of that unit; that by its letter to the Union of March 5, 1974, in' which it informed the Union that it would "not be renewing its Union Contract" and that it would not "continue with the Union", Respondent repudiated the agreement that the Association had made on its behalf in the multiemployer bargaining unit and in effect withdrew from that multiemployer unit; and that the withdrawal took place without the consent of the Union and without "unusual circumstances" that would warrant an otherwise untimely withdrawal. I therefore find that Respondent refused to bargain with the Union in violation of Section 8(aX5) and (1) of the Act by its repudiation of the agreement reached on its behalf by the Association and by its untimely withdrawal from the multiemployer bargaining unit. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent, in violation of its duty under Section 8(aX5) of the Act, has repudiated the agreement reached on its behalf by the Association in the multiemployer bargaining unit and has untimely with- drawn from that unit, the usual remedy would be for Respondent to be ordered to honor and abide by that agreement, and to remain in the multiemployer bargaining unit until .it can timely withdraw. However, as of the date by the existence of a recently expired contract containing a union-security clause, the continued recognition and bargaining with the Union by the Association, and the credited testimony of Union Vice President Price that 98 or 99 percent of those employees who worked more than 30 days were members of the Union Respondent has not raised any issue concerning the Union's majority status. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the trial, no collective-bargaining contract had actually been executed because of certain differences that remained between the Association and the Union. Penzer, the executive secretary of the Association, credibly testified that the agreement is retroactive to November 1, 1973, but as it had not yet been executed, some of the members were voluntarily paying the increases and some of them might not be paying them. Under these circumstances, I shall, recommend that Respondent be ordered to honor and abide by any collective-bargaining contract which is actually executed by the Association on behalf of the employers in the multiemployer bargaining unit.12 In addition, I shall recommend that Respondent be ordered to refrain from withdrawing from that multiem- ployer bargaining unit except upon adequate written notice given pnor to the date set by the contract for modification, or to the agreed-upon date to begin the multiemployer negotiations; or, except at such other time as it may lawfully withdraw. CONCLUSIONS OF LAW 1. The Association and its employer-members, includ- ing Respondent, who are part of the multiemployer bargaining unit set forth below, are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees of employer-members of the San Francisco County Pharmaceutical Association (the term "employer-members" as used herein includes only those employers who have authorized the Association to represent them in the multiemployer bargaining unit) performing work and services connected with or incidental to the handling or selling of all merchandise employed by employer-members of Employer's Associ- ation, including Respondent, excluding culinary em- ployees, retail delivery employees, office clerical em- ployees, guards and supervisors as defined in the Act. 4. The Union is the exclusive representative of the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. By repudiating the agreement that the Association had made on its behalf in negotiations with the Union in said multiemployer bargaining unit and by untimely withdrawing from that multtemployer bargaining unit, Respondent has violated Section 8(a)(5) and, (1) of the Act. 12 If such a contract is by its terms retroactive, then Respondent as to be required to honor it retroactively. 13 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 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER is Respondent, Hub Pharmacy, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Retail Clerks Union, Local 648, Retail Clerks International Association, AFL-CIO, by repudiating the agreement made on its behalf by the San Francisco County Pharmaceutical Association in the following multiemployer bargaining unit: All employees of employer-members of the San Francisco County Pharmaceutical Association (the term "employer-members" as used herein includes only those employers who have authorized the Association to represent them in the multiemployer bargaining unit) performing work and services connected with or incidental to the handling or selling of all merchandise employed by employer-members of Employer's Associ- ation, including Hub Pharmacy, Inc., excluding culi- nary employees, retail delivery employees, office clerical employees, guards and supervisors as defined in the Act. (b) Withdrawing from said multiemployer bargaining unit except upon adequate written notice given prior to the date set by the contract for modification, or to the agreed- upon date to begin the multiemployer negotiations; or except at such other time as it may lawfully withdraw. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Honor and abide by any collective-bargaining contract executed by the Association on its behalf in said multiemployer bargaining unit. (b) Post at its San Francisco, California, facilities copies of the attached notice marked "Appendix." 14 Copies of the notice on forms provided by the Regional Director for Region 20, 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 ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in deemed waived for all purposes. 14 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." HUB PHARMACY, INC. 75 writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government authorized the Association to represent them in the multiemployer bargaining unit) performing work and services connected with or incidental to the handling or selling of all merchandise employed by employer-members of Employer's Association, including Hub Pharmacy, Inc., excluding culinary employees, retail delivery employees, office clerical employees, guards and supervisors as defined in the Act. WE WILL NOT refuse to bargain collectively with Retail Clerks Union, Local 648, Retail Clerks Interna- tional Association, AFL-CIO, by repudiating the agreement made on our behalf by the San Francisco County Pharmaceutical Association in the following multiemployer bargaining unit: All employees of employer-members of the San Francisco County Pharmaceutical Associa- tion (the term "employer-members" as used herein includes only those employers who have WE WILL NOT withdraw from said multiemployer bargaining unit except upon adequate written notice given prior to the date set by the contract for modification, or to the agreed-upon date to begin the multiemployer negotiations ; or except at such other time we may lawfully withdraw. WE WILL honor and abide by any collective-bar- gaining contract executed by said Association on our behalf in said multiemployer bargaining unit. HuB PHARMACY, INC.