Walgreen Co.

896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Walgreen Company and Retail Clerks Union, Local 775 Retail Clerks International Association, AFL- CIO. Cases 20-CA-10665 and 20-CA-10752 August 12, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On April 28, 1976, Administrative Law Judge Rog- er B. Holmes issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. 1 The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge It is the Board 's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings dated complaint alleges that Walgreen Company, herein called the Respondent, has engaged in unfair labor practic- es within the meaning of Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended, herein called the Act. Respondent filed an answer to the consolidated complaint and denied the commission of the alleged unfair labor practices. The hearing was held before me on March 2 and 3, 1976, at San Francisco, California. Briefs were filed by the Gen- eral Counsel and by the Respondent and have been duly considered.' Upon the entire record and based on my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent is an Illinois corporation with places of business located at San Mateo, California, and at other locations throughout the United States, where it is engaged in the retail sale of drugs and sundries. During the 12- month period preceding the issuance of the consolidated complaint, the Respondent, in the course and conduct of its business operations, had gross sales in excess of $500,000, and during the same period the Respondent pur- chased and received at its facilities in the State of Califor- nia goods and materials valued in excess of $50,000 direct- ly from suppliers located outside the State of California. Upon these admitted facts, I find that the Respondent has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 11. THE LABOR ORGANIZATION INVOLVED It is admitted that the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues DECISION STATEMENT OF THE CASE ROGER B . HOLMES, Administrative Law Judge' The charge in Case 20-CA-10665 was filed on September 25, 1975, by Retail Clerks Union, Local 775, Retail Clerks In- ternational Association, AFL-CIO, herein called the Union The original charge in Case 20-CA-10752 was filed on October 23, 1975, by the Union, and the first amended charge in that case was filed on December 9, 1975, by the Union. An order consolidating cases, consolidated com- plaint and notice of hearing was issued on December 16, 1975, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director of Region 20 of the Board. The consoh- The principal issues raised by the pleadings are: 1. Whether the Respondent discharged Robert Dixon on July 1, 1975, and thereafter failed to reinstate him, be- cause of his past union activity, and/or because he had previously given testimony in a prior Board proceeding, and thereby violated Section 8(a)(1), (3), and (4) of the Act. 2. Whether the Respondent discharged Richard Semla on July 25, 1975, because of his past union activity, and thereby violated Section 8(a)(1) and (3) of the Act. In his brief counsel for the General Counsel moved to correct the tran- script with regard to six words It appears to me that these were inadvertent clerical errors in transcription Accordingly, without opposition, the Gener- al Counsel's motion is hereby granted 225 NLRB No. 132 WALGREEN COMPANY 897 B. Background Pursuant to the request made by counsel for the General Counsel at the hearing, I stated that I would take judicial notice of the earlier Board proceeding which involves the same Respondent at the same location and the same Charging Party. The Board's Decision and Order in the prior case is cited as 221 NLRB 1096 (1975). It is clear that the Board may take judicial notice of its own proceedings. Plant City Welding and Tank Company, 123 NLRB 1146 (1959); West Point Manufacturing Company, Wellington Mill Division, 142 NLRB 1161 (1963); Seine and Line Fishermen's Union of San Pedro, affiliated with Seafarers' International Union, AFL-CIO, (William J. Horner, et al) 136 NLRB 1 (1962); Airlines Parking, Inc., 197 NLRB 762 (1972). The hearing in the earlier case was held on May 22, 1975, before Administrative Law Judge George Christen- sen. His decision was issued on July 22, 1975, and the Board's decision was issued on December 9, 1975. In sum- mary, the Board found: (1) the interrogation of three em- ployees about union activities by Ralph Munoa, assistant manager of the San Mateo store, during the period of July 23 through 26, 1974; (2) the granting of a wage increase to employees on July 26, 1974, to discourage union activities, by Gaylord Helm, District Manager for Western Califor- nia, and by John Cox, manager of the San Mateo store; and (3) the reprimanding of one employee on August 14, 1974, by Cox for participating in a conversation concern- ing union representation during his break period. The un- fair labor practices found in the prior case occurred ap- proximately 11 months before the alleged unfair labor practices in the present case. Robert Dixon, who is one of the alleged discriminatees in the present case, was one of several employee witnesses called by the General Counsel to testify in the prior pro- ceeding. Dixon testified with regard to a conversation which he had in July 1974 with District Manager Helm and Store Manager Cox. Administrative Law Judge Christen- sen, whose findings were subsequently adopted by the Board, stated: Helm and Cox impressed me as witnesses with a clear recollection of what occurred in the employee interviews. I credit their testimony they developed the standard format described heretofore and followed it in those interviews. I further credit their testimony that they did not question Alexander or Dixon con- cerning their union views or sympathies. I therefore find and conclude that in the course of their conversations with Alexander and Dixon, Helm and Cox did not interrogate them concerning their union membership activities and sympathies and will recommend that those portions of the complaint so alleging be dismissed. Cox testified he did not recall Helm telling Dixon he hoped to see Dixon a manager some day, but stated they did discuss with some of the employees their goals and future with the Company; that they knew Dixon was studying business administration, and that Helm may have said to Dixon he might some day be a manager if he stayed with the Company and complet- ed his studies. Helm categorically denied that he offered Dixon employment as a manager, but corroborated Cox's testimony that he discussed the employees' possible future with the Company in the course of the pre- election conferences and may have said in response to a statement that if Dixon intended to stay with the Company, they hoped he would achieve the status of a manager some day. I find that Helm expressed the hope that Dixon might achieve manager status some day if he pursued his studies and stayed with the Company, but that this expression was insufficient to be classified as a prom- ise of a benefit. I therefore shall recommend that those portions of the complaint so alleging be dismissed. In the prior proceeding the General Counsel sought a bargaining order as a remedy under the rationale of the Supreme Court's decision in N.L.R B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). In support of his request for a bargaining order, the General Counsel, at the hearing of May 22, 1975, introduced a total of 12 union authorization cards. Of those 12 cards, 2 were signed by the alleged dis- criminatees in this proceeding. The card of Dixon is dated July 31, 1974, and the card of Semla is dated "July 23, 1974." In denying the request for a bargaining order in the earlier case the Board stated- Nonetheless, we do not believe that a bargaining order is warranted. The interrogation of employees by a low-level supervisor whose exclusion from the unit appears to have been in doubt originally does not re- quire a bargaining order to remedy it, nor does the single unlawful reprimand flowing from an overly broad application of an otherwise valid no-solicitation rule. The wage increase, although found to have been unlawfully motivated, was not specifically tied to the organizing campaign by the Respondent. Similar rais- es had been granted some 4 months earlier at the Re- spondent's other stores and the increases did no more than bring the employees up to the prevailing rate. Indeed, the latter point was relied on by the Respon- dent to explain the increases to the employees. We do not believe the increase, alone or in conjunction with the Respondent's other unfair labor practices, had an irremediable effect on the election process. We do not discern a pattern of pervasive and egre- gious unfair labor practices which cannot be remedied by traditional means, nor can we say that on balance the cards better reflect the employees' desires than would a Board-conducted election. Therefore, we shall not disturb the Administrative Law Judge's Remedy and recommended Order in that respect. C. Robert Dixon Robert Dixon was hired on May 31, 1973, by the Re- spondent at its San Mateo store. He began work as a stock- man and clerk at $2.25 an hour. He was subsequently pro- moted to receiving clerk and was being paid $4 an hour by April 1975. John Cox, who has been manager of the San 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mateo store since July 26, 1974, said that Dixon worked as a cashier, marked merchandise, swept the floors, received merchandise off of trucks, and performed general stock- man functions . Cox described Dixon as being a good work- er.2 Beginning in early 1975 Dixon started missing work at the store because of a previously injured shoulder. He would work a couple of days and then be off for a day or so. The condition seemed to be getting progressively worse. On or about April 1, 1975, Dixon told Cox that he was going to have to have surgery on his shoulder. Cox recom- mended to Dixon that he take a leave of absence for the surgery and, after Dixon had recovered, for him to come back to work. Cox told Dixon that he would have his job for him . Dixon agreed to that suggestion . Cox promised Dixon that he would hold open his job for him until Dixon got better and came back. Dixon testified that he stopped working at the store on April 11, 1975, and that the operation on his shoulder took place on April 27, 1975. Dixon did not continue to receive paychecks from the Company, but instead, he received dis- ability benefits from the State. As previously indicated, Dixon was one of several wit- nesses who testified at the hearing on May 22, 1975, in the prior case.3 Dixon's union authorization card was 1 of the 2 John Cox impressed me as being a truthful witness who was conscien- tiously relating numerous events which had occurred many months before the hearing In my view, Cox 's testimony is reliable and I have credited him throughout this proceeding I have based the findings of fact in this section of the decision largely upon the testimony given by Cox While I have noted some conflicting testimony given by Robert Dixon , I believe that Cox has given the complete and truthful account and I credit Cox's testimony and do not credit the testimony of Dixon With regard to this particular credibility resolution and the other credibil- ity resolutions in this case , I have arrived at them without being bound to accept in this proceeding the credibility resolutions made by Administrative Law Judge George Christensen regarding these witnesses in the prior case it so happens that Administrative Law Judge Christensen also credited John Cox and Gaylord Helm over Dixon and two other witnesses with regard to sec C, 5, 221 NLRB at 1099 Administrative Law Judge Christensen also credited Cox's testimony over that of Phil Evans as to sec E , 3 (221 NLRB at 1101), although he did find that Cox gave a reprimand to Evans while Evans was discussing union representation on his break (sec E, 2, ibid) He found that Cox was prompted by valid business considerations in posting a no-solicitation rule (sec E , 1, ibid ) He did not credit the testimony of Cox and Helm, however, that they did not have knowledge of the union cam- paign at the time of the wage increase on July 26, 1974 (221 NLRB at i 100- 01) In any event , the determinations with regard to the credibility of the witnesses in this proceeding have been based on my observation of the witnesses in this case and upon their record testimony at this hearing The fact that Administrative Law Judge Christensen similarly credited the testi- mony of Cox and Helm over that of Dixon would not have precluded me from reaching a different result if such a result had been warranted 3 It was during the lunch recess at the hearing that Raphael Munoa, who held the supervisory position of assistant store manager at that time, claimed he warned Dixon to be careful because they were going to fire Dixon Munoa testified that, later the same evening , he again spoke with Dixon and said "I told him to watch out and tell our good employees who I thought were good workers to watch out, just to keep on doing their jobs the way they should, because they were going to be fired As long as they did their job right, I didn't see why anybody should be fired " He testified that he also spoke with Richard Semla that same evening and warned him, "They were going to get rid of the people who signed Union cards " Munoa said that earlier in the day during a recess at the hearing , Gaylord Helm, who is the California North District Manager of the Respondent, said that they were in trouble and that as soon as this thing was over to get rid of the "sob's" , that it was a good thing that Mary Dulfer , a cosmetician , was not there or else they would be in jail , and that Helm was surprised that Matsu- 12 cards which were introduced in evidence in that pro- ceeding. About the last week of June 1975, Dixon contacted Store Manager Cox and informed Cox that he was fully re- covered; that his doctor was going to release him on the first of July; and that he was ready to come back to work on a full-time, permanent basis. Cox replied "great," and told Dixon that he would put him on the schedule. Cox then scheduled Dixon to work 4 days that week beginning July 1.4 Cox told Dixon to bring a doctor' s release with him when he returned because he would have to have one. Cox explained at the hearing that the company policy was to require an employee to have a release from his doctor after any prolonged leave of absence due to an illness or injury. Cox further explained that the release must be a complete release so that the employee may resume performing his job functions. Cox said that he would not take an employee back to work who was partially recovered for light duty or something on that order. On July 1, 1975, Dixon returned to work for the Respon- dent. He punched in about 8 o'clock in the morning. He worked on the floor for awhile, worked at the cash register, and marked warehouse merchandise. Store Manager Cox noticed that Dixon was having difficulty doing some of the work . He observed that Dixon was having trouble lifting boxes up on the table. This occurred about 2 or 3 p.m., and Cox decided that he would talk with Dixon about this be- fore Dixon went home that day. However, Cox was unable to do so because Dixon had left work early that afternoon.' Although Dixon was scheduled to work the next day, da, a pharmacist, had signed a union card and said , "Don't forget Pearl Harbor " Helm denied the statements about getting rid of employees and about Mary Duller which were attributed to him by Munoa I found Helm's testi- mony on this and other matters to be convincing and credible I have relied on his testimony throughout this case because his demeanor on the witness stand and a review of the record persuades me that he has told the truth in this case For that reason , I credit Helm's testimony I reach the opposite conclusion with respect to the testimony offered by former Supervisor Mu- noa based on his demeanor on the witness stand and a review of the entire record I do not find his testimony to be credible , and I do not predicate any findings on it except that he testified that he was fired by the Respondent on July 20, 1975, and that he has charges pending under investigation by an- other agency concerning his termination In the earlier proceeding , Admin- istrative Law Judge Christensen credited the testimony of Skolnick over that given by Munoa as to the incident referred to in sec C, 1, 221 NLRB at 1098, and the testimony of Smyth over Munoa as to the incident referred to in sec C , 2, 221 NLRB at 1099 He credited both Alexander and Munoa as to the incident sec C, 3, 221 NLRB at 1099, and credited Munoa where he was not contradicted concerning the July 23 meeting behind the pharmacy counter (221 NLRB at 1101, In 13) Dixon 's version is at odds with this He claimed that he was going back to work merely on a trial basis to see if he could perform the job even though his shoulder was still hurting him He asserted that he told his physi- cian, "I'll try to go to work and find out how it is ," so his doctor permitted him to do so He also claimed that he told Cox "I'm going to try to do my best the first day here , but if I can't hack it , then my doctor will put me back on disability " As indicated above, I credit the testimony of Cox 5 Dixon conceded that the Job he performed in July was no different than the job he had performed when he left in April Nevertheless, Dixon testi- fied that he told Cox about his having to lift heavy boxes while his shoulder was hurting that first day Dixon said that Cox told him to try to do his best, "but he still had me lifting heavy boxes" I credit Cox's testimony that Cox planned to discuss the matter with Dixon , but he was unable to do so because Dixon left early that afternoon Apparently, it was unknown to Cox at that point in time that Dixon had planned to leave early that day to visit his doctor WALGREEN COMPANY Dixon did not show up for work.' Therefore, Cox tele- phoned Dixon's house and spoke with Dixon's mother. She informed Cox that Dixon had been to see the doctor and that he was taking some drugs, was very sleepy, and was in bed. She said that she would have Dixon call Cox. Cox asked that she have Dixon come in to see him the following day. She said that she would do so. Dixon did not return to the store until the following Monday, July 7, 1975 At that time Dixon and Cox had a conversation in the office of the store. Cox asked what was happening and told Dixon that he thought that Dixon had recovered. Dixon stated that his arm was worse than ever and that he had been to see the doctor who said that Dixon might have to have surgery again. Dixon told Cox that he might be out for another 6 months. Cox responded that he did not know what to do. He told Dixon that he had held open his job for about 3 months, and he could not keep it open indefinitely. Cox said that they were running short of men in the store. Cox explained that there were only three men, including himself, to work on the entire floor at that time Cox told Dixon that he had to hire another man to take his place and that he could not wait any longer Dixon replied that he understood, that he knew they were short, and that he appreciated Cox's hold- ing the job open as long as he did Cox said for Dixon to do whatever was necessary to get his arm fixed up; that he was going to have to hire somebody in the store; and that when Dixon had fully recovered from the surgery, Dixon should come back and see him Cox stated that if he had a job available for him, he would hire him. Cox said that if he did not have a job available, then he would try to find a job for Dixon at one of the nearby stores. Dixon replied "fine" and left the store. About 2 weeks later in July 1975, Cox and Dixon had a telephone conversation about vacation pay. They next spoke about the end of July or the first of August 1975 when Dixon came in the store Cox asked Dixon how he was doing, and Dixon replied that it was ternble; that they were not doing anything; and that it was really worse. Cox suggested that Dixon ought to change doctors because he was not getting good results They laughed and joked a bit-apparently at the term used by Cox to characterize Dixon's doctor-but this is not clear. However, Dixon said that he was hurting worse than ever. Dixon left the store and that was the last time that Cox spoke with Dixon or saw Dixon in the store.' 6 At one point in his testimony Dixon contradicted this He said that he did go to the store the next day on July 2 and told Cox that his doctor was putting him back on disability until September 1 At that time, Dixon testi- fied, Cox told him that he would have to lay off Dixon and hire someone else, but that when Dixon returned on September 1 Cox would take him back, if he had an opening, or he would telephone other stores and find out if they had an opening for Dixon At a later point in his testimony, Dixon changed his version and said that he did not go to the store on July 2 He said, "1 couldn' t contact him at all because I was completely out, I was in bed, I took a whole bunch of medicine " He said that he first contacted Cox a few days later and explained "my doctor might have to cut my shoulder open again, and I might have to be out for maybe a couple of months, two or three months, that's the longest I'll be out" For the reasons previously stated, I credit Cox's testimony Dixon claimed that he did return to the store September 1, 1975. and spoke with Cox briefly He said that he had a doctor's release by this point in time, but he did not show it to Cox or tell Cox about it Dixon said that 899 Cox stated that he was prepared to rehire Dixon just as Cox had previously done on July 1. However, Dixon never did ask Cox for his job back. Cox said that if Dixon had come back and asked Cox for a job, and if a position were open, Cox would probably have hired him back. He said that there were openings at the store after September 1, 1975, which Dixon probably could have performed. He said that he did not attempt to contact Dixon regarding his availability. Cox explained- Well, there was an adequate supply of people com- ing into the store looking for jobs and people that were qualified, and one ex-employee who worked for us that I rehired on a fulltime basis. And by Mr. Dixon not contacting me like he said he would do when he was better, or like I asked him to do when he was fully recovered, I just took that as a sign that the gentleman wasn't ready to go back to work, or possibly he was and had found a position somewhere else. I didn't feel it was my responsibility to go out and track him down to see if he wanted to come back and go to work. I felt if he needed a job and was ready to go back to work, he would come to me Cox pointed out that he had not contacted Joan Oakley, the bookkeeper, about her availability for work while she was out on disability for several months. Cox said that when Ms. Oakley was available, she returned to the store and has been back at work since then 8 With regard to former employees generally, Cox said that he would give preference to them in filling a position if they were qualified for the position. If they were neither qualified nor any more qualified for the position than an- other person, he might not give the former employee pref- erence. D. Analysis and Conclusion Regarding Dixon After having gained knowledge that Dixon had previous- ly signed a union authorization card, which was introduced in evidence at the hearing in the prior case on May 22, 1975, and after knowing that Dixon had testified at that same heanng, Respondent promptly reinstated Dixon in his former job when Dixon asked to come back to work. Respondent was willing to reinstate Dixon before the time of the hearing in the prior case and it was willing to do so after the hearing in the prior case. Respondent did not treat Dixon any differently because of his having testified as one of the witnesses called by the General Counsel in the earlier proceeding or because Respondent learned that Dixon had signed a union card When Dixon indicated that he would be able to return to he asked Cox if he had an opening for him and that Cox said that he did not, but that he would try to find something for Dixon Dixon said that he subsequently returned to the store one day and spoke with the cosmetician, but that Cox was not at the store on that particular day He said that he had not spoken with Cox since the first of September I find credible the version given by Cox for the reasons set forth previously 8 Ms Oakley testified that she underwent surgery during the last week of January 1975 and was away from work on disability for 9 weeks before returning to work in April 1975 She said that she and Dixon were the only two employees at the store who had been away from work on disability since she began working at the San Mateo store in October 1973 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work on July 1, 1975, Respondent immediately complied with Dixon's request for reinstatement on July 1 In Respondent's view this was to be a permanent full-time reinstatement. It should be noted that Respondent did not pressure Dixon to return on July 1. It was Dixon's decision to do so. Respondent had previously promised to hold open his former job, and Respondent had done so. Re- spondent made that commitment prior to the time of the heanng on May 22, and Respondent continued to honor that commitment after the hearing on May 22. It is significant that Respondent did not discharge Dixon on July 1. It was Dixon's decision to stop working at the store because of his physical condition at the time Respon- dent did not criticize Dixon's performance at work on July I nor in any way indicate to him any possibility of being terminated. It was Dixon's decision that he was unable to continue to work. He conceded that his Job duties on July I were no different than they had been when he left work in April 1975 It was only after Dixon told Respondent on July 7 that his arm was worse than ever and that he might have to be out for another 6 months that Respondent informed Dixon that it could not keep his Job open indefinitely Up to that time Respondent had held open Dixon's job for almost 3 months. Adding another 6 months absence would have meant that Respondent would have been forced to leave vacant the position for about 9 months. Respondent ex- plained that there were only three persons, including the store manager, to cover the sales floor Dixon said that he understood this fact While Respondent told Dixon that it would have to fill his position and not keep it open indefi- nitely, Respondent once again told Dixon that he should return to the store when he was fully recovered. Respon- dent promised to reinstate Dixon if a job was available at that time or, if a job was not available, to try to find a job for him. Thus, with full knowledge of his having testified in the prior case and of his having signed a union card, Re- spondent continued to treat Dixon the same as it had be- fore Respondent gained such knowledge. Respondent was still willing to reinstate him to work when he was physically able to return to work. The only thing Respondent was not willing to do was to leave his Job vacant for possibly anoth- er 6 months time, added to the 3 months that Dixon's job had already gone unfilled. Respondent's explanation for its need to fill the job is credible and also apparently was understood by Dixon The record shows only one other employee as having been absent from work at the store because of disability That employee was the bookkeeper, Ms. Oakley She was absent for only 9 weeks as compared to the 9 months period which Dixon indicated that he might be absent. After advising Dixon that Respondent would reinstate him if a job were available when Dixon was able to return to work, Respondent did not thereafter seek out Dixon. The credible explanation for not doing so was set forth by Store Manager Cox It is noteworthy that Respondent treated Dixon the same as it had done previously when Ms Oakley was absent on disability Respondent did not seek her out, but instead she returned to work when she was able to do so. I have considered the unfair labor practice violations in July and August 1974 which were found by the Board in the prior case as background evidence in this proceeding. However, after considering the entire record in this case, I find and conclude that a preponderance of the evidence does not establish that Respondent has discriminated against Robert Dixon in violation of Section 8(a)(1), (3), or (4) of the Act E Richard Semla Richard Semla began working for the Respondent in February 1972. About a month later he was transferred to Respondent's drug store in San Mateo where he continued to work until his termination on July 25, 1975. Semla was one of three pharmacists at the San Mateo store. The other two pharmacists were Matsuda and Fawzi. As of July 1975 Matsuda had been employed by Respondent for nearly 25 years; Semla for approximately 3-1/2 years, and Fawzi for slightly over 2 years At that time in July 1975, the rate of pay for both Respondent's regular pharmacists and relief pharmacists was $9.50 an hour. Sometime in the past, the pharmacists themselves had elected to work 8-hour shifts straight through without a lunch period. That practice con- tinued in effect at the time relevant to this case Thus, one shift would be from 9 a.m. to 5 p in without a lunch peri- od, and a second shift would partially overlap the first shift and be from I p in. to 9 p in. without a lunch period. On certain days there would be two pharmacists working the same shift and, therefore, during the 4-hour overlap period, there would actually be three pharmacists on duty at the store during that period The only union activity of Semla was signing a union authorization card on July 23, 1974. There were several events, however, which led manage- ment to believe that Semla was opposed to the Union. On July 31, 1974, there was a meeting among District Manager Helm and all the store managers in his district. The meet- ing was held at the Company's store in Daly City, Califor- nia During that meeting Store Manager Cox was called by Assistant Store Manager Munoa who advised him of a problem between Semla and a vacation relief pharmacist, Phil Evans. Evans' leading role in organizing the employ- ees at the San Mateo store is described in the prior case and also in this proceeding he is described as the prime union organizer of the employees. Cox spoke first with Semla on the telephone and then Helm spoke with Semla. Cox described Semla as being very upset and furious with Evans because Evans was attempting to call the pharmacy board to report that a prescription had been filled although the doctor had not written the pharmacy's name and the customer's address on the prescription. Semla felt that Ev- ans was trying to get Semla in trouble and maybe cause Semla to lose his license. Cox talked with Helm who then telephoned the store and talked with Semla Semla told Helm that Evans "was making a tremendous scene there." Semla said that Evans was talking about the Union and was not paying attention to business Semla stated that Evans was ridiculing the pharmacists at the store Helm advised Semla not to let Evans run him away from the store and to do the best he could. WALGREEN COMPANY 901 According to Semla, his conflict with Evans "was a per- sonality dispute between him and myself." Semla testified that Evans was "making fun of the three pharmacists who were there" and that was what Semla had objected to, rath- er than Evans' union activities.9 Prior to the representation election scheduled to be held on October 9, 1974, Semla told Cox and Helm that he was against the Union. On October 25, 1974, Semla signed a letter to the Union which purports to have 13 employee signatures on it. The letter refers to the union cards which had been previously signed and requested the Union to "delete our application to join the Union" for the various reasons set forth in the letter. Semla stated that the letter was prepared by Fawzi who showed the letter to him. Cox said that Munoa had told him that Fawzi had typed the letter, and Helm said that Munoa had told him that Fawzi was circulating the letter. In his testimony Munoa said that Fawzi had pre- pared the letter.1° Twice a year in June and November the Respondent holds what are called "figure review" meetings which are held for the purpose of reviewing the performance of the stores for the previous 6 months. All 37 districts of the Respondent participate. In June 1975 District Manager Helm attended such a review meeting in Chicago. At that time he had figures which revealed the daily average num- ber of prescriptions filled by each of the 23 drug stores in the California North District for the period from January through May 1975. (Helm testified that the Respondent has maintained figures on the average daily number of pre- scriptions filled for the past 60 years.) Helm felt that the figures for the San Mateo store were bad in many respects. After he returned from the figure review meeting in Chica- go, he decided to correct the situation by reducing the 9 For the reasons previously stated, I have credited the testimony of Cox and Helm throughout this proceeding Where there are conflicts between the testimony given by Semla and that given by Cox or Helm, I have found the version stated by Cox or Helm to be reliable and have accepted it 10 Ms Oakley testified that Carol Chrttenden was "the only person that I had any dealings with on this letter She brought it to me, she asked me to step into the back office with her one day as I was leaving for home, and asked me to read what she thought should go to the Labor Board " Ms Oakley described two drafts of the letter which Ms Chittenden had shown her Ms Chittenden did not testify at the hearing What purports to be Chittenden's signature appears first among the 13 names at the bottom of the October 25, 1974, letter to the Union The writing of her name on the letter resembles very closely the signature on the union authorization card, which was introduced in evidence in the prior case Ms Chittenden was called as a witness by the General Counsel in the prior case and identified her signature on that union authorization card It appears that Semla's dealings with the letter were with Fawzi, a fellow pharmacist, whereas Ms Oakley's dealings were with Ms Chittenden, a clerk in the store Their versions are not necessarily inconsistent since no one testified that Semla and Ms Oakley were together when they signed the letter The letter apparently was given to each one at separate times While Semla believed that Fawzi prepared the letter, Ms Oakley's testimony indi- cates that Ms Chittenden was writing some drafts The record does not disclose whether there was any collaboration between the two persons Nei- ther Fawzi nor Ms Chittenden was called as a witness at the hearing It may be that Fawzi only typed the letter as Munoa stated to Cox, or that Fawzi just circulated the letter, as Munoa told Helm In any event, it is unneces- sary to decide who actually prepared the letter since both Cox and Helm, based on information received from Munoa, believed that Fawzi was in- volved in the typing and circulation of the letter number of hours worked by pharmacists in the San Mateo store. Of the 23 stores in the California North District, 5 stores consistently had an average of a total of 120 hours of work by pharmacists each week for the period of January through May 1975. One of these five stores with its phar- macists working a total of 120 hours per week was the San Mateo store. During that period the San Mateo store con- sistently filled the lowest number of prescriptions on an average daily basis. The record shows the following: Store Jan. Feb. Mar. Apr. May Burlingame 232 207 196 207 203 Daly City 252 245 234 246 229 San Francisco 135 Powell 255 239 216 241 220 San Francisco 245 Winston 279 275 261 268 247 San Mateo 168 153 157 156 161 The San Mateo store was not only filling the fewest number of prescriptions on an average among the stores with 120 hours of work by pharmacists, but also the San Mateo store was filling fewer prescriptions on a daily aver- age than three other stores in the District which had phar- macists working fewer hours. For example, the Palo Alto store had a consistent 96 hours of work by pharmacists in its store, yet it surpassed the number of prescriptions filled in 120 hours at the San Mateo store. The monthly figures for Palo Alto for January through May 1975 were 236, 222, 213, 211, and 200. The Mountain View store had a consis- tent 104 hours of work by pharmacists each week, and also surpassed the San Mateo store which had 120 pharmacist hours each week. The Mountain View daily average of pre- scriptions filled for the same period of time was 198, 197, 177, 196, and 185. The San Francisco store on Polk Street had 96 pharmacists' hours in both January and February 1975 and 104 pharmacists' hours in March, April, and May, 1975. That store with less pharmacists' hours than San Mateo also filled more prescriptions than San Mateo on a daily average basis. The figures for the Polk Street store for the period are 181, 181, 166, 179, and 168. Notwithstanding the foregoing comparisons, the San Mateo store was not the only store where the pharmacist hours were reduced subsequent to the June 1975 figure meeting. Between that time and December 1975, Helm made reductions in the number of pharmacy hours in vari- ous amounts at four other stores in the District. The four other stores where pharmacist hours were reduced were the San Bruno store, the San Francisco store on Geary Street, the Burlingame store, and the Belmont store. In the first or second week of July 1975, District Manag- er Helm met with Store Manager Cox at the San Mateo store At that time they discussed the charts as to the num- ber of prescriptions being filled by the other stores as com- pared to the San Mateo store. Helm told Cox that the num- ber of hours worked in the pharmacy would have to be reduced at the store. They discussed making a reduction of 16 to 24 hours per week in the pharmacy. Helm left the implementation of the decision to reduce hours up to Cox. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Helm told him, "You think it over, let me know how you're going to work it out, and get back to me." Cox was in complete agreement with Helm's decision to reduce the pharmacy hours at his store. Cox explained at the hearing: Well, I was in complete agreement with Mr. Helm that we should reduce hours in the pharmacy. I had felt all along that we were spending too much money in the pharmacy as compared to the rest of the store, and I looked at the pharmacists that I had, and decid- ed to keep Mr. Matsuda, who does an excellant job, and Mr. Fawzi also, and to terminate Mr. Semla. And by terminating Mr. Semla and replacing him with an- other pharmacist who I hoped to work in the store only 16 to 24 hours a week, I hoped to cut my hours in the store, and also get a pharmacist in the store that I thought would do a better job than Mr. Semla was doing and get my customers better service in the store. After Cox decided to reduce the hours worked in the pharmacy by terminating Semla, Cox telephoned Helm and advised him of his decision. Helm brought up the fact that Semla had more seniority than Fawzi, so Cox ex- plained to him why he had chosen Semla. Cox then tele- phoned H. Allan Stark, who is director of employee rela- tions for the Respondent, and advised him of his decision to terminate Semla. Cox said that he called Stark in accor- dance with instructions that he had received many months before, probably in June or July 1974, to contact Stark when any employee was to be terminated. Stark instructed Cox to review the reasons for termination with Semla and to give Semla a week's severance pay. Semla was discharged on Friday, July 25, 1975, which was the end of a biweekly pay period. Cox talked with Semla for about 15 minutes to explain the reasons for ter- minating him. Cox told Semla that he had received numer- ous customer complaints about Semla's actions in the store and that Cox felt that Semla was giving the customers very poor service. Cox also told Semla about his leaving the store during working hours-"not giving me eight hours work for eight hours pay, basically." Cox also mentioned Semla's listening to the radio on company time, specifically "standing around listening to the results of a horse race." Cox said at the hearing, "you can't listen to the stretch call on a horse race and count tablets out for prescriptions." Additionally, Cox mentioned an earlier incident when Cox had discovered bottles of vitamins having been opened in the pharmacy. Cox further explained that he was retaining Fawzi, even though Fawzi had less time with the Respon- dent, because Cox thought that Fawzi was a better phar- macist. Cox related to Semla his view that there was more to being a pharmacist than dust being able to count tablets accurately, type labels, and perform the mechanics of being behind the counter. Cox gave his opinion to Semla that being a pharmacist involved getting in touch with the customers, ringing up the merchandise, and taking their prescriptions. Cox told Semla that he was not terminating him because of his inability to perform the functions of a pharmacist because he had no problem with counting tab- lets or typing labels, but the customer service and the re- mainder of his activities in the store left a lot to be desired. Cox explained to Semla that, since he was being terminated without notice, Cox was paying him a week's severance pay in the hope that the money would assist him while he looked for another job . During their conversation, Semla told Cox that "I expected it." Cox asked him what he meant and Semla repeated his comment , but also asked Cox if he could go to work for any of the stores in San Francisco . Cox replied that he did not know." Among the reasons given by Cox to Semla to explain his selection of Semla for termination were complaints made by customers against Semla . One of the customer com- plaints which Cox had reference to involved an incident in March 1975. At that time there was a relief pharmacist working in the store . A customer had to wait for a long time before her prescription would be filled , so the custom- er gave the relief pharmacist "a bad time." Cox walked back to the pharmacy and found that the relief pharmacist was crying and unable to continue her work . Cox asked her to get as much done as she could , but he also telephoned two employees to come in early that day to assist . One was to help outside the pharmacy . The other employee was Semla who came in around noon . Later that afternoon, the customer complained to Cox about Semla. Cox said: Well, later in the afternoon , the customer came up and she said that she was back to pick up her prescrip- tion in the back and that Mr. Semla had told her to get the hell out of the store if she didn't like the service that she received in the store, and to never come in the store and hassle any of the pharmacists in the back, that they didn't have to put up with this nonsense, and if she didn't like the way we ran the store, to get out, to take her business elsewhere. Cox apologized to the woman for the incident and then went back to the pharmacy to ask Semla what was going on and what had caused this. Cox asked Semla if he had said these words to the customer. Semla said that he had. Semla told Cox that the woman had been in earlier and given the other pharmacist a bad time that morning, so Semla was "straightening this customer up" for giving the other pharmacist a bad time. Cox told Semla that Semla did not have the authority to tell customers to take their business elsewhere. Cox pointed out the customers might be sick, tired, or upset, but that they had to take this off of 11 In sharp contrast with the detailed explanation to which Cox testified, Semla testified He said that he was cutting back hours in the pharmacy and there- fore he was going to have to let me go And I stated to him, "Well, I know the reason, but I wouldn't like to go into it" We didn't discuss any more about that, but he said that he knew that I lived in the City and therefore they would try to find a job in the City for me In San Francisco, right He said that he realized that I had had more time in than Mr Fawzi, but since I lived in the City they would try to get me a job in the City Semla also said that he was given I week's severance pay at that time The next day, however, he said that he received a message at his residence that there was a job for him at Respondent's store on Mission Street in San Francisco On Monday he telephoned and was told that the job at the Mission Street store had been filled For the reasons previously stated, I credit the testimony of Cox rather than the version given by Semla WALGREEN COMPANY 903 the customers and be nice to customers because the cus- tomers had the money in their pockets, and the store want- ed their money. Cox said that they were there to serve people and that people are not all nice and not all bad, but they had to take it from the customers when the customers dished it out. Semla began shouting at Cox that he did not have to put up with any kind of hassle from the customers. Cox said that Semla was shouting so loudly that customers on the floor were turning back towards the pharmacy. Cox closed the windows and door to the pharmacy. Cox told Semla to keep quiet; that he did not have to shout and for them to discuss the situation. Semla said that he was not discussing anything and that he did not have to take this from any of the customers. Semla said that no one was going to come into the store and hassle him and that he got enough hassling without the customers coming in and hassling him. Cox told him that Semla had to take the hassling; that everybody takes it; and that Cox did not like it, but he took it because it was a part of his job to do so. Semla replied that he was not going to do it and that there were a lot of things going on around the store that he did not like. Cox responded that Semla was dust going to have to put up with them. Semla said that he was going to call the NLRB and maybe they could help him out. Semla also said something about quitting. Cox answered for Semla not to threaten him with the NLRB or anybody else. Cox said that if Semla wanted to quit, to make up his mind right then. Cox further said that if Semla wanted to go to the NLRB, and if he thought the NLRB would solve his prob- lems, "go right on ahead and be my guest. But you're not going to treat the customers the way you treated this wom- an." Cox then told Semla to keep his voice down and get back to work. Semla gave two different versions concerning his state- ment to Cox about going to NLRB. On the first day of the hearing, he said that this occurred during a meeting in the pharmacy among Cox, Munoa, Matsuda, Oakley, and Semla. Semla said that this took place between the time of the hearing in the prior case, which was held on May 22, 1975, and the time of his discharge, which was on July 25, 1975. Semla said that he told Cox that they were not get- ting time off for a break or for a lunch hour and, therefore, some help was needed in the pharmacy. Cox responded, according to Semla, that they had all the help that they could get. Semla's first version is that he then said, "Well, maybe I should go to the NLRB concerning this matter." Semla testified that Cox replied, "Don't you threaten me with the NLRB." Whereupon Semla stated, "I don't threat- en anybody, but I do have to look out for myself." On the second day of the hearing, after having heard Cox's testimony, Semla changed his story to state that it was during the conversation with Cox about the customer complaint referred to above that he told Cox that he was going to the NLRB. Semla's version was that the conversa- tion with Cox took place over a 2-day period. Semla said that he did raise his voice and that Cox asked him to please quiet down. Semla testified, "My terminology in that par- ticular thing was that I didn't think that she should use profanity towards the young lady who was working, and that if she did not like it, I did tell her to take her business elsewhere, because I didn't think that the young lady should take that kind of abuse." As previously indicated, I have credited Cox's testimony throughout this proceeding as being the complete and credible account of these events. In this respect also, I credit Cox's testimony regarding the customer complaint in March 1975 and do not credit the versions given by Semla. While Semla claimed that the foregoing was the only time that Cox spoke with him about customer complaints, Cox credibly testified that he had talked with Semla on several occasions about customer complaints. Cox ac- knowledged that there were complaints with regard to the other two pharmacists, Matsuda and Fawzi, on the average of about one a week. However, these involved such things as mislaying a prescription, taking too long in the customer's view to get the prescription filled, the doctor not calling in the pharmacy, or the pharmacist's not being able to contact the doctor for approval before filling a pre- scription. In contrast to these types of complaints, Cox tes- tified that Semla was ignoring customers and that com- plaints were averaging about two a week against Semla. Cox said that he talked with Semla on several occasions about coming out from behind the pharmacy and taking care of customers at the pharmacy counter. He said that Semla's response was that he was too busy to come out and wait on customers. However, Cox said that on several oc- casions he walked by the pharmacy when Semla was not busy at that time, and Cox asked Semla to come out and take care of the customers. Cox acknowledged that this had occurred during the period of a year before Semla's termination. Cox explained: Now, every time a customer came to me with a complaint about Mr. Semla, I didn't dust automatical- ly run and nail Mr. Semla on it. I didn't think that Mr. Semla, being a well-trained, well-educated profession- al man, needed to have somebody come back every day, twice a day, and remind him to take care of his customers. I thought that over a period of time that Mr. Semla would work this problem out and start giv- ing the customers better service. And it didn't materi- alize So, this, combined with many other things, led up to my decision to terminate Mr. Semla Cox described pharmacist Matsuda as "probably the fin- est pharmacist that I've ever seen." Cox said that Matsuda was a hard worker and got along well with the employees and with the customers. Cox said that Matsuda did an ex- cellent job. Cox said that pharmacist Fawzi did a tremendous amount of communication with the customers. He said that Fawzi likes to think of himself as somewhat of a doc- tor in addition to being a pharmacist and that he becomes involved in the customers' problems. Ms. Oakley, the bookkeeper at the store, also testified that "Matsuda accommodates the customers a hundred percent. Fawzi does likewise. All our relief pharmacists would accommodate a customer." Some remodeling took place while Ms. Oakley was away on disability, and when she returned to work in April 1975 her office was located next to the pharmacy. When the cashier at the pharmacy counter was off duty, Ms. Oakley took the cashier's place. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ms. Oakley said that Semla ignored customers and very rarely attended to customers when they had questions re- garding their drugs. She said that Semla refused to go out and talk to the customers while he was working in the pharmacy. On many occasions, she observed that Semla did not come from behind the pharmacy wall, but instead told the customers to talk to him through the wall because he could hear them. In his testimony, Semla did not recall that happening, but he said he might have been on the telephone at the time and told a customer to speak up and that Semla could hear them. Additionally, Semla indicated that Ms. Oakley asked the pharmacists to wait on custom- ers so that she would avoid getting up and leaving her books. In a similar vein, Munoa claimed that Ms. Oakley was reluctant to wait on customers and was upset at being called away from her books. Munoa asserted that pharma- cist Fawzi was new in the store, was "sort of nervous," made mistakes, and that customers came to Munoa to complain about Fawzi. On the other hand, Munoa asserted that he received calls from people "to say how happy they were to have a pharmacist like Semla." Ms. Oakley has been an employee of the Respondent for about 23 years. She did not appear to be the reluctant worker which Munoa and Semla described as trying to avoid her duties at the cash register. Instead, her testimony and her manner indicate that just the opposite is true with regard to her attitude towards her work and customers of the Company. I credit the testimony of Ms. Oakley and do not credit the testimony of Munoa and Semla. A second reason stated by Cox to Semla at the time of his termination involved Semla's leaving the store during working hours. In late 1974 or early 1975, Cox became aware that Semla was leaving the store for about 45 min- utes or an hour and returning with paramutual tickets in his hand. Cox estimated that he discovered this about 6 months after Cox became store manager, which was on July 26, 1974. Cox talked with Semla about this. Cox said, "I told him to knock it off, that a guy making as much money an hour as he's making should spend eight hours in the store working." A couple of weeks later, Cox discov- ered that Munoa had left the store late one afternoon to make a deposit in the bank, but had gone to the race track to place bets. Cox said that Munoa was gone for about an hour and a half. Cox found out that Munoa had gone to the track to place bets for himself and Semla. Cox told both of them and also Matsuda that Cox would terminate any person, without further warning or notice, who went to the race track while they were supposed to be on duty at the store. Cox said that after that occurred there were no further incidents that were brought to his attention of em- ployees going to the race track on company time. Cox said that he had no knowledge of Matsuda or Fawzi ever leav- ing the store for any appreciable length of time either to go to the races or to go shopping. He had heard that Matsuda had gone to the races on his own time after Matsuda left work. District Manager Helm also testified that he had never heard of Fawzi going to the races and heard that Matsuda did so only on his own time. Helm said that he had heard once in 1973 and a couple of times in 1974 that Semla was going to the races on company time. Semla acknowledged that he went to the race track dur- ing working hours, but he claimed that he was never gone more than 30 minutes, and he claimed that Matsuda and Fawzi went also. Semla said that he occasionally went by himself, but that generally two of them went and one phar- macist would stay and work. He said that the Bay Mead- ows Race Track was located about a block from the San Mateo store. Semla said that he could leave the store, place a bet, and return to the store within 15 minutes. Semla said that he was never warned about doing so and that Cox just told him once in the fall of 1974, "Well, if you keep going over there, you're going to lose all your money," or some- thing to that effect. Semla said that he usually went to- wards the end of the work shift and usually only left once a day although he could not say that it never happened that he left twice in one day. Semla also acknowledged that he left the store during working hours to purchase groceries at another store in the mall. Semla asserted that Matsuda and Fawzi were gone as much as he was and that Fawzi picked up his children each day. Ms. Oakley said that Fawzi worked an extra half hour to 5:30 p.m., but that Semla did not and did not deduct from his timesheet the amount of time that he was absent from the store. Munoa claimed that Matsuda and Fawzi went to the races as much as Semla did. As already pointed out, I credit the versions given by Cox, Helm, and Ms. Oakley and do not credit Munoa or Semla. Another reason given by Cox to Semla regarding his ter- mination concerned Semla's listening to the race results on the radio at work. Cox said that the majority of the time that the radio was playing there was music on, and no one in particular would be listening. However, when the final stretch of the races would be called on the radio, "Semla would normally ease right down to the radio and listen to the stretch run." Cox said: Well, I don't know how many races are run over there. I don't know how long they last or how much broadcast they do about the races, because I don't listen to that. My objection to the radio being tuned to the races was, that's not the kind of function you perform in a pharmacy. Semla testified that he generally was the one who turned the radio on, but that occasionally the other pharmacists did. He said that Fawzi listened to music on his tape re- corder, but Cox said that he was not aware of that. Ms. Oakley said that the radio in the pharmacy was never turned on when Semla was not there. She said that Semla turned the radio on when he came in and that it played all day. She said that the station broadcasts soap operas and the race results. Still another reason stated by Cox to Semla with regard to his termination involved the opening of bottles of vita- mins in the pharmacy. Cox testified with regard to an inci- dent in February 1975: Well, Mr. Skolnick had brought it to my attention that some vitamins had been opened in back of the pharmacy that had not been paid for. WALGREEN COMPANY 905 Now, this was shortly after we had had a problem with security in our store with employee theft, and I was very concerned about it. I went back to the pharmacy, and I found, like I think $27 retail value worth of vitamins of various types that had been opened, and some of the vitamins had been taken out of the bottles. They were set on the back of the shelf in the pharmacy. Well, I think Mr. Matsuda was in the pharmacy at that time, and maybe Mr. Fawzi, and I asked both of them, "What are these doing back here9" And they said, "I don't know, I haven't been taking them. I don't know anything about it." I said, "Well, fine. You make sure if anybody is coming back here taking vitamins, you tell them that I will terminate them on the spot if I find anybody tak- ing merchandise without paying for it." Because, re- gardless of how you look at it, it's theft. It's not honest at all. And if I didn't terminate somebody for this type of activity, if our loss prevention people came in, they certainly would themselves. And I took this merchandise out, and I put it back in my office in the back of the store. The following day, I came into the store, and I think there were three more bottles of vitamins that had been opened and put back in the back of the pharma- cy. And I questioned Mr. Semla on this, because I believe he was working that morning. And he said, "Yes," he had taken them and opened them up. And he and Mary Dulfer had taken, I think, a couple of the vitamins that day. And I told Mr. Semla at that time that I didn't want this to ever happen again, that he could be terminated, and he would be terminated if I ever found merchan- dise taken that wasn't paid for. Semla traced the practice of taking vitamins in the store back to the former store manager. He said that he stopped after the present manager, Cox, told him to stop Semla said that the bottles of vitamins were usually given to the pharmacists by salesmen to entice the pharmacist to sell their vitamins. One of Semla's job duties involved talking on the tele- phone at the pharmacy. There were three telephones there for incoming calls and for outgoing calls to doctors and patients. Semla said that he spent more than half of his work day on the telephone. He denied that he averaged spending 10 minutes an hour on his own personal tele- phone calls, as indicated by Ms Oakley who heard his part of the conversation. Semla said that he was aware of the rule against making personal telephone calls, but that he possibly made one personal telephone call a day. Semla said that Matsuda and Fawzi made personal telephone calls as did other employees. Ms. Oakley did not observe the others making such calls. She did bring it to the atten- tion of Store Manager Cox that Semla was making person- al telephone calls. I credit Ms. Oakley's testimony. Following the termination of Semla, the number of hours worked by pharmacists at the San Mateo store have varied on a weekly basis from a high of 112 hours to a low of 80 hours. However, since his termination the total never reached 120 hours of pharmacists work a week through February 20, 1976. The company records show the follow- ing: Week Ending Hours 8-1-75 107 8-8-75 107 8-15-75 104 8-22-75 104 8-29-75 90 9-5-75 90 9-12-75 107 9-19-75 107 9-26-75 110 10-3-75 110 10-10-75 112 10-17-75 112 10-24-75 104 10-31-75 104 11-7-75 112 11-14-75 112 11-21-75 100 11-28-75 100 12-5-75 92 12-12-75 92 12-19-75 80 12-26-75 80 1-2-76 81 1-9-76 81 1-16-76 89 1-23-76 89 1-30-76 95 2-6-76 95 2-13-76 92 2-20-76 92 The parties stipulated that there had been three pharma- cists employed at all times at the San Mateo store since July 1975. However, that does not mean three full-time pharmacists. As the records clearly demonstrate, there have not been three full-time pharmacists working in any week from July 1975 through February 20, 1976. For ex- ample, the first part-time pharmacist who worked at San Mateo after Semla was discharged was named Arbeed. Over a 2-week period, a full-time pharmacist would have worked 80 hours, but Arbeed worked only 48 hours during the 2-week period immediately following the termination of Semla. Arbeed had been a part-time pharmacist working at the Respondent's store in Millbrae, California. Cox said that he tried four or five pharmacists before he found the person with whom he was satisfied. He said that with the amount of salary which was saved in the pharmacy, he was able to hire a pharmacist technician on a full-time basis who would take care of the pharmacy customers and also to hire another person for 20 hours a week who works on the sales floor. It has been previously pointed out that there were 12 union authorization cards introduced at the hearing on May 22, 1975, in the prior case. Three out of the 12 card signers were still employed by the Respondent at its San Mateo store at the time of the hearing in this case on March 2 and 3, 1976. Three other card signers had volun- 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tarily quit work for various personal reasons. Three other card signers had been discharged prior to May 22, 1975, for admitted theft. One of the card signers, Evans, was a vacation relief pharmacist. The remaining 2 card signers are Dixon and Semla. F. Analysis and Conclusion Regarding Semla The San Mateo store was but one of several stores in Respondent's California North District where the hours worked by pharmacists were reduced during the period from June to December 1975 Thus, the San Mateo store where union organizational activity had taken place in the summer of 1974, was not singled out for disparate treat- ment by the Respondent. The various reductions in the total number of hours to be worked by pharmacists were being carried out during that period at several stores. Fur- thermore, the records showing the average number of pre- scriptions filled a day and the average number of hours worked by pharmacists at each store reveal that the San Mateo store was consistently filling fewer prescriptions than other stores in the district with 120 hours of pharma- cist's work. Some stores with pharmacists working less hours than San Mateo regularly surpassed the number of prescriptions being filled at San Mateo even though San Mateo had three full-time pharmacists during that period. District Manager Helm had those figures for the January- May 1975 period when he attended the national review meeting in Chicago in June 1975. It was after that review meeting was held that Helm began instructing certain store managers in his district to reduce the number of hours worked by pharmacists in the store. The timing of the deci- sion to reduce the pharmacists' hours was explained by the time that the meeting was held in June 1975 on a national basis for all districts of the Company. In view of the fore- going and the entire record, I find that the decision to reduce the hours to be worked by the pharmacists at the San Mateo store was based on valid economic and nondis- criminatory considerations. It was the decision to reduce the pharmacist hours which precipitated the termination of Semla. While Cox had thought about terminating Semla on previous occasions, he took no action It was only after Cox was faced with the necessity of reducing the number of hours to be worked in the pharmacy in his store that Cox made the decision to terminate Semla. In order to reduce the number of hours worked in the pharmacy, Cox had few alternatives There were only three pharmacists working there and all of them were full-time employees. He had to make a choice among the three of them. He chose Semla. The reasons given by Cox for selecting Semla for termi- nation are convincing and persuasive His decision was based on a combination of factors. Of course, the reasons for discharge concerned past events. Semla did not do any- thing on July 25 or immediately prior thereto which caused Cox to terminate him at that particular time. As previously pointed out, the timing of the termination is explained by the timing of the decision to reduce the pharmacists' hours. Cox gave detailed reasons for his choice of Semla based on these past events. In Cox's view, Semla did not deal with customers as Cox felt he should. Cox pointed out the num- ber of customer complaints which he continually received regarding Semla's and Cox's unsuccessful efforts to per- suade Semla to change. Cox pointed to the March 1975 incident where Semla told the customer to take her busi- ness elsewhere and shouted at Cox when Cox reproached him about his conduct towards a customer of the store. That incident and the conversation between Cox and Sem- la clearly demonstrate the difference in the attitudes of the two persons towards customers. Cox's attitude was to pla- cate the customer, while Semla's attitude was to tell the customer to take her business elsewhere for what Semla felt was abusive conduct towards another pharmacist. The conflict in the attitudes between the two is apparent. Going to the race track to place bets during working hours was one of the factors which led Cox to believe that Semla was not giving him 8 hours of work for 8 hours' pay. Cox warned Semla and others regarding their absences from the store during working hours to go to the race track. The playing of the radio in the pharmacy with the race results being announced was still another matter which Cox felt was inappropriate for the pharmacy. Additionally, the incident concerning the opening of bottles of vitamins was viewed seriously by Cox particularly in light of em- ployee thefts which had resulted in the discharge of other employees. In view of the foregoing and the other matters attributed to Semla, Cox decided that he would not simply reduce the hours worked by Semla, but instead Cox decid- ed to discharge him. It was Cox's view that this action would improve his customer service. The question of why Cox waited until July 25 to termi- nate Semla in view of these past incidents is answered by the fact that Cox had not previously been required to re- duce the hours worked by pharmacists. Cox became man- ager of the San Mateo store on July 26, 1974, and thus Semla had worked there under Cox for 1 year. However, prior to July 1975 Cox had not been required to reduce the pharmacy hours, and it was only after he had been told to do so that Cox was compelled to choose among the three pharmacists. The fact that Semla's conduct and attitude had not pleased Cox for many months would not preclude Cox from choosing Semla to terminate when Cox was faced with the necessity for making a choice. As the Board has observed: "A determination of discriminatory motiva- tion must necessarily be based on an evaluation of all the circumstances surrounding the conduct alleged to be dis- criminatory. In this regard the record herein supports Respondent's contention that during Hawkins' entire ten- ure as service area manager, his performance left much to be desired " The Goodyear Tire & Rubber Company, 188 NLRB 563, 564 (1971). It is also noteworthy that, at the time Cox warned Semla regarding the customer com- plaints, the March 1975 incident, going to the race track, and the vitamins, Cox had reason to believe that Semla was opposed to the Union. Thus, these prior warnings and criti- cism of Semla were not made in retaliation against an em- ployee for engaging in union activity. At the time, the Re- spondent believed that Semla was opposed to the Union. The only activity by Semla in support of the Union was signing a union authorization card on July 23, 1974. His card was 1 of 12 such cards which were later introduced in WALGREEN COMPANY 907 evidence at the hearing on May 22, 1975. Thus, Semla's union activity was very limited. Three other employees who similarly signed union authorization cards were still employed by the Respondent at the time of the hearing in this proceeding . Three others had been discharged for ad- mitted theft, and three others had voluntarily quit. One other was a vacation relief pharmacist whose limited tenure had expired. The remaining card signer was Robert Dixon who has been previously discussed in this decision. It is significant that Respondent did not discriminate against Dixon for signing a union authorization card or for testify- ing against Respondent in the prior case . In fact, there are no concurrent unfair labor practices in connection with the termination of Semla. The only credible evidence of union animus is contained in the prior case. In that case the un- fair labor practices occurred in July and August 1974, which was almost a year before the termination of Semla. The fact that Respondent had committed unfair labor practices in the past and had exhibited animus towards the Union in the past does not necessarily prove that Respon- dent discharged Semla for disciminatory reasons. Leslie Metal Arts Company, Inc., 202 NLRB 547 (1973). While Cox was criticizing Semla for his remarks to a customer in March 1975, Semla said that he was going to call the NLRB about things which he did not like in the store. Aside from this isolated statement by Semla, there is no evidence that he ever did so or ever led Respondent to believe that he did. Semla did not appear at the NLRB hearing 2 months later in May 1975, and there is no basis for finding that Respondent discriminated against Semla for making that statement. With regard to seniority, Matsuda had about 25 years of service with the Company as of July 1975, Semla had about 3-1/2 years, and Fawzi had about 2 years. Respondent gives consideration to the seniority standing of employees, but the evidence does not show that Respondent gives it controlling weight. As pointed out by the Administrative Law Judge in Metzger Machine & Engineering Company, 209 NLRB 905, 913 (1974). "The General Counsel's ulti- mate contention is not strengthened by the further argu- ment that the Respondent did not choose on the basis of seniority. There was no obligation upon it to do so." Simi- larly in this case it has not been shown that Respondent was obligated to follow seniority , or that its past practice had been to let seniority prevail. In this proceeding Cox has given convincing reasons why he chose Semla, rather than Matsuda or Fawzi, to accomplish the reduction in pharmacy hours at the San Mateo store. After considering the foregoing and the entire record, I find and conclude that a preponderance of the evidence does not establish that Respondent has discriminated against Richard Semla in violation of Section 8(a)(1) or (3) of the Act. Upon the basis of the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Walgreen Company is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union, Local 775, Retail Clerks Inter- national Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in the unfair labor practices alleged in the complaint in this proceeding. Upon the basis of the foregoing findings of fact , conclu- sions of law, and the entire record in this proceeding, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: ORDERIZ It is hereby ordered that the complaint in this proceeding be, and it hereby is, dismissed in its entirety. 12 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