McKesson Drug Company

DECISIONS OF NATIONAL LABOR RELATIONS BOARD McKesson Drug Company and David P. Malik and Robert J. McCullough Teamsters Local 443, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and David P. Malik and Robert J. McCullough. Cases 39-CA-138-1, 39-CA-138-2, 39-CB-54-1, and 39-CB-54-2 July 31, 1981 DECISION AND ORDER On February 24, 1981, Administrative Law Judge Irwin Kaplan issued the attached Decision in this proceeding. Thereafter, Respondent Employer and Respondent Union filed exceptions and sup- porting briefs. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' find- ings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order.3 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 Respondent McKesson Drug Company, Rocky Hill, Connecticut, its officers, agents, successors, and assigns, and Respondent Teamsters Local 443, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and repre- sentatives, shall take the action set forth in the said recommended Order, except that the attached no- Respondents contend that the complaint is barred by Sec. 10(b) of the Act. We find no merit to this contention. Sec. 10(b) is a statute of limita- lions and is tot jurisdictional in nature. It is an affirmative defense and, if not timely raised, is waived. Vilronic Division of Penn Corporation, 239 NLRB 45 (1978) Sm'ent Council T76, International Brotherhood of Elec- trical Workcr. et a (New' York Telephone and Telegraph Company). 230 Nl.RB 1209, 1217 (1978), enfd. 599 F.2d 5 (Ist Cir. 1979). The record establishes that Respondents first raised the defense of Sec. 10(b) in their briefs to the Administrative Law Judge and did not plead or litigate the issue at the hearing Therefore, sce agree with the Administrative l.aw Judge that Respondents did not raise the affirmative defense of Sec. 10(b) in a timels manner and that this defense must be considered waived. We have modified the Administrative Law Judge's notices to conform with his recommennded Order. 2Responldent Employer and Respondent Union have excepted to cr- tain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutionls with respect to credibility unless the clear preponderance of all of the relevant ev idence conit inces us that the resolutions are incor- rect. Standard DI)r Wall P'roducts. Inc., 91 NLRB 544 (1950), enfd 188 F 2d 362 (d Cir 1951). We have carefully examined the record and find no basis for reversing his findings :' It affirminig the )Decision and adopting the recommended Order of the Admilistrative Law udge. ce do not rely on Mid-Weslt Piping and Supple Clrnanr. Inc.. 63 NLRB 10W6) (1945). which we find to be ap- plicable lo t t facts of the ilstanlt case. Unlike Mid-West Piping, the i- stanlt case dcs lot presenit a situation here competing unions have nmade rival cllimn fr majorit status and recognition. 257 NLRB No. 54 tices are substituted for those recommended by the Administrative Law Judge. APPENDIX A NOTICE To EMPI OYEES POSTED) BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT recognize Teamsters Local 443, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (herein Teamsters), as the repre- sentative of our Rocky Hill, Connecticut, em- ployees unless and until it has been certified by the National Labor Relations Board as the ex- clusive bargaining representative of our em- ployees. WE WILL NOT give any force or effect to the November 1978 agreement made with Teamsters or to any renewal, extension, modi- fication, or supplement thereto. WE WILL NOT- assist Teamsters in any other manner to become the representative of our Rocky Hill, Connecticut, employees. WE WILL NOT encourage membership in, or activities on behalf of, Teamsters by discrimi- nating against our employees with respect to their hire, tenure, and terms and conditions of employment. WE WI.LL NOT threaten our employees with discharge for engaging in union activities and/or utilizing the Board's processes and WE WIl. NOT promulgate an overly broad no-so- licitation rule. WE WIll. NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL withdraw and withhold all recog- nition from Teamsters as the representative of our Rocky Hill, Connecticut, employees for the purposes of collective bargaining unless and until the said labor organization shall have been duly certified by the Board as the exclu- sive representative of such employees. WE WL jointly and severally with Team- sters reimburse all present and former Rocky Hill, Connecticut, employees for any initiation fees, dues, or other moneys paid or withheld from them pursuant to the aforesaid collective- bargaining agreement or to any agreement su- perseding it but such reimbursement shall not extend to any such employees who may have 468 MCKESSON DRUG COMPANY voluntarily joined and been members of Team- sters prior to October 1, 1979. McKESSON DRUG COMPANY APPENDIX B NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT act as the collective-bargain- ing representative of McKesson Drug Compa- ny's Rocky Hill, Connecticut, employees unless and until we have been certified by the National Labor Relations Board as the exclu- sive bargaining representative of such employ- ees. WE WILL NOT give any force or effect to our contract with McKesson Drug Company executed around November 1978, insofar as it applies to the Rocky Hill facility, or to any modification, extension, renewal, or supple- ment thereto. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL jointly and severally with McKes- son Drug Company reimburse present and former Rocky Hill, Connecticut, employees, for any initiation fees, dues, or other moneys paid or withheld from them pursuant to the aforesaid collective-bargaining agreement or any agreement susperseding it but such reim- bursement shall not extend to any such em- ployees who may have voluntarily joined and been members of our Union prior to October 1, 1979. TEAMSTERS LOCAl. 443, A/W INTER- NATIONAL BROTHERHOOD OF TEANI- STERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA DECISION STATEMNIIT 01 TIHE C.AS: IRWIN KAPI.AN, Administrative Law Judge: This case was heard in Hartford, Connecticut, on September 15 and 16, 1980. The original charges were filed against McKesson Drug Company (herein also Respondent McKesson or McKesson) on February 21, 1980 (Case 39-CA-138), and February 25, 1980 (Case 39-CA-138- 2), by individuals David Malick and Robert McCul- lough. respectively, and amended by said Malick (Case 39-CA-138-1) and McCullough (Case 39-CA-138-2) on April 28, 1980. The original charges were filed against Teamsters Local 443, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein also Respondent Teamsters or Team- sters), by the aforenamed individuals, David Malick and Robert McCullough, on March 19, 1980, in Case 39-CB- 54-1 and Case 39-CB-54-2, respectively. The aforenoted charges and amendment thereto against McKesson and the charges against the Teamsters (collectively Respond- ents) gave rise to an order consolidating cases, consoli- dated complaint, and notice of hearing issued on May 9, 1980. The consolidated complaint in essence alleged that, commencing in or about September 1979 and continuing to date, Respondent McKesson rendered assistance and support to Respondent Teamsters by: (a) permitting the Teamsters to utilize McKesson's Rocky Hill, Connecti- cut, facility to hold meetings with McKesson's employ- ees; (b) urging its employees to sign Teamsters member- ship cards and checkoff authorizations: and (c) withhold- ing certain wages of its employees and transmitting same to Respondent Teamsters as union dues and initiation fees notwithstanding the absence of valid employee au- thorizations. Further, in or about September 1979, Re- spondent McKesson granted recognition to Respondent Teamsters for its nonsupervisory employees employed at its Rocky Hill, Connecticut, facility and during the same month Respondents entered into, maintained, and en- forced a collective-bargaining agreement containing, inter alia, a union-security provision. By engaging in the aforenoted acts and conduct, it is alleged that Respond- ents McKesson and Teamsters violated Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2), respectively, of the National Labor Relations Act, as amended (herein called the Act). Still further, it is alleged that Respond- ent McKesson in October 1979 independently violated Section 8(a)(1) of the Act by: (a) threatening its employ- ees with discharge unless they signed Teamsters member- ship cards; (b) threatening its employees with discharge because they circulated a petition seeking an election to determine their collective-bargaining representative; (c) interrogating its employees about their union activities and about their utilization of the National Labor Rela- tions Board's (herein called the Board) processes: (d) cre- ating the impression among its employees that their union activities and utilization of the Board's processes were under its surveillance; and (e) promulgating, main- taining, and enforcing by verbal announcement an overly broad no-solicitation rule. Respondents McKesson and Teamsters filed separate answers conceding, inter alia, certain jurisdictional facts but each denying the commission of any unfair labor practices. Further, Respondents McKesson and Team- sters in their respective briefs raised for the first time that all matters pertaining to recognition and the con- tract at Rocky Hill are time barred by Section 10(b) of the Act. Upon the entire record, including my observation of the demeanor of the witnesses and after careful consider- ation of the post-trial briefs, I find as follo,,s: DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. JURISI)CTIxON At all times material herein Respondent McKesson has maintained an office and place of business in Rocky Hill, Connecticut, wherefrom it has been engaged in the wholesale distribution of drug and pharmaceutical prod- ucts. In connection with the aforenoted business oper- ations, and during an appropriate 12-month time frame, Respondent McKesson has sold and shipped from its Connecticut facilities products, goods, and materials valued in excess of $50,000 directly to points outside the State of Connecticut. Respondent McKesson admits, the record discloses, and I find that it is now and has been at all times material herein, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. I.ABOR ORGANIZATIONS INVOI.VE.) Respondent Teamsters admits, and I find, that it is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. It is alleged, the record disclosed, and I find that Local 566, Retail, Wholesale and Department Store Union, AFL-CIO (herein RWDSU), is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. IIL. THI- ALII.EGEI) UNFAIR I.ABOR PRACTICES A. The Setting McKesson is a distributor of pharmaceuticals, cosmet- ics, and other sundry items, servicing in the main retail and chain drugstores and hospitals. It owns and operates some 60 distribution centers where it receives merchan- dise from a multitude of suppliers and in turn ships this merchandise to the various retail outlets and hospitals. In 1978 McKesson's facilities included a distribution center in Springfield, Massachusetts, a distribution center in New Haven, Connecticut, and a smaller branch in East Hartford, Connecticut,' the facilities involved herein. At that time McKesson's warehouse employees and drivers employed in Springfield and New Haven were represent- ed by the RWDSU since around 1972 and Teamsters up- wards of 20 years, respectively, and the East Hartford employees were unrepresented. In 1978, Respondent McKesson decided to consolidate its Springfield, New Haven, and East Hartford oper- ations into a single unit and began a search for a loca- tion, settling on a site in Rocky Hill, Connecticut. By letters dated June 2, 1978, McKesson's personnel manager, Milton Lewis, Jr., wrote to Edward Brereton ' Respondent McKesson characterized the East Hlartlord facility as a "rex unit" in distinguishing it fronl the much larger "full lile" facilities i Springfield ad New Haven. Thus. the inventory iniolving the "rex unit" consists of approximately 3.0() to 4,00(X) items which are housed in a fa- cility (of approlxiinately h,(X) squlare feet hcreas the "full line" inslentory comprises approximately 15,11X) to 17,(X)0 items hich are housed in facilities of approximately 50.(XX) square feet As ill be no(ted ira Ihere were substantiall fewer employees in Fast Harilrtford than in Springfield or Ne, Haven and John Foley of the Teamsters and RWDSU, respec- tively, confirming earlier telephone conversations where- by he had advised them of negotiations between the Company and the town of Rocky Hill regarding a site for a new distribution center. (G.C. Exhs. 4 and 5.) In this connection Lewis pointed out that, if the talks with the Rocky Hill Planning Commission over zoning re- strictions were successful, it was anticipated that the deal would be finalized over the next few weeks. Lewis then promised to keep Brereton and Foley posted and ex- pressed a willingness to meet and bargain "if a decision is made which would have an economic impac[t]" on their "membership[s]." (G.C. Exh. 5; see also G.C. Exh. 4.) While in Lewis' letter to Brereton he expressed a "hope" that employees "would continue their service with the Company" (G.C. Exh. 4), this sentiment was omitted from his letter to Foley. (G.C. Exh. 5.) McKesson's manager of labor and employee relations, William Momaney,2 testified that as a result of the Com- pany's June 2 letter (G.C. Exh. 4) the Teamsters request- ed bargaining concerning the impact of the decision to consolidate the three units. Momaney testified that these negotiations culminated in a contract (G.C. Exh. 2) which McKesson and the Teamsters contend encom- passed the units that were to be consolidated at Rocky Hill whenever that facility became operational.a In this connection Momaney by letter dated November 27, 1978, wrote to the Teamsters in relevant part as follows: Due to the uncertain time frame in relocating to our Rocky Hill facility, I thought it perhaps would be beneficial to all parties to signify their acceptance of those items agreed to at negotiations but not includ- ed in the labor agreement. If you would kindly acknowledge the enclosed by affixing your signature where noted, I will secure Company signatures and return complete docu- ments to you for your files. [G.C. Exh. 6.] According to Momaney, McKesson accorded recogni- tion to the Teamsters in November 1978 for the planned consolidated unit at Rocky Hill because it alone had de- manded recognition and Respondent Company under- stood on the basis of informal polls that, of the employ- ees employed at the Springfield, New Haven, and East Hartford facilities who were willing to transfer, a major- ity of them were from New Haven. Thus, Momaney tes- tified that, of the approximately 46 unit employees who expressed a willingness to transfer to Rocky Hill, ap- proximately 30 of them were from New Haven (under A portion f Mmonae'v * testimornly was no carried on tape Counsel for the General Counsel by a motioin to supplement the record dated No- vemhber 7, 1980, has nmoled for the receipt in evidence as Jt. Exh I Mo- lmaney' testimony ;as reconstructed by counsel for Respondent McKes- son As all parties hase joined ill the motion, it is hereby granted and the testimony as reconstructed i received as Jt. Exh. . -: he contract in pertinenlt part describes the bargaining unit as 'cover[lngl all warehouse eniploees ad drivers in the Company's Con- cclticut Distribution Cttr ." ((i.C. Exh. 2.) It) its terms the con- tract is ffectixe front Noembher 1, 1978. unrtil Octobher 31. 1981. The RockN Hill fcility did not hecome operalional util August or Septem- hcer 197') 470 MCKESSON DRUG COMPANY Teamsters contract).4 Momaney testified without contra- diction that the RWDSU never demanded recognition for employees at Rocky Hill. According to Momaney, he and Respondent Company's zone general manager, Jack Smith, met with Foley in September 1978 and advised him that Springfield as well as the New Haven and East Hartford facilities would close and consolidate to form the new Rocky Hill distribution center. Momaney testi- fied that Foley asked whether the Company would offer Springfield employees employment at the Rocky Hill fa- cility and expressed pleasure on learning that offers would be made, but he did not demand recognition for that location.5 According to Momaney it was originally anticipated that the Company would commence operations at the Rocky Hill facility in May 1979. As noted earlier, the Rocky Hill location did not become operational until August or September 1979. 6 Jane Downey, regional manager for McKesson's northern region which encom- passed the facilities involved herein testified that "[flrom very early in 1979 up until the time . . . before the move took place . . . the vast majority of [New Haven em- ployees] were planning to transfer [to Rocky Hill]." In addition, Downey testified that she had information at that time that the small group of East Hartford employ- ees were planning to move as well as approximately 50 percent of the Springfield employees although she assert- ed that this latter group continued to drop in number "as time went on."' According to Downey, when she visited these locations in mid-July, "maybe a handful of people from Springfield . . . indicat[ed] that they were definite- ly going to [Rocky Hill]"; whereas 60 to 70 percent of the New Haven unit employees indicated a continued in- terest in transferring to the new location. In July or August, McKesson's Springfield distribution center manager, Nick Bekish, met with employees em- ployed at that location individually in his office to dis- cuss, inter alia, the terms of the transfer to Rocky Hill.S The employees were told by Bekish that the Springfield location would soon close and they had the option to transfer to Rocky Hill or be terminated with severance pay. Bekish pointed out to the Springfield employees that if they elected to transfer to the new location in Rocky Hill they would be covered by the Teamsters contract. Robert Quigley, a shop steward at Springfield and a RWDSU member, testified that he questioned 4 Momaney testified that he anticipated a unit complement of about 48 employees at the Rocky Hill Distribution Center. While the record does not disclose the precise employee complement at the three locations in September 1978, Momaney testified that in mid-July 1978 there were ap- proximately 35 unit employees employed in New Haven, 25 in Spring- field, and 6 in East Hartford. I Neither Smith nor Foley testified nor did they appear at the hearing. Smith was no longer employed by Respondent Company at the time of the hearing. 'All dates hereinafter refer to 1979 unless otherwise noted. The record discloses that the commute from East Hartford to Rocky Hill is about 20 minutes. Springfield and New Haven are each approxi- mately 40 miles from Rocky Hill. " The Springfield employees first learned about the decision to close and to consolidate at a new location in late 1978. Bekish regarding an election to determine the bargaining agent and the latter responded negatively.' The record discloses that on August 6 and 7 Respond- ent Company hired approximately 12 new employees to work at the Rocky Hill facility. (G.C. Exh. 7.) One of those employees, David Malick, testified that in late July he was among a group of approximately 12 applicants and they all attended a meeting addressed by Bekish and Smith. According to Malick, the applicants were told at this meeting that the Rocky Hill facility was going to be a union shop but did not identify the Union. to The Springfield and East Hartford facilities shut down permanently in August. On August 27 all six East Hart- ford employees as well as eight employees from Spring- field transferred to Rocky Hill. (G.C. Exh. 7.) The New Haven employees (only six in number) did not transfer to the new consolidated location until September 10. Ap- proximately 1 week after the New Haven employees transferred, a petition was circulated among the Rocky Hill employees calling for an election to determine their bargaining agent, but it did not identify any union by name. According to Quigley and Robert McCullough (another former Springfield employee), after an over- whelming majority of the employees signed the petition, the two of them met with Rocky Hill Distribution Man- ager Richard Corcoran and told him of the employees' sentiment and that they were going to file said petition with the Board.t Corcoran conceded meeting with Quigley and McCullough, but denied that he had any discussion with them about a petition. According to Cor- coran, Quigley and McCullough requested that he check with his superiors to determine whether the employees were bound by the Teamsters contract and he in turn discussed the subject with Smith. It is undisputed that, later the same day, Corcoran advised Quigley and McCullough that the Teamsters contract covered the Rocky Hill distribution center and the Company was ob- ligated to abide by its terms. In October, Corcoran in the presence of other compa- ny officials introduced Teamsters Business Representa- tives Felix Del Guidice and Lou Amendola to Rocky Hill employees at two separate meetings on the same day which were held in the lunchroom at that distribution center. The drivers, approximately 15 in number, attend- ed a meeting held at approximately 8 a.m. (the workday started at 7 a.m.) and lasting 1-1/2 hours. Quigley ques- 9 The record discloses that Bekish suffered a heart attack in late August or early September and has since been a permanently disabled. Bekish did not testify nor did he appear at the hearing. 'o On the basis of demeanor, responsiveness, consistency, and plausibil- ity of testimony, I found Malick to be an impressive witness. It is also noted that Malick was still employed by Respondent Company at the time of the hearing and as such he testified against self-interest, a matter not to be lightly disregarded. See, e.g., Federal Stainless Sink Div. of Unarco Industries. Inc., 197 NLRB 489, 491 (1972): Gateway Transporta- tion Co.. Inc.., 193 NLRB 47, 48 (1971); Georgia Rug Mill. 131 NLRB 1304, 1305, fn. 2 (1961). Still further, Malick's testimony in large part went uncontroverted. In short, I credit Malick' testimony in all critical respects. " The petition was never filed with the Board. According to Quigley, he spoke with a Board agent from the Board's Boston Regional OfTce and to Business Agent Foley as to whether he (Quigley) or the RWDSU should file the petition and the matter became too complicated. "['so it was dropped." 471 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tioned Del Guidice regarding the basis of having the Teamsters contract apply to Rocky Hill given the fact that only six employees from New Haven transferred and Del Guidice explained that the contract covered McKesson's Connecticut division which included that lo- cation. According to Quigley and McCullough, Del Gui- dice told the employees at that meeting, inter alia, that the former Springfield employees would not have to pay Teamsters initiation fees but that the new employees and the previously unrepresented former East Hartford em- ployees had to pay such fees, and all employees had to join the Teamsters within 30 days as a condition of con- tinued employment. While Del Guidice conceded that he told employees that they had to join the Union and that Springfield employees were exempted from initiation fees, he denied that he set any time frame and averred that the exemption for initiation fees was extended also to former East Hartford employees. The next meeting was for the warehouse employees and was held immediately after the meeting attended by the drivers. Malick, a warehouse employee, ascribed to Del Guidice substantially the same remarks in that later meeting as had Quigley and McCullough in the earlier session. Thus Malick testified that Del Guidice told the warehouse employees that if they did not join the Union they would be out of jobs and that new employees had to pay initiation fees. Malick, Quigley, and McCullough testified that Corcoran reminded employees to sign union cards which were distributed at these meetings. Malick also testified that this meeting with Teamsters officials was the first he heard of the Union since he began work- ing for McKesson and he signed a Teamsters card on that occasion." The Company's officials, including Cor- coran, were in attendance at these meetings during the entire session. According to Corcoran, his participation was limited to introducing the business agents and invit- ing questions from employees to the Union's representa- tive regarding wages, benefits, and the validity of the contract. Corcoran denied saying anything to employees about signing union cards. It is undisputed that Team- sters Steward Frank Alongi, Sr., passed around union cards for employees to sign at these meetings. 'S Quigley testified that, immediately after the meeting with Teamsters officials ended, he returned to the ship- ping area to continue sorting invoices which he had begun doing before the meeting was called. According to Quigley, Corcoran approached him and asked wheth- er he was through filing petitions with the Labor Board and added, "You know that's soliciting on company time. It's against company rules and you can be fired." Corcoran conceded that he broached the subject of so- licitation but denied making any reference to filing peti- tions with the Board. According to Corcoran, on the oc- casion in question, Operations Manager Rick Robbins in- formed him that Quigley had conducted a meeting with 12 While Malick testified that as an applicant in July he was told by company officials that the Rocky Hill facility was a union shop, he also credibly testified (as previously noted) that the Union was not identified. "' The union dues and checkoff provisions of the McKesson-Teamsters contract were not effectuated until sometime in October after these meet- ings took place. Previous thereto, McKesson had deducted (RWDSU) union dues from the former Springfield employees for which they were reimbursed in October. some employees in a corner of the warehouse and he, Corcoran, thereupon went to the shipping area and ap- proached Quigley and informed him that "-t]he rules are that there are not to be any unauthorized meetings when people are supposed to be working." 14 B. Discussion and Conclusions 1. Recognition and the Teamsters contract executed in 1978 The critical facts giving rise to the bargaining relation- ship and the disputed contract between Respondents McKesson and Teamsters relative to the Rocky Hill fa- cility are summarized and discussed as follows. In 1978 Respondent McKesson decided to close its dis- tribution center in Springfield, Massachusetts, as well as its distribution centers in New Haven and East Hartford, Connecticut, and to consolidate these facilities at a new location. The Company commenced negotiations for the new consolidated site with the town of Rocky Hill and advised the Teamsters and RWDSU of these negotia- tions. By letters dated June 1978 (G.C. Exhs. 4 and 5), the Teamsters (New Haven) and RWDSU (Springfield) were notified, inter alia, of the Company's willingness to bargain over the impact of its decision to consolidate on their respective memberships (East Hartford was un- represented). McKesson's manager of labor and employee relations, William Momaney, testified that he met with the Team- sters and RWDSU concerning the impact of the Compa- ny's decision to consolidate and only the Teamsters re- quested recognition for the employees at Rocky Hill. Re- spondent McKesson contemplated a nonsupervisory work force of approximately 48 employees at the new lo- cation (Jt. Exhs. I and 9). According to Momaney, on the basis of informal employee interviews, the Company anticipated that approximately 30 employees would transfer from New Haven to Rocky Hill thereby giving the Teamsters a clear majority at that new location. Mo- maney testified that, in these circumstances and as no other union demanded recognition for the employees at Rocky Hill,' 5 he recognized the Teamsters as the bar- gaining agent for the employees at that location. 4 I credit Quigley's version over the account provided by Corcoran. In doing so it is noted, inter alia, that Quigley's testimony in other disputed areas was supported by corroborative testimony. For example, Del Gudice denied (as noted previously) giving employees any specific time frame by which to sign union cards. Quigley testified, however, with cor- roboration from other witnesses including Corcoran, that Del Guidice gave employees 30 days to sign union cards. On the other hand, Corcor- an's testimony in a number of significant areas including the circum- stances leading to his verbal encounter with Quigley was uncorroborated. Thus it is noted, inter alia, that Operations Manager Robbins did not tes- tify. Moreover I found Corcoran's overall testimony uncertain and incon- sistent, further reflecting adversely on his credibility. For example, Corco- ran first stated categorically that McKesson had posted its no-solicitation rules (Resp. Exh. I) in Springfield and New Haven and then retreated, admitting that he did not know whether the rules had ever been posted at those locations. '" Momaney testified that he met with John Foley, business agent of the RWDSU, in September 1978 and they discussed, inter alia, the ap- proximate date for closing the Springfield facility. While Momaney testi- fied that Foley never requested recognition, this by itself is not tanta- mount to a disclaimer of representative status, particularly as the record Continued 472 MCKESSON DRUG COMPANY In late November or early December 1978 McKesson and the Teamsters executed a 3-year renewal collective- bargaining agreement "cover[ing] all warehouse employ- ees and drivers in the Company's Connecticut Distribu- tion Center . . 6 (G.C. Exh. 2.) Respondents contend that the aforenoted agreement contemplated and covered the Rocky Hill facility whenever it was to become oper- ational. Respondent McKesson in its brief asserted that it acted lawfully and in good faith by recognizing and bar- gaining with the Teamsters vis-a-vis Rocky Hill. Accord- ing to Respondent McKesson, "it had no inkling that the Teamsters lacked majority support at Rocky Hill until the very eve of that facility's opening." This case, however, does not turn on "good faith." The inescapable fact is that the Teamsters at no material time represented a majority of the Rocky Hill employ- ees. 7 In November 1978 when Respondent McKesson recognized the Teamsters for the Rocky Hill location, the Company not only did not have any employees at Rocky Hill, but as testified by Momaney, "There was no building (in Rocky Hill) at that time."18 As noted by the Board in General Cinema Corporation, and Its Wholly Owned Subsidiary, Gentilly Woods Cinema, 214 NLRB 1074, 1075 (1974), where the respondent recognized a union for its projectionists when it had not hired any: This constitutes premature recognition in its barest form. It has long been settled that premature recog- nition of a nonrepresentative union, absent accre- tion, unlawfully assists the union, regardless of the employer's good faith or the absence of a question concerning representation. [Emphasis supplied.] In the case at bar the parties were at liberty to execute a renewal contract vis-a-vis New Haven. The parties could not, however, extend coverage of the disputed re- newal contract to a facility which had not yet com- menced operations (Rocky Hill) at a time when no em- ployees were yet hired for that facility. By doing so in effect, the parties converted the agreement insofar as it does not establish that the Company appraised Foley of all the material facts. For example, Momaney conceded that he did not disclose to Foley that the Teamsters was demanding recognition for the employees at Rocky Hill. In this regard it is noted that more employees eventually transferred to Rocky Hill from Springfield than from New Haven (G.C. Exh. 7). Moreover, any demand by Foley in September 1978 would have been premature as there were no employees then employed at Rocky Hill. 1 The General Counsel noted that the "execution of the contract" oc- curred outside the 10(b) period and accordingly did not allege it indepen- dently as violative of Sec. 8(aX2). 11 The record disclosed that the Rocky Hill location opened in August 1979. During that first month the work force was comprised of approxi- mately 20 new hires, 6 transferees from East Hartford, and 8 transferees from Springfield. Thus none of the employees employed at Rocky Hill during the first month of operations were "Teamsters" or former New Haven employees. (G.C. Exh. 7.) Only six employees transferred from New Haven and that occurred on September 10. As of October I, there were approximately 63 employees at Rocky Hill of which only 6 were former New Haven employees. The vast majority of the employees at Rocky Hill in October 1979 were new employees. 1" It is also noted that Rocky Hill did not become operational until either the final stages of permanently shutting down the New Haven fa- cility had begun or that facility had already actually closed. In either event. New Haven was no longer a iable facility for purposes of accre- tion. See Bristol Consolidators. Inc., 239 NLRB 602, 605 (1978). related to Rocky Hill into a prehire contract. See Hudson Berlind Corporation, 203 NLRB 421, 422 (1973), enfd. 494 F.2d 1200 (2d Cir. 1976). However, the Gener- al Counsel conceded that findings of unlawful assistance and support by Respondent McKesson and acceptance of same by Respondent Teamsters vis-a-vis recognition and execution of the renewal contract in 1978 insofar as it pertained to Rocky Hill are time barred by Section 10(b) of the Act.' 9 On the other hand, the General Counsel contends and I find that subsequent acts and conduct, in- cluding recognition of the Teamsters as the bargaining agent for the employees at Rocky Hill around the third week in September 1979, coercive meetings with em- ployees in October 1979 on behalf of the Teamsters, and application of the disputed Teamsters contract in or around October 1979, are cognizable in the circum- stances of this case for the reasons discussed below. See, e.g., N.L.R.B. v. R. L. Sweet Lumber Company, 207 NLRB 529, 536 (1973), enfd. 515 F.2d 785 (10th Cir. 1975), cert. denied 423 U.S. 986. 2. The 10(b) defense and application of the contract to Rocky Hill employees The parties stipulated at the hearing that at all material times the Teamsters contract had been applied to em- ployees at Rocky Hill. It is not possible to discern what the parties contemplated by "material times" given the fact that Respondents McKesson and Teamsters in their respective briefs raised for the first time that all allega- tions relative to recognition and the contract at Rocky Hill are time barred by Section 10(b). The complaint al- leged September 1979 as the material date whereby rec- ognition was accorded and the contract containing, inter alia, a union-security clause was entered into, maintained, and enforced. (G.C. Exh. (m), pars. 13-15). Respondent Teamsters in its answer admitted these allegations in their entirety (G.C. Exh. l(o)), whereas Respondent McKesson denied only the alleged September date (G.C. Exh. (p)). Neither party set forth an affirmative defense. The 10(b) proviso does not impose a jurisdictional limita- tion upon the Board but is a statute of limitations. N.L.R.B. v. A. E. Nettleton Co., et al., 241 F.2d 130, 133 (2d Cir. 1957); A. H. Belo Corporation (WFAA-TV) v. N.L.R.B., 411 F.2d 959, 966-967 (5th Cir. 1969). As such, it is an affirmative defense and, if not timely raised, is waived. Vitronic Division of Penn Corporation, 239 NLRB 45, fn. 1 (1978); System Council T-6, B.E. W., et al. (New York Telephone and Telegraph Company), 236 NLRB 1209, 1217 (1978), enfd. 599 F.2d 5 (Ist Cir. 1979); Barton Brands, Ltd., 215 NLRB 416 (1974); N.L.R.B. v. A. E. Nettleton Co., et al., supra (absent ex- traordinary circumstances). As no reason has been ad- vanced by Respondents for failing to raise this issue '9 The original charges against Respondent McKesson (G.C Exh. I(a)) and Respondent Teamsters (G.C. Exhs. I(e) and (g)) were filed on Febru- ary 21 and March 19, 1980. respectively. Sec. 10(b) provides in pertinent part that: [N]o complaint shall issue based upon any unfair labor practice oc- curring more than six months prior to the filing of the charge with the Board .. 473 DECISIONS OF NATIONAL LABOR RELATIONS BOARD heretofore, I find the 10(b) defense is untimely. 20 Ac- cordingly I do not find any legally sufficient impediment to consideration of these allegations on their merits. As noted previously, the Rocky Hill facility opened in August with approximately 20 new employees. On August 27, 14 employees were added to the work force at Rocky Hill and all of them had transferred either from Springfield (RWDSU) or East Hartford (unrepresented). There were only six employees at New Haven (Team- sters) who elected to transfer and that did not occur until September 10. According to Respondent McKes- son, as stated in its brief, it did not learn until "the very eve of that facility's opening" that a majority of the Rocky Hill employees would not support the Teamsters and then it made "no attempt to enforce the union secu- rity and check off provisions of the Teamster contract." On the other hand, the Company continued to deduct union dues from the wages of the former Springfield em- ployees on behalf of the RWDSU. Thus for the entire month of September the former Springfield employees faced the anomalous circumstance of working under two different union-security contracts (Teamsters and RWDSU) although only the RWDSU union-security provision was enforced as to those employees. To counter this confusion, Quigley and McCullough around the third week in September circulated a petition among the employees calling for an election to determine the bargaining agent for them at Rocky Hill. On some un- specified day in September Quigley and McCullough in- formed Distribution Center Manager Corcoran that em- ployees had signed a petition calling for an election. Cor- coran checked with his superior and later the same day conveyed to Quigley and McCullough that the Company would honor the Teamsters contract. 2 1 Approximately I week later in early October, Re- spondent McKesson summoned its employees to the dis- tribution center lunchroom for group meetings with rep- resentatives of the Teamsters. Corcoran, who had not previously met the Teamsters representatives, introduced them to the employees while explaining that said Team- sters representatives were there to answer "[employee] questions regarding wages and benefits and the validity I In any event the 10(b) period does not commence running until the affected employees are put on notice of the facts constituting the unfair labor practice. See Hot Bagels and Donuts of Staten Island. Inc., 227 NLRB 1597 (1977); Wisconsin River Valley District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Skippy En- terprises). 211 NLRB 222, 227 (1974). In the instant case, the new em- ployees were not told of the Teamsters contract until October 1979 al- though some of them were told before the Rocky Hill facility became operational that it would be union shop. Insofar as former Springfield employees were told of the Teamsters contract in July 1979, those em- ployees were not then employed by McKesson at Rocky Hill. See Dia- mond International Corporation, Calmar Division, 229 NLRB 1334, 1336 (1977). It was not until around the third week in September that Corco- ran told Quigley and McCullough that the Company would honor the Teamsters contract for the Rocky Hill facility (as will be further noted infra). " In finding that Respondent McKesson unlawfully assisted and sup- ported the Teamsters I do so principally on the basis that the Teamsters did not at any time material herein represent an uncoerced majority. It is also noted as contended by the General Counsel that under Midwest Piping d Supply Co., 63 NLRB 1060 (1945), and its progeny Respondent McKesson was obligated to remain neutral where, as here, there are two unions with potential representative claims. See Hudson Berlind Corpora- tion, 'upra at 423. of the contract." Employees Malick, Quigley, and McCullough credibly testified that Business Representa- tive Del Guidice told the employees, inter alia, that they would have to sign union cards or they would be out of a job. Del Guidice confirmed as much by admitting that he told the employees that they had to join the union as a condition of employment. Teamsters membership cards were circulated and the credited testimony discloses that Corcoran reminded the employees that they had to sign these cards. In these circumstances noting particularly that the Teamsters had not at any time material herein represented an uncoerced majority at Rocky Hill, I find that, by making accessible the Rocky Hill facility to the Teamsters and then joining said Teamsters in its exhorta- tion to employees to sign membership cards under the threat of discharge, Respondent McKesson thereby ren- dered aid and support to Respondent Teamsters in viola- tion of Section 8(a)(1) and (2) as alleged. See Hudson Berlind Corporation, supra; Bristol Consolidators, Inc., supra. It is undisputed that, commencing in October, Re- spondent McKesson deducted initiation fees and union dues from the wages of employees under the union-secu- rity provision in the Teamsters contract. Inasmuch as McKesson gave effect to the union-security clause con- tained in the Teamsters contract found herein to have been applied to employees at Rocky Hill in violation of Section 8(a)(l) and (2), I further find that Respondent McKesson also discriminated with respect to hire and tenure of employment in violation of Section 8(a)() and (3) of the Act. See Schreiber Trucking Company, 148 NLRB 697, 703 (1964); Bristol Consolidators, Inc., supra; Hudson Berlind Corporation, supra. With respect to Respondent Teamsters, I find that, by accepting recognition at a time when it did not represent an uncoerced majority of the employees at the Rocky Hill facility and then participating in the administration or application of a contract containing a union-security clause in circumstances violative of Section 8(a)(1), (2), and (3) of the Act, it thereby violated Section 8(b)(l)(A) and (2) of the Act. Desco Vitro-Glaze of Schenectady, Inc., 230 NLRB 379 (1977); Bristol Consolidators, Inc., supra at 605. 3. The 8(a)(1) allegations The 8(a)(1) allegations are predicated on a verbal en- counter between Corcoran and Quigley on the day Teamsters representatives first met with employees at Rocky Hill and shortly after the meeting attended by Quigley. According to Corcoran, Operations Manager Rollins told him that Quigley was conducting a meeting with some employees in a corner of the warehouse and he, Corcoran, then informed "[Quigley] that the Rules are that there are not to be any unauthorized meetings when people are supposed to be working." Quigley's credited version is that Corcoran ap- proached him on the occasion in question and asked if he "was through filing petitions with the Labor Board." Corcoran then added, "You know that's soliciting on Company time. It's against company rules. And you could be fired." I find that the no-solicitation rule as an- 474 MCKESSON DRUG COMPANY nounced by Corcoran to Quigley was overly broad in violation of Section 8(a)(1) 22 and that Respondent McKesson thereby unlawfully threatened to discharge said Quigley as alleged. On the other hand, I find the remarks ascribed to Cor- coran and the circumstances too ambiguous and unclear to conclude that they otherwise violated Section 8(a)(1) of the Act. For example, without more, I find it unlikely that Corcoran was actually attempting to elicit a re- sponse from Quigley regarding the filing of a Board peti- tion. Nor do I find that Corcoran's remarks conveyed the impression of surveillance as alleged. In this connec- tion it is noted that it was Quigley, a week or two earli- er, who volunteered that he was involved in a petition calling for an election. Moreover the credible evidence did not establish whether Quigley was involved in union or related activities on that occasion. Rather, I find that Corcoran's statement was somewhat rhetorical but moti- vated to inhibit Quigley from engaging in union activities and utilization of the Board processes. In these circum- stances I am unpersuaded that Respondent coercively in- terrogated employees or conveyed the impression of sur- veillance as alleged. Accordingly, I shall dismiss these al- legations. CONCLUSIONS OF LAW 1. Respondent McKesson Drug Company is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Respondent Teamsters Local 443, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. Local 566, Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 4. Respondent McKesson has rendered unlawful assist- ance and support to a labor organization by recognizing Respondent Teamsters and giving effect to a collective- bargaining agreement with said Respondent Teamsters for employees employed by Respondent McKesson at its Rocky Hill, Connecticut, facility, when said Respondent Teamsters did not represent an uncoerced majority of employees, thereby violating Section 8(a)(1) and (2) of the Act. 5. Respondent McKesson has discriminated, and is dis- criminating, in regard to hire or tenure or terms of con- ditions of employment of its employees, thereby encour- aging membership in a labor organization, by maintaining a union-security clause in a collective-bargaining agree- ment with a minority union, thereby violating Section 8(a)(1) and (3) of the Act. 6. Respondent McKesson threatened employees with discharge for engaging in union activities and/or utiliz- ing the Board's processes and promulgated an overly broad and unlawful no-solicitation rule, thereby restrain- ing and coercing employees in the exercise of their Sec- tion 7 rights in violation of Section 8(a)(l) of the Act. 7. Respondent Teamsters, by accepting recognition and giving effect to a collective-bargaining agreement z2 See Birmingham Ornamental Iron Company. 240 NLRB 898 (1979). containing a union-security clause for employees em- ployed at the Rocky Hill facility notwithstanding that it did not represent an uncoerced majority of employees at any time material, thereby violated Section 8(b)(1)(A) and (2) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. Other than as set forth above, Respondents have not violated the Act as alleged. THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondents committed unfair labor practices by giving effect to a collective-bargaining agreement containing a union-security provision under circumstances violative of Section 8(a) (1), (2), and (3) on the part of Respondent McKesson and Section 8(b)(1)(A) and (2) on the part of Respondent Teamsters, Respondents will be required jointly and severally to re- imburse all present and former employees, except those excluded below, for all initiation fees, dues, or other moneys paid or checked off pursuant to the unlawful union-security provision with interest thereon to be com- puted as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). Reimbursement, however, will not extend to any such employees who may have voluntarily joined and been members of Respondent Teamsters prior to October 1, 1979. See Bristol Consolidators, Inc., supra at 605. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 23 A. Respondent McKesson Drug Company, Rocky Hill, Connecticut, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Recognizing or dealing with Respondent Teamsters as the bargaining representative of its employees em- ployed at its Rocky Hill, Connecticut, facility unless and until Respondent Teamsters has been certified by the Board as the exclusive bargaining representative of such employees. (b) Assisting Respondent Teamsters in any other manner to become the collective-bargaining representa- tive of its employees. (c) Giving effect to, performing, or in any way enforc- ing the collective-bargaining agreement with Respondent Teamsters entered into around November 1978 or to any modification, extension, renewal, or supplement thereto; provided, however, that nothing herein shall require Re- ' 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. 475 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent McKesson to vary or abandon any wage, hour, seniority, or other substantive feature of its relations with its employees which have been established in the per- formance of any such agreement or to prejudice the as- sertion by such employees of any rights they may have thereunder. (d) Encouraging membership in, or activities on behalf of, Respondent Teamsters by discriminating against its employees with respect to their hire, tenure, and terms and conditions of employment. (e) Threatening employees with discharge for engag- ing in union activities and/or utilizing the Board's proc- esses and promulgating an overly broad and unlawful no- solicitation rule. (f) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Withdraw and withhold all recognition from Re- spondent Teamsters as the representative of its employ- ees employed at its Rocky Hill, Connecticut, facility for the purposes of collective bargaining unless and until said labor organization shall have been duly certified by the Board as the exclusive representative of such em- ployees. (b) Jointly and severally with Respondent Teamsters reimburse each of its present and former employees for any and all initiation fees, dues, and other moneys, if any, paid by or withheld from them pursuant to the terms of the aforesaid collective-bargaining agreement, but such reimbursement shall not extend to any such employees who may have voluntarily joined and been members of Respondent Teamsters prior to October 1, 1979. (c) Post at its Rocky Hill, Connecticut, facility copies of the attached notice marked "Appendix A."24 Copies of said notice, on forms provided by the Officer-in- Charge for Subregion 39, shall, after being duly signed by Respondent McKesson's representative, be posted by Respondent McKesson immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not al- tered, defaced, or covered by any other material. 24 In the event that this 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (d) Notify said Officer-in-Charge, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. B. Respondent Teamsters Local 443, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and repre- sentatives, shall: I. Cease and desist from: (a) Acting as the exclusive bargaining representative of Respondent McKesson's Rocky Hill, Connecticut, em- ployees for the purpose of collective bargaining unless and until it shall have been certified by the Board as the exclusive representative of said employees. (b) Giving any force or effect to the collective-bar- gaining agreement executed with Respondent McKesson around November 1978 or to any modification, exten- sion, renewal, or supplement thereto. (c) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Jointly and severally with Respondent McKesson reimburse each of Respondent McKesson's present and former employees at the Rocky Hill, Connecticut, facili- ty for any and all initiation fees, dues, and other moneys, if any, paid by or withheld from them pursuant to the terms of the aforesaid collective-bargaining agreement, but such reimbursement shall not extend to any such em- ployees who may have voluntarily joined and been mem- bers of Respondent Teamsters prior to October 1, 1979. (b) Post at its offices or meeting halls copies of the at- tached notice marked "Appendix B."25 Copies of said notice, provided by the Officer-in-Charge for Sub- Region 39, shall, after being duly signed by Respondent Teamsters representative, be posted by Respondent Teamsters 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 to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify said Officer-in-Charge, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that those portions of the consolidated complaint found to be without merit are hereby dismissed. 25 See fn. 24. supra. 476