A. C. Israel Commodity Corp.

National Labor Relations Board - Board Decisions

Sep 15, 1966

160 N.L.R.B. 1147 (N.L.R.B. 1966)

LANE DRUG CO. 1147
tor found a "lack of every-day autonomous control in the operation
of the local cafeterias." We acknowledge, however, that the court
characterized as "futile" any attempts to distinguish the two cases
on factual grounds. But the court apparently has overlooked the
differing procedural posture of the two cases. In Bick f ord's, the
Regional Directors found the units sought inappropriate, and the
parties did not seek Board review of this determination. In this case,
on the other hand, the Employer requested the Board to review the
Regional Director's determination that the units sought were appro-
priate and the Board denied the Employer's request. We have now
considered the Respondents' contentions a second time in light of the
court's decision remanding this case and in light of the Regional
Director's determination in Rick f ord's, and we again find him to be
without merit 18
Accordingly, we reaffirm our previous finding that the Respondents
violated Section 8(a) (5) of the Act by refusing to bargain with the
Union as the exclusive bargaining representative of the Respondents'
employees.
[The Board reaffirmed its Order of November 20, 1963, in this
proceeding.]
10 We need not and therefore do not decide whether, if review had been requested in
the Bickford's case, we would have affirmed the Regional Director 's unit findings.
Lane Drug Co., Division of A. C. Israel Commodity Corporation ;
Lane's of Sylvania , Inc.; Lane's of Bowling Green , Inc.; Lane's
of Oregon , Inc. and Retail Store Employees Union Local 954,
Retail Clerks International Association , AFL-CIO. Case 8-CA-
3885. September 15, 1966
DECISION AND ORDER
On April 26, 1966, Trial Examiner Stanley N. Ohlbaum issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found that the
Respondents had not engaged in certain other unfair labor practices
and recommended that the complaint be dismissed with respect
thereto. Thereafter, the Respondents filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the General Counsel
filed a brief in answer to the Respondents' exceptions. The Charging
Party filed a brief in support of the Trial Examiner' s Decision.
160 NLRB No. 86.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
i
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Trial Examiner's Decision, the
exceptions, and the briefs, and hereby adopts the Trial Examiner's
findings,' conclusions, and recommendations, as modified herein.2
1. The Trial Examiner found, and we agree, that Respondents
violated Section 8(a) (1) of the Act by coercively interrogating
employees, promising them economic benefits, enlisting employees to
engage in surveillance and to dissuade other employees from support-
ing the Union, soliciting employees to deal directly with Respondents
instead of through w union bargaining representative, and threatening
them with economic detriment for continuing their union affiliation
or collective-bargaining endeavors.
2. The Trial Examiner also found, and we agree, that Respond-
ents discriminatorily discharged Pharmacist William P. Nupp on
April 28, 1965, in violation of Section 8(a) (3) and (1) of the Act.
3. The Trial Examiner found that the Union represented a major-
ity of 16 pharmacists in an appropriate unit of 31 pharmacists at the
time of its original request for recognition and bargaining on
April 29, 1965, and that Respondents violated Section 8(a) (5) of the
Act by refusing to recognize and bargain with the Union on and
after that date. In finding that the appropriate unit consisted of 31
pharmacists, the Trial Examiner excluded Pharmacists Searle and
Waldman.
' We note the following discrepancies in the Trial Examiner 's Decision , which do not
affect his ultimate conclusions or our concurrence therewith, as modified herein : (1) Al-
though the Respondents did not admit in their answer that Assistant Store Manager Rettig
(Reddig ) Is a supervisor , as the Trial Examiner stated, the record establishes that Rettig
is a supervisor , as the Trial Examiner found. (2) Assistant Store Manager Dittman's
conversation , about a week before April 28, was with pharmacist Nemetz, and not with
Pharmacist Molnar, as the Trial Examiner stated (3) The Trial Examiner in one
instance referred to an unlawful refusal to bargain as a violation of Section 8(a) (3),
instead of Section 8(a) (5) of the Act. (4) We find that the conversation between Vice
President Kaye and Pharmacist Maza, in which Kaye admitted knowing there were 19
pharmacists for, and only 10 against , the Union, occurred on May 9, and not on May 2,
as found by the Trial Examiner , for the following reasons : ( a) Maza, whom the Trial
Examiner credited , testified that it took place on either May 2 or May 9, but in any event
on the Sunday following the second scheduled union meeting which the record indicates
was held on May 7 ; ( b) Kaye failed to testify ; and (c ) we find no merit in Respondents'
contention that Kaye was in Oxford, Ohio, on May 9, and therefore could not have been
in Toledo , as this contention is based solely on the testimony of Vice President Rivelis,
who was not credited in other respects by the Trial Examiner , and there is no showing
that Kaye could not, at different times on May 9, have been in both cities, which are
approximately 200 miles apart.
2 The Respondents ' request for oral argument is hereby denied as , in our opinion, the
record, exceptions , and briefs adequately present the issues and the positions of the
parties. ,
LANE DRUG CO. 1149
Although we agree with the Trial Examiner's conclusion that
Pharmacist Searle is properly excluded from the unit, we do not
believe the record supports the Trial Examiner's finding that Searle
is a supervisor or managerial employee. The only evidence in the
record which suggests that Searle is a supervisor is a notice to
Respondents' pharmacists posted in its pharmacies more than 2 years
ago setting forth general prescription-filling practices and techniques
and signed by Searle over the designation "Chief Pharmacist." This
designation alone is not sufficient to establish that Searle is a super-
visor. Unlike unit pharmacists who fill drug prescriptions in Respond-
ents' retail stores, are supervised by store managers and assistant
managers, and work 88 hours, including Sundays, during 2-week
pay periods, Searle works a regular 48-hour, 6-day week, exclusive of
Sundays, under the supervision of General Manager Pethke, review-
ing and determining appropriate drug merchandise supply levels at
Respondents' central drug warehouse which is geographically sepa-
rate from Respondents' retail drugstores. Once a year Searle visits
each retail drug store in Respondents' chain to inventory drug levels.
In ordering drugs for Respondents' warehouse, Searle fills out requi-
sitions which are then reviewed by Pethke and forwarded to Respond-
ents' headquarters in Cleveland where they are again reviewed, and
sometimes modified, before being sent to drug manufacturers. Searle
only occasionally orders drugs directly from drug manufacturers.
In these circumstances, we do not agree with the Trial Examiner that
Searle is a managerial employee. However, as Searle's geographical
location, hours of work, supervision, and duties are different from
those of unit pharmacists, we find that he lacks a sufficient community
of interest with those in the unit, and we shall, therefore, exclude him.
The Trial Examiner excluded Pharmacist Waldman as a seasonal
casual employee. We disagree. The record indicates that from 1957
to 1965 Waldman has regularly worked a substantial number of hours
for Respondent in a part-time capacity during winter months from
September to April. While employed as a, pharmacist, Waldman,
receives the same pay as other pharmacists and is generally subject
to the same working conditions. Although Waldman, pursuant to his
usual employment pattern, left Respondents' employ on April 4,,1965,,
we find that he has a reasonable expectancy of, future employment
with Respondents and, contrary to the Trial Exminer,; that he, has
a sufficient community of bargaining interests with other unit pharma-
cists to warrant his inclusion in the unit.
Accordingly, we find I that on and `after April 29' there " Were 32
pharmacists, including Waldman, in the unit-. As the Union had valid
authorization cards from only 16 pharmacists when it initially
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demanded recognition and bargaining on that date, it did not repre-
sent a majority, and the Respondents' refusal to bargain at that time
was therefore not unlawful. However, as the Union obtained an
additional card on May 3, and renewed its request for recognition
and bargaining on May 4, we find that the Respondents' failure to
recognize and bargain with the Union on and after May 4 was, as
alternatively found by the Trial Examiner, and for the reasons given
by him, in violation of Section 8(a) (5) of the Act.
(The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner Stanley N. Ohlbaum in Toledo, Ohio,
on August 25-September 2, 1965, on complaint of General Counsel of the Board 1
alleging, and answer, as amended, of Respondents (also referred to as Respondent,
Lane(s), and Employer) denying, violations of Section 8(a)(1), (3), and (5) of
the National Labor Relations Act, 29 U.S.C., Sec. 151, et seq., as amended (Act).
All parties appeared and were represented throughout the hearing by counsel, who
were afforded full opportunity to present evidence and contentions,2 examine and
cross-examine witnesses, file briefs, and propose findings of fact and conclusions of
law Subsequent to the hearing, time therefor having been granted and extended,
briefs were received, which, together with the evidence, have been carefully
considered.
Upon the entire record 3 and my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS ; LABOR ORGANIZATION INVOLVED
Respondents , all Ohio corporations with a common principal office in Cleveland,
Ohio , have at all material times been engaged in the operation of retail stores for the
sale of prescription and other drugs and sundry items in and around Toledo, Ohio.
Respondent Lane Drug Co., Division of A.C. Israel Commodity Corporation, oper-
ated 14 such stores , with annual retail sales receipts exceeding $500,000 , and annual
receipt of over $50,000 worth of goods directly in interstate commerce from
locations outside of Ohio , to its places of business in Ohio ; Respondent Lane's of
Sylvania, Inc., operated such a store in Sylvania , Ohio , with annual retail sales
receipts exceeding $ 100,000 ; Respondent Lane 's of Bowling Green, Inc., operated
such a store in Bowling Green, Ohio , with annual retail sales receipts exceeding
$100,000 ; and Respondent Lane 's of Oregon , Inc., operated such a store in Oregon,
Ohio, with annual retail sales receipts exceeding $ 100,000.
Respondents ' stores are operated , managed , advertised , and represented to the
public as a single chain of drugstores under the names of Lane, Lane's, or Lane's
Discount Drug Stores , with a substantial interchange of employees among the stores.
There is a central management and supervisory organizational hierarchy for the
stores, including centralized purchasing , warehousing , and payroll systems, and a
single general manager and district or area supervisors . The presidents , vice presi-
dents , treasurers, secretaries , and directors of the corporations are the same indi-
'Issued through the Board's Regional Director for Region 8 on June 17, 1965, upon
charge and amended charge filed by the above Union on May 3 and June 11, 1965. Unless
otherwise specified, all dates are 1965.
a As the record will disclose , at the outset of the hearing Respondents moved to dismiss
the complaint or, in the alternative, to disqualify W. R. Griesbach, Esq., counsel for
General Counsel , from trying the case on behalf of General Counsel, upon the ground that
Griesbach had investigated or participated in the pretrial investigation of the case. For
reasons apparent from the record , I denied the application as being without merit.
3 Hearing transcript corrected in accordance with order on notice of Trial Examiner
dated April 1, 1966.
LANE DRUG CO. 1151
viduals,4 with the president and vice president exercising substantial control of the
chain's labor relations policies; and there is a large degree of common ownership
and control of the corporations .5
I find that at all material times Respondents have been and are affiliated busi-
nesses and a single employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
I find that at all material times the Union has been and is a labor organization
within the meaning of Section 2(5) of the Acts
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
In essence, the issues here are whether (1) Respondents unlawfully interfered
with, restrained, and coerced their pharmacist employees in their exercise of pro-
tected concerted activities under the Act, around the early part of 1965 (including
interrogation; promises of economic benefits for refraining from union organiza-
tional activity and for dealing with Respondents directly instead of bargaining
collectively; threats of economic detriment and reprisal in the event of persist-
ence in union organizational activity or affiliation; and attempts to destroy the
Union's representative status through dissipating its majority); (2) Respondents
unjustifiedly refused to recognize and bargain collectively with their pharmacists'
duly designated Union bargaining representative; and (3) Respondent discharged
its Pharmacist Nupp for his role as leader of the union organizational activity.
Respondents deny any violation of Section 8(a)(1), (5), or (3) of the Act.
B. Background
At the times here material (late 1964-early 1965), Respondents operated a chain
of retail "discount drug stores" in and around Toledo, Ohio-147 within Toledo
and 3 in contiguous or neighboring Ohio communities; viz, Sylvania,8 Bowling
Green,9 and Oregon.'° 11 As already indicated and found, these 17 stores were
held out and operated as a chain, with common central facilities, officials, man-
agement, and policies including labor relations policies, and with systematic inter-
change of employees. The Lane drug chain (and all of Respondent corporations)
is headed by Sidney Amster, its president, who oversees its operations to a degree
personally.12 Amster's son-in-law Dr. George Kaye, a dentist, is vice president and
treasurer of the chain, devoting his attention primarily to personnel and real estate,
while his brother-in-law, David Rivelis, likewise a vice president, concentrates on
administration and merchandising. Not here involved are another vice president,
Charles R. Crosby, and Benton Cohen, secretary. General manager of the Lane
Drug chain, charged with general supervision of the day-to-day operations of the
stores, is Alvin Pethke, who is also a vice president of Lane Drug Co. Neither
Amster, Kaye, nor Rivelis is a pharmacist, nor apparently is Pethke, nor is there
any indication that any other of those named is.
4 With the sole exception of Lane Drug Co., which has an additional vice president,
Pethke, general manager of the chain.
6 Based essentially upon Respondents ' admissions as to portions of allegations of the
complaint; stipulated facts (General Counsel's Exhibit 4) ; General Counsel's Exhibits
9A, 9B, 9C, and 91); and testimony of Respondent's General Manager Pethke.
9 Respondents ' denial relative to this allegation of the complaint was withdrawn at
the hearing.
7 I.e., stores 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, and 19, precise locations shown
on map , General Counsel's Exhibit 17.
8Le., store 18 (later redesignated store 30).
9 I.e., store 17 (later redesignated store 20).
10 I.e., store 1 (later redesignated store 40).
n Sylvania and Oregon are Lucas County, Ohio townships contiguous to Toledo ; Bowling
Green , in Wood County , Is 23 miles from Toledo . Respondent 's
drugstore in Maumee
( store 2), Lucas County, is 10 miles from Toledo.
nt This is apparent from the testimony of various witnesses , including Respondents'.
For example , Respondents ' General Manager Pethke replied in the affirmative to the
question by Respondents ' counsel as to whether It is "general policy . . . that all deci-
sions of any major magnitude are made in Cleveland , Ohio by Mr . Amster personally."
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Functioning directly beneath General Manager Pethke (who is answerable to
Amster, Kaye, and Rivelis) in the Lane Drug enterprise are District or Area
Supervisors Wagenman and Willis, each charged with operational supervision of
about half the stores. Each of the stores is run by a store manager and assistant
manager, who report to either District Supervisor Wagenman or Willis. Some of
the store managers and assistant managers are pharmacists, some are not. It is
apparent from the evidence dealing with their responsibilities and activities, detailed
infra, that not only the Lane executives named above, but also the store managers
and assistant managers are supervisors 13 within the meaning of Section 2(11) of
the Act, as here found.
C. Interference, restraint, and coercion
A tabular chronology of principal events to be described is annexed as Appen-
dix A.
November-December 1964
Union organizational activity among Respondents' pharmacists commenced in
November-December 1964 under the stimulation and continued leadership of
Lane Pharmacist William Nupp of store 18 (Sylvania). Nupp, an Ohio registered
professional pharmacist, entered Respondent's employ in August 1961, and was
initially assigned to store 12 (Woodville Road), transferring at his own request
in January 1964 to store 18 (Sylvania), where he continued to work until his
discharge in April 1965 under circumstances to be set forth. I find no substan-
tial credible evidence of significant adverse employment history on the part of
Nupp in his three years of employment with Respondent antedating his activity
in the union organizational efforts to be described. There is no doubt that at all
material times Nupp was the organizer and leader of the union organizational
activity among Lane pharmacists, and I so find. There being substantial indica-
tion, in part detailed below, that Respondent was more or less contemporaneously
apprised and fully aware of Nupp's activities in this regard, I further find that
the fact that Nupp was the leader of the union organizational activities among
Lane pharmacists at all times here material was fully known to Respondents.
In November-December 1964, Nupp 14 contacted 20-25, or .a substantial pro-
portion, of his fellow pharmacists,15 with a view toward organizing them for col-
lective bargaining,16 ascertaining their sentiment in that regard to be favorable.17
Shortly before Christmas (1964), Respondent's Vice President Kaye visited store
18 (Sylvania), where Pharmacist Nupp was employed, and asked Nupp to accom-
pany him to the-back room. There he had a private conversation 18 with Nupp,
informing him that he (Kaye) understood that Nupp was:
[O]rganizing the pharmacists in a union, and he . . . wanted to know why we
were doing this, and I [Nupp] said . . . . that the pharmacists felt that the
only way they thought they could solve their problems with the Company and
18 Indeed, this is so conceded by Respondents in their answers in relation to two assist-
ant store managers named in paragraph "5" of the comblaint, whose responsibilities and
activities there is no reason to assume differed substantially from those of other store
managers and assistant managers.
"Assisted by fellow Pharmacists Molnar, Nemetz, and Ritner ; later, by still others, as
will be shown.
15 Including even some pharmacist store managers and assistant managers (Schmick
and Rettig at store 1).
16 Involving grievances such as long hours, holiday' work, inadequate"bay, poor job
security, no retirement provision, unsatisfactory vacations, and no_ or inadequate lunch
time.
17 Established by credited testimony of Nupp, 'corroborated in part by Nemetz and
Eisenhauer.
'B Nupp testified that although Respondent's Vice President Rivelis accompanied Kaye
into the store, Rivelis was not present during Kaye's ensuing conversation with Nupp
in the back room. Rivelis testified that in Christmas week of 1964 Kaye and he visited
all of the Lane stores, including store 18, and that he (Rivelis) was present during a
conversation between Kaye and Nupp at or near the counter between Nupp's waiting on
customers According to Rivelis, the conversation was "about general conditions" and
"Nupp brought up the idea that he had grievances against the firm, that lie had spoken
to some of the other fellows over the phone in the course of his duties, and in checking
on Rx's, and some of the fellows had some dissatisfaction with regard to overtime, not
LANE DRUG CO. 1153
could get the benefits that were due them was through some type of organiza-
tion, and Dr. Kaye wanted to know what the complaints were . . . . I went
through the grievances that the men had. I told him that they wanted an
insurance plan, that they wanted a pension plan, that they wanted some
improvements on their sick pay benefits, that their main complaint was that
they weren't getting paid for any overtime that they worked, and that they
would like to have at least 15 minutes in the evening to eat their lunch ....
he [Dr. Kaye] said that he would talk to the men and discuss these things with
them, and if they were in agreement he would take care of these matters ....
he said that he thought it would be best that we drop this thought about the
Union and he thought it would be better for the men to bargain on an indi-
vidual basis, then he went on to say that he liked me very much and that the
Company was continuing to open new stores and that he would like me to
become a manager of one of these stores .... I told him that I had known
several pharmacists that had been in the role of manager pharmacists. I said
that it hadn't worked out well for them and I didn't think it would work out
for me .... He [Kaye] said that he was definitely concerned about the wel-
fare of the men and in so far as my continuing to organize them in a union
that he would prefer that I discontinue this . . . Just before he left he told
me that I didn't have to worry about losing my job for what I had done ....
[This last was said in] a cynical tone that carried the meaning of just the
opposite of what he said, that 'I did have to worry about losing my job for
what I had been doing.19
Since Kaye did not testify, the foregoing is wholly uncontroverted by him, and, as
I was favorably impressed with Nupp's testimonial demeanor, it is credited.
being paid for overtime or not getting the time off for overtime. At that time Dr. Kaye
said he was surprised to hear this but he would check it out." According to Rivelis, Kaye
also reminded Nupp of "what the Company has done for the pharmacists," including
hospitalization, and informed Nupp at this time of emergency "loans to several indi-
viduals." Also according to Rivelis, Kaye indicated to Nupp that he would check into
these matters by contacting other pharmacists so as "to find out what their gripes were,
if any" and "try to take care of . . . . them " Rivelis insisted that he had "no recol-
lection'whatsoever" as to the time of day when this occurred. Called by General Counsel
as a rebuttal witness, store 18 Pharmacist Newhard, 4 years at that store and'still in Re-
spondent's employ and not a union card signer, swore unequivocally that when Kaye and
Rivells visited that store just before Christmas of 1964, he (Newhard) was just about to
be relieved by Nupp at the 1 p.m. shift change, and Kaye asked him (Newhard) "to stay
overtime that he wanted to talk with Mr. Nupp," that "Mr. Kaye and Mr. Nupp went
in the back room and had a discussion" while Rivelis "was out in the store just walking
around, looking the store over and such . . . . He was just walking through the
store . . 'He did not.go into the back of the store . . I am sure." According to
Newhard, after Kaye and Nupp remained alone in the back room for about 45 minutes,
Nupp came out and told him "that he thought he was going to get fired." Kaye was not
produced to testify, nor was Respondents' failure to call, him as a witness in any way
explained. In these circumstances it will not be assumed that had he been produced his
testimony would have contradicted that of Nupp and Newhard. Upon the entire record,
including comparative demeanor observations, I fully credit Nupp and Newhard that the
described conversation between Kaye and Nupp took- place between the two of them
privately in-the back room as described-by Nupp
19 This is reminiscent of the words of Mr. Justice Learned Hand in N.L R.B. v. Feder-
bush Company, Inc., 121 F.2d 954, 957 (C.A. 2), that "Language may serve to enlighten a
hearer, though it also betrays the speaker's feelings and desires, but the light it sheds
will be in' some degree clouded, if the hearer is in his power." "Any determination of the
exact nature and effect of such statements can be made only with due regard for the
context of the statements, the characters and economic positions of those who heard it,
and the relationships existing between a company and its employees.". (Biggs, 'C. J., in
N.L.R.B.,v. Morris Fishman and Sons, Inc., 278 F.2d 792, 796 (C.A 37].j "Employees
are not likely to miss the inference that the source of benefits now conferred is also
the source from which future benefits must flow and which may dry 'up if it is not
obliged." (Harlan,- J., in N L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409 )
.. it is common experience that the desire of employees to unionize is raised or
lowered'by the advantages thought to be attained by such action." (Reed, J., in Radio
Officers' Union v. N.L.R.B., 347 U S. 17, 51.)
257-551-67-vol. 160-74
0
1154 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
Consistent with Kaye's expression, as thus recounted by Nupp, of intention by
Kaye to,"talk to the men and discuss these things with them," Pharmacist Eisen-
hauer of store 15 (Swayne Field), employed by Respondents for 8 years, testified
that just before Christmas Kaye visited his store and asked him, "What's this I hear
about some of you pharmacists wanting to join a union?" As Eisenhauer put it, "I
played a little dumb, that I didn't know anything about it, then he said that he had
just talked to Bill Nupp and he knew all about it, and he said that any time any of
the pharmacists had any grievances they should 'call him and call him collect even
if they wanted to in Cleveland." Respondents' Vice President Rivelis conceded that
following Kaye's conversation with Nupp they "check[ed] with the other phar-
macists in the other stores . . . as to whether the men had any grievances at all."
According to Rivelis, "We [i.e., Kaye and Rivelis] told him that we had heard
from some of the-from one of the other pharmacists that some of the pharmacists
were dissatisfied that they did not receive their overtime or time off in lieu of their
overtime, and we were checking to find out if anything was owed the particular
pharmacists as far as time off or money, whichever they prefer, and that we were
going to continue checking with all the other pharmacists." However, according to
Rivelis, Eisenhauer "did not mention any complaints to either Dr. Kaye or myself."
On comparative demeanor observations and the record as a whole, I credit Eisen-
hauer's version, particularly since Kaye was not produced to testify nor his failure
to do so explained.
Returning to store 18 a few days later, Kaye again drew Nupp into the back
room, where:
... he [Kaye] told me [Nupp] that he had talked to the men and that they
would definitely get paid for any overtime that they had coming to them. He
said that he still thought it would be best if the men would bargain on an
individual basis. He then went on to say that I was definitely managerial mate-
rial and that he would like me to go into one of his new stores as a manager,
and he told me that if I wasn't satisfied working where I was at that he could
place me in any of the Company's other stores as a pharmacist. He told me
if I wasn't satisfied with my salary that I should raise that point with him and
something could be arranged on that, and then he suggested that I might make
a loan with the Company and it would be interest free and strictly confidential
between the two of us . . . I told him that I would think over what he had
said... .
According to Nupp:
January-February 1965
It was possibly two, maybe three weeks later, in the first part of January [ 1965,
in the store] . . . Dr. Kaye asked me why I hadn't contacted him on the
loan. I told him that I had discussed the matter with my wife and that if I
could have the loan I would like to have it. He told me that I should write a
letter to Cleveland to him and he would take the matter up with Mr. Amster,
the Company president, about this. I told him that the amount of the loan
would be about $15,000. He said that I should include this amount in the
letter. I asked him about the terms of the loan. Dr. Kaye said that the terms
of the loan would be up to me, that I should work something up and also
enter this in the letter that I send to Cleveland. He then told me if I wasn't
satisfied with my salary that I should raise this point with him . . . . Dr. Kaye
stated that he would look into these other matters of the insurance plan and
pension plan and discuss them with the men. I told Dr. Kaye that it made me
quite happy, and that I was quite satisfied that he was doing this. Whenever
he left he told me that if any problems should arise with the men that I
shouldn't discuss this-discuss this with the group, but that I should talk to,
Mr. Pethke or call Dr. Kaye in Cleveland.
The foregoing, being uncontroverted by Kaye, is credited.
In consequence of the aforementioned December ( 1964 ) conversations between
Nupp and Kaye, in early February Nupp wrote a letter a0 to Kaye requesting a
21 General Counsel 's Exhibit 16, undated, consisting of a photocopy produced by
Respondent pursuant to subpena. Although Respondent attempted to raise a question as
to the date of this letter , at the hearing it disclaimed any notation of the date of its
arrival or possession of the envelope in which it was contained . Neither Kaye nor Amster
testified nor was there any other testimony as to the actual date of receipt of this letter.
Under the circumstances , I credit Nupp 's testimony that he sent this letter to Respondent
early in February.
LANE DRUG CO. 1155
$14,000 loan from Respondent. Subsequently, around the end of February or early
March, Kaye informed Nupp on the telephone at home that the Company would
lend him only $4,500, to which Nupp agreed, whereupon Kaye asked "if all the
men were happy and I [Nupp] told him [Kaye] that all of the men hadn't received
their overtime pay that they had due them. Dr. Kaye said that he hadn't had time
to talk to all of the men, that they definitely would receive the pay that he had indi-
cated they would get." However, when Nupp checked with the pharmacists he
found they "were completely in the dark as to this. Dr. Kaye hadn't talked to any
of them about these things."
Since, as already indicated, Kaye unexplainedly did not testify at all in this case,
the foregoing is likewise wholly uncontroverted by him, and is credited.
Pharmacist Elmore testified that in February or March, Assistant Store Manager
Rettig (Reddig), while in charge of store 1 (Oregon) -admitted by Respondents'
answers to be its agent acting on its behalf as its supervisor within the meaning of
the Act-told him, during a discussion on the subject of organizing pharmacists "to
have some strength to settle our grievances," that a "group was forming on the
other side of the chain under Bill Nupp and Ritner . . . a group for strength .. .
strength in settling, getting our grievances settled." Rettig, who testified as Respond-
ents' witness, did not deny this. I credit Elmore's testimony, which further estab-
lishes awareness by Respondent-although denied by it-of the union organiza-
tional activity and Nupp's central role therein.
Meanwhile, Nupp was continuing to meet in small groups with the pharmacists
and to speak to individual pharmacists on these matters.
March-April 1965
There being no favorable developments with regard to any of the subjects of
pharmacist complaints or grievances, and also having heard nothing further rela-
tive to the $4,500 loan he was expecting, in mid- or latter-March or early April
Nupp actively resumed his efforts among Lane pharmacists "about forming some
type of organization to deal with the Company." Around this time (end of March
or early April), Nupp actually formed an organizational committee of these pharma-
cists-consisting of himself, Baumgartner, Cousino, Eisenhauer,21 Molnar, Nemetz,
and Ritner, some of whom had been assisting Nupp right along in the effort to
organize Lane pharmacists for collective-bargaining purposes-and set up a meet-
ing, which was held around the end of March or beginning of April at Lido Lanes
Bowling Alley. This meeting resulted in a discussion of their grievances and a deci-
sion for union representation, with authorization to Nupp, who was elected chair-
man, to make the necessary contacts for that purpose.22 Nupp thereupon commenced
making contact with local unions.
According to Nupp, soon after this, around April 10, Lane General Manager
Pethke visited him and told him that he could not have the loan he wanted. When
Nupp reminded Pethke that Kaye had "promised to talk to the men concerning
insurance and pension programs, and he hadn't followed through on that either ...
Pethke ... really blew up. He [Pethke] told me [Nupp] that he had talked to the
pharmacists, and that the only one that was unhappy about the situation was me,
and he said it wasn 't any of my business how I felt about the other pharmacists.
He said I had been a trouble maker ever since I had entered the employ of the
Company, and that he would prefer that I leave the Company. He wanted me to
go h o m e and think it over ... About me resigning from the Company . I told him
that I would think it over." However, Nupp did not contact Pethke, nor Pethke
Nupp, thereafter.
Pethke's version of the foregoing is, in essence , that around the last week in
March he visited Nupp and told him that the other three men in the store (Manager
Clark, Assistant Manager Flowers, and Pharmacist Newhard) were unhappy over
him and that Pharmacist Knestrict wanted to be transferred to that store ( i.e., store
18, Sylvania), and that since "There is plenty of jobs open for pharmacists. You
`•'aEisenhauer testified' that subsequent to Kaye's visit to him (described iibove), in
December -1964 on the subject of pharmacists' grievances, Nupp's organizational "`com'
mlttee efforts" were "discontinued . . . for some unclear reason." Nupp credibly explained
this by indicating that his talks with Kaye led him to believe, or lulled him into believing,
that Kaye would remedy the pharmacists ' grievances , but that when he realized by mid- or
late-March that this was not so, he resumed organizational activity , leading to the decision
to seek formal representation by a union.
22 Credited testimony of Nupp, Molnar , Nemetz, and Eisenhauer.
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
don't seem to be very happy here 23 and certainly the store is not happy with you
and we are in a position now to replace you," Pethke "suggested to him that he
quit," or if he did not do so "within a month . . . I was going to recommend very
strongly that he be let out." For reasons to be detailed below under the discussion
of Nupp's discharge, I formed a poor impression of Pethke's credibility, not only
based upon his observed testimonial demeanor but because of incredible testimony
on his part as well as contradictions between his testimony and credited testimony
of store 18 Manager Clark, another of Respondent's witnesses. On the other hand,
I was favorably impressed with Nupp's demeanor and overall credibility. I there-
fore prefer and accept Nupp's version of this episode.
After canvassing various total unions, which he (as well as his fellow committee-
men Nemetz and Ritner) rejected for one reason or another as unsuitable or in-
appropriate, on or about April 15 Nupp made contact with the Charging Union
herein, arranging with its Representative Leedy to meet with the Lane pharma-
cists' organizational committee on April 21, at which time that Union was selected
by the five or six pharmacists (including Nupp, Eisenhauer, Molnar, Nemetz, and
Ritner) who met with Leedy, to assist in organizing and representing Respond-
ents' pharmacists, with a mass meeting of pharmacists arranged for April 28 at
Lido or Westland Bowling Alleys or Lanes. Thereupon, Nupp made arrangements
for the April 28 general organizational meeting, personally notifying 18-20 Lane
pharmacists thereof in the week before April 2824
About a week before the general organizational meeting of April 28, Pharma-
cist Molnar was approached at work at his store 6 (Starr Avenue) by Dittman,
not a pharmacist but assistant store manager of that store, conceded by the plead-
ings to be an agent or supervisor of Respondents within the meaning of Section
2(11) of the Act and acting on their behalf. Dittman said to Molnar, "Do you
know about Nupp's union activities?" Molnar "did not give him [Dittman] an
out and out answer, mostly because I [Molnar] -wanted to find out how much
he knew about it. He proceeded to tell me that Bill Nupp approached-I don't
recall which one-of the other pharmacists at one of the other stores and dis-
cussed the union, organizing a union for the pharmacists. I let him do the talking;
I kept quiet. Later on, I drove him home . . . after we closed the store and I
told him point blank I was in it just as much as Bill Nupp was in organizing the
Union for the pharmacists. I told him I was in favor of it and I was going along
with the rest of the pharmacists . that I was involved and that we needed an
organization like this to take care of our benefits and adjust our inequities." Ditt-
man also approached Pharmacist Baumgartner on the evening of April 28 and
asked him if he was "going to be attending the big meeting that night" and Baum-
gartner said he was. Dittman did not testify. The foregoing wholly uncontroverted
testimony of Molnar and Baumgartner is credited. Pharmacist Maza, employed by
Respondent for over 5 years, three in store 19, credibly 25 testified in similar vein
that on April 28, after he had been invited earlier that day by Nupp to attend the
meeting that evening, his store Assistant Manager Portteus "asked me [Maza] if
I were going to the meeting at Westland Lanes that night." When Maza responded
that he wasn't sure and hadn't made up his mind, Portteus said, "If I were you,
Harry [Maza], I wouldn't get mixed up with this Union activity that Bill Nupp
is trying to start." Portteus did not testify. I also credit this uncontradicted
testimony.25
Among the pharmacists contacted by Nupp during the week before the general
union organizational meeting of April 28 to come to that meeting, was his fellow
Pharmacist Newhard of his own store 18 (Sylvania). Called by General Counsel as
a rebuttal witness, Newhard credibly testified that he received a telephone invita-
tion at home from Nupp on the evening.of April 27 to attend the pharmacists' meet-
ing at Westland Lanse after work on the following evening, April 28, and that the
next morning, i.e., April 28, the day of the meeting, he (Newhard) reported this
as Emphasis supplied. Since there is no indication of unhappiness on Nupp's part other
than in relation to his central role in protected concerted activities, the emphasized words
could only have been a reference to those activities
u Credited testimony of Nupp, Hubbard, Dennis, Abell, Maza, and Newhard.
ffi Before deciding to credit Maza in this and other aspects of his testimony, I have
given careful consideration to the evidence introduced by Respondent bearing on the
issue of his credibility , as well as some surface or insubstantial inconsistencies on such
matters as precise dates ( a not uncommon failing of witnesses-others as well as he in
this case-and perhaps the population at large), and credit him nevertheless.
LANE DRUG CO. 1157
to store 18 Manager Clark.26 Also among those invited to attend the April 28 organi-
zational meeting was Rettig, a pharmacist and Assistant Manager of store I (Ore-
gon), who, according to his own testimony, was invited by Pharmacist Molnar on the
day before, April 27, to attend
On the day of the general organizational meeting of Respondents' pharmacists,
i.e., April 28, Nupp worked as usual at his store from 1 to 9:30 p.m. Around 9 p.m.
Respondent's Area Supervisor Willis entered and remained in the front of the store
until about 9:25, 5 minutes before closing time, when he went to the prescription
department and asked Nupp to accompany him to the back room. There Willis told
Nupp that since Pharmacist Knestrict, former manager of store 3, lived in the neigh-
borhood of store 18 (where Nupp was employed) and wanted to transfer there, and
there was an "overabundance of pharmacists," Nupp's "services were no longer
needed," that "Knestrict would open up the store the next morning . . . . As of
this moment, you are dismissed." Store 3 having been closed since February or so,
and Knestrict out of there since then, Nupp asked Willis why Knestrict "had waited
so long to be placed at our store, at No. 18." Willis said he "didn't know anything
about that." Nupp asked Willis "if the Company had an overabundance of pharma-
cists why they had continued to advertise for pharmacists over the past several
months." Willis said he "didn't know anything about that either." When Nupp asked
Willis "if there had been anything wrong with my work," Willis did not reply, say-
ing only that "they had an overabundance of pharmacists." Nupp thereupon left.
He has not since been recalled or contacted by Respondent to return.
Nupp's discharge on April 28-a Wednesday, not the end of any pay period
(Saturday) -occurred about a half hour before the scheduled union organizational
meeting of phaimacists at Westland Bowling Alleys that night. Proceeding from the
store where he had just been discharged, to the scheduled union organizational meet-
ing at Westland, Nupp encountered about 20 pharmacists there, to whom he intro-
duced Union Representative Leedy, who discussed collective-bargaining procedure.
Apparently, Nupp's discharge was also extensively discussed. Following these discus-
sions (during which store 1 Assistant Manager Rettig, who was among those present,
having according to his own testimony been informed of the meeting the day before,
on April 27, by Pharmacist Molnar,27 unsuccessfully urged the pharmacists not to
join but to discuss their problems directly with Kaye), almost all present, i.e., 16
out of 19 or 20, signed union cards 2s On May 3, Nupp secured a 17th card signa-
ture, and by May 7 (another union organizational meeting at Lido Lanes) 2 more,
or a total of 19 by the latter date. Notwithstanding continuing requests commencing
with a telegram on April 29, Respondents have at all times refused to recognize or
bargain with the Union, resulting in the charge of violation of Section 8(a)(5) and
(1) of the Act discussed infra.
According to the testimony of Respondent' s witness Rettig ( then assistant man-
ager of store 1, Oregon), on April 29, the day following his attendance at the large
organizational meeting on the night before, he reported the meeting to his superior,
District Supervisor Wagenman, who in turn, in Rettig's presence , reported it to
Cleveland headquarters. Vice President Rivelis testified that the Company' s reaction
to this notification-including, apparently, according to him, learning from Wagen-
man the identity of the individuals who had attended the meeting-was to direct
General Manager Pethke "to have our supervisors check to see what the feelings of
the pharmacists were." On the same day (April 29), while Pharmacist Nemetz was
t
28 Newhard ( still in Respondent 's employ ) did not attend the meeting and did not sign
a union card.
'T Respondents ' witness Rettig credibly testified that he reported the meeting of April 28
on the following day (i.e., April 29) to his District Supervisor Wagenman. It is inter-
esting to note that Rettig Is silent (almost pointedly so, It would seem) In his testimony
as to whether. he likewise Informed Wagenman (or other management representative) of
the April 28 meeting on.or prior to April 28, since Rettig by his own admission knew on
April 27 from Pharmacist Molnar that the meeting was to be held on April 28. It seems
hardly likely that Assistant Manager Rettig, who took so hostile an antiunion view at
the April 28 meeting (the only one there to do so) and who so loyally and promptly
reported on it to District Supervisor Wagenman the next day (April 29), would have
been less loyal (if not disloyal In his supervisory capacity) and kept completely silent
about reporting it before- the meeting.
29 Credited testimony of Nupp, Leedy, Abell, Baumgartner , Dennis, Eisenhauer, Hubbard,
Maza , Molnar , and Nemetz.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on duty at store 6 (Starr Avenue), he was approached in the prescription depart-
ment by District Supervisor Wagenman, who "wanted to know what the beef was
that the boys had . . . Well, I told him that it was the usual overtime pay, hospital-
ization, sick pay, and so on and on. He wanted to know whether or not I attended
the meeting and I said, `Yes, I did,' and he wanted to know who was there; whether
they were the younger or the older men, and I told him they were pretty well divided.
He wanted to know if anyone signed cards and I told him yes. He asked me if
I signed a card and I told him I did. Then, as he was leaving, he turned to me and
said, `Well, you and Cy [Baumgartner], the other pharmacist, keep me posted as to
how things are coming along'. . . He wanted to know how many were at the
meeting and I told him about 20 . . . . After he asked me if I had attended the
meeting and I told him I had, he said, `You know we fired Bill Nupp last night.' I
said, `Yes, I heard he was fired.' Then he said, `Well, Nupp has been nothing but a
troublemaker and I should have fired him a long time ago.'" Wagenman was not
called to - testify. The foregoing testimony of Nemetz, an impressive witness, is
credited.
The other district supervisor, Willis, conceded in his testimony as Respondents'
witness that he learned of the April 28 organizational meeting on the next day
(April 29) from Wagenman or Pethke, and that he visited his nine stores on April 30
and May 1 not only for the usual supervisory purposes but "in addition to find
out what happened, what the trouble was," talking to managers, pharmacists, and
other store personnel for that purpose. Willis was, it seemed to me, unnecessarily
evasive and vague about these conversations, incredibly testifying that he "more or
less listened to what they had to say about it" and that he "didn't really do any
questioning as to what took place." He nevertheless recounted his approach to
Pharmacist Yarnell-which he agreed was typical of that to the other pharmacists-
as involving his (Willis') stating to Yarnell, "I understand some of the fellows
have signed up for a union," with Yarnell replying in the affirmative but (untruth-
fully or inaccurately) indicating that not many of the pharmacists were involved.
Another typical conversation between District Supervisor Willis and a pharmacist on
April 30 or May 1 was, according to him, with Pharmacist Newhard (of Pharmacist
Nupp's No. 18, Sylvania, store), as to which Willis testified, "I told him [Newhard]
that I understood that some of the pharmacists had signed up for the Union and
what did he know about it." Newhard replied that he also so understood-but that
"he [Newhard] wasn't interested" and didn't think "very many of . . . . the ones he
talked to" were. Willis further recalled speaking to and eliciting responses in the
same vein from Pharmacist Langdon at store 5; and that he also talked to all of his
managers "to learn or, determine what the trouble was . . . and what might be the
cause or anything pertaining to it . . . . These were my-what I was seeking." All
this, Willis reported to General Manager Pethke. Pharmacist Maza's testimony indi-
cates that he, too, was among those interrogated by Willis at this time. Maza credi-
bly testified that about 2 days after the April 28 meeting, that is on or about April 30,
Willis "came into the prescription room and he asked me if I attended the meet-
ing last night. I said, `What meeting last night?' He said, 'I meant the other night.'
Then, he proceeded to name four or five names of pharmacists and asked me if any
of those were present at the meeting. My answer was, `I don't remember.' He asked
me what the trouble was and I told him it was a matter of pension that we had
,been asking for for the last few years, job security and working conditions. We fig-
ured we had been neglected and we needed some type of organization to, represent
us to get us these changes." Willis responded that "about the pensions and that,
maybe there was something to it."
May-August 1965
On or about May 1, according to Pharmacist Maza, Assistant Store Manager
Portteus of his store 19-whose supervisory and agency status under the Act is con-
ceded in the pleadings-told him that "the company had the names of those who
had attended the meeting and wouldn't forget about it." Maza further testified that
on May 2, a Sunday, Vice President Kaye came into his store and called him into
the back room for a lengthy discussion wherein "The first statement was that he was
shocked that a man of my intelligence would associate with a person like Bill Nupp
in trying to form a Union. . . . He next stated that he couldn't understand how pro-
fessional people would want others to be their spokesman." Kaye then chided Maza
as one of several coreligionists for "get[ting ] mixed up in this thing ," and told him
LANE DRUG' CO. 1159
to talk to Amster, president of the Lane chain. Maza replied that "we certainly
weren't treated like professional men in this organization" and-,that the coreligionists
`had not been advanced. Kaye:
. admitted knowing that there were 19 signatures for the Union, and the
Company, only had 10 against, but with a little prodding and with my help, he
was quite sure that this could be changed . He further said that Mr. Nupp
had been a source of trouble to the Company fora long time and that they had a
lot of complaints about his work My answer to that was, "Why did you wait so
long; he has been with you at least four years." He had no answer to that .
He said that he knew that Bill Nupp had started this organizing and he should
have fired him six months ago when he first found out about it . . . . He said,
"Harry, you give us all the help you can and see if you can get others to
change their minds." I told him that I was 100 per cent with the boys and it
was too late to help . . . his main plea during the whole conversation was to
try to arrange a meeting with the signers of the cards and Mr. Amster and him-
self so that the Company could give their side of the story and he was quite
sure that they could iron out and straighten out all of the differences. My
answer was to that that the only way I could arrange a meeting was if Mr.
Kohler, the attorney and Mr. Leedy, the Union organizer, was also present. He
said that they weren't interested in that.
According to Maza, about a week later, following hard on a further union meeting
held on May 7 at Lido Lanes, Assistant Manager Portteus told Maza that "the Com-
pany,knew that the count of the vote stood at 19 to 10, with 19 of the pharmacists
for the Union and 10 against" and that "the Company was planning on changing the
store hours, thereby necessitating fewer pharmacists." Since neither Portteus nor
Kaye testified, the foregoing testimony of Maza is wholly, uncontroverted, and it is
credited. -
Along the same lines, Pharmacist Nemetz of store 6, (Starr Avenue) was also vis-
ited around this time by Vice President Kaye, "and [according to Nemetz] the first
thing he said to me was, `Mike, of all people, why you? The others I can under-
stand, but why you?' He asked me what the complaints were and I told him, `Dr.
Kaye, you have talked to all the others, why do you want further conversation from
me? It would be wasted time.' He pointed out at that time about my obligation to
the Company and about my loyalty." Pharmacist Eisenhauer was similarly visited
around this time at store 15 (Swayne Field) by Kaye, who "wanted to know what
this was all about." While Eisenhauer complained about "long Sunday hours, over-
time pay, holiday pay and other complaints," Kaye was making notes, and Kaye
"asked me [Eisenhauer] why we had to do it this way, why couldn't we come to
him instead of doing it this other way." When Eisenhauer asked why Nupp had been
fired or laid off, Kaye replied that it was because one of the stores "had been closed
and the pharmacist that worked there wanted to go out and work by his home,
which was in Sylvania . . . where Mr. Nupp was employed. He' said they had an
oversupply of pharmacists, so they didn't have any place for Bill [Nupp] at the
time . . . I said, `What kind of seniority does Lane's have?' I knew for instance
there was three or'four pharmacists that had been hired later on, or had less years
with the Company than Mr. Nupp had . . . . He said that they just didn't have any
place for him at the time . . . . It was subject more or less to change .
Towards the end of the conversation . . . he asked if I signed and I said, `Yes, I
did."' Kay also invited Eisenhauer "to Cleveland to see Mr. Amster with my griev-
ances if I wanted to." Pharmacist Molnar also received a visit around this time in
store 12 from Kaye, who, taking notes, "wanted to know what had happened .' .. .
He said that this thing had snowballed and' . . . that, `We don't need a third party to
take care of this. We can settle `this among ourselves .' I asked him why Bill
Nupp had been fired. Dr. Kaye said that Don Knestrict had been floating around the
organization and he didn't have a store to go to, so they had to make room for him,
and they got rid of Bill Nupp . . ' . He [Kaye] said nothing at all about that
[Nupp's being unsatisfactory in any fashion]." Pharmacist Baumgartner's testimony
'indicates he received a-'similar visit at store 6 (Starr Avenue) from Kaye, who told
him "that the troubles could -have been-worked out without- involving a third party."
Likewise, Pharmacist Hubbard was visited at store 10 '(Dorr Avenue) by Kaye,
whorh she told in, the •prescription room in, response to -his questions that "we didn't
get lunchtime; we didn't have enough help in the store; I told him we'-weren't paid
for holidays like we were supposed to be, and a• lot of other :things." Kaye, who
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
took notes, "wanted to know why we had to have a third party handle our griev-
ances. He said we had always been able to sit down and talk and straighten things
out, and why did we need a third party." When Hubbard inquired about job security
and why Nupp had been fired, Kaye indicated only that it was a matter of desire by
a senior pharmacist to work closer to home.
The foregoing testimony of Pharmacists Nemetz, Eisenhauer, Molnar, Baumgart-
ner, and Hubbard being uncontradicted by Kaye, who, as already indicated a num-
ber of times in other contexts, was not called to testify, the testimony of these
pharmacists, each of whom impressed me as being essentially highly credible wit-
nesses, is credited.
Meanwhile, during this period, the first week or so of May, Nupp continued
successfully to solicit additional Lane pharmacists (Elmore, Harris, and Parisky)
to affiliate with the 16 who had already joined for, membership; and another
organizational meeting attended by about 20 Lane pharmacists, was held at Lido
Lanes on May 7. With Kaye contacting pharmacists as described above, on May 12
Respondents' counsel wrote the Union that they "have reason to doubt your major-
ity status, as claimed," and were filing an election petition. Thereupon, a union
meeting, also attended by about 20 Lane pharmacists, was held on May 13, this
time at the union hall, with union counsel present. As described by Union Rep-
resentative Leedy, "the purpose of the meeting was to decide what to do in view
of the Company's refusal to discuss our demands; the Company's refusal to take
Nupp back and things like that." Further according to Leedy (corroborated by
other witnesses ), "This discharge of Bill Nupp became a very important thing to
us, and we discussed the Company's efforts to influence the individuals and they
-were trying to break up the group. As a sign of their unity, they decided to vote
on a strike action." The strike vote was unanimous. Accordingly, the Lane phar-
macists went out on strike on Friday morning, May 14, remaining out and picketing
for 2 weeks until May 28. During this period about 10 of the Lane drugstores were
picketed by 16 of its pharmacists 29
Developments' during the strike appear also to have followed a consistent pat-
tern. According to Pharmacist Nemetz, on the very morning before the strike
actually began,' i.e., around 8 a.m. on May 14, he received a telephone call from
Cleveland from Lane president Amster, who "appealed to my sense of loyalty
to the Company" and "to use my influence to keep the others from going out."
Nemetz nevertheless went out and picketed. On the next day (Saturday), District
Supervisor Wagenman telephoned Nemetz at home to the same effect, asking him
to "come back to work and all will be forgiven." Also on the first day of the
picketing (May 14), Pharmacist Dennis, while picketing, was approached by Kaye
and Willis, who said "we shouldn't be outside picketing, that we should be inside
working, that we should do some soul-searching and that our loyalty belonged
to the Company." Pharmacist Maza received night calls at home regularly from
Kaye urging him to return.to work and procure others to do so, and to arrange
meetings with any group he could get, even only his coreligionists. Kaye also
pointed out to Maza that "Those signed [Union] cards don't mean anything and
we have plenty of time, with your help, Harry [Maza], to change those signatures."
Kaye even put President Amster (his father-in-law) on the phone to plead with
Maza. On the second day of picketing (May 15), Kaye and General Manager
Pethke followed Maza to his car, where Kaye told him three pickets had returned
to work and a new pharmacist had been hired. To all this Maza apparently turned
a deaf ear . He was then told "that the Company would never allow Union to be
formed here no matter what it cost." It is once again appropriate to point out that
Kaye failed to testify in this case. Testifying as Respondent witness, Pethke was
silent on this subject. I credit Maza's testimony.
Pharmacist Elmore testified that he, too, was called at home by Kaye, on the
Sunday night (May 16) after the picketing (in which he had joined) had started,
"to see why I wanted to become a member of the Union . . . He wanted to know
what my grievances were. I went on to tell him what my complaints were. He
wanted to know why we professional men needed a union . I told him that we
were getting no place individually, that I had gone to him with complaints as
much as six months ago and none of them were taken care of." Kaye also "said
that he would like to, sit down with the pharmacists and talk this thing over, 'and
I told him that as far as myself, I had already made my commitments to the Union.
'B I.e., Abell, Baumgartner , Cousino, Dennis, Eisenhauer , Elmore, Hebei, Hubbard,
Levine, Maza , Molnar, Nemetz, Nupp , Parisky , Pietras, and Ritner.
LANE DRUG CO. 1161
I hadn't made any progress . as an individual up until now, and I felt that I
should stick with a union in order to get any satisfaction there." Pharmacist Parisky,
employed by Respondent for over 5 years and a participant in the picketing, also
received a phone call from Kaye a few days or so after the strike started. Kaye
asked him "why we got involved with the Union . He told me that we were too
intelligent to become confused and brainwashed with all of this Union activities.
He-asked why I didn't come to them,and iron out the differences to the satisfaction
of both of us. . . I told him that the matter was out of my hands and I couldn't
do anything about it" Kaye again telephoned Parisky, at home, saying, "Why don't
we go back to work and we can straighten this whole thing out between the indi-
viduals and ourselves?" The foregoing testimony, likewise wholly uncontroverted
by Kaye, is also credited.
The composite testimony of Pharmacists Abell, Hubbard, and Eisenhauer indi-
cates that during the first week of the strike District Manager Willis approached
them on the picket line and after he remarked that one of the pickets had returned
to work, Hubbard asked him why one or more of the stores had closed at 7 p.m.
(rather than the usual 9 p.m.) on the previous Sunday. Willis replied (in the words
of Abell) that "the Company was considering cutting the hours during which the
store would be open on Sunday" and that "that would enable the Company to
dispense with the services of . . . one-half of the pharmacists." In this context,
Abell "mentioned that we should not have to work from 9:00 to 9:00 every other
Sunday, which has been our schedule." Testifying on this subject, Willis conceded
he had such a discussion with these three picketing pharmacists and that the hours
had been shortened to 7 p.m. at one of the stores, but that he indicated this was
only during the period of the strike and that the same, course might be followed
in the other stores for that reason. Although I credit the testimony of the three
pharmacists 30 as to what was said by Willis, who perhaps did not make himself
as clear as he should have, nevertheless the aura of the discussion, occurring within
a frame of reference of company attempts to keep the stores open notwithstanding
pharmacist shortages resulting from the mass strike and picketing, appears to have
imparted sufficient ambivalence and uncertainty to Willis' words as not to warrant
a finding that they constituted a threat to curtail pharmacist employment through
permanent reduction of store hours (or, conversely, a promise of benefit of shorter
hours to them-not here charged-by doing so) 31 I so find.
Further consistent with the pattern established by the testimony of various Lane
pharmacist witnesses, Pharmacist Dennis, employed by Lane for 7 years, testified
that while he was picketing store 14 (Westgate) a week after the strike started, he
was approached by Vice President Rivelis (with General- Manager Pethke), who
"wanted to know what the beefs were, and I told him that I didn't have any in
particular but we all had some, and we enumerated some. He [Rivelis] said, `Is
there any reason we can't get together without the Union and iron these things
out?' He said, `Cleveland doesn't know about these things, and I'm sure that Mr.
Amster would be glad to come down and talk to the boys.' I said I was sorry but
it was out of my jurisdiction and we were now represented by the Union." Also,
Pharmacist Hebei testified that around the same time, while he was picketing store
16 with-Pharmacist Cousino, they were similarly approached by Rivelis and Pethke,
Rivelis inquiring "why we hadn't informed him about our grievances . . . I inquired
31 Including Abell, as to whose credibility I have carefully considered the material intro-
duced and offered by Respondents. Upon the record presented, the objections of General
Counsel and the Charging Party to receipt in evidence of Respondents' Exhibit K-4 for
identification are overruled (cf. Respondents' Exhibits K-1, K-2, K-3, and K-5-A through
K-5-E) and it is received in evidence as Respondents' Exhibit K-4. General Counsel's
motion to strike from the record evidence of certain alleged misdemeanors is hereby
denied. The test as to whether conviction of crime may be considered as impeaching evi-
dence appears not to hinge upon whether it is a felony or misdemeanor, but rather upon
whether the criminal act amounted to or involved moral turpitude or ortimen falss. See
2 Wigmore, Evidence, 1520 ( 3d ed . 1940 ) ; 2 Wigmore, Evidence, § 980 , 982,• D87;
Richardson, Evidence, §1 412, 505, 518 (8th ed. 1955) ; Act, Sec. 10(b) and Fed. R. Civ P.
43(a) ; Crown Corrugated Container, Inc, 123 NLRB 318, 319, and cases there collected.
That the acts here involved qualify for consideration under this test cannot be ruled out.
ai Furthermore, the conclusion contended for by General Counsel appears to depend at
least in part upon the employee witnesses' interpretation of what Willis meant, as to
which I rejected proffered proof. See The Rein Company, 114 NLRB 694, 698; B.H.C.
Manufacturing Corporation, 113 NLRB 823, 825, footnote 8.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where Dr. Kaye was, and he [Rivelis] responded that he could get Dr. Kaye,heret
on short notice . One more thing that Mr. Rivelis stated is that he would never
deal with the Union." On direct examination Rivelis testified merely that he was,
in Toledo on May 18 and did not see Dennis or Hebel on that day. In response
to my questions, however, Rivelis conceded that he did indeed speak to both'Dennis
and Hebel between May 21 and 28. He did not dispute their above-described testi-
mony, nor did Pethke testify upon this subject. I credit this testimony, of Phar-
macists Dennis and Hebel. Pharmacist Elmore testified comparably that, while
picketing store 12 a, few days before the picketing ended, he was called into, the
store by Assistant Manager Garland to talk on the telephone to Rivelis, who
inquired about' and, discussed-his grievances at "great lengths no pension plan,
no sick time . work from 12:00 or 1:00 o'clock to 9:30 without a break, long
Sundays, some of the stores you get one day off every two weeks." Rivelis invited
him to sit down with him or Kaye or even Amster on these matters. When Elmore
indicated he wanted the Union to do this for him, Rivelis "told me to think it over.
If I changed my mind I could reach him at the motel where they [Rivelis and Kaye]
were." This testimony, likewise uncontroverted, is also credited.
On May 27, a further request upon Respondent to bargain, made to Kaye by
union counsel, was rebuffed by Kaye, who insisted upon "an election." The phar-
macists stopped picketing on May 28. A few days later, back at work, Pharmacist
Maza was told by General Manager Pethke, " I made- a mistake. I should have
fired Bill Nupp six months ago when he started all this trouble." -
•On May 28, the day the 2-week picketing by Lane pharmacists ended, Lane
President Amster addressed a letter "To Our Pharmacists," wherein he stated,
among other things (General Counsel Exhibit 13; all emphases are those of
Amster) : ,
I was greatly surprised to learn that any of our Pharmacists would want to
join the Retail Clerks Union. I never considered Pharmacists as "retail clerks."
I considered them as' Professional men who would not want to join a Union
composed of super-market and department store clerks. I also cannot under-
stand how any outsider, such as a Union organizer who knows nothing about
Pharmacy could discuss' your problems or ours 32 . A Union organizer
promises pie in the sky to get the people to join. He knows that if he does
get them to join, he will have to negotiate with the owners and there, is no
law that requires the owners to accede to any of his requests or so called
demands . . . My record of treatment to people working with me during the
past 45 years proves that I have always been fair. I do not intend to change
at this' late date in my life. If people working with me have problems, they
are my problems too=and as long as I am able to talk to them directly,
instead of through a go-between, I will want to help them.33 . . -. In closing
I want you to'know that I have no, malice in my'heart against anyone.'I feel
sure that almost all of those who walked out were coerced or'misled by a lot
of promises. I welcome 'them all•'back"to' work with us together as' a team.' I
will gladly come to Toledo to talk to you individually or collectively provided I
am invited to do sot' I 'will not talk to any' Union organizer or outsiders: If
you -decide you ,want the Retail 'Clerks Union organizer to speak for you, I
will not talk to him. He will have to talk to our attorneys. I prefer to be able
to talk to you directly about any problems you may have and answer any
questions you may ask . I will be fair and honest and I hope you want it that
way. ' , _ ''
A still further request to Respondents ' counsel by the Union's counsel on'July 27,
indicating . the continuing nature of the Union's bargaining demand, , also, met
with no success.
33 Tlie statutorily „guaranteed right of employees to designate a collective-bargaining
representative does not contemplate that the employer shall pass upon its qualifications:
`;The right of,employees',to'be represented by officials of their own.choice doubtless must
outweight any principle of persona non grata.', N L R.B v' Signal Mfg. Co., 351 F 2d 471'
(C A. 1), cert.'denied 382 U.S. 985
33 The three sentenee. (comprising a separate paragraph) which follow this one are
consistent with this indication by Amster against "help" to employees if represented by
the Union:-"If. there,is any, reasonable request made of, me by_ any o f; our people, -it will
be granted : If .the request is unreasonable , whether by an individual or by a 'Union orga-
nizer, it will not be granted. I know you, Would' do the same if you were in my place."
[Emphasis supplied I
LANE DRUG CO' 1163
Upon the entire record, I find that Respondents coercively interrogated pharma-
cist employees in connection with their and other pharmacist employees' union
organizational affiliations and activities; promised or held out to them prospects
of economic benefit if they bargained with Respondents individually instead of
collectively through a union bargaining representative; enlisted them to engage in
surveillance and report back to Respondents on other employees' union organiza-
tional activities, and to dissuade other employees from affiliation with or support
of the Union; solicited them to deal individually directly with Respondents instead
of bargaining collectively through a union bargaining representative; and threatened
them with or indicated to them the prospect of economic detriment in the event
of continued union affiliation or collective bargaining endeavors. I further find that
Respondents did not, however, threaten pharmacist employees with discharge or
reduced hours in reprisal for union affiliation or activities.
D. Discharge of Pharmacist Nupp
The circumstances leading up to Respondent's discharge of Pharmacist Nupp,
leader of the organizational activity among the pharmacists, 5 minutes before store
closing time on April 28, just before the pharmacists' union organizational meeting
scheduled for that night, have been reviewed and there is no need to reiterate. them'.
here. Upon the record presented in, that regard, General Counsel made out a
substantial prima facie case of violation of Section 8(a)(3) of the Act. The evi-
dence presented by Respondents wholly failed to rebut this showing.
In defense of the discharge of Nupp, Respondents urge, to begin with, that they
lacked knowledge as to his union organizational activity prior to April 29, the day
after his discharge. Since the record amply establishes the contrary, I reject this
contention as thoroughly unfounded. Nupp's leadership, from the very start,.of the
union organizational activity among Lane pharmacists, was so open, avowed, and
notorious as to have been known for that reason alone, as it undoubtedly was, to,
Respondents and the- responsible managerial and supervisory eyes and ears. Beyond
that, however, is the mass of direct evidence of such knowledge on -the part of,
Respondents, for example through the extensive dealings of their Vice President
Kaye with Nupp, as detailed by Nupp in his testimony which was not controverted
by Kaye, to say nothing of the wealth of corroborative evidence supplied by other
pharmacists showing knowledge on Respondents' part of Nupp's central role in
their organizational activities. Although there is thus a plethora of substantial cred-
ible evidence negativing Respondents' denials on this subject, it is further noted
that Nupp additionally testified credibly that on August 9, while he was visiting
Pharmacist Nemetz, Respondents' Assistant Store Manager Dittman-admitted by'
the pleadings to be Respondents' agent and supervisor within the meaning of the
Act-told him in the store that "it was common knowledge of the managers and
assistant managers at least a week before our meeting at Westland Bowling Alley
[April 28] that I [Nupp] was organizing the pharmacists in the Union." Since,
like Kaye, Dittman unexplainedly was not called to testify, this testimony-
undoubtedly thoroughly consistent with the entire picture presented-likewise is
wholly uncontroverted, and is credited.
- Respondents further contend, in justification of Nupp's discharge, that the real
reason he was fired was that he was an unsatisfactory employee who had long
been guilty of numerous infractions, shortcomings , and violations of-its -policies.-
These allegedly ranged from such matters as. brushing his shoes in the store to
"moonlighting." The enumerated alleged derelictions are of such a character as to
be wholly unimpressive and hardly worth dignifying through discussion. Emphasized
are a few alleged tiffs with customers' piqued over his failure to fill prescriptions.
The short answer to these is that Nupp, candidly admitting a few such incidents
occurred, testified without credible contradiction that the prescriptions were not
refillable without medical' reorder or reauthorization, which the,customer did not,
have (and which Nupp, in at least some cases , endeavored to obtain for the cus-
tomer); since the contrary was not shown,- and not. even a single customer ,was
produced, such customer pique appears to have been unjustified and Nupp to
have been in the right rather than in the wrong. Furthermore, neither these nor
other comparable alleged actions, derelictions, or shortcomings have been shown' to
have been limited to Nupp or to be of a character ever to have resulted in 'disciplinary
action, to say nothing of discharge; the credible evidence establishes the con-
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trary.34 After listening to the testimony and closely observing testimonial demeanor
on this aspect of the case, -and carefully weighing it in the context of the case.as a
whole, I am satisfied that Respondents' current catalog of Nupp's alleged short-
comings and derelictions was in no way the true reason, for his discharge, but that
they are now being utilized as a pretext to mask his discharge for discriminatory
reasons unlawful under the Act. In this connection, it will be recalled that Nupp,
upon Kaye's encouragement at the end of 1964 and beginning of 1965, made a sub-
stantial loan application to Respondent. According to Respondent, on April 7-a
scant 3 weeks before Nupp's discharge-Lane President Amster wrote an interoffice
memorandum or note to General Manager Pethke declining to make the loan only
for the reason that Nupp's request was not based upon lack of funds but was in
order "to save interest and for no other purpose," and that this "would be establish-
ing a bad precedent." (Respondent's Exhibit I.) It seems highly unlikely that if-
particularly at the late date of this note-Nupp's job performance was really as
unsatisfactory as is now claimed, with the die already long since cast for his dis-
charge for those reasons, as is also now claimed, these reasons would have been
assigned as the reasons for deciding not to make the loan or even so much as been
mentioned in the memorandum of Amster.
General Manager Pethke's testimony that the reason he discharged Nupp on
April 28 was that Nupp's Store Manager Clark had complained to Willis about
Nupp on April 27, is flatly contradicted by Store Manager Clark, who swore
repeatedly that nothing had occurred just prior to April 28 involving Nupp. (It
is also contradicted by Willis.) I credit Clark as to this.
Respondent also assigns as the basis for its discharge of Nupp the alleged fact
that another Lane pharmacist, Knestrict (working in various Lane stores since the
closing of his own branch store some time before) was pressing for a pharmacist's
job at store 18, in Sylvania, where or near where he lived, and had been promised
that job, and that Nupp therefore had to be "reduced in force" (i.e., because of
an allegedly excessive number of pharmacists) to keep this promise or these prom-
ises to Knestrict, who had greater seniority. The short answers to this are that
to begin with, Nupp was not "reduced in force" but he was fired; this explanation
is inconsistent with Respondents' other explanation, or excuse, that Nupp was dis-
charged for incompetence and malfeasance; there is no proof of any such seniority
system or seniority in the chain or at the store; 35 Respondents were hiring other phar-
macists more or less contemporaneously with (shortly before as well as shortly
after) Nupp's discharge; 35 Nupp could readily have been shifted at least to part-
time or fill-in duties, or temporarily furloughed; and Nupp has never been recalled,
nor told that he would or could be, nor asked whether he wished to be, recalled.
The coup de grace to this defense, however, illustrative of its thoroughly spurious
character, was administered by the testimony of Pharmacist Knestrict, called by
General Counsel as a rebuttal witness. Knestrict, still in Respondent's employ,37
testified that around the end of February, shortly before store 3 closed early in
March, he merely indicated to District Supervisor Wagenman that he desired a
transfer to Sylvania, but that neither Wagenman nor Pethke nor any other manage-
ment official at any time ever made him any promise on it, and that from that time
on he never even raised the question again; but that on April 29, the day after
Nupp was discharged, he was told by Wagenman or Willis to report for duty at
the Sylvania store.
s' Insofar as the "moonlighting" is concerned, although indeed it appears to have been
inconsistent with a written directive on the subject, credible evidence establishes and I
find that this activity was not limited to Nupp; that It was not inconsistent with proper
discharge of Nupp's duties and job with Respondents ; and that such "moonlighting"
activities by Nupp and other Lane pharmacists were not only known to, but tolerated
and thus tacitly condoned by, Respondents, with no disciplinary action by reason thereof.
35 Many Lane pharmacists appear to have had less seniority than Nupp. See General
Counsel's Exhibit 11.
39 December 3, 1804: Bockbrader ; January 5 . Maguire ; January 18 • Rice ; March 8 :
Smith ; May 10: Duda (" interne" ) and ' Mapes ,' May'15 • °Hildelrfand';'May,17 : Iionczal:z
31 This circumstance has been said to lend weight to the testimony of such an employee,
who in a sense testifies at risk of employer displeasure if not retaliation. Georgia Rug
Mill, 131 NLRB 1304, 1305, footnote 2; W. Willard Wirtz- v B.A.C. Steel Products, Inc.,
312 F,2d 14 , 16 (C.A. 4).
LANE DRUG CO . 1165
In finding as I do that Pharmacist Nupp was discharged by Respondents on
April 28 solely because of his leadership role in the union organizational activities
of Lane pharmacists, and that the other alleged reasons advanced by Respondents.
are pretextuous and not, singly or in the aggregate, the true reasons for that dis-
charge, I have given weight to the following factors, among others, in the context
of the record as a whole: Nupp's unquestionable leadership of the union orga-
nizational activities from their very start until (and after) the finish of his employ-
ment through discharge; the timing of his discharge-not at the end of any pay
period--a scant hour or so before the big general union organizational meeting of
Lane pharmacists scheduled and publicized for that night; 38 the precipitate nature
of the discharge-5 minutes notice for 4 years of employment; 39 Respondents'
continued incredible insistence at the hearing of unawareness of Nupp's union
organizational activities until April 29, the day after his discharge, despite the
overwhelming evidence to the contrary; Respondents' unexplained failure to pro-
duce their personnel Kaye, Wagenman, Dittman (and possibly also Amster) as
witnesses to controvert highly damaging statements credibly attributed to them by
General Counsel's witnesses; the seemingly evasive character of significant aspects
of the testimony of some of Respondents' principal witnesses (Rivelis, Pethke,
Willis); adverse impressions received from Respondents' failure to produce proof
or additional proof in rebuttal of General Counsel's proof; Respondents' other
substantial, repeated, continuing violations of Section 8(a)(1) of the Act in a
context of clear and undisguised union animus; and comparative testimonial
demeanor observations.
E. Refusal to recognize or bargain collectively with Union
Respondents concede they have at no time recognized or bargained with the
Union. They justify this failure upon several grounds, which will be discussed
separately.
1., Appropriate unit
To begin with, Respondents urge that the Board has held no hearing (prior to
the instant case) to determine what bargaining unit is appropriate here; and that
therefore, apparently, there being no Board determination as to what constitutes
an appropriate unit, Respondents were privileged- to reject any. This contention
is unsound. I am unable to discern any requirement that the Board hold a repre-
sentation case hearing as a precondition to entertaining an unfair labor practice
charge of refusal to bargain collectively in violation of Section 8(a)(5) of the
Act. Under Section 9(b) of the Act, determination of unit questions by the Board
is not restricted to representation cases. Accordingly, as pointed out in its Seven-
teenth Annual Report of the National Labor Relations Board (1952), p. 56, the
Board has determined unit questions in cases "in which an employer is charged
with violating section 8(a)(5) by refusing to bargain with the representative of
employees in an appropriate unit, cases in which a union that represents employ-
ees in an appropriate unit is charged with violating section 8(b)(3) by refusing
sa Respondents offered no credible explanation for the odd, midweek-timing and precipi-
tate nature of the discharge Considering its timing and the absence of credible explana-
tion for any immediacy therefor (other than the upcoming union meeting which Nupp
had arranged), the coercive implication of Respondents' timing is clear: Union. activity
for a Lane pharmacist is risky business. ". . . where the discharge in question involves
the `key' employee in an organizational drive, it may supply shape and substance to other-
wise equivocal circumstances." N.L.R.B. v. Davidson Rubber Co , 305 F.2d 166, 169
(C.A. 1) ; see also, N.L R B. v. W. C Nabors, d/b/a W. C. Nabors Company, 196 F.2d 272,
275-276 (C.A. 5), cert. denied 344 U.S. 865. "The abruptness of a discharge and its
timing are persuasive evidence as to motivation." N.L.R.B. v. Montgomery Ward & Co,
242 F.2d 497, 502 (C.A. 2), cert denied 355 U S. 829. See also, E Anthony & Sons, Inc.
v. N.L.R.B., 163 F.2d 22 (C.A.D.C ), cert. denied 332 U S. 773 That " `antiunion bias
and demonstrated unlawful hostility are proper and highly significant factors for Board
evaluation in determining [employer] motive [in discharging an employee],' " see N L.R.B.
v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5) ; accord, N L.R B. v. Lipman Bros., Inc.,
355 F.2d 15 (C.A. 1). -
10 N.L.R.B. v. Montgomery Ward & Co., supra, footnote 38.
1166 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
to bargain with -their, employer; ,and( cases :in -.which the: Board. must. determine
whether a union-security agreement,, is . valid, _ in, that it. covers 'employees in- an
appropriate unit, as, required by, section 8(a),(3•)."
Insofar as the appropriateness of the unit claimed' for bargaining purposes. is
concerned, that unit-consisting of the professional pharmacists in the Lane drug-
stores in and. around Toledo (i.e., Toledo itself,, Bowling Green, Sylvania; and
-Oregon)-comprised; the! professional 'pharmacistsvof the Lane drugstore' -chain at
the time,of the Union's: bargaining request (April 29)-.40 In view of factors` already
discussed and found, involving the. centralized managerial,,. administrative;,, and
operational integrity of the then 17 Lane drugstores-including systematic phar-
macist interchange, unified payroll system, centralized procurement, warehousing,
.,and merchandise distribution; and geographical hegemony' of 'supervisory' person-
nel-it is: apparent that the professional Pharmacist employees. in this chain had
common; indeed - the, same, 'interests and needs with regard to 'the usual- subjects
of collective bargaining. In view, of the existing situation, to treat the individual
stores as separate bargaining' units would enshrine fictional form' and flout reality.
It is entirely' clear under the-, circumstances presented that the bargaining unit
requested-namely, all professional pharmacists in' the Lane chain as- comprised
at the time 'of 'the foregoing request; viz, 14 stores in Toledo proper, plus' l each
in -contiguous, suburban, or, nearby ' Bowling Green, Sylvania, and Oregon, on
April 29-was "an appropriate unit" within the contemplation and intent of .the
.Act. The Great Atlantic and Pacific Tea Company, Inc, `128 NLRB 342; Daw
Drug Co., Inc., 127 NLRB 1316; Crown Drug Company; 108 NLRB 1126.
Respondents were not at liberty to refuse recognition of such "an appropriate unit"
upon the basis of their own ipse dixit distaste or preference perhaps engendered
by their own estimations that they might fare better in their professed aim to
defeat collective bargaining, based upon' their private calculations as to the extent
of 'the pharmacists' organization in the various separate stores of their chain. , '
Contrary to Respondents' current contentions, the Union's bargaining requests
(General Counsel Exhibits 5 and 6) were clear enough. No "special formula or
form of words" is necessary to arouse the statutory obligation to bargain, so long
as the request is reasonably implicit in the language used. Joy Silk Mills, Inc. v.
N.L.R.B., 185 F.2d 732, 741 (C.A.D.C.), cert. denied 341 U.S. 914; Dallas Con-
crete Company,, 102 NLRB 1292, 1312, enfd. 212 F.2d 98 (C.A. 5). Respond-
ents could not have been misled as to the stores intended; and, since requests
to bargain are necessarily to be construed within and subject to statutory require-
ments and limitations, Respondents should also have known that here they did
not (and could not) include supervisors and others' exempted. Heck's Inc., 156
NLRB 760. (Indeed, the Union expressly so stated.) I find that here, as in N.L.R.B.
v. Clearfield Cheese Co., Inc., 213 F.2d 70, 74 (C.A. 3), "There is no rational
foundation for assuming that [Respondent was] confused by the request for recog-
nition." Furthermore, notwithstanding their current contentions to the contrary,
Respondents themselves in their representation petition filed with the Board on
May 12 through their own counsel (General Counsel Exhibit 2A) specified this
very unit ("All pharmacists employed by the Employer at its drug stores in
Toledo Ohio, and vicinity. Excluded All other employees and guards and super-
visors as defined in the Act.") as appropriate, consisting of "Approx. 25" employ-
ees. It is eminently clear, as hereafter found, that Respondents' refusal to recog-
nize, meet, or have anything to do with the Union was not the result of any°doubt
on Respondents' part'as to what the unit being requested was, or as to its appropriate-
ness, but was on the contrary motivated by rejection of the collective-bargaining
principle and their intention to gain time to do away with union representation so
that they could "deal" with their pharmacists individually as in the past. Cf. N.L.R.B.
v. Austin Powder Co., 350 F.2d 973, 977 (C.A. 6); N.L.R.B. v. Philamon Labora-
tories, Inc., 298 F.2d 176, 180 (C.A. 2). "The Respondent's objection as to the scope
41 Fostoria (store 21), injected herein by Respondents, located 40 miles from Toledo
(General Counsel's Exhibit 17) was opened later (May 18)x. Since it was not in existence
at the time of the bargaining demand, its attempted inclusion herein is for that reason
alone sheer obfuscation.
LANE DRUG CO. 1167
and composition of the unit, raised for the first time at the hearing, comes too late
to convince us that its refusal was based on some bona fide doubt as to the appro-
priateness of the unit." United Butchers Abattoir, Inc., 123 NLRB 946, 957.
Upon the entire record, I find that at all material times the requested unit,
consisting of all Lane pharmacists in Respondents' Greater Toledo (including
Toledo, Sylvania, Oregon, and Maumee) and Bowling Green, Ohio, drugstores,
excluding all other employees, guards, and supervisors as defined in the Act, was
a unit appropriate for collective bargaining purposes within the meaning of Sec-
tion 9 (b) of the Act.
2. Union majority
A further claimed justification asserted by Respondents for their refusal to
recognize or bargain with the Union is that the Union did not represent a major-
ity of employees in the appropriate unit. As of the controlling date of the Union's
bargaining request-i.e., April 29 (as well as April 30) 41-I find that it did.
Table I indicates the material facts, and constitutes my findings flowing there-
from, regarding the union cards executed by Lane pharmacists, in evidence
herein. It will be seen therefrom that as of April 28, the Union held 16 validly
executed cards; as of May 3, 17; and as of May 7, 19.
TABLE 1
Findings as to Union Membership Appplication Cards
1 2 3 4 5 6 7 8
1965 Union card Union card Should union
G C. Pharmacist Union date properly signed for card be
No.- Exh. employee's card union identified purpose counted in
No. name dated card and authen- stated determining
(1966) signed ticated? therein? question of
majority? b
I------- 3-E Abell-------------- 4/28 4/28 Yes------------- Yes----------- Yes.
2------- 3-M Baumgartner------ 4/28 4/28 Yes------------- Yes----------- Yes.
3------- 3-N Cousino----------- 4/28 4/28 Yes------------- Yes----------- Yes.
4------- 3-I Dennis------------ 4/28 4/28 Yes------------- Yes----------- Yes.
5------- 3-0 Eisonhauer-------- 4/28 4/28 Yes------------- Yes----------- Yes.
6------- 34 Elmore------------ 4/28 5/3 Yes------------ Yes----------- Yes.
7------- 3-S Harris------------- 4/28 5/7 Yes------------- Yes----------- Yes.
8------- 3-B Rebel------------- 4/28 4/28 Yes------------- Yes----------- Yes.
9------- 3-Q Hubbard ---------- 4/28 4/28 Yes------------- Yes----------- Yes
10------ 3-H Levine------------ 4/28 4/28 Yes------------ Yes----------- Yes.
11------ 3-C Maza-------------- 4/28 4/28 Yes------------- Yes ----------- Yes.
12------ 3-P Molnar------------ 4/28 4/28 Yes------------- Yes----------- Yes.
13------ 3-F Nemetz----------- 4/28 4/28 Yes------------- Yes----------- Yes.
14------ 3-K Nupp------------- 4/28 4/28 Yes------------- Yes----------- Yes
15------ 3-D Parisky----------- 4/28 5/7 Yes------------- Yes----------- Yes.
16------ 3-Q Pietras----------- 4/28 4/28 Yes------------- Yes----------- Yes.
17-----_ 3-R Ritner------------ 4/28 4/28 Yes------------- Yes----------- Yes.
18-----_ 3-L Tyson------------- 4/28 4/28 Yes------------- Yes----------- Yes.
19-----_ 3-A Voshell------------ 4/28 4/28 Yes------------- Yes ----------- Yes.
a I.e., number merely for counting purposes herein.
b For applicable dates, see Table f, infra
Summary
Number of union cards executed as of April 28---------------------------- 16
Number of union cards executed as of May 3------------------------------ 17
Number of union cards executed as of May 7------------------------------ 19
u There is some indication (testimony of Respondents' witness Rivelis) that the Union's
April 29 bargaining request telegram was not received (despite the notation thereon)
until April 30. No material change occurred in the interim.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Table 2 comprises my findings , with underlying facts, as to the specific employees
within (and also those not within ) the appropriate unit.
TABLE 2
Findings as to Employees Who Are and Who Are Not
in the Representation Unit a
1 2 3A 3B 3C 4A 4B 5A 5B
Rank-and-file pharmacists Supervisory Supervisory
pharmacists nonpharmacists
No. Store
(b) No.
No. Union card No. No
(b) signed (and Name (b) Name (b) Name
1965 date)?
1 0 1 1 Schnuck
(Schmich)
(Mgr ).
2 a 1 2 Rettig (Reddig)
(Asst. Mgr.).
3 2 1 Dumont (Mgr.).
4 2 2 Buzza (Asst.
Mgr.).
5 2 1 No---------- Bockbrader.
6 2 2 No---------- Rice.
7 4 3 Kwapich (Mgr.).
8 5 3 Haase (Mgr.).
9 5 4 Spencer (Asst.
Mgr.).
10 5 3 No---------- Langdon.
11 6 4 No ---------- Ball.
12 5 5 No---------- Knestrict.
13 6 5 R. Jones (Mgr.).
14 6 6 W. Dittman
(Asst. Mgr.).
15 6 6 Yes (4/28)--- Nemetz.
16 6 7 Yes (4/28) --- Baumgartner.
17 7 7 C. Dittman
(Mgr.).
18 7 8 Sancraint ("Man-
agement
Trainee").
19 7 8 No ---------- Smith.
20 7 9 Yes (4/28)-.. Dennis.
21 8 0 Fisher (Mgr).
22 8 10 Yes (5/3) ---- Elmore.
23 8 11 No---------- Irey
24 9 4 Seman (Mgr.).
25 9 10 Hughes
(Asst Mgr.).
26 9 12 No ---------- Maguire.
27 10 11 Pauken (Mgr).
28 10 13 Yes (4/28) --- Hubbard
29 10 14 Yes (4/28) --- Levine.
30 11 12 Rhoades (Mgr).
See footnotes at end of tables.
LANE DRUG CO.
TABLE 2-Continued
1169
1 2 3A 3B 3C 4A 4B 5A 5B
Rank-and-file pharmacists Supervisory Supervisory
pharmacists nonpharmacists
No. Store
(b) No.
No Union card No No.
(b) signed (and Name (b) Name (b) Name
1965 date)?
31 11 13 Menckel (Asst.
Mgr).
32 11 15 No__________ Dillmaier.
33 11 16 No__________ Cureton.
34 12 5 Kulczak (Mgr )
35 12 14 Garland (Asst.
Mgr.).
36 12 17 Yes (5/7)____ Harris.
37 12 18 Yes (4/28)___ Molnar.
38 14 15 Rakestraw (Mgr.).
39 14 19 Yes (517) .... Parisky.
40 14 16 Thies (Asst.
Mgr.).
41 14 20 Yes (4/28)___ Pietras.
42 14 21 No__________ Yarnell d
43 15 17 Curtis (Mgr.).
44 15 18 Lee (Asst. Mgr.).
45 15 22 Yes (4/28)___ Abell.
46 15 23 Yes (4/28)_-_ Eisenhauer.
47 16 19 Johnson (Mgr).
48 16 20 Keller (Asst Mgr.).
49 16 24 Yes (4/28)___ Cousino.
50 16 25 Yes (4/28)___ Hebel.
51 e 17 21 W. Jones (Mgr).
52 a 17 22 Robinson (Asst.
Mgr.).
53 17 26 Yes (4/28)___ Tyson.
54 17 27 Yes (4/28)___ Voshell.
55 f 18 23 Clark (Mgr.).
56 f 18 24 Flowers (Asst.
Mgr.).
57 f 18 28 No__________ Newhard.
58 19 25 Salmon (Mgr.).
59 19 26 Portteus (Asst.
Mgr.).
60 19 29 Yes (4/28)_-_ Maza.
61 19 30 Yes (4/28)___ Ritner.
62 Ware- 6 Searle (Chief
house Pharmacist).
TOTALS
s62 g 30 15 (4/28).6
16 (5/3) g
18 (5/7) g
6 26
'See footnotes at end of tables.
257-551-67-vol. 160-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SUMMARY
No. and percent of valid union cards
As of date (1965)
TABLE 2-Continued
No.
cards
Including Nupp
No.
in
unit
Per-
cent
(apx )
Major-
ity?
No.
cards
Excluding Nupp
No.
in
unit
Per-
cent
(apx )
Major-
ity?
April 29 (1st Union written
demand).
16 h31 52 Yes_--- 15 h 30 50 No.
May 4 (2d Union written demand) 17 31 55 Yes_.-- 16 30 53 Yes
May 7----------------------------- 19 31 61 Yes---- 18 30 60 Yes
July 27 (3d Union written de- 19 32 59 Yes_--- 18 ,31 55 Yes
mand). -
a Includes all iank-and-file pharmacists, supervisory pharmacists, and supervisory nonpharmacists in
Respondents' employ on Apiil 29 and May 4, 1965. Does not include nonsupervisory nonpharmacist person-
nel. Does not include "pharmacist interne" Cycler-Zaugg.
I e , number merely for counting purposes herein
(Oregon) Store designation changed to No. 40 later in 1965.
d Also assigned to stores 7 and 15.
(Bowling Green) Store designation changed to No 20 later in 1965.
+ (Sylvania) Store designation changed to No. 30 later in 1965.
g Does not include Nupp, rank-and-file pharmacist union member discriminatorily discharged by Respond-
ent on April 28 from employment in store 18 (Sylvania). If Nupp is included, totals in columns 1, 3A, and
3B should be mcieased by 1.
n It is observed that intheir representation petition fried with the Board on May 12 (General Counsel's
Exhibit 2A), Respondents themselves claimed only "Approx. 25" employees in the appropriate unit, as
distinguished from their current claim of a far higher number including managers, assistant managers, and
others referred to above who I agree should be excluded as they apparently originally were even in Respond-
ents' thinking
Add. Hildebrand, as of May 15. Exclude: Duda (hired May 10; not "professional"), Mapes (hued May
10, Fostoiia store), and Konczal (hired May 17, Fostoria store) There is indication (cross-examination of
Nupp, transcript pp. 659-660) that Tyson and Cousino were separated from Respondents' employ around
June 1. Assuming this is true, the figui es shown above for July 27 should be revised to 17, 30, and 57 percent
including Nupp, and 16, 29, and 55 percent excluding Nupp, still a clear majoiity.
It will be seen from Table 2 that-including Nupp, who is clearly required to be
counted therein 42-the Union represented a majority of the professional pharmacists
of the Lane drug chain on April 29 (as well as on the subsequent union demand
dates). In arriving at this calculation, I find upon the basis of the record presented
that the Lane drugstore managers and assistant managers (shown on Table 2) are
not properly includable in the bargaining unit for either of two reasons-either be-
cause (as indicated on Table 2) some are not professional pharmacists or because
(where they are professional pharmacists) they are supervisors within the meaning
of the Act 43 I further find that Chief Pharmacist Searle is not includable in the
43 Obviously Respondents cannot through their own act of discharging an employee in
violation of the Act disestablish a union majority. Medo Photo Supply Corporation v.
N.L.R.B., 321 U.S 678, 687 ; N.L.R.B. v. Hunter Engineering Company, 215 F 2d 916, 921
(C.A. 8) ; N.L R.B. v. Earl Sclera d/b/a Ssfers Candy Company, 171 F 2d 63, 66 (C.A 10)
N.L.R.B. v. Cape County Melling Company, 140 F 2d 543, 546 (C.A. 8)
4a Substantial credible evidence establishes that the store managers and assistant man-
agers, among other things, carry out personnel and other policies received from top
management of the chain ; generally supervise store personnel (including pharmacists)
regarding punctuality of reporting for work and attendance, granting time off, and gen-
eral job performance and its many details ; assign and reassign store personnel (including
pharmacists) to store duties, tasks, and counters, and otherwise responsibly direct store
employees in the performance of their responsibilities, telling then what to do and the
store employees carrying out such orders ; receive and deal with complaints of customers
regarding store personnel (including pharmacists) , receive complaints from store employ-
ees regarding work of other store employees (including pharmacists), so as to take cor-
rective personnel actions ; approve sales refunds to customers and also customers' checks
for cashing ; take certain corrective personnel actions (including reprimands) based upon
LANE DRUG CO. 1171
appropriate unit, also because be is a managerial or supervisory employee." I find
that Cycler-Zaugg is not includable because not "professional" within the definition
infractions by store employees (including pharmacists) of company personnel policies
and practices or for disobedience to store managers ' requirements ; effectively recommend
other personnel actions regarding store employees (including pharmacists), specifically
dischaige, and report to top management iegarding store employees' (including pharma-
cists') union or other organizational activities. In sum, in the interest of the Employer,
they are in charge of and supervise the store operations and manage and "run" the store,
and in the course thereof exercise their independent judgment in responsibly directing the
employees therein, for practical purposes pro tanto much as an individual owner would.
As Sylvania Store Manager Clark expressed it, his duties were "to see that the store is run
properly, see that it is-that you have proper help at all times and to see that all the
clerks are harmonious, working together, they all do their fair share of the work .. . .
I am responsible for the store . . . . I have to see that the store is taken care of,"
expressly agreeing that this "definitely" included "things in the managerial realm," with
regard to pharmacists (outside of technical prescription filling, since Clark is not a phar-
macist manager) as well as other employees in the store. And, as Manager Clark testified,
and Assistant Store Manager Flowers (as well as former Assistant Store Manager Rettig)
agreed, when the store manager is not on duty (about half the time, since he takes one
shift and the assistant store manager the other) the assistant store manager is the man
in charge of the store and its personnel, including pharmacists as indicated. In addition
to the foregoing, it is observed that in the pleadings Respondents admitted two specified
assistant store managers to be supervisors within the meaning of Section 2(11) of the
Act. The record establishes that, aside from the fact that some store managers and
assistant store managers are pharmacists and some are not pharmacists, the supervisory
responsibilities of store manageis and assistant store managers do not vary significantly
from store to store. Moreover, Respondents in Board Case S-RM-102 (1954), officially
noticed for this purpose, expressly stipulated ("Stipulation for Certification upon Consent
Election," executed by Respondent's Vice President Kaye) that their store managers and
assistant managers were "Supervisor, a, defined in the Act." See. Act, Sec. 2(11) , East-
ern Greyhound Linea v. N.L.R.B, 337 F 2d 84 (C.A 6) : Ohio Power Company v. N.L.R B.,
176 F.2d 385 (C.A. 6), cert. denied 338 U.S. 899, The Bailey Department Stores Co , 120
NLRB 1239, 1242 ; Manson News Agency, Inc , 93 NLRB 1123 ; Royal Tallow & Soap Co.,
Inc., 78 NLRB 834; as to assistant store managers, who as above noted for substantial
periods of time function as store managers in the latters' absence (for an entire shift),
substituting for them in all ways with full authority, ACF-Wrigley Stores, Inc., 124
NLRB 200, 202.
44 Searle, a highly expert testimonial equivocator, is chief pharmacist of the Lane drug-
store chain. He appears to have deliberately misstated the fact a number of times in
denying in his direct examination that he has or ever had any title other than plain
"pharmacist." On cross-examination, he was confronted with a document (General Coun-
sel's Exhibit 14) on Respondents' letterhead concedly posted on a plaque in each of the
Lane drugstores
THE LANE DRUG COMPANY
4444 Detroit Ave.
Toledo 12, Ohio
TO OUR PHARMACISTS
Whenever you fill a prescription-
REMEMBER
A LIFE IS AT STAKE
1) Each prescription should be filled with the same care as you would fill it for
your mother, child or yourself.
2) Never fill a prescription with any product other than the one prescribed by the
Doctor. You are under oath not to substitute.
3) Check and recheck to be sure you dispense the exact product specified by the
Doctor. Do same on directions. Phone Doctor in case you question ingredient or
directions.
4) Review your shelf stock once each week, to be sure you have only fresh, full
strength medicines on your shelves.
5) Prescriptions should be priced according to our low pricing schedule. Never charge
more than these prices.
TPS : L (S) Thomas P. Searle,
THOMAS P. SEARLE,
Chief Pharmacist
Confronted with this document, Searle's "explanation" for it was that be was familiar
with it and had personally signed each copy distributed to each store 2 or 3 years ago,
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act.45 I find that Waldman should not be included because he is at best a sea-
sonal casual type of employee who is not fairly regardable under the circumstances of
his particular case as having sufficient community of bargaining interests with regular
full-time or regular part-time professional pharmacists to justify equal bargaining
power.46 (Were this otherwise, supernumerary, transient casuals of this type could
even by design, wholly offset the legitimate bargaining aspirations of a regular full-
time workforce.) I further find that Cunningham is not appropriately includable in
the unit because he is a social security retiree, not interested in earning over about
$1,200 yearly in any event, with insufficient community of interest with the regularly
employed pharmacists 47 and additionally because he retired to Florida in 1962
(following summer employment only from 1957-61) and has not worked for
Respondents at all since 1961 until temporarily at the time of the pharmacists'
May 14, 1965, strike. I also find that Segan and Doder are not properly includable
in the barganing unit because they have not worked for Respondents for years, are
substantially disabled, without reasonable expectation that they will be able to
but that it was not he who was the author of It, but "probably" Lane Presi-
dent Amster. Even aside from this letter responsibly directing the operations of all
pharmacists In all of the stores comprising the Lane chain, the evidence shows Searle's
status to be managerial and supervisory. Searle conceded that prior to the May 1965
pharmacists' strike be had at no time worked as a pharmacist in any of the Lane stores
for 6 or 7 years, and then only for "about one day," and that although he used to relieve
one morning a week In one of the stores, lie had not clone this in the past 10 or 12 years
The evidence further shows that for practical purposes In his independent judgment and
sole discretion he reviews and determines appropriate drug merchandise levels of supply
In each of the stores comprising the chain , as well as in the chain ' s central drug ware-
housing facility supplying the chain, and their sources of manufacture and supply ; that
he responsibly and independently, and for practical purposes finally, consolidates drug
requisitions from all pharmacists and procures them on the basis of purchase orders which
he unrestrictedly executes on behalf of the chain, pledging Respondents' credit for that
purpose; that he sees to it that proper delivery of such drugs is made to the requisitioning
stores of the chain ; that he makes regular inspection rounds to the drugstores of the
chain, reviewing the drug situation there with the rank-and-file pharmacists, and mak-
ing such decisions as he deems to be proper in the interest of his Employer ; and
that he works directly under the top management officials of the chain. Undoubtedly he
exercises a high degree of independent judgment , of a managerial or supervisory nature
in the interest of his Employer , in determining in his ultimate discretion such matters as
the proper levels of supply of drugs to be maintained by the rank-and-file pharmacists in
each of the stores, their most economical and otherwise appropriate sources of supply in
the interest of his Employer, and the general mode and manner of the prescription-filling
practices, techniques, and other pharmaceutical operations of the rank-and-file pharma-
cists in the entire chain as expressly set forth in the aforequoted posted directions in each
Lane drugstore over his signature as chief pharmacist. He is excludable as managerial,
furthermore, because Invested with broad general and for practical purposes independent,
discretionary, and unreviewed power to commit Respondents' credit In the procurement of
drugs for the entire chain . Brotherhood of Locomotive Firemen and Engmemen , 145 NLRB
1521; Norman Weaver, et al. d/ b/a Weaver Motors, 123 NLRB 209, 216
45 I e , concededly neither licensed nor a graduate of an accredited school of pharmacy,
nor having completed a course of instruction therein. Act , Sec. 2 ( 12) ; Haag Drug Com-
pany, Incorporated , 146 NLRB 798, 800.
Se Waldman Is a miniature golf course and amusement rides owner -operator who has
worked odd hours on no set pattern for Respondents as a pharmacist , during the cold
season when his miniature golf course and amusement rides business is closed . Apparently
his availability to Respondents' call for temporary fill-in work is conditioned upon the
vagaries of the season and the demands of his own business . His timecards indicate him
to be a sort of supernumerary, sporadic, casual, or irregular-hourly, fill-in type of employee
(it would seem of a "substitute" nature) at Respondents' call subject to his own avail-
ability and pleasure while his regular seasonal business was closed. Under these particular
circumstances , it would seem that he cannot be regarded as sharing a realistic condo-
minium of bargaining interest with the unit employees here. Cf . Ely & Walker, 151 NLRB
636. Even, however, were he to be considered a part of the unit, the Union would still
have commanded a majority on and after May 4, the date of its second written bargaining
request ( although, in such event, not prior thereto ), rendering his status to that extent
academic.
47 The Horn & Hardart Company, 147 NLRB 654 , 659; Taunton Supply Corp., 137
NLRB 221, 222-223.
LANE DRUG CO. 1173
resume employment as professional pharmacists with Respondents, because Re-
spondents themselves in June appear not to have considered them as such employees,
and because under the circumstances they have no community of bargaining
interest with the unit pharmacists actually employed and it would be unfair to ac-
cord them equivalent bargaining status.48 Respondents' current insistence upon in-
cluding all of these individuals in the proposed unit appears to be contrived and
artificial.
I find as shown in detail in Tables 1 and 2, that on April 29 and 30 and May 4
and 7, 1965, the Union was the duly designated bargaining representative of a major-
ity of a unit of Respondents' pharmacist employees appropriate for bargaining
purposes.
3. Refusal to recognize or bargain with Union
As has been found, at the time of its first bargaining request on April 29 the
Union had, and thereafter including the times of its subsequent bargaining requests
continued to have, duly signed representation authorization cards from a majority of
Respondents' pharmacists in a unit appropriate for collective-bargaining purposes.
Under these circumstances, Respondents' conceded refusal at those and all other
times to recognize, meet, or bargain with the Union was in violation of Section
8(a)(3) of the Act, unless justifiable. As to this aspect of the case, Respondents
offer no justification other than that they allegedly "doubted" the union majority, in
part because of their "doubt" as to the unit or its appropriateness. I find no basis
for doubt, and that Respondents did not in fact have any doubt-as witness their
own designation of the same unit in their petition for an election (General Counsel
Exhibit 2A)-as to the unit intended by the Union; and I have already found the
unit to be appropriate 49 There thus remains as the sole basis for Respondents'
alleged "doubt" of the Union's representative status, Respondents' alleged supposi-
tion that the Union did not in fact represent a majority of the unit employees. Had
this in fact been true, or if Respondents had a valid basis for entertaining good-faith
doubt as to whether the Union actually held the authorizations which it claimed to
hold from Respondents' employees, Respondents would not have been under obliga-
tion to recognize or bargain with the Union.50 But a good-faith doubt is a doubt
founded in fact or grounded reason, as distinguished from the alleged doubter's mere
self-serving ipse dixit. In this case, no basis for doubt on Respondents' part that the
Union held the representation authorizations it professed to hold, has been shown.
At no time did Respondents in any way seek to ascertain the facts in this regard,
and the Union's express offer to establish its representation status through the good
offices of the Toledo Labor Management Citizen Committee (General Counsel Ex-
hibit 6) was spurned.51 Furthermore, if Respondents had any lingering suspicion about
whether their pharmacists were behind the Union which claimed to represent them,
such an alleged suspicion should have been thoroughly dispelled when Respondents
saw 16 of their pharmacists out on strike for 2 weeks, picketing their stores 52 More-
over, Respondents' consistent, continued, and deliberate conduct from the moment of
"The Horn & Hardart Company, supra, 659-660; Sullivan Surplus Sales, Inc., 152
NLRB 132.
"Indeed, it has been held that even good-faith doubt as to appropriateness of unit
is not a justification for refusal to bargain if in fact the unit was appropriate. N.L.R B.
v. Primrose Super Market of Salem, Inc., 353 F.2d 675 (C.A. 1) ; Florence Printing Co. v.
N.LR.B., 333 F.2d 289, 291 (C.A. 4) ; Oklahoma Sheraton Corporation, 156 NLRB 681,
footnote 1, 61 LRRM 11-15; Quality Limestone Products, Inc., 153 NLRB 1009.
6°N.L.R.B. v. Wheeling Pipe Line, Inc., 229 F.2d 391, 393 (C.A. 8).
51 It can only be concluded that Respondent-intent on avoiding any dealings with the
Union-"deliberately shut its eyes to the facts." N L.R.B v. Philamon Laboratories, Inc,
298 F.2d 176, 180 (C.A. 2), cert. denied 370 U.S. 919 See also : N.L.R.B. v. Bales-Coleman
Lumber Co„ 98 F.2d 16, 22 (C A. 9) ; N L.R.B. v. Remington Rand, Inc., 94 F.2d 862,
868-869 (C.A 2), cert. denied 304 U.S. 576, rehearing denied 304 U.S 585 It might
also be said that Respondents' extensive unfair labor practices and unilateral bargain-
ing invitations to their employees while professing "doubt" that the Union controlled a
majority, may be inconsistent with any current contention of inappropriateness of unit.
Cf. N.L.R.B. v. Philamon Laboratories, Inc., supra.
52 Cf. N.L R B. v. William Shurett d/b/a Greyhound Terminal, 314 F.2d 43, 44 (C.A.
5) ; N.L R B. v Preston Feed Corp., 309 F.2d 346, 350-351 (C.A. 4) ; Florence Printing
Co., 145 NLRB 141, enfd. 333 F.2d 289 (C.A. 4) ; Cumberland Shoe Corporation, 144
NLRB 1268, enfd. 351 F.2d 917 (C A. 6).
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the first union bargaining request (as well, indeed, as prior thereto) is inconsistent
with the conduct of a person who doubts a Union's representative status; rather,
because of their anquished attempts to talk their employees out of exercising their
congressionally guaranteed right to bargain collectively through the Union, it is in-
dicative of a belief that the Union does indeed possess representative status, and of
an intention to dissipate and overcome that status.53
Respondents insist they were entitled as a matter of right to an election to estab-
lish the Union's representative status before they were obliged to recognize or bar-
gain with it. This is by no means true, particularly in a context of broad-spectrum
unfair labor practices and widespread, continuing violations of the Act by the Em-
ployer, as herein. ". . `there is no absolute right vested in an employer to demand
an election."' N.L.R.B. v. Decker, 296 F.2d 338, 341 (C.A. 8). Beyond doubt, an
employer who engages in widespread violations of the Act designed to overcome a
union's representative status, as herein, while refusing to recognize or bargain with
the union because of a professed "doubt" of its representative status, violates Sec-
tion 8(a) (5) of the, Act.54 Congress has not seen fit in the statute 55 to condition the
obligation to bargain upon prior certification through an election. United Mine
Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 69, 72, footnote 8,
75, rehearing denied 351 U.S. 975.
It is too late, in light of the decleared wisdom found in the National Labor
Relations Act, for an employer to drift into an eddy, as Decker does, and now
make the contention that he has no duty to bargain with a particular Union
until it has been certified by the Board, after an election. Under the N.L.R.B.,
"An employer is under a duty to bargain as soon as the union representative
presents convincing evidence of majority support." (Decker, supra, 341.)
As already indicated, not only did Respondents here have no good-faith doubt, but
in spurning the Union's offer to submit its proof of its representative status to the
conventional disinterested cross-check of cards suggested by the Union, "the Com-
pany made no attempt to learn the facts and `deliberately shut its eyes to the facts
and assiduously avoided giving the union any real opportunity to substan-
tiate its claims." ' (N.L.R.B. v. Economy Food Center, Inc., supra, 472.) "Where, as
in this case, the union had proof of its majority status readily available and respond-
ent chose not to learn the facts, it `took the chance of what they might be.'
N.L.R.B. v. Remington Rand, Inc., 94 F.2d 862, 869 (2d Cir.), cert. denied 304
U.S. 576, 585 . .; N.L.R.B. v. Dahlstrom Metallic Door Co, 112 F.2d 756 (2d
Cir. 1940)." (N.L.R.B. v. Elliott-Williams Co., 345 F.2d 460 (C.A. 7).) As in Econ-
omy Food Center, supra, where respondent explained its position by saying "We just
felt we had a real loyal organization, and they were all happy" (id. at 472), here
Respondents expressed comparable alleged surprise and chagrin at what they charac-
terized as unwarranted and disloyal action by their employees against them.
As said in N.L.R.B. v. Philamon Laboratories, Inc., 298 F.2d 176, 179
(C.A. 2), cert. denied, 370 U.S. 919: "The act imposes a duty to bargain in
good faith upon request whenever a labor organization has been designated
by a majority of employees in an appiopriate bargaining unit. The employer
must recognize and bargain with such an organization whether or not it has
been certified by the Labor Board. United Mine Workers of America v.
Arkansas Oak Flooring Co., 351 U.S. 62, . . . N.L.R.B. v Sumrse Lumber &
Trim Corp., 241 F.2d 620 (2 Cir., 1957), cert. denied 355 U.S. 818. . . . To be
sure, an employer laboring under a good faith doubt as to a union's majority
status need not extend recognition. Nevertheless, in the absence of such a
doubt, the employer has no vested right to an election. N.L.R.B. v. Trim fit of
California, 211 F.2d 206 (9 Cir., 1954)." (N.L.R.B. v. Winn-Dixie Stores,
Inc., 341 F.2d 750, 755 (C.A. 6), cert. denied 380 U.S. 830.)
And, also as already indicated, if further corroboration is needed as to the
absence of the good-faith doubt of the Union's status which Respondents profess
ca Joy Salk Hills, Inc v. N.L.R B , 185 F 2d 732 (C.A D C ), cert. denied 341 U S 914.
54 N.L R B. v. Economy Food Center, Inc . 333 F 2d 468, 471-472 (C A 7) , Fred Snow,
et at. d/ b/a Snow & Sons , 134 NLRB 709, enfd. 308 F.2d 687 (C.A. 9) ; N L R.B. v.
Overnste Transportation Co., 308 F 2d 279, 283 (C.A. 4) ; N.L.R.B v. Philamon Labora-
tories, Inc., supra, 179, cert. denied 370 U S. 919; N.L R B v. Loren A Decker d/b/a
Decker Truck Lines, 296 F.2d 338, 341-342 (C A. 8) ; N.L R.B. v. Wheeling Pape Line,
supra, 392-393; Joy Silk Hills, Inc. v. N.L R.B, supra, 741.
55 Section 8(a) (5) ; cf. Section 2(4), defining "representatives."
LANE DRUG CO. 1175
to have entertained, it may be found in their extensive course of unfair labor
practices, as described and found above, carried on by them contemporaneously
with such "doubt" on their part.
the evidence unmistakably demonstrates that the company gave some
credit to the union's claims, for Terminal Manager Gregg and General Man-
ager Price began their course of unlawful interrogations and speeches immedi-
ately upon receiving the union's March 25 telegram and March 27 letter,
requesting recognition and bargaining. This course of conduct is an absolute
refutation of any good faith doubt on the part of the company. (N.L.R.B. v.
Overnite Tiansportation Company, 308 F 2d 279, 283 (C.A. 4).) 56
Respondents' strong indications-such as in their President Amster's letter of
May 28 (the day the picketing by pharmacists ended) to all pharmacists (General
Counsel Exhibit 13)-to its pharmacists that Respondents desired to bargain with
them individually instead of collectively, further show the true cast of Respondents'
thinking to be that in refusing to recognize, meet, or bargain with the Union,
Respondents were not motivated by doubt as to the Union's representative status
but rather by unwillingness to deal with a union even if it did in fact represent
its pharmacists.57 As the court stated recently in N.L.R B. v. Cumberland Shoe
Corp., supra, 921. "In cases such as this, where the employer's unfair labor prac-
tices are clearly established, both before and after the demand for bargaining, the
good faith of his doubts of the union majority may properly be regarded with some
suspicion ." See also, N.L.R.B. v. Philanon Laboratories, Inc, supra, 180.
Upon the entire record, it is found and concluded that on April 29, 1965, and
thereafter at all times when Respondents refused to recognize or bargain with the
Union as the authorized collective-bargaining representative of a majority of
Respondents' pharmacists in a unit appropriate for that purpose, Respondents did
not have a good-faith doubt as to the representative status and authority of the
Union, nor any valid basis for such doubt, and did not express any such good-faith
doubt nor valid basis therefor.
4. Attempt to dissipate union majority; bypass of Union to avoid
collective bargaining
It is entirely clear from events which have already been described and findings
made based thereon, that for practical purposes Respondents' almost every action
vis-a-vis its pharmacists' union organizational activities was geared to avoidance of
collective bargaining, "encouragement" of individual "bargaining," bypass of the
Union as collective-bargaining representative, and dissipation of the Union's major-
ity representative status. I am thoroughly persuaded upon careful consideration of
the record as a whole that this was the case here, and I so find. There is no longer
51 Accord : N L.R B. v. Mid-West Towel and Linen Service, Inc., 339 F 2d 958 (C.A. 7) ;
Florence Printing Co v. N L R B , supra, 291-292, N L R. B. v. Philamon Laboratories,
Inc, supra; N L.R.B. v. Trimfit of California, Iiic, 211 F.2d 206 (CA 9) ; Joy Silk
Mills. Inc. v. N.L.R B , supra, Maphis Chapman Corporation, 151 NLRB 73; Lone Star
Company, 149 NLRB 688; Marrwello Fabrics, Inc, 149 NLRB 333; Jas H Matthews &
Co , 149 NLRB 161, Dazzo Products, Inc, 149 NLRB 182; P.B & S Chemical Company,
148 NLRB 152.
57 Insinuations attempted to be injected by Respondents at the hearing as to the validity
of the designations flowing from the cards themselves are likewise rejected. Aside from
the resounding confirmation afforded by the wholesale strike and picketing by its pharma-
cists, the valid execution of the cards having been established by General Counsel, their
utilization by the designated bargaining agent for their presumed purpose flows there-
from. N.L R B v. Sunshine Mining Co , 110 F 2d 780, 790 (C A. 9), cert. denied 312 U S.
678. Respondents failed to show that even a single one of the cards was invalidly signed,
executed, or delivered for any purpose other than that plainly indicated thereon. The clear
wording of the union cards here-omitting even any mention of use of the card for, or
only for, election purposes-renders unnecessary any Inquiry into possible legal conse-
quences attendant upon the ambiguity or ambivalent purpose sometimes encountered in
such cards, as in N L R B. v. Peterson Brothers, Inc , 342 F.2d 221 (CA. 5) See : Burger,
J., concurring, in International Union of Electrical Workers (S N.C. Mfg Co ) v N L R B ,
352 F.2d 361 (C.A D.C.) , N L.R B v. Mid-West Towel and Linen Service, Inc., supra, 963;
N.L R B. v. Stow Manufacturing Co, 217 F.2d 900, 902 (C.A. 2), cert denied 348 U.S.
964; Cumberland Sloe Corporation, supra; Gorbea, Perez if Morell, S. en C., 133 NLRB
362, 370, enfd. as modified 300 F.2d 886, 887 (C A. 1).
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any question that such actions are in violation of the Act. Joy Silk Mills, Inc. v.
N.L.R.B. supra; N.L.R.B. v. Philamon Laboratories, Inc., supra; Florence Printing
Co. v. N.L.R.B., supra.
I find that Respondents attempted to and encouraged their pharmacist employ-
ees, while knowing them to be represented by the Union for collective-bargaining
purposes, to bypass the Union and deal individually with Respondents relative to
wages, hours, and other terms and conditions of employment; coercively attempted
to induce their pharmacist employees to withdraw their support from the Union,
and to deal individually with Respondents; and that Respondents' failure and refusal
to bargain with the Union at any and all times on and after April 29, 1965 was
not based upon good faith doubt that the Union represented a majority of its
pharmacist employees in an appropriate bargaining unit, but was motivated by
rejection of the collective-bargaining principle and a desire to gain time to under-
mine the Union and dissipate its majority status; all in violation of Section 8(a)(5)
and (1) of the Act 58
Upon the foregoing findings and the entire record, I state the following:
CONCLUSIONS OF LAW
1. Lane Drug Co., Division of A. C. Israel Commodity Corporation; Lane's of
Sylvania, Inc.; Lane's of Bowling Green, Inc.; and Lane's of Oregon, Inc., are
affiliated businesses and a single employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Retail Store Employees Union Local 954, Retail Clerks International Associa-
tion, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the
Act.
3. Assertion of jurisdiction in this case is proper.
4. By the conduct set forth in section II which has been found to constitute
unfair labor practices, Respondents have interfered with, restrained, and coerced
their employees in the exercise of rights guaranteed to them by Section 7 of the
Act, and have thereby engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a)( I) of the Act.
5. By their April 28, 1965, discharge of, and their failure and refusal at all times
since then to reinstate, their employee William P. Nupp, under the circumstances
set forth in section II, supra, because of his union and other organizational leader-
ship, activities, and affiliation for collective-bargaining purposes and other mutual
aid and protection, Respondents have discriminated and are continuing to dis-
criminate in regard to the hire, tenure, and terms and conditions of employment of
their employees, in violation of Section 8(a)(3) and (1) of the Act; and have
been and are interfering with, restraining, and coercing their employees in the
exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1)
of the Act.
6. All pharmacists employed by Respondents at their stores located in Greater
Toledo (including Toledo, Sylvania, Oregon, and Maumee) and in Bowling Green,
Ohio, excluding all other employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for collective bargaining purposes within the meaning
of Section 9(b) of the Act.
7. By failing and refusing to recognize and bargain with the Union, as the duly
designated exclusive collective-bargaining representative of a majority of their
pharmacist employees in a unit appropriate for that purpose within the meaning
of Section 9(b) of the Act, Respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8(a)(5) and (1) of the Act.
8. By their actions inducing employees to deal individually with Respondents in
bypass of the Union and derogation of its status as Respondents' pharmacist
ss See : N.L.R.B. v. Crompton-Highland Mills, Inc, 337 U.S. 217, 218, 219, 234; N L R.B.
v. Exchange Parts Co., 339 F.2d 829, 831 (C.A. 5) ; N.L.R B. v. Economy Food Center,
Inc., supra, 471-472 (CA. 7) , N.L.R.B. v. Daniel Crean, at at . d/b/a The Grand Food
Market, 326 F.2d 391, 396 (C.A. 7) , N.L R.B v. Overnite Transportation Co., supra;
N L R B. v. Philamon Laboratories, Inc, supra, 179-180; N L R B v. Decker, supra, 341-
342; N L.R.B. v. Irving Tastel, at at d/b /a Tastel & Son, 261 F 2d 1, 5 (C A. 7), cert.
denied 359 U.S. 944; N L.R.B. v. Armco Drainage & Metal Products, Inc, 220 F 2d 573,
577 (CA. 6), cert. denied 350 U S. 838; N.L.R.B. v. Stow Manufacturing Co., supra,
904-905; N.L.R B. v. Model Mill Company, Inc, 210 F 2d 829, 830 (C.A. 6) ; N.L R B. v.
Howell Chevrolet Company, 204 F 2d 79, 86 (C.A. 9), affil. 346 U.S. 482, Joy Silk Mills,
Inc. v. N L.R.B., supra, 741 ; Boot-Ster Manufacturing Company, Inc., 149 NLRB 933.
LANE DRUG CO. 1177
employees ' duly designated exclusive bargaining representative , Respondents have
engaged and are engaging in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
9. Respondents have committed the acts herein found to constitute unfair labor
practices in order to undermine the Union and destroy its majority, and in rejec-
tion of the collective -bargaining principle , and have thereby engaged in and are engag-
ing in unfair labor practices within the meaning of Section 8(a)(1) and (5) of
the Act.
10. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
11. The evidence fails to establish that Respondents threatened their pharmacist
employees with discharge or reduced hours in reprisal for union affiliation or
activities.
12. The evidence fails to establish the alleged "Second Defense" set forth in
Respondents' amended answers.59
THE REMEDY
I shall recommend the customary cease -and-desist order and the affirmative
relief conventionally ordered in cases of this nature involving interference, re-
straint, coercion , discriminatory discharge and refusal to reinstate , and failure to
recognize and bargain collectively. My Recommended Order will include a pro-
vision requiring Respondents upon request to bargain collectively with the major-
ity representative of their pharmacist employees . Having found that Respondents
have discriminatorily discharged , and have failed and refused to reinstate an
employee , I shall recommend that Respondents be required to offer the employee
thus discriminated against immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights
and privileges , and to make him whole for any loss of earnings he may have suf-
fered by reason thereof, by payment to him of a sum of money equal to that
which he normally would have earned as wages and other payments , bonuses,
emoluments, and benefits from the date of such unlawful discharge to the date of
Respondents ' offer to reinstate him, together with interest thereon , less his net
earnings if any during such period , backpay and interest to be computed in the
manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716; and that Respondents be re-
quired to make available necessary records for computation of backpay . Appro-
priate provision will be made in the Recommended Order and posted notice to
Employees , for the notification of the discriminatorily discharged employee if he
is now in the Armed Forces of the United States , of his right to full reinstatement
upon application after discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training and Service Act, as
amended.
Because of the nature and extent of the unfair labor practices engaged in by
Respondents , indicative of an attitude of hostility and continued opposition to
basic principles of the Act and the exercise of employee rights guaranteed by the
Act, I deem it necessary to recommend that Respondents be required to cease and
desist from infringing in any manner upon the rights of employees guaranteed in
Section 7 of the Act.
I shall further recommend that Respondents be required to post an appropriate
notice.
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record , and pursuant to Section 10(c) of the Act, I hereby make
the following:
RECOMMENDED ORDER
° Lane Drug Co., Division of A. C. Israel Commodity Corporation; Lane's of
Sylvania, Inc.; Lane's of Bowling Green , Inc.; and Lane 's of Oregon , Inc.; and
their respective officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating any employee coercively with regard to his or any other
employee's union or other lawful organizational protected concerted activities,
desires, or sympathies.
sa No proof was adduced in support of this affirmative defense ( that the Union was in
competition with Respondents ), which was apparently abandoned by Respondents, and
which must in any event fail for lack of proof.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Directly or indirectly soliciting any employee to conduct surveillance and
report to Respondents upon the union or other legal organizational protected con-
certed activity, membership, affiliation, support, or sympathy of any other employee.
(c) Directly or indirectly promising, granting, or holding out to any employee
any benefit or thing of value to induce him or other employees to refrain or with-
draw from union or other lawful organizational membership, affiliation, sympathy,
support, assistance, or activity; or to deal with Respondents individually instead of
bargaining collectively.
(d) Directly or indirectly threatening any employee with any economic detri-
ment, loss, disadvantage, reprisal, or retaliation, because of union or other lawful
organizational membership, affiliation, sympathy, support, assistance, or activity.
(e) Directly or indirectly interfering with, restraining, or coercing any employee
in the exercise of his right to designate and bargain collectively through any labor
organization of his choice.
(f) Dealing directly or indirectly with any employee concerning terms or con-
ditions of employment in such a manner as to bypass or derogate from the repre-
sentative status of the employees' exclusive collective-bargaining representative, or
with an object of discouraging employees' union affiliation or activities or right of
self-organization.
(g) Directly or indirectly threatening to refuse to bargain, or to refrain from
bargaining, in good faith with any duly designated collective-bargaining representa-
tive of its employees.
(h) Discouraging membership in and lawful activities on behalf of Retail Store
Employees Union Local 954, Retail Clerks International Association, AFL-CIO,
or any other labor organization of their employees, by discharging, laying off,
suspending , or failing or refusing to reinstate or rehire , or by threatening to do so,
any employee, in violation of the Act, or by otherwise discriminating or threaten-
ing to discriminate against any employee in regard to hire or tenure of employ-
ment or any term or condition of employment.
(i) Refusing to bargain collectively with Retail Store Employees Union Local
954, Retail Clerks International Association, AFL-CIO, as the exclusive bargaining
representative of their employees in the following appropriate unit:
All pharmacists employed at the Employer's stores located in Greater Toledo
(including Toledo, Sylvania, Oregon, and Maumee) and in Bowling Green,
Ohio, excluding all other employees, guards, and supervisors as defined in
the Act.
(j) In any other manner interfering with, restraining, or coercing, any
employee in the exercise of his right to self-organization, to form, join, or assist
any labor organization; to bargain collectively through representatives of his own
choosing ; to engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection; or to refrain from any and all such activities,
except to the extent that such rights may be affected by an agreement requiring
membership in a labor organization as authorized in Section 8(a)(3) of the Act
as modified by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative actions necessary to effectuate the policies of
the Act:
(a) Offer William P. Nupp immediate, full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of nay, in the manner set forth in
"The Remedy" section of this Decision. In the event Nupp is presently serving in
the Armed Forces of the United States notify him of his right to full reinstate-
ment upon application in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act, as amended, after discharge from the
Armed Forces.
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records necessary to analyze
the amount of backpay due under the terms of this Decision.
(c) Upon request, bargain collectively with Retail Store Employees Union Local
954, Retail Clerks International Association, AFL-CIO, as the exclusive bargaining
representative of Respondents' employees in the unit found appropriate with respect
to rates of pay, wages, hours of employment, and other terms and conditions of
employment, and embody in a signed agreement any understanding reached.
LANE DRUG CO. 1179
(d) Post in each of their drug stores in Greater Toledo (including Toledo, Syl-
vania, Oregon, and Maumee ) and in Bowling Green , Ohio, copies of the attached
notice marked "Appendix B." 60 Copies of said notice, to be furnished by the
Regional Director for Region 8, after being duly signed by Respondents' authorized
representatives, shall be posted by Respondents immediately upon receipt thereof,
and be maintained by them for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20 days from receipt of
this Decision, what steps have been taken to comply therewith.81
I FURTHER RECOMMEND that the complaint be and the same is hereby dismissed
as to all violations alleged but not herein found, and that Respondents' "Second
Defense" contained in their answers be and the same is hereby dismissed.
80 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order is enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
81 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondents have taken to comply herewith."
APPENDIX A
CHRONOLOGY
Date* Event(s)
August 1961_________________ Nupp enters Respondent's employ.
November 1964 --------------- Pharmacist Nupp (assisted by Pharmacists Mol-
nar, Nemetz, and Ritner) commences contact-
ing other Lane pharmacists, with a view toward
organizing them for collective bargaining.
December 22, 1964 (approx.) --- Lane Vice President Kaye interrogates Pharmacist
Nupp re union organizational activities of Lane
pharmacists; urging Nupp to discontinue such
activity and to bargain on an individual basis,
Kaye offers Nupp a manager's job in a new
store.
December 26, 1964 (approx.)--- Lane Vice President Kaye returns to see Phar-
macist Nupp with assurances of economic bene-
fits to Lane pharmacists and additional benefits
to Nupp personally for refraining from union
organizational activity and from attempts to
bargain collectively.
January 1965_________________ Lane Vice President Kaye tells Pharmacist Nupp,
among other things, that he request a salary
increase and a $15,000 personal loan-which
Kaye had suggested previously to Nupp in the
context of urging Nupp to cease his union orga-
nizational activities-from Respondent by writ-
ing to its President Amster in Cleveland.
February (early)______________ At suggestion of Lane Vice President Kaye, Phar-
macist Nupp writes letter requesting $14,000
loan from Respondent.
March 1 (approx.) ------------ Lane Vice President Kaye informs Pharmacist
Nupp that Respondent would lend him only
$4,500 and asks Nupp if the pharmacists are
"happy."
March 15-25 (approx.) -------- Pharmacist Nupp actively resumes organizational
activities among Lane pharmacists.
•1965 unless otherwise specified.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CHRONOLOGY-Continued
Date* Event(s)
March (late)-April ( early )----- Pharmacist Nupp forms organizational committee
of Lane pharmacists , which meets at Lido Lanes
and decides upon union representation.
April 10 (approx.)------------ Lane General Manager Pethke calls Pharmacist
Nupp a "trouble maker," in effect accuses him
of stirring up discontent among Lane phar-
macists, and tells him he cannot have the loan
he was promised or thought he was promised
by Lane Vice President Kaye.
April 13-16 (approx.)--------- Union Representative Leedy is contacted by Phar-
macist Nupp re union representation of Lane
pharmacists.
April 20 or 21 (approx.)------- Pharmacist Nupp, accompanied by Pharmacists
Eisenhauer, Ritner, and 2 or 3 others , confers
with Union Representative Leedy at union
office, re union representation for collective bar-
gaining. Larger organizational meeting of Lane
pharmacists is set for April 28 at Lido or West-
land Bowling Lanes or Alleys.
April 21-28 ------------------ Pharmacist Nupp makes arrangements for mass
meeting of Lane pharmacists at Westland Bowl-
ing Alleys or Lanes, and personally notifies
18-20 Lane pharmacists thereof, including
fellow Pharmacist Newhard of his own store on
the evening of April 27.
April 28 ( a.m.)--------------- 1. Pharmacist Newhard, working at the same
Lane branch drugstore as Pharmacist Nupp,
tells Manager Clark of that store that he has
received an invitation from Pharmacist Nupp
to a union meeting to be held that night.
(9:30 p .m.) ---------------- 2. Respondent discharges Pharmacist Nupp, ef-
fective immediately.
(10 p.m.) ------------------ 3. Union organizational meeting of approximately
20 Lane pharmacists is held at Westland
Bowling Lanes or Alleys, pursuant to arrange-
ment made on or about April 20. 16 union
membership application cards are signed at this
meeting; and Pharmacist Nupp and 2 or 3
others are selected as a committee.
April 29_____________________ Union sends Respondent telegram advising that it
represents a majority of Lane pharmacists in
Greater Toledo and Bowling Green, and desires
to meet to bargain collectively on their behalf.
April 30 ( approx.)------------ Union receives 1 additional union membership
application card from Lane pharmacist , turned
over by Pharmacist Nupp.
April 30-May 7 (approx. )------ Lane pharmacists are interrogated and invited by
Respondent to deal directly with it instead of
through a union.
May 3___ ___________________ Union files charge against Respondent , alleging
violations of NLRB Sec . 8(a)(1), (3) (dis-
charge of Nupp), and (5).
May 4----------------------- 1. Union sends Respondent telegram again de-
manding recognition as bargaining representa-
tive of Lane pharmacists in Toledo and Bowling
Green, and again expressing desire to meet for
collective bargaining ; stating that "As evidence
of our good faith we are willing to prove our
majority through the facilitates of the Toledo
Labor Management Citizen Committee."
2. Director for Region 8 forwards copy of
Union's May 3 charge to Respondent ; received
by Respondent on May 6.
1 1965 unless otherwise specified.
LANE DRUG CO. 1181
CHRONOLOGY-Continued
Date* Event(s)
May 6 or 7------------------- Union organizational meeting of about 20 Lane
pharmacists is held at Lido Lanes; 2 additional
union membership application cards are turned
over to Union by Pharmacist Nupp.
May 12 ---------------------- 1. Respondent's attorney writes Union, in refer-
ence to Union's April 29 and May 4
recognitional-bargaining telegrams, that Com-
pany has "reason to doubt" Union's majority
status and has on this date filed an election
petition with NLRB.
2. Respondent through counsel files representation
petition with NLRB (Case 8-RM-420) based
upon unit consisting of "Approx. 25" em-
ployees, being "All pharmacists employed by
the Employer at its drug stores in Toledo,
Ohio, and vicinity. Excluded "All other employ-
ees and guards and supervisors as defined in the
Act." Petition further alleges that "Request for
recognition as Bargaining Representative was
made on April 29, 1965 and Employer declined
recognition on or about . .
May 13_____________________ Union organizational meeting of about 20-23 Lane
pharmacists is held at union hall. Group votes
unanimously to strike the following morning be-
cause of Respondent's failure to recognize Union
or bargain collectively and because of its dis-
charge of Pharmacist Nupp (leader of the orga-
nizational activity).
May 14-28 (approx.) ---------- Lane pharmacists are out on strike, with 16 of
them picketing about 10 Lane drugstores. Urg-
ing them to return, Respondent attempts to deal
with them individually and to persuade them
not to attempt to bargain through the Union.
May 27_____________________ In presence of Union Representative Leedy,
Union Counsel Kohler makes further demand
on Respondent (through its Vice President
Kaye) for recognition and bargaining. Respond-
ent (through Kaye) refuses, stating merely
"We want an election."
May 28 ---------------------- Lane President Amster writes Lane pharmacists
that ( inter alia ) he "was greatly surprised to
learn that any of our Pharmacists would want
to join the Retail Clerks Union. I never con-
sidered Pharmacists as `retail clerks.' . . . I
also cannot understand how any outsider, such
as a Union organizer who knows nothing about
Pharmacy could discuss your problems or
ours. . . I do not intend to change at this
late date in my life. If people working with
me have problems, they are my problems too-
and as long as I am able to talk to them directly,
instead of through a go-between, I will want to
help them. . . . I will not talk to any Union
organizer or outsiders."
June 1-------------------- --- Respondent through counsel executes and Direc-
tor for Region 8 approves, request withdraw-
ing representation petition, filed by Lane on
May 12 (Case 8-RM-420).
June 11---------------------- Union files amended charge against Respondents,
alleging violations of NLRB Sec. 8 (a)( 1), (3 )
discharge of Nupp), and (5).
June 14_____________________ NLRB 8th Regional Director forwards copy of
Union's June 11 amended charge to Respond-
ents; received by Respondents on June 15.
• 1965 unless otherwise specified.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CHRONOLOGY-Continued
Date* Event(s)
June 17 ---------------------- Director for Region 8 issues complaint and notice
of hearing herein, based upon Union's May 3
charge as ameded June 11; served June 17,
received June 18.
July 13 ---------------------- Respondents file answers to complaint herein.
July 27 ---------------------- Union Counsel Finley writes Respondents' counsel
that Union's recognitional and bargaining re-
quest is still in effect.
August 3--------------------- Respondents file amended answers to complaint
herein.
August 6____________________ Respondent moves before Director for Region 8
for pretrial discovery deposition re affirmative
defense in its amended answer; application
denied by Regional Director on August 9.
August 16-17 ----------------- Respondents move to dismiss complaint on ground
no proper demand for recognition has been
made and that appropriate unit should first be
determined by NLRB in a representation case
hearing; General Counsel cross-moves to amend
and clarify complaint. (At hearing herein, Re-
spondents' motion denied and General Coun-
sel's cross-motion granted.)
August 18 -------------------- Respondents through counsel file representation
petition with NLRB (Case 8-RM-430), based
upon unit consisting of "Approx. 40" employ-
ees, being "all pharmacists employed by the
respective employers [Lane Drug Co., Lane's
of Sylvania, Inc., Lane's of Bowling Green, Inc.,
Lane's of Oregon, Inc., Lane's of Fostoria, Inc.]
in their drug stores and the Lane Drug Com-
pany warehouse in Toledo, Sylvania, Fostoria,
Oregon and Bowling Green, Ohio; and excluded
all other employees and guards and supervisors
as defined in the Act." Petition further alleges
that "Request for recognition as Bargaining
Representative was made for partial unit on
April 29, 1965, and Employer declined recogni-
tion for different unit on or about May 5, 1965,
and for a still different unit on July 27, 1965."
August 24 -------------------- Director for Region 8 dismisses Respond-
ents' representation petition filed on August 18
(Case 8-RM-430), because of (1) pendency
of complaint herein charging Respondents with
refusal to bargain, in violation of NLRA Sec.
8(a)(5) and (2) the fact that "the Union has
not demanded recognition for the employees of
Lane's of Fostoria, Inc." Regional Director
notifies Respondents of right to review of this
action.
*1965 unless otherwise specified.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL offer William P . Nupp immediate and full reinstatement to his
former position , or substantially equivalent position , without prejudice to his
LANE DRUG CO. 1183
seniority or other rights and privileges, with backpay and interest, for any
wages and other payments, bonuses, emoluments, and benefits which he lost
as a result of our discharge of him on April 28, 1965, because of his union
organizational activities, and our failure and refusal to reinstate him.
WE WILL, upon request, bargain collectively in good faith with Retail Store
Employees Union Local 954, Retail Clerks International Association, AFL-
CIO, as the exclusive representative of all employees in the bargaining unit
described below, with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and embody in a signed agree-
ment any understanding reached. The bargaining unit is:
All pharmacists employed at the Employer's stores located in Greater
Toledo (including Toledo, Sylvania, Oregon, and Maumee) and in Bowl-
ing Green, Ohio, excluding all other employees, guards, and supervisors
as defined in the Act.
WE WILL NOT interrogate any employee as to his or any other employee's
union membership, affiliation, desire, sympathy, or activity, so as to interfere
with, restrain, or coerce him or other employees in the exercise of the right
to engage in union membership, affiliation, or activity, or any other right guar-
anteed by the National Labor Relations Act, as amended.
WE WILL NOT directly or indirectly offer, promise, or hold out in expectancy
to any employee, any economic or other benefit or thing of value, to induce
him or other employees to refrain or withdraw from union or other lawful con-
certed organizational activity; or to deal with us individually instead of bar-
gaining collectively.
WE WILL NOT directly or indirectly threaten any employee with economic
or other loss, harm, detriment, retaliation, or reprisal, for exercising his right
to belong to and bargain with us collectively through a union; or for otherwise
exercising any right guaranteed by the National Labor Relations Act, as
amended.
WE WILL NOT directly or indirectly solicit any employee to conduct sur-
veillance or spy and report to us about the union or other lawful organizational
membership, affiliation, sympathy, support, or activity of any other employee.
WE WILL NOT directly or indirectly refuse to bargain, nor shall we refrain
from bargaining, in good faith with Retail Store Employees Union Local 954,
Retail Clerks International Association, AFL-CIO, or any other duly desig-
nated collective-bargaining representative selected by any appropriate unit of
our employees as their collective-bargaining representative.
WE WILL NOT directly or indirectly bypass or attempt to bypass Retail Store
Employees Union Local 954, Retail Clerks International Association, AFL-
CIO, or any other duly designated collective-bargaining representative of our
employees' choice, by dealing or attempting to deal with any employee indi-
vidually instead of bargaining with him collectively.
WE WILL NOT discourage membership in and lawful activities on behalf of
Retail Store Employees Union Local 954, Retail Clerks International Associa-
tion, AFL-CIO, or other labor organization of our employees, by discharging,
laying off, suspending, or failing or refusing to reinstate or rehire, or threaten-
ing to do so, any employee, or by otherwise discriminating or threatening to
discriminate against any employee in regard to hire or tenure of employment
or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce
employees in the exercise of their rights, guaranteed to them by Congress, to
self-organization, to form labor organizations, to join or assist any labor
organization, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection; or to refrain from engaging in any
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or all such activities , except to the extent that such rights may be affected by
a "union shop agreement" (as authorized by Section 8(a)(3) of the Act as
modified by the Labor-Management Reporting and Disclosure Act of 1959).
LANE DRUG Co, DIVISION OF A. C. ISRAEL
COMMODITY CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
LANE'S OF SYLVANIA, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
LANE'S OF BOWLING GREEN, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
LANE'S OF OREGON, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-If the above employee is presently serving in the Armed Forces of the
United States we shall notify him of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621-
4465.
Cleveland Stereotypers ' Union No. 22, International Stereo-
typers' and Electrotypers ' Union of North America, AFL-CIO
and Cleveland Printing Pressmen and Assistants Union, Local
56, AFL-CIO and Western Press Incorporated . Case 8-CD-68.
September 16, 1966
DECISION AND ORDER
On June 13, 1966, Trial Examiner Sidney Sherman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Decision and
a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
160 NLRB No. 87.