Andersen Pharmacy

National Labor Relations Board - Board Decisions

Dec 17, 1970

187 N.L.R.B. 301 (N.L.R.B. 1970)

ANDERSEN PHARMACY 301
Andersen Pharmacy ; ' Bennett's Pharmacy ; Broadway
Drug ; Burlingame Drug Co .; Carlmont Pharmacy;
Collins Pharmacy ; Hansen 's Prescription Pharma-
cy; Key Pharmacy ; Los Prados Pharmacy ; Medical
Arts Pharmacy ; McClard's Drugs of San Mateo;
Peninsula Prescription Pharmacy ; Plank's Pharma-
cy and Retail Clerks Union Local No. 775,2 Retail
Clerks International Association, AFL-CIO, and
California Pharmaceutical Clerks,3 Party to the
Contract.
California Pharmaceutical Clerks and Retail Clerks
Union Local No. 775, Retail Clerks International
Association , AFL-CIO. Cases 20-CA-4942,
5811-1; 20-CA-4943, 5811-2; 20-CA-4944,
5811-3; 20-CA-4945, 5811-4; 20-CA-4946,
5811-5; 20-CA-4947, 5811-6; 20-CA-4948,
5811-8; 20-CA-4949, 5811-9; 20-CA-4950,
5811-10; 20-CA-4951, 5811-12; 20-CA-4952,
5811-11; 20-CA-4953, 5811-13; 20-CA-4954,
5811-14; and 20-CB-2124
December 17, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On August 7, 1970, Trial Examiner David E. Davis
issued his Decision in the above-entitled proceeding,
finding that Respondent Employers and Respondent
Guild had engaged in and were engaging in certain
unfair labor practices and recommending that they
cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General Coun-
sel filed a letter and limited exceptions to the Trial
Examiner's Decision. Respondent Guild filed excep-
tions only. The Charging Party aid Respondent
Employers filed exceptions and supporting briefs, and
the latter also moved to reopen the record.
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.
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 Trial
Examiner's Decision, the exceptions and briefs, the
letter, and the motion, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner, as modified herein.
I Respondent Employers listed in the caption constitute the San Mateo
Pharmacy Owners Association herein called Employers Association
2 Herein called Retail Clerks
S Herein called Guild
4 Midwest Piping & Supply Co, Inc, 63 NLRB 1060
5 City Cab, Inc, 128 NLRB 493
187 NLRB No. 23
The Trial Examiner found on the basis of the
Midwest Piping doctrine,4 and we agree, that by
executing a collective-bargaining agreement with the
Guild on or about May 15, 1968, Respondent
Employers violated Section 8(a)(1) and (2) of the Act.
The latter contend, inter alia, that Midwest Piping is
"inapplicable" and that the Board's decision in City
Cabs requires a finding that the aforesaid conduct
was not unlawful. We find no merit in Respondent
Employers' position for the following reasons:
The Employers Association has on behalf of its
members recognized and bargained with the Guild
since 1954.
On October 4, 1967, Louella Costaglio, president of
the Guild,6 sent a letter to the Employers informing
them that a Guild meeting scheduled for that evening
could not be held "with an attendance of only 5 girls
(not a quorum)." Costaglio also stated that "unless
something is done on your part to bolster interest and
attendance, the Guild is soon going to dissolve."
(Emphasis supplied.)
On October 23, 1967, Michael Aaronson, attorney
for the Guild, sent the Employers a letter together
with that of Costaglio and a summary of the record of
attendance at six Guild meetings held in the period
since February 1967.7 Aaronson wrote in part as
follows:
Unless the interest of the employees can be
dramatically revived, and unless their attitude is
drastically changed in reference to the payment of
dues, and unless the employers themselves are
willing to co-operate more fully in providing
information regarding the names and addresses of
their employees that are or should be members of
the Guild . . . the only [practical] advice that I can
suggest is that the [Guild] . . . take steps to
dissolve.. . .
In the preceding month, William E. Radcliff,
business representative of the Retail Clerks, com-
menced an organizational campaign. By the close of
March 1968, 20 employees had signed authorization
cards for the Retail Clerks.8
On January 17, 1968, Jean Bashaw, an employee at
McClard's Pharmacy, was elected president of the
Guild at a meeting held at the Benjamin Franklin
Hotel in San Mateo. Nelcina Barlow, an employee of
Collins Pharmacy, suggested that a representative of
the Retail Clerks be invited to address the meeting.
6 Costagho is an employee of Medical Arts Pharmacy
r The total attendance for all the meetings was 28 or an average of less
than 5 per meeting
8 Radcliff testified that he was told by "the people in the stores" that
the total number of unit employees therein was "between 35 and 40."
Lawrence L Plagman , owner of the Burlingame Drug Store , testified that
he ascertained in mid-March 1968 the number of employees totaled 44
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Costaglio expressed her opposition and, after some
further discussion, the suggestion was rej ected.9
On the following day, Reed Jensen, a coowner of
Medical Arts Pharmacy, telephoned Bashaw at work
and told her that he heard that she wanted to "go into
the Retail Clerks." Jensen also declared that if any
one of his girls joined the Retail Clerks he would fire
every one of them.10
A day or two after the Guild meeting, Joseph
Giubbini, owner of Collins Pharmacy, told Barlow
that he had heard from another employee that Barlow
had taken it upon herself to bring representatives of
the Retail Clerks to the meeting and that he was very
angry that she had done so. Despite Barlow's denial,
Giubbini pointed to two employees who were talking
to each other and said, "If you merge with the Retail
Clerks there will be no more of that. I will crack the
whip and will crack it every minute of the day. There
will be no more standing around. They will work and
they will do things my way or else." The next day,
Giubbinf summoned Barlow to his office where he
told her that he was becoming increasingly angry
about the movement to merge with the Retail Clerks
and that he would discontinue his customary practice
of paying extra commissions on certain items."
Giubbini also told Barlow, "I wish you would quit
because if you don't I'm going to make it . . .
miserable for you . . . and the other girls . . . because
I want . . . no organization or anyone else telling me
how to run my business." 12
On February 13, 1968, the Guild notified the
Employers that "pursuant to the terms of the existing
contract, which will expire on May 15, 1968, the Guild
intends to negotiate a new contract, and this notice is
intended as a notice required to be given to you sixty
. . . days prior to the expiration of the existing
contract."
On February 28, 1968, the Guild held another
meeting at the Benjamin Franklin Hotel where a vote
was taken by secret ballot on a resolution to merge
with the Retail Clerks.13 The tally was 15 for and 6
against the merger, with I void ballot. By the terms of
the resolution, the Retail Clerks was assigned all
rights to "collective bargaining [and] all contracts." 14
On March 11 and 12, 1968, the Retail Clerks sent
letters to each of the Employers, notifying them that
9 According to the credited testimony of Barlow, 21 persons were
present at the meeting
10 The Trial Examiner found, and we agree , that Jensen 's interrogation
and threat of discharge violated Sec 8(a)(1) of the Act As conceded by the
General Counsel , the "evidence does not substantiate that Jensen was an
officer" of the Employers Association at the time he engaged in this
conduct We therefore hold Medical Arts Pharmacy, but not the Employers
Association , accountable for Jensen 's unlawful statements Accordingly, we
deny as unnecessary Respondent Employers ' motion to reopen the record
for the purpose of adducing evidence concerning Jensen's status in the
Association in January 1968
11 On January 23 , 1968, Giubbmi made an announcement to that effect
and also set forth more stringent working rules
the Guild had merged "into the Retail Clerks" and
requesting a meeting for the purpose of negotiating a
new contract.
On March 20, 1968, the attorney for the Employers
notified the Retail Clerks that they would not
recognize that Union as the successor of the Guild
and that they had a "good faith doubt" as to whether
the Retail Clerks represented "an uncoerced majori-
ty" of the employees.
Thereafter, Costaglio and two other employees of
the Medical Arts Pharmacy prepared a petition, dated
March 28, 1968, and, upon securing the signatures of
23 employees, presented it to Jensen. The petition,
which was captioned "To Whom It May Concern,"
read as follows:
We, the undersigned, Pharmaceutical Clerks will
conduct all bargaining and negotiations with our
employers as a group. We do not want to be
represented in any way by Retail Clerks.
On April 19, 1968, Retail Clerks filed charges
against the Employers alleging an unlawful refusal to
recognize and bargain with that Union.
The Employers concluded principally on the basis
of the March 28, 1968, petition that the Guild
represented a majority of the employees in the unit
and, on April 25, 1968, entered into negotiations
which, as indicated above, culminated in a collective-
bargaining agreement with the Guild on May 15,
1968.
Thereafter, the parties entered into Settlement
Agreements requiring, inter alia, the Employers to
withhold recognition from the Guild until it was
certified by the Board as the representative of the
employees. However, as the Employers repudiated the
Settlement Agreements and reinstated the aforesaid
contract about November 19, 1969, the Trial Examin-
er found that both the original execution of the
contract and its reinstatement constituted violations
of Section 8(a)(2) and (1) of the Act by the Employers.
As noted above, the Trial Examiner relied on the
Midwest Piping doctrine in finding the conduct of the
Employers to be unlawful. According to that well-
established doctrine, an employer faced with conflict-
ing claims of two or more rival unions, which give rise
to a real question concerning representation, may not
recognize or enter into a contract with one of these
12 The Trial Examiner found, and we agree , that Giubbim's conduct
constituted violations of Sec 8(a)(l) and (3) of the Act for which Collins
Pharmacy was accountable
Il About 30 employees attended the meeting but Guild membership was
about 22 At Costagho's insistence , four or five employees were "turned
away" because they were not paid-up members and four or five other
employees walked out in protest against the merger
14 Jensen was present in the lobby just outside the meeting room The
Trial Examiner found, and we agree , that he engaged in surveillance of
protected union activity in violation of Sec 8(a)(1) of the Act For reasons
given in fn 10, supra, we hold only Medical Arts Pharmacy accountable
for this conduct of Jensen
ANDERSEN PHARMACY 303
unions until its right to be recognized has fully been
determined under the special procedures provided in
the Act. However, in City Cab, which is cited by the
Employers, it was held that where there exists a
collective-bargaining agreement which under the
Board's contract-bar rules has an insulated penod,15
the Midwest Piping doctrine is inapplicable to conduct
occuring during that period, unless there is on file at
the beginning of that period a petition which raises a
real question concerning representation.
In a subsequent case, Hart Motor Express, 16 the
Board took into account the representative status of
the incumbent union during the insulated period. In
that case, the Board adopted the Trial Examiner's
Decision which contained the following:
I am unable to believe or conclude that under any
and all circumstances . . . during the last 60 days of
[the] contract term, the Board intended, by its
Deluxe Metal decision, to foreclose employees
from then discharging [the incumbent] union as
their future representative and instead to shackle
them for a further 3-year term with a representa-
tive that they do not want. Such indiscriminate
application of Deluxe Metal would do violence to
the rights guaranteed employees by Section 7 of
the Act.
City Cab . . . is distinguishable and inapposite
.. . . What was lacking there , and [is ] present in
[Hart Motor] is evidence that before the contract
was executed , the incumbent union had been
shorn of its authority to negotiate the new
agreement in behalf of the employees involved.
In the instant case , there is ample evidence that the
Employers were aware that the status of the Guild as
the bargaining agent of the employees was open to
serious question . Thus, as early as October 1967, the
Employers were informed by Guild President Costag-
lio and its attorney that attendance at meetings was
exceedingly poor and that the Guild was " soon going
to dissolve" unless the Employers did something "to
bolster interest and attendance ." The Employers also
knew of the organizational campaign of the Retail
Clerks . Jensen and Giubbini , who were pharmacy
owners, were so concerned about the inroads made by
the Retail Clerks among the employees that they
engaged in coercive conduct in an effort to forestall
that union from displacing the Guild as the bargain-
ing agent.
15 DeLuxe Metal Furniture Company, 121 NLRB 995
16 164 NLRB 382, 384-385
17 We find merit in the General Counsel's limited exceptions with
respect to the Trial Examiner's apparent oversights in Appendix A and
Appendix B We shall therefore make the appropriate changes
1s Andersen Pharmacy , San Mateo , California , Bennett's Pharmacy,
San Mateo, California , Broadway Drug, Burlingame , California,
Although a majority of those present at the Guild
meeting of February 28, 1968, voted to merge with the
Retail Clerks, the Employers refused to bargain with
the latter union because of its alleged good-faith
doubt as to whether the Retail Clerks represented "an
uncoerced majority." Yet the Employers had no
doubt about the petition of March 28, 1968, which
was circulated by Costaglio, a persistent opponent of
the Retail Clerks who had warned the Employers that
the Guild was so weak as to be on the verge of
dissolution. Finally, it is significant that the Employ-
ers entered into negotiations with the Guild in the face
of refusal-to-bargain charges filed with the Board by
the Retail Clerks.
It is clear from the foregoing that the Employers
knew that the very existence of the Guild was in
jeopardy in October 1967 and that its members on
February 28, 1968, voted to merge with the Retail
Clerks which had conducted a vigorous organization-
al campaign since September 1967. In view of this
knowledge, the Employers could not properly arro-
gate to themselves the decision to give no weight to
such evidence and to give full weight to the Costaglio
petition as definitive proof of the majority status of
the Guild.
Accordingly, we find that under the circumstances
herein City Cab and Deluxe Metal are inapposite and
conclude in accord with Midwest P ping that the
Employers violated Section 8(a)(2) and (1) of the Act
by resolving the question concerning representation
in favor of the Guild and entering into a new contract
with that organization.
ORDER i7
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent Employers,18 their agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Recognizing California Pharmaceutical Clerks
as the bargaining representative of their pharmaceuti-
cal clerk employees for the purposes of collective
bargaining unless and until said labor organization
has been certified by the National Labor Relations
Board as the exclusive representative of such employ-
ees.
(b) Giving effect to the labor agreement of May 15,
1968, with California Pharmaceutical Clerks, or any
Burlingame Drug Co , Burlingame, California, Carlmont Pharmacy,
Belmont , California, Hansen's Prescription Pharmacy, Burlingame,
California, Key Pharmacy, San Bruno, California , Los Prados Pharmacy,
San Mateo , California, McClard's Drugs of San Mateo, San Mateo,
California , Peninsula Prescription Pharmacy , San Mateo, California,
Plank 's Pharmacy , Belmont , California
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
renewal or extension thereof, unless and until said
labor organization has been certified by the National
Labor Relations Board as the exclusive representative
of such employees.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Withdraw and withhold recognition from
California Pharmaceutical Clerks as the bargaining
representative of their pharmaceutical clerk employ-
ees for the purposes of collective bargaining unless
and until said labor organization has been certified by
the National Labor Relations Board as the exclusive
representative of such employees.
(b) Cease giving effect to the labor agreement of
May 15, 1968, with California Pharmaceutical Clerks,
or any renewal or extension thereof, unless and until
said labor organization has been certified by the
National Labor Relations Board as the exclusive
representative of such employees.
(c) Post at each of Respondent Employers' stores at
their respective locations in California copies of the
attached notice marked "Appendix A." 19 Copies of
said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by an
authorized representative, shall be posted by each of
them immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent Employers to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.
B. Respondent Collins Pharmacy, its agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating their employees con-
cerning their union activities.
(b) Threatening employees with discharge because
they assist or support Retail Clerks Union Local No.
775, or any other labor organization.
(c) Recognizing California Pharmaceutical Clerks
as the bargaining representative of its pharmaceutical
clerk employees for the purposes of collective bar-
gaining unless and until said labor organization has
been certified by the National Labor Relations Board
as the exclusive representative of such employees.
19 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" United States Court of Appeals
(d) Giving effect to the labor agreement of May 15,
1968, with California Pharmaceutical Clerks, or any
renewal or extension thereof, unless and until said
labor organization has been certified by the National
Labor Relations Board as the exclusive representative
of such employees.
(e) Requesting any employee to resign because the
employee assisted or supported Local No. 775.
(f) Threatening or imposing upon its employees
more stringent rules and working conditions because
they assist or support Local No. 775.
(g) Withholding customary commissions on certain
sales from employees to deter them from assisting or
supporting Local No. 775.
(h) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Withdraw and withhold recognition from
California Pharmaceutical Clerks as the bargaining
representative of its pharmaceutical clerk employees
for the purposes of collective bargaining unless and
until said labor organization has been certified by the
National Labor Relations Board as the exclusive
representative of such employees.
(b) Cease giving effect to the labor agreement of
May 15, 1968, with California Pharmaceutical Clerks,
or any renewal or extension thereof, unless and until
said labor organization has been certified by the
National Labor Relations Board as the exclusive
representative of such employees.
(c) Reinstate the practice of paying commissions to
its employees for certain items in accordance with its
practice prior to January 23, 1968, and reimburse its
employees for commissions lost since January 23,
1968, in the manner described in The Remedy section
of the Trial Examiner's Decision.
(d) Post at its San Mateo, California, store copies of
the attached notice marked "Appendix B." 20 Copies
of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by an
authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) Notify said Regional Director, in writing, within
20 days from the receipt of this Decision, what steps
have been taken to comply herewith.
Enforcing an Order of the National Labor Relations Board."
20 See fn 19, supra
ANDERSEN PHARMACY 305
C. Respondent Medical Arts Pharmacy, its
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating its employees concern-
ing their union activities.
(b) Threatening employees with discharge because
they assist or support Retail Clerks Union Local No.
775, or any other labor organization.
(c) Engaging in surveillance of the meetings of its
employees.
(d) Recognizing California Pharmaceutical Clerks
as the bargaining representative of its pharmaceutical
clerk employees for the purposes of collective bar-
gaining unless and until said labor organization has
been certified by the National Labor Relations Board
as the exclusive representative of such employees.
(e) Giving effect to the labor agreement of May 15,
1968, with California Pharmaceutical Clerks, or any
renewal or extension thereof, unless and until said
labor organization has been certified by the National
Labor Relations Board as the exclusive representative
of such employees.
(f) In any other manner interfering with, restraining,
or coercing employees in the exercise of their Section
7 rights.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Withdraw and withhold recognition from
California Pharmaceutical Clerks as the bargaining
representative of its pharmaceutical clerk employees
for the purposes of collective bargaining unless and
until said labor organization has been certified by the
National Labor Relations Board as the exclusive
representative of such employees.
(b) Cease giving effect to the labor agreement of
May 15, 1968, with California Pharmaceutical Clerks,
or any renewal or extension thereof, unless and until
said labor organization has been certified by the
National Labor Relations Board as the exclusive
representative of such employees.
(c) Post at its San Mateo, California, store copies of
the attached notice marked "Appendix C." 21 Copies
of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by an
authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(d) Notify said Regional Director, in writing, within
20 days from the date of this Order, what steps have
been taken to comply herewith.
D. Respondent California Pharmaceutical Clerks,
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Giving effect to the collective-bargaining agree-
ment entered into with Respondent Employers on or
about May 15, 1968, or any extension, renewal, or
modification thereof.
(b) Acting as the exclusive collective-bargaining
representative of any of Respondent Employers'
employees for the purpose of dealing with said
Respondent Employers concerning wages, rates of
pay, hours of employment or other conditions of
employment, unless and until it be certified by the
Board as the exclusive collective-bargaining repre-
sentative of such employees.
(c) Threatening employees with loss of jobs or
attempting to cause any of Respondent Employers to
discriminate against employees because said employ-
ees do not become members or pay dues to California
Pharmaceutical Clerks.
(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Reimburse all past and present members dues or
initiation fees paid by them on or after October 27,
1968, in the manner set forth in The Remedy section
of the Trial Examiner's Decision.
(b) Mail to each of its members copies of the
attached notice marked "Appendix D.'122 Copies of
said notice on forms provided by the Regional
Director for Region 20, after being duly signed by
authorized representatives of California Pharmaceuti-
cal Clerks, shall be mailed immediately upon receipt
thereof.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.
21 See In . 19, supra.
22 See In . 19, supra.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist or support California
Pharmaceutical Clerks.
WE WILL no longer give effect to the agreement
we signed on May 15, 1968, with California
Pharmaceutical Clerks, or any extension, renewal,
or modification of that agreement.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere
with, restrain , or coerce you in the exercise of your
rights to organize yourselves, to form , loin, or
assist Retail Clerks Union Local No. 775, or any
other labor organization that you may choose as
your representative.
WE WILL withdraw and withhold recognition
from California Pharmaceutical Clerks, or any
successor thereof , unless and until it has been
certified by the National Labor Relations Board as
your exclusive representative for the purposes of
collective bargaining.
You are all free to engage in concerted activity for
your mutual aid or protection , to become or remain
metribers of a labor organization , or to refuse to
engage in such activities except to the extent that such
rights may be affected by a lawful agreement
conforming to Section 8(a)(3) of the National Labor
Relations Act, as amended.
ANDERSEN PHARMACY,
BENNETT'S PHARMACY,
BROADWAY DRUG,
BURLINGAME DRUG CO.,
CARLMONT PHARMACY,
HANSEN'S PRESCRIPTION
PHARMACY, KEY
PHARMACY, Los PRADOS
PHARMACY, MCCLARD'S
DRUGS OF SAN MATEO,
PENINSULA PRESCRIPTION
PHARMACY, PLANK'S
PHARMACY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 13050 Federal Building, 450 Golden Gate
Avenue, Box 36047, San Francisco, California 94102,
Telephone 415-556-3197.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist or support California
Pharmaceutical Clerks.
WE WILL NOT question you concerning your
activities.
WE WILL NOT threaten you or impose more
stringent rules and working conditions because
you assist or support Retail Clerks Union Local
No. 775.
WE WILL NOT withhold customary commissions
on certain sales from you to deter you from
assisting or supporting Retail Clerks Union Local
No. 775.
WE WILL reinstate the practice of paying
commissions to you for the sale of certain items
and reimburse you for all commissions lost since
January 23, 1968, together with interest at 6
percent per annum.
WE WILL NOT threaten you with discharge
because you assist or support Retail Clerks Union
Local No. 775 , or any other labor organization.
WE WILL NOT request any employee to resign
because the employee assisted or supported Retail
Clerks Union Local No. 775.
WE WILL no longer give effect to the agreement
we signed on May 15, 1968, with California
Pharmaceutical Clerks, or any extension , renewal,
or modification of that agreement.
WE WILL NOT in any other manner interfere
with, restrain , or coerce you in the exercise of your
rights to organize yourselves , to form , loin, or
assist Retail Clerks Union Local No. 775, or any
other labor organization that you may choose as
your representative.
WE WILL withdraw and withhold recognition
from California Pharmaceutical Clerks, or any
successor thereof , unless and until it has been
certified by the National Labor Relations Board as
your exclusive representative for the purposes of
collective bargaining.
You are all free to engage in concerted activity for
your mutual aid or protection , to become or remain
members of a labor organization , or to refuse to
engage in such activities except to the extent that such
rights may be affected by a lawful agreement
conforming to Section 8(a)(3) of the National Labor
Relations Act, as amended.
COLLINS PHARMACY
(Employer)
ANDERSEN PHARMACY 307
Dated By Dated By
(Representative ) (Title)(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 13050 Federal Building, 450 Golden Gate
Avenue, Box 36047, San Francisco, California 94102,
Telephone 415-556-3197.
APPENDIX C
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT assist or support California
Pharmaceutical Clerks.
WE WILL NOT question you concerning your
union activities.
WE WILL NOT threaten you with discharge
because you assist or support Retail Clerks Union
Local No. 775 or any other labor organization.
WE WILL NOT engage in surveillance of your
union meetings.
WE WILL no longer give effect to the agreement
we signed on May 15, 1968, with California
Pharmaceutical Clerks, or any extension, renewal,
or modification of that agreement.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of your
rights to organize yourselves and to form, join, or
assist Retail Clerks Union Local No. 775, or any
other labor organization that you may choose as
your representative.
WE WILL withdraw and withhold recognition
from California Pharmaceutical Clerks or any
successor thereof unless and until it has been
certified by the National Labor Relations Board as
your exclusive representative for the purposes of
collective bargaining.
You are all free to engage in concerted activity for
your mutual aid or protection, to become or remain
members of a labor organization, or to refuse to
engage in such activities, except to the extent that such
rights may be affected by a lawful agreement
conforming to Section 8(a)(3) of the National Labor
Relations Act, as amended.
MEDICAL ARTS
PHARMACY
(Employer)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 13050 Federal Building, 450 Golden Gate
Avenue, Box 36047, San Francisco, California 94102,
Telephone 415-556-3197.
APPENDIX D
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten you with loss of your job
if you do not become a member or retain your
membership in California Pharmaceutical Clerks.
WE WILL NOT act as your exclusive bargaining
representative in the following stores: Andersen
Pharmacy, Bennett's Pharmacy, Broadway Drug,
Burlingame Drug Co., Carlmont Pharmacy, Col-
lins Pharmacy, Hansen's Prescription Pharmacy,
Key Pharmacy, Los Prados Pharmacy, Medical
Arts Pharmacy, McClard's Drugs of San Mateo,
Peninsula Prescription Pharmacy, and Plank's
Pharmacy, unless and until we have been certified
by the National Labor Relations Board as such
representative.
WE WILL NOT give effect to the collective-
bargaining agreement entered into on or about
May 15, 1968, with the above-named stores, or to
any extension or renewal or modification thereof.
WE WILL NOT in any other manner interfere,
restrain, or coerce you in the rights guaranteed to
you by Section 7 of the Act to freely choose a
bargaining representative, to become or remain a
member of this labor organization, or any other
labor organization, or to refuse to do any of these
things except to the extent that such rights may be
affected by a lawful agreement conforming to the
provisions of Section 8(a)(3) of the Act.
WE WILL reimburse all past and present employ-
ees of the above-named stores for any dues and
initiation fees paid to California Pharmaceutical
Clerks for membership or retention of member-
ship on or after October 27, 1969, together with
interest at 6 percent per annum.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CALIFORNIA
PHARMACEUTICAL CLERKS
(Labor Organization)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 13050 Federal Building, 450 Golden Gate
Avenue, Box 36047, San Francisco, California 94102,
Telephone 415-556-3197.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Trial Examiner: These proceedings
under Section 10(b) of the National Labor Relations Act, as
amended, herein called the Act, were heard pursuant to due
notice by the Trial Examiner, at San Francisco, California,
on March 31 and April 1, 1970. A consolidated complaint'
issued on February 13, 1970, based on initial charges filed
in behalf of Retail Clerks Union Local 775, Retail Clerks
International Association, AFL-CIO, herein sometimes
called Retail Clerks or Local 775, on October 28, 1969, and
amended on January 22, 1970, against 13 employers who
operate pharmacies in and around Burlingame, California.2
The consolidated complaint also included allegations
against California Pharmaceutical Clerks, herein sometimes
referred to as the Pharmaceutical Clerks or the Guild,
based upon a charge filed by Local 775 on November 12,
1969, in Case 20-CB-2124.
These proceedings, in addition, also involved charges
filed by Local 775 against the identical individual
I G C. Exh. l(eeeee).
2 The establishments and locations named in the charges and
consolidated complaint are as follows
Anderson Pharmacy 20-CA-5811-1 San Mateo , Calif.
Baanett ' s Pharmacy 20-CA--5811-2 San Mateo , Calif.
Broadway Drug 20-CA--5811-3 Burlingame, Calif.
Burlingame Drug.Co. 20-CA-5811-4 Burlingame, Calif.
Carlmont Pharmacy 20--CA-5811-5 Belmont, Calif.
Collins Pharmacy 20--CA-5811-6 San Mateo . Calif,
Hansen ' s Prescription 20-CA-5811-8 Burlingame , Calif.
Pharmacy
Bay Pharmacy 20-CA--5811--9 San Bruno, Calif.
Los Prados Pharmacy 20-CA--5811--10 San Mateo . Calif.
Medical Arts Pharmacy 20-CA-5811--12 San Mateo, Calif.
McClard ' s Drugs of 20--CA-5811- 11 San Mateo, Calif.
San Mateo
Peninsula Prescription 20-CA-5811--13 San Mateo , Calif.
Pharmacy
Planl.'s Pharmacy 10--CA-5811-- 14 Belmont , Calif.
Respondent pharmacies on April 9, 1968, and September
16, 1968.3 A settlement agreement of the 1968 charges was
entered into on May 19, 1969, and approved by the
Regional Director for Region 20 of the National Labor
Relations Board on May 29, 1969. By order of the said
Regional Director, dated February 13, 1970, approval of
the above settlement agreement was withdrawn, the cases
reopened, and consolidated with the instant proceedings.
Upon the entire record, including the briefs filed by the
parties, and from my observation of the witnesses, I make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENTS
The consolidated complaint, as amended at the hearing,
alleges and the amended answers of Respondents4 admit
that the individual Respondent-employers are, and were
members of the San Mateo Pharmacy Owners Association,
herein called the Association, and that the Association is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. Respondents likewise admit specific
allegations of the complaint that during the past year the
Association members sold goods and products valued in
excess of $500,000 and that $10,000 worth of such goods
and products originated and were shipped to them from
points outside the State of California. I find on the basis of
the evidence adduced at the hearing that the Respondent-
employers are engaged in the operation of retail pharmacies
and that they have, through the Association, engaged in
multiemployer collective bargaining with the Pharmaceuti-
cal Clerks for approximately 15 years .5
At the outset of the hearing, Respondent-employers
raised the question whether or not the Board should assert
jurisdiction because the Association was not named as a
party Respondent in the complaint, nor was the Associa-
tion named in any of the charges. At the hearing, I ruled
that the Board decision in O'Keefe Electric Co.6 was
controlling and that assertion of jurisdiction was warrant-
ed. I adhere to this ruling and find that Board jurisdiction
J Anderson Pharmacy 20--CA--4942 San Mateo, Calif.
Bennett's Pharmacy 20-CA--4943 San Mateo, Calif.
Broadway Drug 20--CA-4944 Burlingame, Calif.
Burlingame Drug Co. 20--CA--4945 Burlingame, Calif.
Carlmont Pharmacy 20--CA--4946 Belmont , Calif.
Collins Pharmacy 20-CA--4947 San Mateo, Calif.
Hansen' a Prescription
Pharmac
20-CA--4948 Burlingame , Calif.
y
key Pharmacy 20-CA-4949 San Bruno , Calif.
Los Prado Pharmacy 20--CA-4950 San Mateo, Calif.
Medical Arts Pharmacy 20--CA-4951 San Mateo , Calif.
McClard's Drugs of
San Mateo
20--CA--4952 San Mateo , Calif.
Peninsula Prescription 20-CA--4953 San Mateo , Calif.
Pharmacy
Plank's Pharmacy 20--CA--4954 Belmont , Calif.
4 Reference to Respondents will hereafter encompass both the
employers and the Pharmaceutical Clerks
5 See testimony of Lawrence L Plagmann . It was stipulated during the
course of the hearing that the individual Respondent-employers together
constitute the entire membership of the Association
6 158 NLRB 434, enfd . 391 F 2d 589 (C A. 9)
ANDERSEN PHARMACY 309
over the individual Respondent-employer is warranted
because of his membership in the Associationj for it is the
impact on interstate commerce of the entire Association,
not of the individual employers , that is determinative of
Board jurisdiction . Accordingly, I find that the Board
should assert jurisdiction over each of the Respondent-
employers and that it would effectuate the purposes of the
Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The consolidated complaint alleges , the answer, as
amended at the hearing, admits, and I find that the
California Pharmaceutical Clerks, herein sometimes re-
ferred to as the Guild or Pharmaceutical Clerks, and Local
775 are each labor organizations within the meaning of
Section 2(5) of the Act.
III. THE ISSUES
1. Did the Respondent-employers or any of them
engage in unfair labor practices in violation of Section
8(a)(1) and (2) by recognizing Pharmaceutical Clerks and
executing a contract containing a union security clause with
that organization at a time when a bona fide question
concerning representation existed?
2. Did Respondent Union engage in conduct violative
of Section 8(b)(I)(A) and (2) by maintaining and enforcing
its May 15, 1968, contract with Respondent-employers?
3. Did Respondent-employers, or any of them, engage
in conduct violative of Section 8(a)(1) by threats, interroga-
tion, surveillance, and withholding of benefits?
4. Was there a merger effectuated between Pharmaceu-
tical Clerks and Local 775?
IV. THE UNFAIR LABOR PRACTICES
A. Preliminary Findings
It is admitted by Respondents that since 1954, and at all
times material herein, Respondent-employers have been
members of the Association and that since 1954, and at all
times material herein, the Association has recognized and
bargained collectively on behalf of the employer-members
with Pharmaceutical Clerks. The evidence shows that a
series of collective-bargaining agreements were entered into
and that the current agreements was entered into on May
15, 1968, and expires on May 15, 1971.
B. Events Preceding Execution of Current
Agreement
On October 4, 1967, Louella Costaglio, president of the
Pharmaceutical Clerks, sent a letter to employer-members
of the Associations in which she informed them that a
scheduled meeting for members of the Guild was attended
by only five members, an insufficient number to constitute
a quorum. The letter went on to say, "We have the feeling
r It is clear that collectively the Respondent-employers do in fact
constitute the Association
8 G.C Exh 7
9 G C Exh. 18 . There is some dispute whether Costaglio mailed this
letter to the Employers
10 It shows that the total attendance for all six meetings was 28 or an
that unless something is done on your part to bolster
interest and attendance, the Guild is soon going to
dissolve." Attached to the letter was a record of the number
of employees of each employer who attended any of six
regularly scheduled meetings from February 14 to October
4, 1967.10 The letter concluded with the statement, "We
offer you the information and await your comments and
instructions."
On October 23, 1967, Michael Aaronson, attorney for the
Guild, sent a letter in which he enclosed Costaglio's letter
and the attendance record. (I conclude from Plagmann's
testimony that he did receive this letter with the enclosures.
I also conclude that Aaronson did send the letter to each
Employer who was a party to the Guild agreement, I
believe that Aaronson's heading of the letter clearly shows
that it was forwarded to each of the employer-members of
the Association.) ii
Aaronson, in his letter, stated that unless the interest of
the employees can be "dramatically" revived, their attitude
"radically" changed with regard to payment of dues, and
unless the employers cooperate more fully in providing the
names and addresses of employees that are or "should be
members of this Guild," he would advise dissolution of the
organization.
Apparently the above communications failed to obtain
the desired results. However, Local 775 about this time
commenced an organizational campaign among the
employees of the employer-members of the Association.12
By the close of March, 1968, Local 775 had obtained
signatures of employees to 20 authorization cards.13
During the period Local 775 was attempting to organize
the employees of Respondent-employers, the Pharmaceuti-
cal Clerks, in January 1968, at a meeting in the Benjamin
Franklin Hotel in San Mateo, California, elected new
officers. Jean Bashaw was elected president and immediate-
ly took office. During this meeting, a request was made that
a representative of Local 775 be permitted to address the
membership. After some discussion, the request was
denied. According to Bashaw's credited testimony, Reed
Jensen, a co-owner of Medical Arts Pharmacy and
secretary of the Association, called Bashaw on the
telephone the next day while Bashaw was at work and said
that he heard that Bashaw wanted to "go into the Retail
Clerks." Bashaw replied that it was up to the girls and she
didn't have to give him an account because he was not
paying her salary.14 Jensen then told Bashaw that if any of
his girls joined the Retail Clerks, he would fire everyone of
them.
Bashaw credibly testified that on February 21, 1968, she
mailed a notice to all members of the Pharmaceutical
Clerks that a meeting would be held at the Benjamin
Franklin Hotel on February 28, 1968, at which time an
amendment to the organization's bylaws would be
average of less than five per meeting.
ii G.C. Exh. 17.
12 William E Radcliff, business representative of Local 775, testified he
commenced organizing efforts in September 1967.
is Charging Party's Exh 2(a-t)
i{ Bashaw was employed by McClard's Pharmacy.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposed which would allow the Pharmaceutical Clerks to
merge with Local 775.15 Subsequently, Carl E. Cohenour,
in a letter dated February 27, 1968, requested Bashaw's
permission to attend the February 28 meeting to address
the members on the advantages of joining Local 775.16
Bashaw testified that the meeting commenced about 9 p.m.
and lasted till approximately 11:30 p.m., and that it was
attended by about 35 members.17 There was some question
raised by attorney Aaronson prior to the meeting whether
the proceedings of the meeting should be recorded on tape.
A tape recorder was brought into the meeting room and
taken from the meeting room. However, the proceedings
were not recorded as Bashaw pointed out that no previous
meeting had been recorded, and those present voted against
recording the proceedings. At the meeting, after talks by
two representatives of Local 775 and by Aaronson, a secret
ballot was taken on a resolution to merge with Local 775.
The tally was 15 in favor of the merger, 6 opposed with one
void ballot. By the terms of the resolution adopted, Local
775 was assigned and assumed all rights of "collective
bargaining representation, all contracts, all the assets and
property and all outstanding obligations of the California
Pharmaceutical Clerks Association." 18 Bashaw, in her
testimonial account, acknowledged that the meeting notice
mailed to members on February 21, 1968, was prepared and
mailed with the assistance of representatives of Local 775.
Nelcina Barlow testified that at the meeting of the
Pharmaceutical Clerks on January 17, 1968, Jean Bashaw
was elected president; Irene Church, secretary; and
Marjorie Simmons, treasurer; that a few days prior to the
meeting she spoke to her supervisor, Joseph Giubbini,
owner of Collins Pharmacy, and mentioned to him that
Aaronson thought it might be wise to dissolve the Guild
and go into the Retail Clerks because of the small turnout
at meetings. A day or two after the meeting of January 17,
1968, Giubbini told Barlow that he understood she had
hauled representatives into the January 17 meeting. Asked
to explain, Giubbini said that he was told by Marie
Hendrix, an employee at Collins Pharmacy, that the
turnout for the meeting of January 17 had been the best in
years,19 and that union representatives20 were there ready
to be called into the meeting. Giubbini said he was very
angry that Barlow would take it upon herself to do this.
Barlow replied that she had talked it over with employees in
several stores and they had felt that Barlow would know
whom to contact. Barlow then went to Hendrix and
confirmed that Hendrix had indeed told Giubbini about the
meeting. Later in the same afternoon, Barlow sought out
Giubbini and again explained to him that she had not
"taken it upon myself to do it," that others had approved it.
Giubbini replied by pointing to two employees standing in
front of the store talking to each other, and said, "If you
merge with the Retail Clerks there will be no more of that. I
15 GC Exh 2
i6 Actually, this request was made orally some days earlier, the letter
was a more formalized request
11 Bashaw testified that there were 40 members of the Guild at that time
and about 35 attended It is clear, however, that membership and
attendance was actually less I conclude from all the evidence especially
Nelcina Barlow's testimony , that the membership was about 22, and that
about 30 employees attended the meeting Four or five employees were not
permitted into the meeting because they were not paidup members and
will crack the whip and will crack it every minute of the
day. There will be no more standing around. They will work
and they will do things my way or else." The following day,
Giubbini summoned Barlow to his office and said that the
more he thought about the matter the angrier he got. He
told Barlow that from then on he would stop paying extra
commission on certain items as had been his custom for
years. He also told Barlow that he had no legitimate reason
to discharge her but preferred that she would quit. Barlow
refused to quit and Giubbini continued, saying, "I wish you
would quit because if you don't I'm going to make it as
miserable for you as I can and the other girls, too, because I
want my store run the way I want it run. I want no
organization or anyone else coming in and telling me how
to run my business." True to his promise, Giubbini
discontinued extra commissions on January 23, 1968, in a
memorandum to employees embodying more stringent
working rules.21
Reed T. Jensen, co-owner of Medical Arts Pharmacy and
secretary of the Association, testified that at the request of
Jean Brown, one of officers of the Pharmaceutical Clerks,
he rented a tape recorder and gave it to her for use at the
meeting of the Pharmaceutical Clerks on the night of
February 28, 1968, at the Benjamin Franklin Hotel. Jensen
dropped into the Hotel about 11 p.m. and stated that he
found the meeting was in progress. He left but returned
about midnight. Shortly before 1 a.m., Brown returned the
tape recorder to him in the lobby of the hotel. Brown then
informed him that the Pharmaceutical Clerks had voted to
merge with the Retail Clerks but that she was dissatisfied
with the vote.
Jensen further testified that the day after Bashaw was
elected president of the Pharmaceutical Clerks,22 he called
Bashaw on the telephone and told her that the contract with
the Pharmaceutical Clerks required that all employees have
to be members of the Pharmaceutical Clerks in order to
continue their employment, that if they did not belong to
the Pharmaceutical Clerks, "we should terminate them as
employees.1123 Reed testified that the reason he called
Bashaw was that he did not want the Retail Clerks in his
store.
Louella Costaglio, an employee of Medical Arts Pharma-
cy and a former president of the Pharmaceutical Clerks,
testified that with the assistance of Irene Church and Jean
Brown, she prepared a document dated March 28, 1968,
and circulated it among employees of the employer-
members of the Association. The document was prefaced
with the following legend:
To Whom It May Concern:
We, the undersigned, Pharmaceutical Clerks will
conduct all bargaining and negotiations with our
employers as a group. We do not want to be represented
four employees walked out in protest
Is G C Exh 14
19 According to Barlow's credited testimony, 21 persons were in
attendance at the January 17, 1968 meeting.
20 Local 775 representatives
21 G C Exh 15
22 Bashaw was elected president on January 17, 1968
23 The transcript , p 185, reads "employers ." It is hereby corrected to
read "employees "
ANDERSEN PHARMACY 311
in any way by Retail Clerks Local 775, RCIA,
AFL-CIO.
Costaglio testified that the legend was typed by Mary
Malone, an employee of Medical Arts Pharmacy, on a
typewriter at her store and circulated by Brown, Church
and herself. After securing the signatures (23), Costaglio
presented the document to Jensen.
On February 13, 1968, the Pharmaceutical Clerks had
requested that the employer-members of the Association
commence negotiations for a new contract as the then
existing contract was due to expire on May 15, 1968.24
Thereafter, as detailed above, the Pharmaceutical Clerks, at
the special meeting called for February 28, 1968, had voted
to merge with Local 775. On March II and 12, 1968, Local
775 sent letters25 to each of the employer-members of the
Association, notifying them that the Pharmaceutical Clerks
had merged with Local 775 and would thereafter operate
under the name of Local 775, as the successor Union. It
also requested a meeting to negotiate a new agreement. On
March 20, 1968, attorney Norman I. Book, Jr., notified
Local 775 that he represented each of the pharmacies and
that they would not recognize Local 775 as the successor to
the Pharmaceutical Clerks. Book also questioned whether
Local 775 represented a majority of the employees and
refused to meet or bargain with Local 775. On April 19,
1968, after receiving Book's letter declining to recognize
and bargain with Local 775, the initial charge26 against
employer-members of the Association was filed. The
charges alleged violations of Sections 8(a)(1) and (5)
because of the failure to accord recognition to and bargain
with Local 775. According full faith and credit to the
document 27 presented to Jensen by Costaglio on March 28,
1968, the Association concluded that the Pharmaceutical
Clerks represented a majority of the employees in the
association unit.28 Accordingly, negotiations were engaged
in between representatives of the Association and the
Pharmaceutical Clerks on April 25, May 8, and May 15,
1968, which culminated in the collective-bargaining
agreement in evidence as General Counsel's Exhibit 7.29
C. Events After May 15, 1968, to May 19, 1969
On September 16, 1968, Local 775 filed amended charges
against each of the Respondent-employers alleging viola-
tions of Section 8(a)(1) and (5). The acting Regional
Director for Region 20, on September 20, 1968, refused to
issue a complaint on the 8(a)(5) charges and dismissed that
segment of the charges.30 Thereafter on May 29, 1969,31 the
Regional Director approved informal settlement agree-
ments entered into between the Charging Party (Local 775)
and the Respondent-employers. The Pharmaceutical
Clerks, named as party to the contract , joined in the
settlement agreements .32 The settlement agreements re-
quired posting of notices to all employees in the Respon-
dent-employers' establishments . It further required the
Respondent-employers to withhold recognition from the
Pharmaceutical Clerks as the exclusive representative of the
employees until the Pharmaceutical Clerks was certified33
by the Board as the representative of the employees.
Another item required that the Respondent -employers
would not give effect to the May 15 , 1968, labor agreement
with the Pharmaceutical Union.34
The settlement agreements also contained a provision
that the Respondent-employers would not "in any other
manner" interfere with, restrain , or coerce employees in the
exercise of Section 7 rights.
D. Events from August 26, 1969, to Filing of
Instant Charges
On August 20, 1969, the Regional Director notified the
parties to the settlement agreement that the provisions of
the settlement agreement had been satisfactorily complied
with and that the file was closed and "will be continued as a
closed case so long as the present status of compliance
continues. Subsequent violations may become the basis of
further proceedings despite the formal closing of the case. "35
On September 26, 1969, the Pharmaceutical Clerks filed a
representation petition with the Regional Director for
Region 20 of the Board, seeking certification as the
collective-bargaining representative of pharmaceutical
clerks employed by the employer-members of the
Association.36 On October 8, 1969, Local 775 filed four
representation petitions for pharmaceutical clerks in the
employ of Plank's Pharmacy,37 Carlmont Pharmacy,38 Los
Pradas Pharmacy,39 and McClard's Drugs.40 A petition
naming Broadway Drug4i was filed by Local 775 on
October 23, 1969.
All the foregoing representation petitions were consoli-
dated by the Regional Director for hearing scheduled on
October 23, 1969. During the course of the representation
hearing, Phyllis A. Collins, an employee of Bennett's
Pharmacy, and treasurer of the Pharmaceutical Clerks, was
called as a witness by Local 775. She testified that currently
the May 15, 1968, labor agreement42 was in force.43
Thereafter, the Hearing Officer conducting the consolidat-
ed representation hearing read a telegram into the record in
which Local 775 asked the Regional Director to set aside
the settlement agreement because of alleged breaches of it.
The Hearing Officer, thereupon, indefinitely postponed the
representation hearing. Shortly thereafter, as detailed at the
outset of this Decision, charges of unfair labor practices
24 Resp Exh 3 33 Emphasis supplied
25 G C Exhs 4 and 5
26 G C Exh l(ss)
34 G C Exh 7
55 Resp Exh 6 [Emphasis supplied.]
27 Resp. Exh 2 36 Resp Exh 1(b)
28 See tr pp 196, 203, and 204 37 Resp Exh I(c)
29 Stipulated by the parties, tr p 33 M Resp. Exh 1(d)
30 On January 3, 1969, the General Counsel, upon appeal, affirmed the 39 Resp. Exh 1(e)
acting Regional Director's dismissal of the 8(a)(5) aspect of the Charges 40 Resp. Exh 1(b)
31 A consolidated complaint had been issued on February 20, 1969 41 Resp. Exh I(a)
G C Exh I(aaaaa) 42 G C Exh 7
32 G C Exh 11, 12, and 13 43 Transcript of R-case hearing, Resp . Exh 1(g)
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were filed by Local 775 against the Respondent-employers
named herein , and against the Pharmaceutical Clerks.
E. Evidence and Conclusions as to Violations in
Cases 20-CA-5811-1 through 1444 and 20-CB-2124
It is essential to initially determine whether or not
Respondent-employers have in fact complied with the
terms of the settlement agreements entered into on May 19,
1969, and approved by the Regional Director on May 29,
1969. If there has been a breach of the terms of the
settlement agreements , setting aside of the settlement
agreement is warranted and consideration must be given to
the unfair labor practices charged in the series of earlier
cases filed in 1968. Likewise, it would then be necessary to
consider the complaint issued pursuant to the charges filed
against the Pharmaceutical Clerks.
Initially there is the testimony of Phyllis Collins at the
representation hearing. I believe that in testifying at the
representation hearing she was giving a truthful account of
her understanding. Although she attempted to qualify that
testimony in the instant hearing, her belated qualification,
even if credited , is of no assistance to Respondents. In her
original testimony at the representation hearing she
testified that "We have our California Pharmaceutical
Contract, which is in force right now." In response to a
question for the term of the contract, she replied, "May of
1968 to May of 1971." At the instant hearing, she testified
as follows:
Q. (By Mr. Book) On page 16, line 10, the question
was: Do you have any labor contracts which are in
force. Is it your testimony at this time that in fact a
labor contract was in force at the time that question was
asked.
MR. ORENSTEIN: I will object. The testimony speaks
for itself in the RC case.
TRIAL EXAMINER: I will overrule the objection.
Answer the question.
THE WITNESS: At that time, that was my testimony.
Q. (By Mr. Book) I'm asking you now at this time
your testimony today.
A. No.
TRIAL EXAMINER : How would you answer that
question now?
THE WITNESS: I would answer that question now by
saying that the contract was in force except for the
period when the notices were posted as per the
agreement.45
On November 13, 1969, the president of the Association
wrote a letter46 to the Regional Director stating that unless
an agreement was signed within 5 days , and an election
held within 30 days of the letter, the Association would give
effect to the provisions of the collective-bargaining
agreement with the Pharmaceutical Clerks. In the same
vein, the attorney for the Pharmaceutical Clerks notified
the Regional Director by letter dated December 8, 1969,
that because of Local 775's attempt to "frustrate the
election process which has not met with any resistance from
the Regional Office we have no other choice but to
withdraw from the Settlement Agreement as the parties have
already done.47 We therefore intend to enforce the current
collective-bargaining agreement we have with the Employ-
ers, unless and until such time as such actions are shown to
be unlawful."48
Significantly , the foregoing letters neglected to mention
that the officers of the Pharmaceutical Clerks had already
taken steps to enforce their agreement, for on October 27,
1969, the Pharmaceutical Clerks forwarded to all employ-
ees, to all employers and to its attorney, Thesing, an
announcement that they would request employers to
dismiss employees who did not pay their dues as required.
I note also that Alvin F. Slaight, Jr., representing the
Employers at the representation hearing, told the Hearing
Officer, when informed that the hearing would be
adjourned to afford the Regional Director an opportunity
to investigate the alleged breaches of the settlement
agreement , that he was going to recommend that the
Employers give effect to the 1968 collective-bargaining
agreement with the Pharmaceutical Clerks.
Indeed it would appear that counsel for Respondent
Clerks conceded in his opening statement that the
settlement agreement was repudiated by the Pharmaceuti-
cal Clerks stating that "After the Retail Clerks Union
withdrew from the settlement agreement and the Employ-
ers withdrew from the Settlement agreement , at that point
my organization withdrew from the settlement agreement
also." 49
In view of the foregoing, I conclude that the Association,
in behalf of its employer-members, failed to adhere to the
requirements of the settlement agreement entered into by
the parties on and after November 19, 1969. Clearly the
settlement agreement required the Association and its
employer-members to: (1) Withhold recognition from the
Pharmaceutical Clerks of May 15, 1968-unless and until
the Pharmaceutical Clerks was certified as the collective-
bargaining representative of the employees in the appropri-
ate unit.
The General Counsel contends, as do the Respondents,
that the appropriate unit consists of the Association. The
evidence, I find, sustains this contention: The charges filed
by Local 775 named the individual employer-members of
the Association and not the Association itself. All of the
employer-members named as individual Respondents were
and are members of the Association and there are no other
employer-members of the Association. As these facts were
stipulated by the parties , it seems rather strange that the
Association was not named as a party Respondent in the
consolidated complaint. In consideration of all the facts, it
seems to me that the absence of a specific charge against
the Association would not foreclose the inclusion of the
Association as a party Respondent in the complaint. It
seems a basic proposition that the whole is equal to all its
parts, and, that the converse proposition is also true, i.e.,
that all the parts are equal to the whole. At any rate, rather
44 Omitting 20-CA-5811-7 48 G C Exh 9
45 The terms of the settlement agreement required compliance until 49 Tr ., p. 40. Allegations by the Retail Clerks Local 775 that the
Pharmaceutical Clerks was certified settlement agreements had been breached hardly constitutes a withdrawal
46 G.C 8 by Local 775 from the settlement agreements
47 Emphasis supplied.
ANDERSEN PHARMACY
than exceed the literal language of the consolidated
complaint, I shall not deem the Association, as an entity, to
be a party Respondent, but shall direct my attention to the
individual employer-members with the proviso that activity
engaged in by the Association constitutes the action of the
individual members because the Association is their duly
chosen spokesman and agent.
Under the above rationale, I find that when the
Association repudiated the settlement agreement and
reinstated its contract with the Pharmaceutical Clerks, each
of the individual employer-members of the Association, the
Respondent-employers, herein, violated the terms of the
settlement agreement of May 29, 1969. Having so found, I
find that the Regional Director was justified when, on
February 13, 1970, he set aside the settlement agreements
approved by him on May 29, 1969.
Under long-established Board precedent, a representa-
tion hearing or a scheduled Board election may be
postponed when a charge is filed alleging conduct which
may render the representation proceedings nugatory. It is
self-evident that a party to a representation heanng or a
prospective Board election cannot arrogate to itself the
selection of the date of the election. Rather it is for the
Board, or in this case, the Regional Director, to select the
date of election with a view of fixing a time when a fair
election can be conducted. To accomplish that objective, it
is plain that bona fide charges must be investigated. Of
necessity, the Regional Director has some discretion when
confronted with unmeritonous charges that may be filed
for the sole purpose of delaying an election for the selection
of a collective-bargaining representative. In the instant
case , it is rather clear that the charges filed by Local 775
were properly considered by the Regional Director as
raising serious matters requiring proper investigation. The
reaction of the Respondent-employers and the Pharmaceu-
tical Clerks to the postponement of the representation
heanng to permit investigation of the charges was
completely unwarranted. The implication in their letters to
the Regional Director that extraordinary favors were being
extended to Local 775 lacks substance. Unfounded
accusations of this character display an antipathy toward
sound Board practices. I find, under the circumstances, that
the reasons given by Respondents for renunciation of the
settlement agreements and the reinstatement of the
contract with the Pharmaceutical Clerks are specious and
without merit. Accordingly, it is concluded that Respon-
dent-employers by renunciation and reinstatement of the
May 15, 1968, agreement independently violated Section
8(a)(1) and (2) of the Act. It is further found that
Pharmaceutical Clerks by attempting to enforce the
agreement on or about October 27, 1969, and December 8,
1969, violated Section 8(b)(1)(A) and (2) of the Act.
Having found that the settlement agreement was properly
set aside and that the Respondents violated the Act as
alleged in the consolidated complaint, it is now necessary to
consider the allegations of the consolidated complaint
which refer to the charges filed in the 1968 cases.
50 If Jensen were not a co-owner of an establishment but merely an
officer of the Association, his agency in behalf of all the employer-
members would be clear The fact that, in addition to being an officer of
F. The 1968 Charg1 as Reflected by the
-Consolidated Complaint
313
As detailed above, Jensen, an officer of the Association,
called Bashaw on January 18, 1968, and interrogated her
concerning the details of the Pharmaceutical Clerks'
meeting of January 17, 1968. During this conversation,
Jensen threatened to discharge any girl that joined Local
775. I conclude that Jensen was acting in behalf of the
Association and therefore was speaking in behalf of each of
the employer-members of the Association. I find Jensen's
conduct to be violative of Section 8(a)(1) of the Act. I
conclude, under the circumstances, that each of the
Respondent-employers are accountable for Jensen's con-
duct and therefore I find each of them to be in violation of
Section 8(a)(1) of the Act S0
Jensen admitted he was present on February 28, 1968, at
the Benjamin Franklin Hotel when the Pharmaceutical
Clerks conducted a meeting called to discuss a merger with
Local 775. His presence at I I p.m., his return at midnight,
and his interest in hearing the results of the meeting can
only lead to the conclusion that he engaged in unlawful
surveillance of protected union activity. Accordingly, I find
that Respondent-employers, and each of them, violated
Section 8(a)(l) of the Act by reason of Jensen's surveil-
lance.
The evidence does not establish that Giubbini was an
officer of the Association. Giubbini's conduct, therefore, is
not chargeable to any other of Respondent-employers. The
evidence, as detailed heretofore, shows that Giubbini
engaged in extended interrogation of Barlow, one of his
employees, and threatened her as well as other employees
with more arduous working conditions if they exercised
their rights under Section 7 of the Act by joining or assisting
Local 775. I find that the interrogation, threats and his
request that Barlow resign, each constituted independent
violations of Section 8(a)(1) of the Act for which Collins
Pharmacy is accountable.
I further find that Giubbini withdrew and withheld
certain commissions from his employees, commencing
January 23, 1968, and continuing to date, for the purpose of
discouraging membership in, and adherence to Local 775. I,
therefore, find that Collins Pharmacy, by Giubbini's
conduct as recited above, violated Section 8(a)(1) and (3) of
the Act.
The evidence recited heretofore shows that in the latter
part of 1967 the employees of Respondent-employers had
little interest in Pharmaceutical Clerks. With the selection
of Bashaw as president of the Pharmaceutical Clerks, a
movement was inaugurated to merge with Local 775, and
on February 28, 1968, there was a vote in favor of such a
merger. Thereafter, Local 775 notified the Association and
each of the employer-members of the Association, Respon-
dent-employers herein, that it represented the employees
and wished to engage in collective bargaining.
On the strength of a petition favoring Pharmaceutical
Clerks, circulated on March 28, 1968, among employees by
Costaglio, and assisted by Church and Brown, which was
the Association, he is a co-owner of one of the Respondent -employers,
should not , thereby, result in a different conclusion as to his agency in
behalf of all the employer-members.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presented to Jensen with 23 signatures, the Association
opened negotiations with the Pharmaceutical Clerks and
entered into the May 15, 1968, labor agreement. These facts
manifest a classic situation where an employer has
arrogated to itself the determination of the majority status
of one of two rival labor organizations.51 Plainly, the claim
of Local 775 was neither frivolous nor insubstantial. At the
very least, the Association was faced with a real question
concerning representation 52 Accordingly, it is found that
the recognition of the Pharmaceutical Clerks and the
execution of the labor agreement on May 15, 1968,
containing a union shop clause with the Pharmaceutical
Clerks by each of the Respondent-employers constituted a
violation by each of the Respondent-employers of Section
8(a)(1) and (2) of the Act.
While a finding against the Pharmaceutical Clerks by
virtue of the execution of the agreement is barred by the
limitations of Section 10(b) of the Act, nevertheless, the
reinstatement of the agreement and the attempt to enforce
the agreement on October 27, 1969, and December 8,
1969,53 are within the six-month penod of the charge filed
against the Pharmaceutical Clerks.54 I find that by
continuing the contract in effect, and attempting to enforce
the labor agreement at a time when it had full knowledge of
the rival claim of Local 775, and at a time when it was party
to the settlement agreement which prohibited employer-
members of the Association from recognizing it or giving
effect to the contract, the Pharmaceutical Clerks were and
are in violation of Section 8(b)(1)(A) and (2).55
G. Concluding Findings
Counsel for Local 775 in his brief requests a bargaining
order which would direct the Respondent-employers to
recognize and bargain with Local 775. Reliance is placed
upon (1) the vote by Pharmaceutical Clerks to merge with
Local 775 on February 28, 1968, and (2) the majority status
of Local 775 as exemplified by the authorization cards in
evidence.
While I consider that the cards56 show that Local 775 did
have a showing of preference from 20 employees, the
presence of a majority has not been clearly established in
that evidence of the number of employees in the employ of
Respondent-employers was not satisfactorily shown. More-
over, the petitions filed by Local 775 do not include all the
employer-members of the Association, nor the Association
itself.
The contention that Local 775 is a true successor-union
to Pharmaceutical Clerks must also be rejected. The
General Counsel, in January, 1969, declined to honor the
merger vote and refused to issue a refusal to bargain
complaint. I cannot second-guess the General Counsel even
if I were inclined to do so. Accordingly, the request for a
bargaining order is denied.
51 Midwest Piping is Supply Co, Inc, 63 NLRB 1060, While Front,
Sacramento, Inc, 166 NLRB 44
52 This is not to minimize the dependence of the Pharmaceutical Clerks
on employer assistance as Costaglio's and Aronson's letters of 1967
demonstrate
Ss G.C Exh 9 This document by the representative of the
Pharmaceutical Clerks constitutes an admission of the fact
54 Case 20-CB-2124 was filed on November 12, 1969.
55 Hart Motor Express, Inc, 164 NLRB 382. Fant Milling Co 309 U S.
Counsel for the Pharmaceutical Clerks argues in his brief
that the letter of October 27, 1969, is completely proper and
legal if the May 15, 1968, contract is valid. He then
contends that the contract is valid and therefore the
complaint against the Pharmaceutical Clerks must be
dismissed. Counsel fails to define his definition of
"validity." While it may be true that the contract when read
in a vacuum is not invalid, per se, nevertheless, when the
events leading to the contract are considered in context and
attention is directed to the fact that the Pharmaceutical
Clerks became a party to the settlement agreement, it is
self-evident that the contract lacked "validity" unless and
until the precondition of the settlement agreement was met,
i.e., certification of the Pharmaceutical Clerks as the
collective-bargaining representative of the employees.
Having failed to meet this condition, arising from a
voluntary undertaking, the Pharmaceutical Clerks, like the
Respondent-employers, cannot properly now proclaim the
"validity" of the contract as a defense.
Counsel also argues that neither the letter of October 27,
1969, nor that of December, 1969, was authorized. Even if I
were to credit Phyllis Collins, that the membership
criticized her for sending out one or both of these letters, I
would not reverse my findings as at no time was the
membership or the employers notified that the statements
contained in the letters were unauthorized or withdrawn.
Moreover, it is undisputed that the contract was actually
reinstated, a fact sufficient by itself to support the
violations of Sections 8(a)(1) and (2) and 8(b)(1)(A) and (2)
that are found herein.57
Upon the basis of the above findings of fact and upon the
entire record in this case , I reach the following:
CONCLUSIONS OF LAW
1. The Association is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2 Each of the Respondent-employers of the Associa-
tion, by virtue of their membership in the Association, are
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. Local 775 and Pharmaceutical Clerks are labor
organizations within the meaning of Section 2(5) of the Act.
4. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed them by Section
7 of the Act, by threatening employees with discharge
because of their union activity and by engaging in
surveillance of a meeting of employees, each of the named
Respondent-employers has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
5. By executing and maintaining the labor agreement
with the Pharmaceutical Clerks on or about May 15, 1968,
which contained a union security provision and at a time
when there was a real question concerning representation,
350, where the United States Supreme Court said, "The Board is not
precluded from dealing adequately with unfair labor practices which are
related to those alleged in the charge and which grow out of them while the
proceeding is pending before the Board" citing National Licorice Co, 309
U S 350
56 Charging Party's Exh 2(a-t)
57 Phyllis Collins in her revised testimony asserted that the contract was
in force except for the 60-day posting penod
ANDERSEN PHARMACY
each of the named Respondent-employers engaged in
unfair labor practices within the meaning of Section 8(a)(2)
and (1) of the Act.
6. By repudiating the settlement agreement approved
by the Regional Director on May 29, 1969, and by
reinstating the labor agreement of May 15, 1968, on or
about November 19, 1969, and at a time when the
Pharmaceutical Clerks was not the certified bargaining
representative of their employees, each of the named
Respondent-employers engaged in unfair labor practices
within the meaning of Section 8(a)(2) and (1) of the Act.
7. By repudiating the settlement agreement of May 29,
1969, to which it was a party and by maintaining and
attempting to enforced the May 15, 1968, contract
containing a union-security provision on or about October
27, 1969, the Pharmaceutical Clerks engaged in unfair labor
practices within the meaning of Section 8(b)(I)(A) and (2)
of the Act.
8. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed them by Section
7 of the Act, by threatening employees with more arduous
tasks if they assist or support Local 775 and by requesting
an employee to resign because of assistance and support to
Local 775, Collins Pharmacy has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
9. By withholding and terminating commissions to
employees on about January 23, 1968, to deter assistance
and support to Local 775, Collins Pharmacy has engaged in
unfair labor practices within the meaning of Section 8(a)(3)
and (I) of the Act.
10. The Regional Director for Region 20 was justified in
setting aside the Settlement Agreement approved by him on
May 28, 1968, in Cases 20-CA-4942, 4943, 4944, 4945,
4946,4947,4948,4949,4950,4951,4952,4953,4954,4955.
11. The aforesaid unfair labor practices are unfair
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents, set forth in Section III
above, occurring in connection with the operations of the
Respondent described in Section I, above, have a close,
intimate and substantial relations to trade, traffic and
commerce among the several States, and tend to lead to,
and have led to, labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent-employers and each of
them have engaged in unfair labor practices in violation of
Section 8(a)(1) and (2) of the Act, it will be recommended
315
that the Board issue the Recommended Order set forth
below requiring the Respondent-employers and each of
them to cease and desist from said unfair labor practices
and take certain affirmative action designed to effectuate
the policies of the Act.
Having found that Respondent-employers and each of
them unlawfully recognized and executed a labor agree-
ment containing a union security clause with the Pharma-
ceutical Clerks on May 15, 1968, and unlawfully reinstated
the aforesaid labor agreement on or about November 19,
1969, it shall be recommended that the Respondent-
employers and each of them withdraw and withhold
recognition from the Pharmaceutical Clerks as the exclusive
representative of their pharmaceutical clerk employees and
cease giving effect to the labor agreement entered into on
May 15, 1968, with the Pharmaceutical Clerks, unless and
until the aforesaid Pharmaceutical Clerks are certified as
the exclusive collective-bargaining representative of their
employees in the appropriate bargaining unit.
Having found that Collins Pharmacy has engaged in
independent unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act, in addition to the
violations of Section 8(a)(1) and (2) of the Act by virtue of
its membership in the Association, it will be recommended
that the Board issue the Recommended Order set forth
below requiring Collins Pharmacy to cease and desist from
said unfair labor practices and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Collins Pharmacy unlawfully termi-
nated and withheld certain commissions from its pharma-
ceutical clerks on and after January 23, 1968, it shall be
recommended that it reinstate the practice of paying
commissions on certain items sold by its pharmaceutical
clerks and make them whole for any loss of commissions
which they may have lost since January 23, 1968. Back
payments shall be reimbursed with interest added thereto in
the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
Having found that Pharmaceutical Clerks unlawfully
attempted to enforce the agreement of May 15, 1968, on
October 27, 1969, and December 8, 1969, it will be
recommended that the Board issue the Recommended
Order set forth below recommending that the Pharmaceuti-
cal Clerks cease and desist from said unfair labor practices
and take certain affirmative action designed to effectuate
the policy of the Act including reimbursement of all dues
and initiation fees paid by any past and present employees
of Respondent-employers to become or retain membership
in the Pharmaceutical Clerks on or after October 27, 1969,
with interest at the rate of 6 percent per annum.58
[Recommended Order omitted from publication.]
58 It was contended that there was actually no enforcement of the
union-security provisions of the contract I regard this fact, even if true, as
immaterial as the mere threat of enforcement of the union-security
provisions constitutes unlawful coercion and is violative of the Act