Drug King, Inc.

National Labor Relations Board - Board Decisions

Mar 4, 1966

157 N.L.R.B. 343 (N.L.R.B. 1966)

DRUG KING, INC. 343
APPENDIX
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 NOT discourage membership in Sheet Metal Workers ' International
Association , Local Union No. 170, Sheet Metal Workers ' International Asso-
ciation , AFL-CIO, or any other labor organization of our employees , by dis-
charging, refusing to reinstate , or in any other manner discriminating against
them in regard to their hire or tenure of employment or any term or condition
of employment.
WE WILL offer Rene Fausto immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other
rights and privileges previously enjoyed , and make him whole for any loss of
pay suffered by him as the result of the discrimination against him.
WE WILL , upon request , bargain collectively with the Union as the exclusive
representative of our employees in the appropriate bargaining unit, concerning
wages, rates of pay, hours of employment, or other terms and conditions of
employment and, if an understanding is reached , WE WILL embody such under-
standing in a signed agreement . The bargaining unit is:
All of the Company 's production , maintenance , shipping, and receiving
employees employed at its plant at 1580 East Industrial Street, Los Angeles,
California , excluding office clerical employees , professional employees,
guards , watchmen , and supervisors as described in the Act.
WE WILL NOT in any manner interfere with, restrain , or coerce our employees
in the exercise of their right to self -organization , to form labor organizations,
to join or assist the above -named Union or any other labor organization, to
bargain collectively through representatives of their own choosing , and to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all such activities.
All our employees are free to become or remain , and to refrain from becoming or
remaining , members of the above -named or any other labor organization.
E.P. Co ., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employee , if presently serving in the
Armed Forces of the United States, of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948 , 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 pro-
visions, they may communicate directly with the Board 's Regional Office, 849 South
Broadway, Los Angeles , California , Telephone No. 688-5229.
Drug King, Inc. and Retail Store Employees Union , Local 428,
Retail Clerks International Association , AFL-CIO. Case No.
2O-CA-337.. March 4,1966
DECISION AND ORDER
On September 29, 1965, Trial Examiner David F. Doyle issued his
Decision in the above-entitled proceeding, finding that Respondent
157 NLRB No. 30.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Iliad 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, Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief. The Charging Party filed an answer-
ing brief in support of the Trial Examiner's Decision and the General
Counsel filed as an answering brief, its brief to the Trial Examiner.
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 tliree-member
panel [Chairman McCulloch and Members Jenkins 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 Trial
Examiner's Decision, the exceptions, briefs, and entire record in
this case, and -hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following exception.
The only modification which the Board considers necessary in the
Trial Examiner's Decision is with respect to the reasoning in support
of the finding that Respondent violated Section 8(a) (5) and (1) of
the Act. In a case such as this, where an employer refuses to recog-
nize a union on a showing that a majority of its employees in an
appropriate unit have signed cards designating the union as their
representative, our recent decisions make it clear that the critical issue
is whether the General Counsel has carried the burden of showing
that the refusal to bargain was in bad faith.' We find that in this
case the General Counsel's proof of Respondent's unfair labor prac-
tices contemporaneous with its refusal to recognize and bargain, plus
Respondent's verification of the Union's clear majority status result-
ing from its interrogation of employees and its checking of the names
on the authorization cards, made out a convincing case of a bad-faith
refusal to bargain.2 "In such circumstances, a prima facie case of
bad faith cannot be rebutted simply by asserting that authorization
cards are unreliable as proof of employee desires," 3 as Respondent
here argues. We therefore adopt the Trial Examiner's finding that
Respondent's refusal to recognize and bargain with the Union violated
Section 8(a) (5) and (1) of the Act.
[The Board adopted the Trial Examiner's Recommended `Order.]
' Jem Mfg., Inc., 156 NLRB 643; Master Transmission Rebuilding Corporation &
Master Parts, Inc., 155 NLRB 364; John P. Serpa, Inc ., 155 NLRB 99 ; Hammond 3;
Irving, Incorporated , 154 NLRB 1071.
8 Joy Silk Mills , Inc., 85 NLRB 1263, enfd . as modified on other grounds 185 F. 2d 732
(C.A.D.C.), cert . denied 341 U.S. 914.
8 Jem Mfg., Inc., supra.
DRUG KING, INC. 345
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
David F. Doyle in San Jose, California, on March 30 and 31 and April 1, 1965, on
complaint of the General Counsel and answer of the Respondent. The issues litigated
were whether the Respondent had violated Sections 8 (a) (1) and (5) of the Act by
certain conduct described hereinafter.'
At the hearing the parties were represented by the counsel named above who were
afforded full opportunity to present evidence, to examine and cross-examine wit-
nesses, and to present oral arguments and briefs on the issues.
Upon the entire record and from my observation of the witnesses, I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
The Company is a California corporation with its main office located at Holly-
wood, California. It is a subsidiary of Rexall Drug and Chemical Company and is
engaged in the retail drug business. During the year prior to the issuance of the
complaint, the Company, in the course and conduct of its business operations, sold
goods and merchandise valued in excess of $500,000. During the same period it
also purchased goods and merchandise valued in excess of $50,000, which were
received from places and points located outside the State of California.
It is conceded by the Company and I find that at all times material herein the
Company has been and is an employer engaged in commerce and in operations affect-
ing commerce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
It is admitted by the pleadings and I find that the Union is now, and at all times
material herein has been, a labor organization within the meaning of Section 2(5)
of the Act.
HE THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The complaint alleged that the Company, by its officers and supervisors, violated
the Act as follows:
(1) Interfered with, restrained, and coerced the Company's employees by interro-
gation and coercive statements in violation of Section 8(a)(1) of the Act.
(2) Refused on and after November 6, 1964, to bargain with the Union which
was and is the majority representative of the Company's employees in an appropriate
unit.
The duly filed answer of the Company denied the commission of any unfair labor
practices. At the hearing and in its brief the Company advanced the following con-
tentions in its defense:
(1) It was not responsible for the conduct of Townsend, keyman at the Santa
Clara store. The statements of Manager Morley of the Santa Clara store to employ-
ees were not of a coercive nature and were not violative of the Act.
(2) The Company did not refuse to bargain in violation of Section 8(a) (5) of the
Act because: (a) The unit requested by the Union was inappropriate; (b) the
Company had a good-faith doubt of the Union's majority status; and (c) it is the
intent of the Labor Management Relations Act, 1947, that whenever a question of
representation exists, the sole method of resolving it is by a Board-conducted election.
'In this Decision, Drug King, Inc Is referred to as the Respondent or the Company ;
Retail Store Employees Union, Local 428, Retail Clerks International Association, AFL-
CIO, as the Union, the National Labor Relations Board, as the Board ; the General Coun-
sel of the Board and his representative at the hearing, as the General Counsel ; and the
Labor Management Relations Act, as amended, as the Act
The original charge in this proceeding was filed on November 24, 1964, by counsel for
the Union, and a first amended charge was filed by the sane person on January 11, 1965
The complaint herein was issued on January 13, 1965, by the Regional Director for
Region 20.
It should be noted that all dates in this Decision are in the year 1964 unless specified
otherwise.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The evidence
An analysis of the legal positions of the parties discloses that there exist no grave
testimonial conflicts as to the sequence of events which comprise this controversy.
An examination of the testimony offered by the parties demonstrates that the testi-
mony of union representatives and employees, and a few supervisors, offered as wit-
nesses by the General Counsel, is not substantially challenged by the Company,
which for its part draws some differing inferences from the same testimony, or by
other testimony seeks to explain or justify the conduct of its supervisors. In this
posture of the case, I have decided to relate in this summary, first, the substantially
undisputed facts comprising the admitted sequence of events, and then the evidence
presented by the Company and its arguments in justification of its conduct.
1. The sequence of events; the Union's organizational campaign;
the Union's majority status in the unit
It is undisputed that the Company operates a chain of retail drugstores in the
State of California of which two are involved in this proceeding. These stores are
located in the city of Santa Clara and the city of Campbell, California. These stores
are approximately 5 miles distant from each other.
It is undisputed that Kathryn Morrow, a clerk at the store in Santa Clara, first
made inquiry of the Union concerning the organization of the employees at that
store. Approximately 1 week later a union representative went to Morrow's home
where the representative explained the benefits of the Union to Morrow and gave
her a number of authorization cards to be passed out among the employees. The
employees signed these authorization cards which they returned to Morrow and the
employees in turn solicited other employees. In this way by November 4, a total
of 10 employees at the Santa Clara store had signed authorization cards for the
Union.
During the same period in which the organization of the Santa Clara store had
been going forward, the Union also initiated an organizational campaign at the
Company's store in Campbell. At this store, by November 5, signed authorization
cards had been received from seven employees? Thus by November 6, the Union
had in its possession 17 signed authorization cards, received from the estimated 20
employees in the 2-store Unit .3
2. The demand for recognition; the meeting of representatives
of the parties on November 6
It is likewise undisputed that on the morning of November 6, Russell, project
director of the Union, Reed, business agent, Local 870, and Tupper, business agent,
Local 428, met with Ted Linderman, district manager for the Company in northern
California, at the company store in the shopping center in the city of San Leandro,
California. Reed introduced the other two union representatives to Linderman and
then presented a letter to Linderman. This letter on the letterhead of the Union
reads as follows:
November 4, 1964
Drug King, Rexall
74 Bay Fair Shopping Center
San Leandro, California
Attention: Mr. Ted Linderman
District Manager, Northern Area
Dear Sir: This is to advise you that the Retail Store Employees' Union,
Local 428 AFL-CIO, San Jose, California, has been designated as the collective
bargaining representative by the majority of your employees at the following
locations:
Drug King Rexall Drug King Rexall
1658 Bascom 3531 El Camino Real
Campbell, California Santa Clara, California
2 Note that for various reasons some of these cards were not received in evidence.
As will be seen later in this Decision, the Union was correct in Its conclusion that it
thus had a majority of the employees in the two-store unit, even though the cards of some
persons are excluded from the count of employees made later in this Decision, on the
ground that the individuals are supervisors. This does not change the fact that-at all
times after November 5 the Union had majority status in the two-store unit.
DRUG KING, INC. 347
The collective bargaining unit in which we,demand recognition includes all
selling and non-selling employees at the above mentioned locations and excludes
pharmacists, store managers, assistant store managers, restaurant employees,
guards, watchmen and supervisors as defined in the Labor Management Act as
amended.
As such, the union is the legally authorized agent of your employees with
whom all matters of wages, hours and matters of working conditions must be
negotiated. We herein furnish written proof that we represent the majority of
your employees. Accordingly, we hereby demand that you recognize Local 428
as the collective bargaining agent.
It is our desire to meet with you at your earliest convenience for the purpose
of negotiating a collective bargaining agreement covering the aforementioned
employees.
Sincerely yours,
RETAIL STORE EMPLOYEES UNION LOCAL 428 AFL-CIO
(S) James P. McLoughlin
JAMES P. MCLOUGHLIN
Secretary-Treasurer.
[Emphasis supplied.]
[General Counsel's Exhibit 6.]
Linderman read the letter and then Russell presented to Linderman the 17 signed
authorization cards as the "written proof of its majority representation." Linderman
examined the cards and extracted one from the bunch, saying that Robert Morgan
could not properly be in the unit of employees as he was the assistant manager at
the Campbell store. On behalf of the Union, Russell agreed that if Morgan was
the assistant manager at the Campbell store his card could not be counted as being
in the unit. He accepted Morgan's card as offered to him by Linderman. When
Linderman had finished his examination of the remaining cards, he returned them
to Russell and the conversation of the conferees then turned to the fact that the
Company was negotiating with Local 870 in regard to other stores in the chain.
Tupper stated that Local 428 was also in the midst of negotiations at that time with
other retail stores and that if the Company wanted to participate in these negotiations
they would have to sign the recognition agreement which was physically attached to
the Union's demand letter. Linderman then said that he would have to refer the
matter to Jack Hall, the Company's 'labor relations representative in Los Angeles.
Tupper then signed the recognition agreement on behalf of Local 428, so that the
agreement would become effective if and when it was signed by Hall. Linderman
said that he would forward the letter and recognition agreement to Hall at Los
Angeles immediately.
At this point in the conference, one of the union representatives asked Linderman
if he had the payrolls of the Santa Clara and Campbell stores in his office. Linder-
man said that the payrolls were kept at the individual stores and that neither was
then available to him. After some discussion on this point, the union representatives
suggested that Linderman and the union representatives go to each of the stores and
compare the names on the authorization cards with those on the payrolls at the
stores to establish beyond question that the Union had a majority at each store.
Linderman demurred on-the ground that he did not have the time. The union repre-
sentatives then suggested that Linderman draw up a list of the names of the card
signers, which he could use later in checking the names of the employees against the
Company's payroll. Linderman then made a list of the signers of the cards, dividing
the names on the list according to the store in which the employee worked. In the
course of the conversation Linderman stated that he had no knowledge of the fact
that the Union had been organizing either of the stores and he also had no knowledge
that any employee had been coerced into signing any authorization card. As the
meeting ended, Russell requested Linderman to tell Hall, when he notified him of
the meeting, that Linderman had received the demand letter of the Union and had
examined the authorization cards and had copied down the names of the employees
who had signed the cards.
When the union representative left his office, Linderman telephoned Marsh, vice
president of the Company at Los Angeles, and told him what had happened during
the meeting. Linderman stated that he would forward the letter and recognition
agreement to Marsh, who said that he would give the documents to Phillips, director
of labor relations for the Company and its parent, Rexall Drug and Chemical
Company. - `
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The activities of Morley, Townsend , and Linderman
From the testimony of John Morley, manager of the Santa Clara store, and Terry
Townsend , keyman at the same store, and the testimony of many employees, it is
clear that shortly before the opening of that store at 9 a.m. on November 6, Manager
Morley learned of the Union's organizational activity from Townsend. Morley
immediately began questioning and polling the employees about their union activi-
ties. The employees testified to various conversations with Morley, and in his testi-
mony Morley admitted that on that morning he spoke to "just about everybody on
the morning shift" concerning their union activities.
Employee Karen Corwin testified credibly that she was stocking shelves when
Morley asked her to accompany him to his office. Morley asked Corwin if she had
been contacted by a union representative, that he had heard that union people were
talking to the employees. Morley said that he knew that employee Dodds had signed
an authorization card because Dodds had admitted that to Morley. Corwin then
said that she too had signed a card. Morley said that he wished the employees had
come to him first about any grievances which they had. Then Morley said that it was
too bad Corwin had signed the card because if the employees went union, things
around the store would be much more strict, such as tardiness, etc., as he would have
to report these things to the Union, and these matters would then be out of his hands.
On the same morning Morley also spoke to employee Kathryn Morrow. In the
course of this conversation he told Morrow that if the Union came into the store the
employees would lose the benefits of the Company's profit-sharing plan, and that if
the store operated under a union contract an employee would be automatically dis-
missed when the employee had three instances of tardiness. Morley also said that the
company hospitalization plan could not be surpassed by the Union. Morley also
talked to employee Shepard in a similar vein on November 6. A few days later em-
ployees Burch and Yontz had a similar conversation with Morley.
According to several employees, Terry Townsend, the keyman at the Santa Clara
store , was most vehement in his opposition to the Union . Kathryn Morrow testified
that on November 8, around 9 : 30 a.m ., she was working at the cash register with
employee Shepard when Townsend approached them. Townsend asked Morrow if
she had not been the person who started the union activity in the store and then he
told her that she would lose her rights in the Company's profit-sharing plan if the
Union came in. According to Morrow, he shouted at her that he had no use for the
Union and that there would be "no [profane] Union" in the store. The conversation
ended when a customer remonstrated with the employees about the profanity of
Townsend's remarks. About an hour later Townsend asked Morrow to join him for
a cup of coffee. After a few courteous remarks Townsend again became angry with
Morrow; he again told her that the employees would lose their profit-sharing plan
under the Union and that if she thought the Union was coming in the store, she was
crazy. Morrow left at that point. Employee Barber testified that Townsend, on
another occasion, sought her out and told her to be careful about being in favor of
the Union' because she could "get screwed up" by voting for the Union.
In his testimony Linderman said that he took steps to verify the Union's majority
at the two stores. At 1 o'clock on November 6, he arrived at the Santa Clara store
with the list of names he had made that morning from the authorization cards pre-
sented by the Union. He asked Morley if the People on the list were in fact employ-
ees of the store Morley said that they were. Linderman then drove to the Campbell
store and asked Manager Wheat whether certain names on the list were employed in
that store. Wheat also told him that they were.
4. The Company's reply to the Union's demand for
recognition and bargaining
It is undisputed that on November 16 Herschel Phillips, director of labor rela-
tions for the Company, returned to his office after an absence and found the Union's
demand letter dated November 4 and the recognition agreement on his desk. Phillips
noticed that the letter referred to written proof of the Union's majority. At that
point, according to Phillips, he called Linderman and asked what this written proof
was. Linderman told him that the Union had presented to him certain authorization
cards and that he had written down the names of some persons with whom he was
not familiar but that he had destroyed the list. According to Phillips he then asked,
"Don't you have any list or anything at all"; Linderman replied that he did not.
Linderman explained that an appointment had been set up and that the men came to
his office and showed him "some cards." Phillips asked Linderman if he noticed
DRUG KING, INC. 349
"anything about the cards?" Linderman replied that "some of them looked old to
me." Phillips then wrote the following letter to the Union, to the attention of
McLoughlin, the man who had written the demand letter. This letter reads as follows:
Dear Mr. McLoughlin: It has been called to my attention that you wrote a
letter on November 4, 1964 to our subsidiary, Drug King, at San Leandro, Cali-
fornia, in connection with stores at Campbell and Santa Clara, California.
Please be advised that the procedure which you recommend for recognition
is unacceptable to us due to various factors. In order for you to prove a
majority of the employees wish to have you represent them, we request that you
file a petition with the National Labor Relations Board and comply with the
procedures which are applicable under the National Labor Relations Board Act.
Sincerely yours,
[Emphasis supplied.]
[Respondent's Exhibit 1.] Herschel Phillips
It should be noted in connection with this letter that the Company made no explana-
tion at any time prior to the hearing of what the "various factors" were to which
Phillips referred.
Phillips' letter was transmitted to Bowe, counsel for the Union, who on Novem-
ber 24, replied to Phillips as follows:
Dear Mr. Phillips: Your November 17, 1964 letter to Mr. McLoughlin in
connection with the Drug King Stores at Campbell and Santa Clara, California
has been referred to our office for reply. This is to inform you that we consider
your company's position in this matter and its extensive anti-union conduct to be
flagrant violations of Sections 8(a) (1) and 8 (a) (5) of the National Labor Rela-
tions Act. Consequently charges are now being filed with the National Labor
Relations Board. If you should wish to reconsider your position and recognize
Local 428 as the collective bargaining representative , I will be glad to discuss
a withdrawing of these charges.
Yours very truly,
By Philip Paul Bowe
[General Counsel's Exhibit 7.1
On November 25 the Union filed with the Regional Office the original charge herein,
which alleged that the Company had violated Section 8(a) (1) and (5) of the Act.
While this exchange of letters set forth the ultimate positions of the parties prior
to the hearing, there occurred some additional correspondence which points up one
issue in the case.
On November 25 Phillips replied to Bowes' letter of November 24, as follows:
Mr. P. Bowe
Carroll, Davis, Burdick & McDonough
420 Balfour Building
San Francisco, California 94104
Dear Mr. Bowe: We regret that you ignore the rights of our Drug King
employees.
Our people at our stores are good people. They believe in a secret ballot.
Drug King will provide all necessary and lawful protection for each and every
employee to assure him or her an absolutely free choice to vote union or no union.
I am much concerned' about your claiming "extensive anti-union conduct."
The Drug King operation has conducted itself in an exemplary manner of which
we all can be proud. If you know of any specific thing which the Drug King
operation has done wrong, please bring it to my attention. I guarantee that if
there is any merit at all in what you claim, we will cure that injury.
Sincerely yours, -
Herschel Phillips
The correspondence noted above is especially noteworthy because even at this point
in the controversy, the Company had not expressed any doubt about the majority
status of the Union in the unit, or any objection to the appropriateness of the unit
claimed by the Union. The correspondence is also noteworthy in the fact that though
Phillips' letter stated that the employees "believed in a secret ballot," the Company
did not file an RM petition requesting such an election. It had the right to file such
petition pursuant to Section 9(c) of the Act.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The Company's contention and evidence as to Morley's conduct -
The answer of the Company admitted that Morley was the manager of the Santa
Clara store and a supervisor. At the hearing the Company contended that the con-
versations of Morley with various employees of that store were not coercive in nature.
In support of this contention the Company called Morley as a witness. Morley
testified that he learned about the union activity in the store when it opened at
approximately 9 a.m. on November 6. He then went into the store and started
calling people into his office to ask them "What the story was?" He talked to every-
body on the day shift, approximately five employees. Morley stated that he talked to
each of these employees individually. First, he asked them if they were aware of the
union activity in the store. Then he asked them if they had looked into it; did they
know what they were getting into; what they wanted to do? He explained to them
that the Company did not care which way they went; they could go either way. He
told them that if the store went union they would be living under the union contract
and the store would not be operated as it was then operated. He brought up the sub-
ject of the employees' profit-sharing plan and told them to check into that with the
Union and see what they would be getting under union contractual conditions. He
assured the employees that whatever the employees did would be satisfactory to the
Company. He said that he discussed with employees possible procedures of written
warning notes concerning absences or tardiness and other obligations of store rules,
which might be initiated if the Union organized the employees. Morley said that he
did not make any promises to employees or in any way threaten them with loss of
benefits, depending upon their adherence to, or objection of, the Union.
A few days later Morley learned that some of the people were worried that they
might lose their job over the union question. He went to Howie Hill, an employee,
and told him that no employee would lose a job because of union activity.
Morley stated that late the same day, when Linderman came to the store, he
learned that the Union had demanded recognition from Linderman. In the course of
his conversation with Linderman, Morley told Linderman that he had talked to the
people on the morning shift and intended to talk to the employees on-the evening shift.
Linderman instructed him not to talk to anyone about it, that Phillips, the director of
labor relations for the Company, would handle the entire matter.
In the course of his cross-examination, Morley stated that he had told the employees
that if the Union entered the store, there would be procedures whereby if an employee
was late two or three times, automatic termination could result.
In addition to the testimony of Morley, counsel for the Respondent elicited from
employee Corwin, on cross-examination, the statement that Morley had not asked her
if she had signed a card for the Union but that she volunteered that information to
Morley. Corwin also said that Morley did not threaten her with any loss of benefits
if she joined the Union or promise her any benefits if she stayed out of the Union;
that she was free to join or not join as she desired. In the course of her cross-
examination, employee Morrow also said that Morley did not ask her if she had signed
a card. Employee Estella Shepard, on cross-examination, stated that Morley did not
ask if she had signed a card but she volunteered the information in the course of their
conversation. Employee Howard Hill also stated that Morley told him that no one
was going to be fired over the fact that the employees wanted to go union.
6. The Company's contention and evidence as to Townsend; keymen
found to be supervisors
The Company took a somewhat different tack as to its responsibility for the conduct
of Townsend. It claimed that Townsend was a keyman and was not a supervisor.
The General Counsel claimed that Townsend, as a keyman, was a supervisor; this point
was thoroughly litigated. The decision on this point also had a secondary bearing as
to the eligibility of Keyman Donovan for inclusion in the appropriate unit.
In the course of his direct case the General Counsel adduced evidence which estab-
lished that the Santa Clara store and the Campbell store each has a manager, assistant
manager, and a keyman in an order of descending authority. Employee Shepard testi-
fied that Manager Morley works only the daytime hours from 9 to 5. When he was
not at the store, Assistant Manager Wright or Keyman Townsend was in charge.
Assistant Manager Wright and Keyman Townsend alternated their schedules each
week; since the store was open every evening, Assistant Manager Wright would work
one week 5 to 12 p.m. and the next week Keyman Townsend would work that shift.
Shepard also testified that neither Morley nor Wright worked on Sunday, so it seems
clear that Keyman Townsend was the sole authority in the store on those alternate
weeks when he worked the night shift and on Sunday.
DRUG KING, INC. 351
Gordon Samdahl, a former keyman at the Campbell store, and Augustine Donovan,
keyman at that store since the latter part of December 1964, both stated that keymen
were considered a part of management. Samdahl testified that on the day shift he
would open the store, open the safe, take the money from the safe, and prepare the
money for cash registers. On the night shift it was his responsibility to count the
receipts, place the money in the safe, and then securely lock the store. In the ordinary
course of business he would OK the checks of customers and take action in regard to,
any customer complaints. In his turn, Donovan testified that the keyman is responsi-
ble for the proper operation of the store while he is in charge. Samdahl also testified
that when he was in charge of the store he directed the employees in their duties.
However, when the manager or assistant manager was on the same shift with him, the
keymen would refer the larger problems of management to the manager. Samdahl
testified that when conferences of management concerning the operation of the store
were held, the manager, assistant manager, and himself, as the keyman, attended. He
explained that the assistant manager performed the same duties as he did as keyman,
when each was in charge of the store at night. Donovan also testified that he had been
instructed by management that he was responsible for telling the other employees
what they were to do.
Employees Shepard, Morrow, Corwin, and Burch also testified regarding Town-
send's performance of his duties. Corwin testified that Townsend directed her in her
work and that she took his authority over her for granted because of the badge he
wore which said "Assistant Manager" on it. Morrow testified that Townsend told
her on one occasion that he had been given the privilege of firing her, not too long
before that date. Employees Burch, Hill, and Yontz testified that Townsend is the
manager of the front end of the store and that Townsend directed their performance
of duty there. Both Samdahl and Donovan testified that keymen receive a monthly
salary, as do other management personnel, while all the rank-and-file employees of
the store are paid on an hourly basis. The General Counsel entered in evidence a
payroll slip establishing that Townsend received a salary of $125 per week. This
same exhibit also demonstrates that a rank-and-file clerk paid on an hourly basis for
a 48-hour week earned approximately $18.20 less per week than Townsend for the
same number of hours. Both Samdahl and Donovan testified that salaried keymen
were not paid for overtime and no deductions were taken from their salaries, if they
were absent a few hours. Employee Burch testified that as an hourly employee he was
paid extra for overtime, and he was not paid for any hours which he did not work.
In contradiction of the above testimony, both Manager Morley and Townsend
himself testified that Townsend was not an assistant manager and that he had never
been given authority to hire or fire employees or to grant salary increases. Linderman
testified that Townsend had never been included in the supervisory insurance pro-
gram or in the bonuses given managers and assistant managers of the Company.
Manager Morley testified that Townsend wore a badge marked "Assistant Manager"
only because of a mistake. He said that the badges had been made up by the com-
pany signman in San Leandro and that he had put "Assistant Manager" on the badge
for Townsend by mistake. He did not think it was important enough to make a
change in the badge, so it was kind of a joke around the store that Townsend wore
the badge.
The Company also elicited some testimony from employees that for short periods
of time, on occasions, one of the rank-and-file employees would be in charge of the
store during the absence of the manager or assistant manager.
I deem it appropriate to relate my findings on this issue at this point in this Deci-
sion, in order that the majority status of the Union may be next considered in a
logical manner. On a consideration of all the evidence on this point it is found that
Townsend was a keyman and that at the very least he had supervisory authority to
"responsibly direct" the work of other employees, and at times when he was in charge
of the store, he performed the same supervisory functions as the assistant manager.
Therefore, it is found that Townsend is a supervisor within the meaning of the Act.
This decision also means that Keyman Donovan cannot be included in the appropriate
unit of employees or his card counted.
7. The majority status of the Union in the two-store appropriate unit
At the hearing the parties stipulated into evidence certain documents 4 which set
forth the names of employees in each of the Company's stores for the payroll of
4General Counsel 's Exhibit 2(a), Santa Clara store. General Counsel 's Exhibit
2(b), Campbell store.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 6, the date of the Union's demand. Each of these documents listed at
each store the licensed pharmacists. The Union does not seek to include these
employees in the unit and the Company makes no contention in regard to them.
Since licensed pharmacists, as professionals, are usually excluded from units of retail
clerks, I have excluded these names from the lists hereafter set forth.
The list of employees for the Santa Clara store, with an X after each name indica-
tive of union affiliation, is as follows:
Clerks
Karen S. Corwin X Margaret Richdale
Charles E. Grove X John K. Yontz X
Kathryn M. Morrow X Stephen J. Burch X
T. C. Townsend-keyman; J. Allen Forte-card rejected,
supervisor not proven.
Douglas D. Dodds X Lois A. Maita X
Howard E. Hill X Estella E. Shepard X
Totals Employees---.-------------------------------- 11
Cards for Union------------------------------ 9
A similar list for the Campell store is as follows:
Clerks
Aileen E. Bowen X Gordon E. Samdahl-Card rejected,
Mary Lou Bullock X supervisor
V. J. Degmetich Gertrude Seelinger X
Augustine G. Donovan-supervisor Charles R. Tripp X
Elizabeth A. Herrington R. J. Morgan-Card rejected, supervisor
Totals Employees ------------------------------------- 6
Cards for Union-------------------------------- 4
On the above computation, it is found that at all times after November 6 the
Union had majority status in each and both of the stores.
8. The appropriate unit of employees
At the hearing, counsel for the parties fully litigated the question of the appropriate-
ness of the unit of employees claimed by the Union. The General Counsel took the
position that the two-store unit was appropriate; while the Company took the position
that the employees of each of the two stores constituted separate units Counsel for
the parties placed in evidence, through the testimony of witnesses, the many facets
of operations of the stores to establish their contentions. From the evidence the
following factors support the General Counsel's claim that the two-store unit was
appropriate. The stores are both self-service, retail drugstores which are located
within 5 miles of each other. Each store is located in a drive-in shopping center.
The stores are open for the same number of hours per week, and the clerks in both
stores perform substantially the same duties and must use the same skills in the per-
formance of their duties. The employees of both stores receive the sane benefits
which are established pursuant to the policies of Rexall, the parent corporation. The
labor relations policies of both stores are the same and are under the direction of
Phillips, who has charge of all labor relations of the Company's stores from his office
at Los Angeles. The payroll checks for both stores also emanate from the Los
Angeles office of the Company. The two stores have some interchange of personnel
on both a permanent and temporary basis, make joint purchases of merchandise,
and, on occasion, transfer merchandise from one store to another. The two stores
operating in the same vicinity, on occasion, advertise on a joint basis. The two stores
are the only Drug King stores in either the San Jose area or Santa Clara County,
California
Counsel for the Company adduced evidence on the following factors in support of
his claim that the employees of each store should be a separate appropriate unit
Counsel for the Company points out that each of the stores is a separate entity and
states that the distance between the stores is closer to 8 miles than 5. The authority
of the individual store manager and his subordinates is restricted to the particular
store and each store keeps its own individual records. Counsel also points out that
the interchange of employees between the stores appears to be minimal. The Com-
pany also urges that the Board's decision in Sav-On Drugs, Inc, 138 NLRB 1032, and
N.L.R.B. v. Winn-Dixie Stores, Inc., et al., 341 F. 2d 750 (C.A. 6), supports his con-
tention that a single-store unit is appropriate in this case.
DRUG KING, INC. 353'
9. The alleged good-faith doubt of the Company as to the majority status of the
Union in the appropriate unit; the rejection of the proffered proof; the ultimate
position of the Company on this point
To prove the Company's good-faith doubt of the Union's majority status, Hall,
counsel for the Company, called as a witness his co-counsel, Herschel A. Phillips,
director of labor relations for the Company. Hall initiated a series of questions
designed to show the quaifications of Phillips as an expert in the field of labor rela-
tions. Counsel for the Charging Party objected to this line of questioning, on the
ground that it was irrelevant , and offered to stipulate that Phillips had been engaged for
many years in the field of labor relations. I overruled the objection and said that I
would take a certain amount of testimony as to the background of Phillips as bearing
on the credibility of the witness . The witness then, in answer to questions, gave a
resume of his education and background. He stated that he attended the University
of California at Los Angeles with emphasis on economics and labor relations. When
he was graduated from that school, he thereafter attended Harvard Law School of
which he was a graduate , again majoring in labor relations and studying under
Archibald Cox, then a professor of the law of labor relations. Thereafter he attended
the University of Southern California Law School and was admitted to the bar of the
State of California in the year 1950. He then became affiliated with Rexall Drug
Company in charge of labor relations, which included work for the Owl Drug Com-
pany, which has recently become known as Drug King, Inc. Phillips testified that for
the next 9 years he served as labor attorney for these companies all over the world.
In his position he dealt with some 78 unions. In California he dealt with the Retail
Clerks and was authorized to represent the Company on all legal labor matters.
Phillips stated that the Retail Clerks had organized all the stores of the Company
in California except the two stores here involved
The witness then stated that on approximately November 6 or 7, he was in the East
in connection with a strike of the Seamless Rubber Company, a subsidiary of Rexall.
He received a telephone call from Marsh, vice president of Drug King, who informed
him that the Union had made a demand for recognition at the stores in Campbell and
Santa Clara. He asked Marsh if he had received any documentation supporting the
Union's claim. Marsh replied that Linderman was sending the documentation to him.
Phillips then told Marsh that when he returned he would take care of the matter.
Phillips returned to his office at Los Angeles on November 16. On that date he
read the demand letter of the Union dated November 4, and a short form of contract
"of some type." The letter of November 4 mentioned something about written proof
of majority or words to that effect but there was no written proof accompanying the
letter. Phillips called Linderman and asked him where the written proof was. Lin-
derman told him that the Union had presented to Linderman a packet of authoriza-
tion cards signed by the employees, that he had written down some names of employ-
ees with whom he was not familiar, but he had destroyed the list. Phillips then asked
Linderman if he had any list or anything at all showing the majority, Linderman
replying in the negative He then asked Linderman if he noticed anything about the
cards and Linderman replied, "Yes. Some of them looked old to me."
At that point Phillips wrote his letter in answer to the Union's demand stating that
the Union's request for recognition on the basis of the signed cards was not satisfactory
to the Company because of "various factors."
At this point I asked Phillips to explain what he meant by various factors. His
answer disclosed that this term was a substitute for the general experience which the
witness had accumulated in the course of his practice He replied, "By various factors
I drew on my experience in similar situations across the country where time and again
I found where the union had offered caids that the employees actually rejected."
In the colloquy that then ensued between all counsel and myself, I ruled that as I
understood the rules of evidence, I would accept testimony from Phillips as a witness
as to any incident, circumstance, or fact connected with the instant issue, the claimed
good-faith doubt of the Company in this case, but I would not accept testimony as to
events occurring in other cases with this or other unions, in the experience of the
witness, which he claimed to be the basis of his good-faith doubt in this case. I
explained that disillusioning or frustrating experiences with this Union or other
unions in other cases could not be accepted as the basis of a good-faith doubt in this
case, and thus justify the rejection of the signed' authorization cards, offered by the
Union as proof of its majority in the unit.
I then asked Phillips what, in the instant case, gave him any reason to doubt the
Union's majority status. The transcript, at this point reads as follows.
The WrrNESS: The fact, at least what I believe to be the fact, that all unions I
thought knew that I was the man to present evidence of this type to. The fact
that, and particularly Local 870, the fact that the cards were shown to essentially
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a new District Manager in this area. The fact that the cards were not submitted
to me at any time or never offered to me at any time. The fact that they were
withdrawn from Mr. Linderman.
However, primarily, sir, I relied upon my experience with cards in general,
and I did not believe that the cards were good.
TRIAL EXAMINER: Of course, you had never seen the cards.
The WITNESS: I had never seen these cards.
TRIAL EXAMINER' You had been informed they had been presented to your
manager, Mr. Linderman, and he had examined them, had you not?
The WITNESS- I had been informed some cards had been presented to him,
and that he had examined them.
TRIAL EXAMINER- But without doing more, that gave you a good faith doubt
that these cards were what they were represented to be'
The WITNESS: My belief was that, when I talked about "various factors" and
requested an election, the Union would probably go to an election, and if they
did not then they would offer the cards to me.
I thought my affirmative duty was very limited.
TRIAL EXAMINER: All right, Mr. Hall [sic].
Toward the end of this discussion, at my invitation, Phillips stated his contention
on this point as follows:
The WITNESS: I would like to make the statement that we believe that good
faith is a subjective state of mind in this particular context, and that I have had
extensive experience and recent experience in other cases showing the unreli-
ability of authorization cards, and that this directly affected my good faith belief
that this Union very possibly did not represent these employees.
In its brief, the Company advanced another argument on this point, it claims that
the congressional intent in passing the Taft-Hartley Act was, among other things,
to establish the election procedure as the sole method of settling questions of
representation.
Concluding Findings
The principal contentions of the Company in this proceeding are that it has acted in
good faith in its dealings with the Union, and that: (1) it refused to recognize the
Union because it had a good-faith doubt of the Union's majority status in the appro-
priate unit; and (2) it believed that the unit asked by the Union was not appropriate.
However, as the undisputed sequence of events is reviewed, it appears to me that the
Company's claim of good faith, and especially good-faith doubt, is without any sup-
port in the evidence. On the contrary, the Company's conduct here disclosed, dis-
plays an utter lack of candor or fairness in its dealings with the Union. This lack of
candor and fairness can only be deemed a facade to conceal the Company's true
purpose which was to evade, delay, and finally to refuse to perform its duty to bargain
collectively with the Union.
The undisputed facts in this proceeding establish that the Union's campaign to
enlist into membership the employees of the Company's two stores was carried on by
the employees themselves almost exclusively. On November 4 the Union had in its
possession the authorization cards of an overwhelming majority of the Company's
employees in the two stores. There can be no mistake on this point, for, if the
General Counsel were to concede the correctness of all arguments of the Company
against the count of certain individual cards on the grounds specified by the Com-
pany, the Union, even then, would have a majority in each store and in both stores.5
In the best spirit of collective bargaining, the union officials wrote the demand letter of
November 4 and on November 6 presented proof of majority to Linderman, district
manager, northern California, at the store in San Leandro. Linderman, who received
the clear and unequivocal letter of the Union, then examined each of the authoriza-
tion cards presented to him. That he scrutinized them is clear because he rejected one
card as being the authorization card of a person who was a supervisor in the store.
The union representative acquiesced to the rejection of this card in the court on
Linderman's representation that the individual was a supervisor. The Union could
afford to acquiesce in the Company's contention as to this man, as well as to others,
because its majority was so overwhelming it could not be diminished to the danger
point by attacks on individual cards. At the conclusion of the conference, Linderman
took the list of names of employees which he had made in the course of the con-
ference and checked out with the manager of each store the accuracy of the employ-
5 The cards of employees Yontz and Grove have been counted. From all the evidence as
to these cards , it is clear that each of these employees understood the nature of the cards
which each voluntarily signed. Cumberland Shoe Corporation , 144 NLRB 1268.
DRUG KING, INC. 355,
ees' cards . When he spoke to Morley, manager of the Santa Clara store, that official
informed Linderman that he had checked every employee on the day shift who,
admitted to him that each had signed a card. At that point Linderman, as the
Company's district manager, was fully aware that the employees in fact had signed
the cards presented to Linderman by the Union. There certainly could be no doubt in
the mind of Linderman or Morley that the Union possessed a majority in the appro-
priate unit. All of this was communicated to Phillips, director of labor relations for
the Company at Los Angeles, on Phillips' return to that city. Phillips talked to Lin-
derman who told Phillips all that had occurred. And, finally, in answer to a question
by Phillips, Linderman said that "some of the cards looked old." At this point
Phillips took the course of conduct, which in'my judgment, discloses an utter lack of
good faith toward the Union. Phillips had knowledge of what had occurred at the
two stores. Yet in his testimony he claimed that he had a good-faith doubt of the
Union's majority status and disagreed with the Union as to the appropriateness of the
unit. But he did not candidly or fairly communicate these reasons for not recog-
nizing the Union to the Union. Instead, Phillips wrote a letter and said that the
Company would not recognize the Union "because of various factors." In my judg-
ment, the reason why the Company chose to deal with the Union in this devious
manner is patent. In the posture of the parties at that point, a claim of good-faith
doubt by Phillips would have been quickly shown to be a sham by the Union's pro-
duction of the employees' authorization cards for Phillips' inspection; cards which
had already passed inspection by Linderman and investigation by Linderman and
Morley. Further, if Phillips raised the question of appropriateness of the unit with
the Union, the Union undoubtedly would have agreed to two separate units of
employees as long as the Company recognized the Union as the bargaining representa-
tive of each unit. That objection was easily solved, and of little consequence. The
Company, under these circumstances, chose to withhold recognition from the Union
on the mysterious grounds of "various factors " Some of the mystery surrounding
this phrase was dispelled by the testimony of Phillips as a witness. He testified that
his good-faith doubt was based on his general experience in the field of labor relations.
Not until the hearing, did Phillips disclose the Company's alleged reasons for its
refusal to recognize the Union. The attempt to base a claim of good-faith doubt in
this case on the experience of the Company's labor relations counsel in other cases
with other unions amounts to a rejection of the principle of collective bargaining.C
And certainly evidence of what happened in other cases with other unions or even this
Union is not relevant testimony to this issue of what happened in this case.
I must also reject the Company's claim that it had a good-faith doubt as to the
question of the appropriateness of the two-store unit sought by the Union. As dis-
cussed in a colloquy between counsel for the Company and myself at the hearing,
there is no recognized defense of "good faith doubt as to the appropriateness of a
unit." It has long been settled law that when an employer refuses to bargain with
a union on the asserted ground that the unit requested is not appropriate, the
employer takes that position at his peril. In Tom Thumb Stores, Inc., 123 NLRB 833,
in a similar situation the Board wrote as follows:
We have imposed considerable risk upon a union which seeks to enforce its
rights under Section 8(a)(5). It must establish that it has been designated by
an uncoerced majority of the employees, that the unit is appropriate, and that
there has been both a demand and a refusal. If there is failure of proof in any
one of these conditions its resort to the Board will have been in vain. It seems
both equitable and in conformity with the statute to impose the same risk upon
the employer who denies his obligation .... In electing to rely solely on a con-
tention we find to be without merit, it acted at its peril and in violation of
the Act.
In United Butchers Abattoir, Inc., 123 NLRB 946, the Board dealt with a similar
situation . In that case the employer refused to bargain with the union on request
but did not raise its unit contention until the unfair labor practice hearing. The
Board noted that the tardiness of the employer's unit contention convinced it that
the employer did not have a good-faith doubt as to the appropriateness of the unit.
The Board then stated the following:
Assuming, however, that the Respondent, in fact believed that the multiplant
unit was the only appropriate unit, the Respondent in electing to rely on this
contention, which we find to be without merit, acted at its peril and in violation
of the Act.
e See Coamodyne Manufacturing Company, 150 NLRB 96.
221-374-66-vo1. 157-24
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From the above, it is clear that if the Company had a good-faith doubt as to the
correctness of the unit demanded by the Union in this case, it refused to bargain with
the Union at its peril.
Therefore, for all the reasons stated above, the alleged defenses of the Company
are rejected and it is found that the Company has refused to bargain with the Union
in violation of Section 8(a) (1) and (5) of the Act.7
On all the evidence, it is found that the two-store unit of employees is appropriate
for the purpose of collective bargaining. This finding is supported by the Board's
statement of policy in Morand Brothers Beverage Co., et al., 91 NLRB 409, 418, and
99 NLRB 1448, enfd. 204 F. 2d 529 (C.A. 7). In that case the Board wrote, "There
is nothing in the statute which requires that the unit for bargaining be the only
appropriate unit, or the ultimate unit, or the most appropirate unit; the Act requires
only that the unit be appropriate." Certainly, on the facts presented here, the two-
store unit is appropriate. It is described as follows:
All selling and nonselling employees employed by the Respondent at its Drug
King Rexall Stores located in Santa Clara and Campbell, California, excluding store
managers, assistant store managers, pharmacists, guards, and supervisors as defined
in the Act.8
The evidence also establishes that both Morley and Townsend, supervisors for the
Company, on or about the date of the Union's demand for recognition, made coer-
cive and restraining statements to employees in the appropriate unit. Certainly,
Townsend's intemperate and profane remarks to Morrow and Shepard on Novem-
ber 8 were extremely coercive and in violation of Section 8 (a) (1).
Morley's remarks to employees on the morning of November 6 were not of the
exaggerated type committed by Townsend but they were equally coercive. His cau-
tioning employees that they would lose their rights in the Company's profit-sharing
plan, if the Union came in, and that a procedure might be instituted by the Company
whereby the employees would be dismissed for being tardy on three occasions, if the
Union came in, were also coercive. These remarks of Morley at some other time
might not be of a coercive nature. But under the circumstances existent in this case
on November 6, when the employees had been organized for only a day or two, and
had on that day requested recognition, his remarks assumed added significance and
were clearly coercive.
Therefore I find that the Company, by the conduct of Morley and Townsend, has
violated Section 8(a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section III, above, occurring in con-
nection with the operations of the Company described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Company has engaged in unfair labor practices by refusing
to bargain collectively with the chosen representative of its employees in an appro-
priate unit, I shall recommend that the Company cease and desist therefrom and
from like and related conduct. I shall further recommend that the Company, upon
request, bargain collectively with the Union as the exclusive representative of its
employees in the appropriate unit.
On the basis of the above findings of fact and the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Retail Store Employees Union, Local 428, Retail Clerks International Associa-
tion, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
2. All selling and nonselling employees employed by the Respondent at its Drug
King Rexall Stores located in Santa Clara and Campbell, California, excluding store
managers, assistant store managers, pharmacists, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
7 Joy Silk Mills, Inc., 85 NLRB 1263, enfd. 185 F. 2d 732 (C.A.D.C.).
8It should be noted that keymen have been found to be supervisors within the definition
of the Act In another place in this Decision.
DRUG KING, INC. 357
3. At all times since November 6, 1964, the Union has been and continues to be
the exclusive bargaining representative of all the employees in the aforementioned
unit for the purposes of collective bargaining within the meaning of Section 9(a) of
the Act.
4. By refusing on and after November 6, 1964, to bargain collectively with the
above-named Union as the exclusive representative of its employees in the aforesaid
unit, Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) of the Act.
5. By refusing to bargain with the above-named Union, the Company has inter-
fered with, restrained, and coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise of
their rights under Section 7 of the Act, by the conduct of Supervisors Morley and
Townsend, the Company has engaged in unfair labor practices within the meaning
of Section 8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
On the entire record in this case and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I recommend that the Respondent, Drug King,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail Store Employees Union, Local
428, Retail Clerks International Association, AFL-CIO, as the exclusive bargaining
representative of its employees in the following appropriate unit.
All selling and nonselling employees employed by the Respondent at its Drug
King Rexall Stores located in Santa Clara and Campbell, California, excluding store
managers, assistant store managers, pharmacists, guards, and supervisors as defined
in the Act.
(b) Interrogating employees concerning their union activities or sympathies of
fellow employees; interfering with, restraining, or coercing employees in the exer-
cise of the rights guaranteed by Section 7 of the Act.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist Retail Store Employees Union, Local 428, Retail Clerks International
Association, AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Upon request, bargain collectively with Retail Store Employees Union, Local
428, Retail Clerks International Association, AFL-CIO, as the exclusive representa-
tive of the employees in the above-described appropriate unit with respect to rates
of pay, wages, hours of work, and other terms and conditions of employment, and
embody in a signed agreement any understanding reached.
(b) Post at its stores in Santa Clara and Campbell, California, copies of the
attached notice marked "Appendix." 9 Copies of said notice, to be furnished by the
Regional Director for Region 20, shall, after -being duly signed by an authorized
representative of the Respondent, be posted by the Respondent immediately upon
receipt thereof, and maintained by it for a period of 60 consecutive days thereafter,
in conspicuous places, including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
D In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" in the notice . In the further event that the Board 's Order be 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."
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for Region 20, in writing, within 20 days from
the receipt of this Decision , what steps it has taken to comply herewith 1°
sa In the event that this Recommended Order be 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 Respondent has taken to comply herewith."
APPENDIX
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, upon request, bargain collectively with Retail Store Employees
Union, Local 428, Retail Clerks International Association, AFL-CIO, as the
exclusive bargaining representative of our employees in the appropriate unit
described below, concerning rates of pay, wages, hours of employment, and
other conditions of employment, and WE WILL embody in a signed agreement any
understanding reached. The bargaining unit is:
All selling and nonselling employees employed by us at Drug King
Rexall Stores located in Santa Clara and Campbell, California, excluding
store managers, assistant store managers, pharmacists, guards, and super-
visors as defined in the Act.
WE WILL NOT interrogate employees concerning union activity or sympathy
of themselves or of their fellow employees; or interfere with, restrain or coerce
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor orga-
nizations, to join or assist Retail Store Employees Union, Local 428, Retail
Clerks International Association, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as authorized by
Section 8(a) (3) of the Act.
DRUG KING, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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 pro-
visions, they may communicate directly with the Board's Regional Office, 450 Golden
Gate Avenue, Federal Office Building, San Francisco, California, Telephone No.
556-0335.
B. Rothschild & Company, and its President, Bernard Rothschild
and Amalgamated Meat Cutters & Butcher Workmen of North.
America, Local No. 28. Case No. 17-CA-2593. March 4,1966
DECISION AND ORDER
On November 15, 1965, Trial Examiner Arthur Christopher, Jr.,,
issued his Decision in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged.
in the complaint and recommending that the the complaint be dis-
157 NLRB No. 31.