Glazers Wholesale Drug Co., Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1974

211 N.L.R.B. 1063 (N.L.R.B. 1974)

GLAZERS WHOLESALE DRUG CO. 1063
Glazers Wholesale Drug Company , Inc. and Retail
Clerks Union, Local No. 455, chartered by the
Retail Clerks International Association, AFL-CIO.
Case 23-CA-4934
June 25, 1974
DECISION AND ORDER
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this recommended
Order."
2. Substitute the attached notice for that of the
notice attached to the Administrative Law Judge's
Decision.
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On April 19, 1974, Administrative Law Judge
George J. Bott issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified herein, and hereby orders that Respondent,
Glazers Wholesale Drug Company, Inc.,San Antonio,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Insert the following paragraphs in lieu of
paragraph 2(a) of the recommended Order and
reletter the succeeding paragraphs accordingly:
"(a) Upon request, bargain with the Union as the
exclusive representative of employees in the appro-
priate unit and, if an understanding is reached,
embody it in a signed agreement. Regard the Union
upon resumption of bargaining and for 4 months
thereafter as if the initial year following certification
had not expired.
"(b) Make whole the reinstated economic strikers
by paying them the sum which they would have
earned had they been paid at the wage rates
instituted for the strike replacements, with interest, in
accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumb-
ing & Heating Co., 138 NLRB 716.
"(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
1 We agree with the General Counsel 's exceptions to the Administrative
Law Judge's recommended Remedy and Order . Because of Respondent's
unlawful withdrawal of recognition and refusal to bargain during the
certification year , in order to insure that the employees will be accorded the
statutorily prescribed services of their selected bargaining representative for
the period provided by law, we hereby extend the initial year of
certification , from the date on which Respondent commences good-faith
bargaining to a date 4 months thereafter , Burnett Construction Company, 149
NLRB 1419, enfd. 350 F.2d 57 (C.A. 10, 1965).
We shall also modify the recommended Order to order Respondent to
make whole the reinstated economic strikers by paying them the wage rate
instituted by Respondent for the strike replacements , with interest.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT change wages or other terms or
conditions of employment without bargaining
with Retail Clerks Union, Local No. 455, char
tered by the Retail Clerks International Associa-
tion, AFL-CIO.
WE WILL NOT poll you at inappropriate times
on the question of whether you want the Union to
represent you.
WE WILL, upon request, bargain collectively
with the Union as the bargaining representative
of all employees in the bargaining unit described
below with respect to wages, hours, and other
terms and conditions of employment, and, if an
understanding is reached, embody it in a signed
agreement. WE WILL regard the Union upon
resumption of bargaining and for 4 months
thereafter as if the initial year following certifica-
tion had not expired. The bargaining unit is:
All full-time and part-time employees em-
ployed by us in Bexar County, Texas, but
excluding all guards, watchmen, office cleri-
cal employees, salesmen, and supervisors as
defined in the National Labor Relations
Act.
WE WILL make whole those employees who
were reinstated after their economic strike by
paying them the amount they would have earned
had they been paid at the same rates that we paid
the strike replacements, with interest.
WE WILL NOT in any like or related manner
211 NLRB No. 155
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you in Section 7
of the National Labor Relations Act, as amended.
GLAZERS WHOLESALE
DRUG COMPANY, INC.
(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 compli-
ance with its provisions may be directed to the
Board's Office, Dallas-Brazos Building, 1125 Brazos
Street, Houston,, Texas 77002,. Telephone, , 713
226-4296.
DECISION
STATEMENT OF THE CASE
GEORGE J . BoTT , Administrative Law Judge: Upon a
charge of unfair labor practices filed on December 10,
1973, by Retail Clerks Union, Local No. 455, chartered by
the Retail Clerks International Association , AFL-CIO,
herein called the Union , against Glazers Wholesale Drug
Company, Inc., herein called Respondent or Company, the
General Counsel of the National Labor Relations Board
issued a complaint and notice of hearing on January 25,
1974, which he amended on February 5, 1974, alleging that
Respondent had violated Section 8 (a)(1) and (5) of the
National Labor Relations Act, as amended , herein called
the Act . Respondent filed an answer and a hearing was
held before me at San Antonio , Texas, on March 5, 1974,
at which all parties were represented. Subsequent to the
hearing , General Counsel and Respondent filed briefs
which have been considered.
Upon the entire record in the case and from my
observation of the witness, I make the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS
Respondent is a Texas corporation with a place of
business in San Antonio, Texas, where it is engaged in the
wholesale liquor business. During the 12-month period
prior to the issuance of the complaint, Respondent
purchased goods and materials valued in excess of $50,000
which were shipped directly to it from points outside the
State of Texas.
I The appropriate unit found by the Board was "all full-time and part-
time employees employed by Respondent operating in Bexar County,
Texas, but excluding all guards, watchmen , office clerical employees,
salesmen , and supervisors as defined in the Act" Between 15 and 20
Respondent is an employer engaged in commerce within
the meaning of the Act,
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Refusal to Bargain
1. The facts
Having won a National Labor Relations Board election
on April 5, 1973, the Union was certified by the Board on
April 13, 1973, as the statutory representative of Respon-
dent's drivers and warehousemen.'
On October 25, 1973, unable to reach final agreement
after nine collective-bargaining meetings , the Union
engaged in a strike which lasted until on or about
December 5. The strike was unsuccessful, and it appears
that all of the strikers who desired reinstatement were
returned to their jobs after the strike.
During the strike Respondent hired replacements for the
strikers and paid them higher wages than some of the
persons they replaced were earning prior to the strike.
Union Representative Phillips testified credibly and
without contradiction that replacements were offered and
paid a wage higher than Respondent had offered to pay
employees represented by the Union during the first year
of a proposed 3-year contract. It was also stipulated that
this had occurred in a "substantial" number of cases.
During a collective-bargaining meeting held on Novem-
ber 8 during the strike, Union Representative Phillips
asked for and was refused the names and addresses of the
replacements for the strikers, and on November 12, 1973,
he confirmed his request in a letter.
On November 15, 1973, Respondent's counsel wrote
Phillips noting that the strike was still current and advising
that, "Your request, if valid, is premature, and the
furnishing of such list at this time would subject our new
employees to harassment, unpleasantness and the like."
The writer also advised Phillips that when the strike is over
and strikers apply for reinstatement, and if the "union
represents a majority of employees," information about the
"permanent replacements of strikers" would be available.2
The parties engaged in extensive correspondence during
the strike, and, in a letter dated November 29, 1973,
Respondent's counsel , after noting that the Union had
requested another bargaining meeting to be held on
December 7, 1973, stated that such would "take place,
provided, of course, that the Union still represents a
majority of the employees."
On December 5, 1973, Respondent polled employees in
employees have been in the unit at material times.
2 Although Respondent considered setting up a preferential hiring list for
strikers who had been replaced , all strikers were returned to their jobs, as
noted earlier.
GLAZERS WHOLESALE DRUG CO.
the unit on the question of whether or not they desired the
Union "to NOW represent" them in collective bargaining.3
James Christe, Respondent's branch manager, testified
that before the vote he read a prepared statement to the
employees explaining the purpose of the poll. In the
prepared statement, which is in evidence, Christe advised
the employees that the Union claimed to represent the
employees and had asked Respondent to bargain with it,
but that he did not believe that the Union represented a
majority of the employees. To determine that question, a
"secret poll" would be conducted, he said, and he showed
the employees a ballot box. He then read the ballot and
noted that there were "Yes" and "No" boxes on it.
Reading from the statement, he advised employees not to
sign their ballots, adding that no one would know how they
voted. He then appointed two "referees," or observers,
advising the employees that they would be in charge of the
ballot and, after the voting, would count the ballots and
announce the results. Christe also advised the employees
that there would be no reprisals against them regardless of
how they voted in the election.
The employees and the observers retired to a "break-
room," where the earlier Board election had been conduct-
ed, and voted after receiving ballots from the observers and
having had their names checked off a voting list. At the
conclusion of the election, the ballots were counted by the
observers and the result announced. The employees voted
13 to 3 against the Union.4
Employee Homer Adams testified that the vote was not
secret because all the employees were in the room where
the election was conducted at the same time and were
marking their ballots on the wall or one another's backs in
view of each other. Adams did not otherwise contradict
Christe's testimony.
Paul Williamson, one of the referees, testified that the
balloting was secret, in his view, and that he did not see
employees mark their ballots on other employees' backs.
Christe did not see the actual balloting, but I credit his
basically uncontradicted testimony about what he told the
employees before the voting. I find it unnecessary to
decide, however, whether the mechanics of the election
actually guaranteed the employees the secrecy that they
would have had in a Board election, since, as appears
below, I conclude that Respondent had no legitimate
purpose in conducting the poll.5
On December 6, 1973, Respondent's counsel sent a
telegram to the Union stating that because the Union did
not "now" represent a majority of Respondent's - mploy-
ees, he would not meet with the Union for further
negotiations , as requested. Respondent concedes that it has
7 Just prior to the poll. Respondent received a petition signed by seven
employees stating that they did not wish to be represented by the Union.
This petition was admitted into evidence not to prove the truth of the
statement made therein but to corroborate Chnste's testimony that he
conducted the poll after he received the petition and consulted with his
attorney about it.
4 Three employees did not vote
3 There was no voting booth , for example
6 Brooks v. N L.R B, 348 U S 96 (1954), N L R B v Little Rock
Downtowner Inc, 414 F.2d 1084, 1090 (C A 8, 1969); Toltec Metal, Inc. v.
N.L.R.B, 85 LRRM 1350 (C.A 3, January 25, 1974); Celanese
Corporation ofAmerica, 95 NLRB 664, 671-672
1065
refused and continues to refuse to recognize the Union as
the bargaining representative of its employees.
2. Analysis and Conclusions
a. Withdrawal of recognition
In the absence of unusual circumstances, the majority
status of a certified union is irrebuttably presumed for a
reasonable period of time, normally 1 year.6 Respondent
withdrew recognition from the Union on December 6,
1973, more than 4 months before the expiration of the
certification year, and the violation of Section 8(a)(5) of
the Act is clear unless Respondent can point to extraordi-
nary or unusual circumstances justifying its conduct. I find
none in the record.
In approving the Board's rule that a certification may
not be challenged for 1 year from the date it issued, the
Supreme Court in Brooks, supra, had before it a situation
where the union won a Board election, but just prior to
certification, 9 of the 13 employees in the unit signed a
letter to the employer stating that they no longer wanted to
be represented by the union. The Court reviewed the
Board's practice in this area , both before and after the
passage of the Taft-Hartley Act, noting, among other
considerations, the Board's reliance on the custom in
political and business spheres; the solemnity of the
election; the need to give a union ample time to carry out
its mandate without undue pressure to deliver or be turned
out; and the fact that it is not conducive to employer
bargaining in good faith if he knows, on the one hand, that
stalling may undermine union strength, or, on the other,
that the rank and file may repudiate their agent "at the last
moment." 7 In the instant case, the employees expressed
their dissatisfaction with their bargaining agent more
formally and much later than they did in Brooks, and the
parties had also bargained to an impasse after nine
meetings . Nevertheless, the principles expressed in Brooks
apply, for employee repudiation of their union by any
means and at any time during the certification year may
not be relied on by their employer to excuse his refusal to
continue bargaining with the certified union, because to
allow such reliance is not conducive to the underlying
purpose of the Act, industrial peace and stability.8
The fact that Congress has prevented the Board from
holding more than one election a year in any given unit is
an indication that it, too, believed that the spacing of
elections furthered industrial peace. Clearly it would run
contrary to that policy to permit an employer to act as the
surrogate of the Board and hold his own election during
the certification year.9
7 Brooks, supra at 99-100.
8 Id. at 103, 1 consider the facts in N.L.R.B. v Alva Allen Industries, 369
F.2d 310 (C A. 8, 1966), cited by Respondent , distinguishable on a number
of grounds , one of which was that recognition was withdrawn only 11 days
before the expiration of the certification year. See also N LR B v. Holly-
General Company, Division of Siegler Corporation, 305 F.2d 670 (C.A. 9,
1962); McLean v. N LR.B, 333 F.2d 84 (C.A. 6, 1964), Kit Manufacturing
Company, Inc., 138 NLRB 1290, 1294 , enfd 319 F.2d 857 (C A. 9, 1963).
9 Section 9(cX3) of the Act Respondent can find no justification for the
poll in the holding of the Board in Struksnes Construction Co., 195 NLRB
1062 In that case, the Board held that polling of employees by an employer
would violate the Act unless certain standards are observed The first
(Continued)
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Other allegations of refusal to bargain
The complaint alleges that Respondent refused to
bargain with the Union by employing replacements for
strikers and offering and paying them higher wages than
Respondent was paying or offering to pay its regular
employees. It was stipulated that during the strike
Respondent did pay a substantial number of replacements
higher wages than it was paying the persons they replaced.
Respondent's position was that it was required to do this in
order to secure replacements for the strikers and keep its
business running. Respondent's wage rates before the
strike ranged from $1.76 to $2 an hour, and Respondent
hired a number of replacements at $1.85 per hour or more,
but it did not exceed $2. Respondent's offers and payments
to replacements, therefore, were within the established
wage rate range, but nevertheless, as stated, a substantial
number of replacements were paid as much as 9 cents an
hour more than the persons they replaced.
Respondent did not notify or consult with the Union in
regard to the wage rates it paid replacements. On
November 8, during the strike, Respondent offered the
Union a 4-cent-an-hour across-the-board increase in the
first year of a 3-year contract, and additional increases in
the last 2 years. Even with a 4-cent increase, employees on
strike would not be paid as much as their replacements.
When Union representative Phillips asked Respondent's
counsel why Respondent paid replacements more than had
been paid or offered to the strikers, he was told that the
practice was necessary in order to "get people to cross the
picket line."
Assuming, as Respondent told the Union, that it was
"necessary" to pay replacements a higher wage than
regular employees had received or had been offered in
collective bargaining before the strike in order to get them
to accept employment, I find that such recruiting problems
did not rise to the level of economic necessity excusing
Respondent from notifying and consulting with the
employees' bargaining representative about its intentions
before it took action. By unilaterally and without notice to
the Union substantially changing conditions of employ-
ment, Respondent violated Section 8(a)(5) and (1) of the
Act.10
I also find, as alleged in the complaint, that Respondent
violated Section 8(a)(5) and (1) of the Act by polling its
employees during the certification year on the question of
whether or not they desired to be represented by the
Union. There was no legal justification for the poll during
the certification year and it was wholly inconsistent with
Respondent's obligation to recognize the Union as the
employees' statutory representative, even if there had been
a shift in employee sentiment since the certification.
In the circumstances of this case I find no violation of
Respondent's duty to bargain in its failure to supply the
Union with the names and addresses of the personnel it
safeguard the Board established was that the purpose of the poll must be to
determine the truth of a union's claim of majority, but the Union's claim of
majority in this case rests on an irrebutable presumption of majority status
flowing from its certification , and on nothing else. In short , since the
Struksnes safeguards were not designed for the kind of situation we have in
this case , Respondent's poll served no valid purpose. See Kay Corporation,
d/b/a Holiday Inn Chicago-South, Harvey, 209 NLRB No. 7.
had employed as replacements for the striking employees.
Although the Act imposes upon an employer the duty of
furnishing a union data in its possession which is relevant
and necessary to the performance of the bargaining agents'
statutory responsibilities, where the information sought, as
here, bear on matters other than wages and related data, it
is incumbent on the union to demonstrate the relevance of
the information it requests. This the Union did not do.
Moreover, Respondent's refusal to comply was not final,
for it indicated in its letter to the Union that the request
would be reconsidered at the end of the strike, and, when
the strike concluded, Respondent returned all strikers to
work whether they had been replaced or not. Even if the
Union's request, when made, did appear to relate to data it
might need at some time in the bargaining process, the
issue became moot when the strikers returned to their jobs.
Respondent did not violate Section 8(a)(5) and (1) of the
Act in this regard, as the complaint alleged."
IV. THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) and (5) of the Act,
it will be recommended that the Board issue the recom-
mended Order set forth below requiring Respondent to
cease and desist from said unfair labor practices and take
certain affirmative action designed to effectuate the
policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By withdrawing recognition from the Union as the
representative of unit employees at its San Antonio, Texas,
operation and by refusing to bargain collectively with the
Union, Respondent violated Section 8(a)(5) and (1) of the
Act.
4. By unilaterally and without notice to, or consultation
with, the Union, changing terms and conditions of
employment of unit employees, Respondent violated
Section 8(a)(5) and (1) of the Act.
5. By conducting a poll of its employees during the
certification year on the question of union representation,
Respondent violated Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of the
Act.
Upon the foregoing findings of fact, conclusions of law,
upon the entire record, and pursuant to Section 10(c) of the
Act, I recommend the following:
10 See St. Clair Lime Company, 133 NLRB 1301; Mitchell Concrete
Products Co., Inc., 137 NLRB 504, 505, 515; Tom Joyce Floors, Inc., 149
NLRB 896, enJd. 353 F.2d 768 (C.A. 9, 1965). in Pacific Gamble Robinson Co.
v. N.L.R.B., 186 F.2d 106 (C.A. 6), relied on by Respondent, the court
thought that the increases offered the replacements were not "substantially"
greater than that offered the union.
11 Little Rock Downtowner, Inc., 145 NLRB 1286, 1308.
GLAZERS WHOLESALE DRUG CO. 1067
ORDER 12
Respondent, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with the Union as
the exclusive representative of employees in the unit found
appropriate.
(b) Unilaterally and without prior notice to, or consulta-
tion with, the Union, changing terms and conditions of
employment of unit employees.
(c) Polling employees at inappropriate times on the
question of whether or not they want the Union to
represent them.
(d) In any other like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain with the Union as the
exclusive representative of employees in the appropriate
unit, and, if an understanding is reached, embody it in a
signed agreement.
(b) Post at its San Antonio, Texas, facility, copies of the
attached notice marked "Appendix." 13 Copies of said
notice, on forms provided by the Regional Director for
Region 23, shall, after being duly signed by Respondent, be
posted immediately upon receipt thereof, in conspicuous
places, including all places where notices to employees are
customarily posted, and be maintained by it for 60
consecutive days. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by
any other material.
(c) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
12 In the event no exceptions are filed as provided by Sec. 102.46 of the 13 In the event the Board's Order is enforced by a Judgment of the
Rules and Regulations of the National Labor Relations Board, the findings, United States Court of Appeals, the words in the notice reading "Posted by
conclusions, and recommended Order herein shall, as provided in Sec. Order of the National Labor Relations Board" shall be changed to read
102.48 of the Rules and Regulations, be adopted by the Board and become "Posted Pursuant to a Judgment of the United States Court of Appeals
its findings, conclusions, and order, and all objections thereto shall be Enforcing an Order of the National Labor Relations Board."
deemed waived for all purposes.