Hillside Avenue Pharmacy, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1982

265 N.L.R.B. 1613 (N.L.R.B. 1982)

HILLSIDE AVENUE PHARMACY, INC.
Hillside Avenue Pharmacy, Inc. and Donald Barba-
koff and Brian Loftman and District 1199, Na-
tional Union of Hospital and Health Care Em-
ployees, Retail, Wholesale, Department Store
Union, AFL-CIO. Cases 29-CA-8595, 29-CA-
8727-2, 29-CA-8727-1, and 29-RC-5255
December 16, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 14, 1982, Administrative Law Judge
James F. Morton 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 Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.2
Member Jenkins agrees that Donald Barbakoff
was unlawfully discharged by Respondent but dis-
agrees with the remedy provided to him. In our
opinion, the Administrative Law Judge struck a
proper balance in this particular situation after con-
sidering the nature of the misconduct engaged in
by both parties. Member Jenkins has placed the
blame entirely on Barbakoff and has ignored the
"contribution" of Sugarman to this sorry state of
affairs. There is no denying that Sugarman dis-
charged Barbakoff in violation of Section 8(a)(3) of
the Act. Furthermore, Sugarman contested Barba-
koff's application for unemployment compensation
when he had no apparent reason to do so. Addi-
tionally, Sugarman, by his own conduct, intention-
ally placed himself in a physically dangerous posi-
tion by blocking Barbakoff's car with his body.
This is not to say that we condone the conduct
of Barbakoff-we are as chagrined by his behavior
as we are by that of Sugarman. Accordingly, we
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Produca
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2In accordance with our decision in Sterling Sugars, Inc.. 261 NLRB
472 (1982), the Administrative Law Judge's recommended Order is being
modified to require Respondent to expunge from its files any reference to
the discharge of Donald Barbakoff on January 24, 1981, and to notify
him of such, once done.
must, in situations such as this, consider the sever-
ity of the misconduct engaged in by both parties in
fashioning the appropriate remedy.3 Member Jen-
kins has, in our view, failed to do this.
This is not a situation in which Barbakoffs dis-
charge was the immediate provocation for his be-
havior. Almost 2 weeks had elapsed between the
date of his discharge and the date of his confronta-
tion with Sugarman. Thus, it was Sugarman's con-
duct in denying Barbakoff's unemployment com-
pensation claim, rather than the actual discharge,
which provoked Barbakoff to return to see Sugar-
man. The conduct of both men, therefore, flowed
only indirectly from the unfair labor practice. Bar-
bakoff's anger at Sugarman's denial of his claim
was not surprising, but that is not to say that it
formed a legitimate basis for what happened next.
The subsequent childish behavior of both men was
not acceptable conduct under any circumstances.
Thus, the remedy here takes into account the be-
havior of both parties, with particular considera-
tion given to the nature of the provocation and the
reaction thereto. Accordingly, under the provisions
of the remedy, neither party will shoulder the
entire blame for his individual misconduct, Member
Jenkins has given us no compelling reason for this
Board to provide otherwise.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Hillside Avenue Pharmacy, Inc., Jamaica, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
s See Fairview Nursing Home. 202 NLRB 31S. fn. 36 (1973). The Board
adopted the Administrative Law Judge's comments on the need for a
"balancing test" in cases such as this. The Administrative Law Judge rea-
soned that "the employer ought not to be allowed, as a matter of course,
to profit from his own wrongful misconduct and be wholly exonerated
from the Act's sanctions because the employee likewise was at fault."
4 Member Jenkins claims that the Board has not engaged in a "selec-
tive forfeiture" of our remedies where the misconduct of both parties has
been considered. Our reading of the cases cited by Member Jenkins re-
veals that this is not an entirely accurate statement. In O. R. Cooper and
Son, 220 NLRB 287 (1975), an unlawfully discharged employee de-
stroyed company property and eventually pleaded guilty to this crime.
The Board determined that he had forfeited his right to reinstatement but
not to backpay. The Board noted that, although it could not ignore the
misdeeds of the employee, neither could it allow the employer to violate
the Act with impunity.
In Montgomery Ward & Co., Incorporated, 254 NLRB 826 (1981'. the
Board found that an employee who had stolen property from his employ-
er had, by his own misconduct, forfeited his right to reinstatement. How-
ever, the Board awarded him backpay from the date of his discharge to
the date he admitted to having stolen property, reasoning that to with-
hold backpay would allow the employer to benefit directly from its own
misconduct.
265 NLRB No. 205
1613
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge from its files any reference to the
discharge of Donald Barbakoff on January 24,
1981, and notify him in writing that this has been
done and that evidence of this unlawful discharge
will not be used as a basis for future personnel ac-
tions against him."
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER JENKINS, dissenting in part:
My disagreement with the majority in this case is
limited to the nature of the remedy accorded to
discriminatee Donald Barbakoff. Subsequent to his
unlawful discharge, Barbakoff had a confrontation
with Respondent's president, Gerald Sugarman,
which deteriorated into an argument and ended
with Sugarman being endangered by Barbakoff's
use of an automobile. As a result of the misconduct
engaged in by both parties, the Administrative Law
Judge recommended, and the majority has accept-
ed, a modification to the remedy normally awarded
unlawfully discharged employees. Under their
order, Respondent is not required to reinstate Bar-
bakoff, but will be obligated to provide him with
backpay until he has obtained substantially equiva-
lent employment.
However, if Barbakoff's misconduct is sufficient-
ly egregious to warrant the forfeiture of a reinstate-
ment remedy, logic commands that such miscon-
duct serve to deny him all further relief, including
additional backpay subsequent to such postdis-
charge misconduct. If the discriminatee's miscon-
duct is insufficient to deny him backpay, he should
be reinstated. 5 In prior cases, the Board has not en-
gaged in selective forfeiture of our remedies where
misconduct by both parties has been weighed. 6
The majority and the Administrative Law Judge
have not explained why this case should be an ex-
ception, and I am unable to provide them with a
rationale.
In fashioning this hybrid remedy, the majority
has provided Barbakoff with a curious remedy.
Should Barbakoff be unable to find substantially
These alternatives may be chosen only as a result of balancing the
severity of each party's misconduct, including acts or provocation. Ac-
cordingly, there is no basis for the majority's contention that I am hereby
seeking to place all of the blame on the discriminatee herein.
Northern States Bee Inc, 234 NLRB 921 (1978); C K. Smith A Ca.
Inc, 227 NLRB 1061, 1075 (1977),; R Cooper and Son, 220 NLRB 287,
fn. i (1975). See also Montgomery Ward A Ca Incorporated, 254 NLRB
826 (1981). As stated above, a finding of postdischarge egregious miscon-
duct terminates backpay liability only prospectively. Contrary to the ma-
jority's claims, the backpay liability in O. R Cooper. and Montgomery
Ward was limited in precisely this manner, so as not to be applicable to
periods after the misconduct or the admission thereof. Consistent with
the cited caes, I would not unduly penalize the dischargee or provide a
windfall to the wrongdoer by wholly eliminating bclkpay liability, even
prior to the misconduct.
equivalent employment, his backpay award will
remain open-ended. I fail to understand how this
possibility serves as a sanction for postdischarge
misconduct.
An additional curiosity arises because, subse-
quent to the misconduct herein, Barbakoff attempt-
ed to vote in a representation election. His ballot
was challenged and is now determinative of the
election results. The Administrative Law Judge
found him ineligible because he was not entitled to
reinstatement and therefore was not employed on
the date of the election. The shortcoming of this
analysis is that Barbakoff, under the Board's
remedy, well may be entitled to backpay through
the date of the election. If he is entitled to backpay
on the date of the election, there is no basis for
denying him eligibility to vote. It is elementary
Board law that a discriminatorily discharged em-
ployee, not employed on the date of the election, is
eligible to vote.7
7 Corn Brothers Inc. 262 NLRB 320 (1982).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees as
to their support for District 1199, National
Union of Hospital and Health Care Employ-
ees, Retail, Wholesale, Department Store
Union, AFL-CIO.
WE WILL NOT promise wage increases or
other benefits to our employees to induce
them to withdraw their support for the Union.
WE WILL NOT threaten to discharge any of
our part-time employees, to close our store, to
reduce employee working hours, or to refuse
requests by employees for time off in order to
discourage our employees from joining or sup-
porting the Union.
WE WILL NOT grant extra purchasing dis-
counts to our employees to induce them to
vote against the Union.
WE WILL NOT create the impression among
our employees that we are keeping their union
activities under surveillance.
WE WILL NOT request our employees to
keep us informed as to union activities among
them or extract promises from them to vote
against the Union.
WE WILL NOT reduce the work hours of any
of our employees or discharge any employee
1614
HILLSIDE AVENUE PHARMACY, INC.
to discourage membership in or activities on
behalf of the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees with
respect to the exercise by them of any of the
rights guaranteed them under Section 7 of the
Act.
WE WILL make whole Brian Loftman for all
losses of pay he suffered resulting from our
having reduced his working hours because of
his activities in support of the Union and WE
WILL make whole Donald Barbakoff for all
losses of pay he suffered as a result of our
having discharged him because of his union
activities, with interest.
WE WILL expunge from our files any refer-
ence to the discharge of Donald Barbakoff on
January 24, 1981, and WE WILL notify him in
writing that this has been done and that evi-
dence of this unlawful discharge will not be
used as a basis for future personnel actions
against him.
HILLSIDE AVENUE PHARMACY, INC.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge: On
January 12, 1981 (all dates hereafter are for 1981 unless
indicated otherwise), District 1199, National Union of
Hospital and Health Care Employees, R.W.D.S.U.,
AFL-CIO (herein called the Union), filed a petition in
Case 29-RC-5255 pursuant to the provisions of Section 9
of the National Labor Relations Act, as amended (herein
called the Act). The Union thereby sought an election
among the employees of Hillside Avenue Pharmacy, Inc.
(herein called Respondent), to decide if they wanted the
Union to represent them for purposes of collective bar-
gaining. On February 27, pursuant to a Stipulation for
Certification Upon Consent Election approved on Janu-
ary 26, a secret-ballot election was held among Respond-
ent's employees. As discussed below, the vote cast by
Donald Barbakoff is determinative of the outcome of
that election. Further, the Union filed objections to the
conduct of the election alleging that the Respondent, by
various acts, interfered with the holding of a fair elec-
tion. On July 20, the Board issued a Decision and Order
Remanding for Hearing whereby it directed that a hear-
ing be conducted to determine whether or not Barba-
kofrs ballot should be counted and whether or not the
results of the election should be set aside because of the
alleged acts of interference.
On January 26 Donald Barbakoff filed the unfair labor
practice charge in Case 29-CA-8595 alleging that Re-
spondent had discharged him on January 24 because of
his activities on behalf of the Union and that it had in
other ways violated the rights of its employees which are
guaranteed them under Section 7 of the Act. On March
10, a complaint was issued in that case which alleged
that Respondent violated Section 8(a)(1) and (3) of the
Act by having assigned Donald Barbakoff to more ardu-
ous and less agreeable job tasks on and since January 12
and by having discharged him on January 24-both be-
cause of his having supported the Union. The complaint
in that case also alleged that Respondent, by its presi-
dent, Gerald Sugarman, interrogated its employees as to
their activities or support for the Union, promised and
granted benefits to them to induce them to vote against
the Union, and that those acts were violative of Section
8(a)(1) of the Act. Respondent's answer to the complaint
placed those allegations in issue.
On March 16, the Union filed the unfair labor practice
charge in Case 29-CA-8727-1 on which a complaint
issued on April 22. The complaint alleged that Respond-
ent committed acts of additional unlawful interrogation
of employees, of promising and granting benefits to them
to discourage them from supporting the Union, and of
creating the impression with them that their union activi-
ties were under surveillance by Respondent-all in as-
serted violation of Section 8(a)(1) of the Act. The com-
plaint further alleged that Respondent violated Section
8(a)(1) and (3) of the Act by having harassed its employ-
ees by preventing them from bringing their lunches to
work and by throwing out their lunches. Respondent's
answer placed those contentions in issue.
On March 16, Brian Loftman filed the unfair labor
practice charge in Case 29-CA-8727-2. On May 8, a
complaint was issued in that case to allege that Respond-
ent violated Section 8(a)(1) of the Act by having threat-
ened to discharge its employees and to close its store in
order to dissuade them from supporting the Union and
that Respondent, in violation of Section 8(a)(1) and (3) of
the Act, searched its employees' smock jackets on Febru-
ary 6, required them in early March to bring in doctors'
notes when absent due to illness, and cut the employ-
ment hours of employee Brian Loftman on March I-all
because these employees supported the Union. Respond-
ent filed its answer which placed those complaint allega-
tions in issue.
On November 3, Cases 29-RC-5255, 29-CA-8598, 29-
CA-8727-1, and 29-CA-8727-2 were consolidated for
hearing. The hearing was held before me in Brooklyn,
New York, on November 18 and December 7.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the brief filed by Respondent, I make the follow-
ing:
FINDINGS OF FACT
I. JURISDICTION
Based upon the pleadings as amended, I find that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization as defined in Sec-
tion 2(5) of the Act.
1615
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates a retail pharmacy in the Borough
of Queens, New York City, where it sells pharmaceuti-
cals and miscellaneous merchandise, including greeting
cards. Its president, Gerald Sugarman, is a registered
pharmacist and is in charge of the day-to-day operations
there. About 15 employees work there, including phar-
macists. These employees were unrepresented for pur-
poses of collective bargaining.
B. The Union's Organizing Effort
In late December 1980, the Union received a call from
Donald Barbakoff, Respondent's pharmacist at the time.
A union meeting was arranged for early January at the
apartment of one of Barbakoff's coworkers. As discussed
infra, the Union obtained signed authorization cards from
virtually all of Respondent's employees by about the end
of the first week in January. Up to that point, there is no
evidence or contention that Respondent had any knowl-
edge, express or implied, of the Union's organizational
efforts or of the employees' interest in the Union.
On January 7, the Union sent a letter to Respondent to
notify it that one of its representatives was coming to
Respondent's store to speak with its president about se-
curing recognition as the employees' collective-bargain-
ing representative and for the purpose of negotiating a
contract.
C. Alleged Violations Other Than Those Pertaining to
Alleged Discrimination Against Barbakoff
In this section, there are discussed the allegations of
unlawful interrogation of employees, of unlawful prom-
ises and grants of benefits, of creating the impression of
surveillance of employees' activities for the Union, and
of discrimination in requiring employees to bring in doc-
tor's notes, in reducing their working hours, and in bar-
ring them from bringing in their lunches. The allegations
pertaining to discrimination against Donald Barbakoff is
discussed in a separate section, below. All of the allega-
tions discussed now are alleged to have occurred at var-
ious times from January 9 (the date when Respondent re-
ceived the Union's letter of January 7, discussed above)
to early March. The testimony of the witnesses called by
the General Counsel respecting the alleged violations dis-
cussed now is set out separately for each witness, togeth-
er with corroborative or countervailing testimony where
applicable. The first witness called by the General Coun-
sel was Respondent's president, Gerald Sugarman, who
was examined under rule 611 of the Federal Rules of
Evidence.
1. Sugarman's testimony under Section 611
He acknowledged, as set out in a prehearing affidavit
he had signed during the administrative investigation of
this case by the General Counsel, that he had asked
pharmacist, Donald Barbakoff, on January 9 whether
Barbakoff was a member of a union and that, shortly
afterwards, he told employee Brian Loftman that he
heard that Loftman was going to vote for the Union.
2. The testimony of Claude Ferrara
On January 10, according to the testimony of Claude
Ferrara, the Union's area director, he visited Respond-
ent's store and asked its president, Sugarman, for recog-
nition. Ferrara related that Sugarman declined and said
that it was very important for him to know whether his
pharmacist (i.e., Barbakoff) had signed a card for the
Union. Ferrara testified that he told Sugarman that all
that he, Ferrara, can say to him is that a majority of the
employees signed cards for the Union. Respondent,
during its case, called Sugarman as a witness. He testified
in substance that Ferrara's account of their February 10
meeting was basically accurate "except for one item."
According to Sugarman, it was "untrue" that he had
asked Ferrara if the pharmacist, Barbakoff, had signed a
union card. I credit Ferrara's account as it was direct
and equivocal and as Sugarman had already expressed in-
terest in learning where Barbakoff's sympathies lie and
he had conceded that he had asked Barbakoff if he was a
union member. Sugarman's statement as to Ferrara's ac-
count respecting the inquiry about Barbakoff's having
signed a union card is essentially a general denial and
leaves open a question in my mind as to whether Sugar-
man was also denying that he had made any reference to
"his pharmacist" when talking with Ferrara on January
10. In making the foregoing credibility resolution, I also
note that Respondent exhibited union animus at other
times as discussed in detail below.'
3. The testimony of Thomas Hall
Thomas Hall worked in Respondent's pharmacy from
mid-December 1980 until he quit in early March. He at-
tended the union meeting in early January at a cowork-
er's home. He testified that, about 2 weeks after that
meeting, Respondent's president, Sugarman, approached
him and told him that a "vengeful person" was out to
hurt him by trying to bring a union in. Hall testified that
Sugarman asked him what he knew about it and that he
responded that he knew nothing. Hall testified that Su-
garman told him to let him know if he found out any-
thing and then said, "Those who make my life easier will
be rewarded later." Hall testified that he did not respond
to that remark. Sugarman, in response to a leading ques-
tion, denied telling Hall that those who make his life
easier will be rewarded. I credit Hall's version. He did
not strike me as one who would conjure up such a dis-
cussion. Further, Sugarman's denial was a summary one,
given in response to a leading question and is thus enti-
tled to little weight. Also, he did not deny having asked
Hall then what he knew about the effort to bring in the
Union.
Hall testified also as follows as to an incident on Feb-
ruary 20. He walked into the stockroom on that day and
heard the word "union." Sugarman was there talking
with another employee, Larry Clay. As Hall backed out
to leave, Sugarman called for him to stay and said that
It is not clear whether the General Counsel has alleged that the inter-
rogation of Ferrara itself is violative of the Act or whether his testimony
was offered only in connection with the alleged unlawful discharge of
Barbakoff. Both matters are dealt with infra
1616
HILLSIDE AVENUE PHARMACY, INC.
he was trying to talk some sense into Clay. Sugarman
asked Hall to see what he could do with Clay. Hall then
told Clay that the Union would cost a lot of money and
that he would never get out of it all the money he would
put in. Clay left. A few minutes later, while Hall and
Clay were out in the prescription area, Sugarman said to
them, "If the Union comes in, I will have to let some of
the part-timers go, or I will go under." Hall testified that
those were Sugarman's exact words.
Clay did not testify at the hearing.
Sugarman was asked by Respondent's counsel whether
he ever said to Hall that "if the Union comes in, he'll
have to let the part-timers go or he would go under." In
response, Sugarman testified that he had never said that.
He did not make any references to any other aspect of
Hall's testimony respecting remarks made among Hall,
Clay, and himself. I credit Hall's account as it seems un-
likely that he would readily fabricate an account of a
meeting held in a stockroom with another employee
present. Sugarman's denial, given in response to a lead-
ing question, fails to carry any real rebuttal weight.
Hall testified further that, in mid-February, Sugarman
asked him how he intended to vote and that he respond-
ed that he had not decided. Thereupon, according to
Hall, Sugarman stated that he hoped that Hall would
make his life easier and that those who do so will be re-
warded. Hall further testified that Sugarman again asked
him how he would vote, that Hall then answered that he
would definitely vote against the Union, and that Sugar-
man said that he hoped that Hall would think about all
that Sugarman could do for him. Hall also testified that,
about 15 minutes before the election on February 27, Su-
garman came over to him and asked him, in the presence
of one of Respondent's attorneys, how he was going to
vote and that Hall replied that he would vote against the
Union. Hall in fact had been told by the Union a week
previously that he had been designated to be the Union's
observer at the election and he served in that capacity at
the election.
Sugarman denied asking Hall at any time how he in-
tended to vote or having told him that those who make
his life easier will be rewarded. Sugarman also testified
that, about 15 minutes before the election started on Feb-
ruary 27, he was with his attorney when Hall walked to-
wards him. Sugarman testified that he thought Hall was
wearing a badge and that Sugarman then said, "I notice
you're going to be the Union's observer." Hall's re-
sponse, according to Sugarman, was, "Yes, but I'm still
voting for you." The attorney who represented Respond-
ent did not testify. I credit Hall's account as it is unlikely
he created it for the hearing and as Sugarman's account
in part confirms Hall's version, in that Hall told Sugar-
man he would vote against representation although Hall
was also the Union's observer at the election.
Hall testified without contradiction that, just after the
election, Sugarman said, "I feel so bad," which I con-
strue as a statement that he was very disappointed in the
election result.
Hall also testified that on March 1 he and employee
Brian Loftman arrived for work and observed that the
store's window had been broken. Sugarman, according
to Hall, said that the Union had broken the window.
Hall testified that he then told Sugarman that it was not
fair of him to blame the Union. At that point, according
to Hall's testimony, Sugarman together with his wife
began screaming at him and Mrs. Sugarman then said
that if the Union got in the store would be closed.
The General Counsel called Brian Loftman as a wit-
ness and his account substantially corroborates Hall's ac-
count as to the March I incident.
Mrs. Sugarman testified for Respondent but her testi-
mony made no reference to the March 1 incident. The
same observation is made as to the testimony given by
Gerald Sugarman.
As Hall's account was corroborated in substance by
Loftman's testimony and is uncontroverted by Respond-
ent, I credit it.
4. The testimony of Maria Kaufman
Maria Kaufman worked for Respondent at various in-
tervals over the past 12 years. Her last period of employ-
ment with Respondent began in January 1980. She has
worked as a cashier, stock clerk, and bookkeeper. She
testified that shortly after the Union gave notice to Re-
spondent that it was organizing the employees, Sugar-
man asked her if she would vote for the Union and that
she told him she would not. She testified that, in late
January, he asked her if she felt the same way and she
responded that she did.
She also testified that, on the day of the election, Su-
garman gave her her paycheck and said to her as he did,
"You know that there will be $10 or $15 or $20 out of
this check if the Union comes in."
Sugarman, in answer to a leading question, denied that
he ever asked Kaufman how she intended to vote. He
did not allude to her testimony as to their discussion on
February 27.
I credit Kaufman's account as she gave it in a straight-
forward manner, as Sugarman denied only part of it and
did so only in a summary manner and as Sugarman him-
self acknowledged that her account of another incident
in serious controversy was reliable.2
The complaint alleged that Respondent searched em-
ployees' smock pockets to discourage their support for
the Union. In support thereof, Kaufman testified that, on
one occasion in March, Sugarman confronted her and
angrily demanded that she empty out the pockets of her
work jacket and that, when she did so, he picked out a
scrap piece of paper she had placed there and he left. Su-
garman testified he had written a telephone number on a
piece of paper and taped it to a machine located in the
vicinity of Kaufman's work station. He testified that he
asked her to let him see the contents of her pockets, that
she then emptied the pockets, and that he then located
the missing telephone number on the piece of paper he
was looking for, which was among the items in her
jacket.
2 That other incident pertained to the confrontation between Sugarman
and Barbakoff on February 6. discussed in a separate section.
1617
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The testimony of Brian Loftman
Loftman worked for Respondent as a cashier from
January 8 to early March. s He signed a union card in
mid-January. He testified that, at that time, Sugarman
told him that someone was trying to bring a union in and
that he should not get involved in that matter. Late in
January, according to Loftman, Sugarman asked him
how he would vote if there was a union and he an-
swered that he did not know. Loftman said he explained
to Sugarman that he was covered by his parents' medical
insurance. Loftman testified that Sugarman then told him
he would not need the Union. On another occasion, ac-
cording to Loftman, Sugarman asked a coworker, Domi-
nic Mellone, to tell Loftman how he intended to vote.
Mellone proceeded to tell Loftman that Mellone had
medical coverage from his regular job as a carpenter and
that he did not need the Union. At that, according to
Loftman, Sugarman said that they were both in the same
boat and Sugarman then asked Loftman how he would
vote. Loftman answered that he would vote against the
Union.
Sugarman testified that he had talked to Loftman
about the Union on one occasion and told him he had
heard a rumor that Loftman intended to vote for the
Union because an employee had told Loftman that the
Union would give him better medical coverage. Accord-
ing to Sugarman, he showed Loftman documentary evi-
dence that the other employee had turned down a raise
several months previously. Sugarman related that Loft-
man simply volunteered that he was voting against the
Union. Sugarman also testified that on one occasion he
told Loftman that, if he joined a union, he would have to
pay dues.
I credit Loftman's account as it was detailed, appeared
to be candid, and was uncontroverted on its specific
points.
Loftman testified also that, on February 23, he ob-
tained antibiotics and creams from Sugarman as pre-
scribed by his doctor. Sugarman, according to Loftman,
then asked him if he was still voting against the Union.
He responded that he was. Sugarman then, according to
Loftman, told him he was giving him a break, that the
antibiotics alone would cost $22 but that he would have
to pay only a total of $12 for the antibiotics and the
creams. Loftman also testified that the usual employee
discount was 6 percent.
Sugarman testified that employees get one-third off as
a discount, that he did not give Loftman a rate better
than that, that he never gave Loftman a discount as a
reward for assurances that Loftman would vote against
the Union and that he never asked Loftman how he
would vote.
I credit Loftman's account respecting the February 23
incident as it was detailed, as Respondent did not ex-
pressly deny the testimony of Loftman which indicates
that the discount given him was greater than one-third,
and as Respondent offered no documentary evidence to
3 He left Respondent's employ then when questions were raised as to
whether he had properly handled two transactions. Respondent urges
that his testimony should be rejected in its entirety in view of those mat-
ters. Testimony as to those transactions was considered only in evaluating
Loftman's attitude towards Respondent in testifying.
rebut Loftman's testimony. I credit Loftman's testimony
that the regular discount for employees was 6 percent,
not 33-1/3 percent.
Loftman also testified that, on one evening in January,
Sugarman told him that, if he needed time off from
work, that could be arranged but that it could not be
done if the Union got in. Loftman further testified that
Sugarman also told him that if the Union got in he
would have to lay off the part-time employees or close
the store. Sugarman, in his testimony, did not allude to
or controvert specifically that testimony of Loftman. I
credit Loftman's account.
Lastly, Loftman testified respecting the allegation that
his hours of work were reduced because of his support
for the Union. He testified that, after February 27, he
was earning only $51 a week instead of $80, the amount
he earned before the election. In response, Sugarman tes-
tified that he increased Loftman's "normal" workweek
from 15 hours to 20 hours on February I because Loft-
man asked for extra hours and that he decreased Loft-
man's hours back to 15 on March I because Sugarman
did not need him for those extra hours.
6. The testimony of Dolores Bates
Bates testified that, on the day of the election, Sugar-
man threw her lunch bag in the garbage when she left
the store to buy a soft drink. Sugarman testified that he
had assumed that someone had left a stale lunch behind
and that he threw it away by mistake. Bates acknowl-
edged under the circumstances a mistake was possible.
7. The testimony of Brook McShalo
McShalo began working for Respondent on March 28,
1980, as a clerk, cashier, and stocker and left Respond-
ent's employ in April. He signed a union card in January.
In late January, according to his testimony, Sugarman
asked him if he had signed a union card. He denied
doing so. McShalo testified that Sugarman then said,
"Yes, you did." Following that discussion, according to
McShalo, Sugarman asked him to promise not to vote
for the Union and McShalo told him he would not vote
for the Union. McShalo testified further that, at various
times in February, Sugarman promised him wage in-
creases and medical coverage and told him that he
would have to close the store on Sundays and holidays
and that he could not afford a union.
McShalo also related that, on the day of the election,
Sugarman told him that his paycheck would be S15 less
if the Union were to come in.
Lastly, McShalo testified that, prior to the election
when he called in sick, Sugarman simply said he hoped
McShalo would feel better. McShalo testified that he
was out sick for I day about 4 days after the election and
that, when he returned to work, Sugarman asked him for
a doctor's note. McShalo told him he would get one.
The matter was not pursued further.
As McShalo's account is substantially uncontroverted,
I credit it.
D. Alleged Discrimination Against Barbakoff
The General Counsel contends that Donald Barbakoff,
Respondent's pharmacist, was assigned more onerous
duties in mid-January because of his union activities and
1618
HILLSIDE AVENUE PHARMACY, INC.
that he was discharged from Respondent's employ on
January 24 for the same reason. Respondent asserts that
it never assigned Barbakoff to less agreeable tasks. It
denies too that it discharged him and contends that Bar-
bakoff quit his employment on January 24.'
The testimony is clear that Barbakoff had worked
briefly for Respondent about 20 years ago when he was
in college. After graduating from pharmacy school, Bar-
bakoff had worked at different pharmacies and, for a
period of time, he owned his own drugstore. On Novem-
ber 30, 1980, he telephoned Respondent in answering an
advertisement in the New York Times. Sugarman recog-
nized his voice and hired him immediately.
Although the complaint alleges that Barbakoff was
given more onerous, less agreeable work assignments be-
cause of his union activities, his testimony indicates that
the work assignments he received were not changed at
any time. Rather, he testified that Sugarman's attitude to-
wards him changed markedly on the advent of the
Union. Barbakoff testified that Sugarman was, from the
outset of Barbakoff's employment, "very picky" about
how Barbakoff kept the record books and how he per-
formed his other duties. Barbakoff further testified that
the change he experienced on the advent of the Union
was not that his duties changed but rather that Sugar-
man's attitude toward him was openly hostile.
Sugarman denied that he had shown any antagonism
to Barbakoff at any time.
Other employees testified as to Sugarman's tempera-
ment. One characterized it as "sweet and sour"; another
related that Sugarman treated the employees as children
by "screaming and hollering" at them. Barbakoff testified
that, although Sugarman was always friendly toward
him in December 1980, he interested his coworkers in
the Union because he was distressed with the way Sugar-
man was treating them. Barbakoff did not impress me as
so thoroughly altruistic.
The objective evidence indicates that Sugarman's atti-
tude toward Barbakoff had changed before Barbakoff
had approached the Union. In that regard, Respondent
put in evidence an advertisement Sugarman placed with
the New York Times on the day before the Union made
its first contact with him. The ad was for a full-time or
part-time pharmacist who "must be happy."5 From the
4 Some of the questions asked by Respondent of Buarbakoff suggested
to me that it might contend that Barbakoff was a supervisor as defined in
the Act or that he was a managerial employee, not protected by Sec. 7 of
the Act. As it developed. Respondent has not raised any such contentions
and neither was litigated. In any event, the record evidence discloses that
Buarbakoff transmitted routine directions to his coworkers and that he nei-
ther possessed nor exercised any genuine managerial discretion in his ,)
Rather, he performed the functions of a professional employee as he :a.
a registered pharmacist.
s Sugarman's explanation for having placed that ad makes little sens.
He stated he placed it as a favor to Barbakoff. Barbakoff testified that he
asked Sugarman in early December to arrange his schedule so that he
would be off duty every other weekend. Were the ad seeking only a
part-time pharmacist, I could begin to understand Sugarman's explanation
but that ad was for a full-time pharmacist. Further, Sugarmnan did not ex-
plain why he waited a month to place the ad or why he expressly sought
a pharmacist who "must be happy." I suspect Sugarman may have been
aware of Barbakoffs union activities when the ad was placed but the
General Counsel does not so contend.
overall testimony I find that the General Counsel has not
shown that Barbakoff was assigned at any time to more
onerous, less agreeable tasks or that Sugarman's attitude
in making work assignments to him changed after the
Union appeared on the scene. The evidence indicates in-
stead that Sugarman's "very picky" instructions began to
irritate Barbakoff in mid-December 1980 and that it was
as a result of that conduct that Barbakoff began to inter-
est his coworkers in having a union represent them.
Barbakoff testified that he spoke to the employees in
December 1980 and urged them to join a union and that
he called the Union in late December 1980. The Union's
area director also testified that he talked with Barbakoff
in late December 1980 about organizing Respondent's
employees.
In early January, a union meeting was held at the
apartment of one of Barbakoff's coworkers. The meeting
was attended by several employees, including Barbakoff.
Barbakoff testified that he obtained signed authorization
cards for the Union for all but one of Respondent's em-
ployees.
As related above, the Union sent a letter dated Janu-
ary 7 to Respondent which was received January 9. Bar-
bakoff testified that Sugarman "turned red" when he
opened and read that letter and that Sugarman left the
store then for a 20-minute period. When he returned, ac-
cording to Barbakoff, Sugarman asked him to promise
that he would not go along with the Union. Barbakoff
testified that he told Sugarman that he could not do that
as he firmly believed that the Union would be the best
thing for the employees because Sugarman treats them in
a "despicable" way. Sugarman testified that, when he re-
ceived the Union's letter, he read it to Barbakoff and
asked him if he knew anything about it and that Barba-
koff replied that he did not. Sugarman testified that he
then asked Barbakoff if he was a member of the Union
and that Barbakoff said he was not.
For purposes of deciding the issues in this case, it is
not necessary to determine whether Barbakoff's account
is more probably true than Sugarman.6
Barbakoff's last day of employment with Respondent
was January 24, a Saturday. There is a sharp credibility
issue as to whether he was discharged that day, as the
General Counsel contends, or whether he quit, as Re-
spondent asserts.
Barbakoff testified as follows as to January 24. He re-
ported for work as normal on January 24 and that Sugar-
man reviewed with him at or about 6 p.m. various assert-
ed deficiencies in Barbakoff's work performance. At one
point, according to Barbakoff, he told Sugarman that he
would try to follow Sugarman's detailed instructions to
the letter, as Sugarman wished, but that he could not
guarantee that he would do so as he did not see any
reason for such minute rules. At that point, according to
Barbakoff, Sugarman told him that they would have "to
s Were it necessary I would credit Sugarman's account as it contains
admissions against interest and as it seems unlikely to me that Barbakoff
could have suddenly commented to Sugarman about any "despicable"
conduct, particularly in view of Barbakoffs other testimony that the rela-
tionship then between himself and Sugarman was "kissy-kiasy," as Barba-
koff himself termed it.
1619
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
definitely part company." Barbakoff asked if he were
"fired" and that Sugarman, in response, said he did not
like to use that term. Sugarman then, according to Bar-
bakoff, instructed his wife to make up Barbakoff's pay-
check, which was given him and he then left the prem-
ises about 2 hours before closing time.
Sugarman testified as follows respecting January 24.
He let Barbakoff go home early on January 24 because
Barbakoff had worked beyond closing time on earlier oc-
casions. Sugarman related that when he told Barbakoff
on January 24 that he could leave early, Barbakoff was
happy. As Barbakoff was leaving, Sugarman asked him
about some returned items. When Barbakoff gave him a
very casual response, Sugarman told Barbakoff that his
work is getting worse and worse. Barbakoff told him to
"bug off." Sugarman asked if anything was bothering
Barbakoff. Barbakoff responded, "Stop mouthing off. I
quit."
Mrs. Sugarman testified that the only part of that con-
versation she heard distinctly was Barbakoff saying,
"Stop mouthing off. I've had enough. I quit." At that
Barbakoff's paycheck was made out and given to him.
Barbakoff filed the unfair labor practice charge in Case
29-CA-8595 on Monday, January 26, alleging his dis-
criminatory discharge on January 24. After a hearing
before the New York state department of labor, a deci-
sion issued whereby it was held that the "weight of the
substantial evidence supports [Barbakoff's] contention
that he had been told that it was time for him and [Re-
spondent] to part company" and that Barbakoff "did not
voluntarily leave his employment without good cause."
I credit Barbakoff's account. It is not likely that Barba-
koff would have quit his employment so soon in the or-
ganizing drive he had initiated. Respondent argues that
Barbakoff had simply been unable to adjust to taking
orders after having been in business for himself and that
it was not unlikely that he made the sudden decision to
quit. That explanation certainly is a possibility but, in my
judgment, it is not probable. That explanation is weak-
ened by the further unlikelihood that Barbakoff abruptly
would have resigned his employment moments after Su-
garman had supposedly told him that he could go home
early, as an expression of gratitude for Barbakoff's
having worked overtime on previous days.
E. The February 6 Incident
Respondent adduced evidence at the hearing to show
that, on February 6, Barbakoff had intentionally struck
Sugarman with his automobile. That evidence was of-
fered to establish that Barbakoff had, by such miscon-
duct, forfeited any right he might have had to reinstate-
ment to his former position with Respondent. The Gen-
eral Counsel indicated that he was prepared to address
that issue. The testimony thereon offered another credi-
bility conflict for resolution.
Sugarman's account is as follows. Barbakoff came to
the pharmacy on February 6 in a state of hysteria and
demanded that Sugarman step outside. Barbakoff left the
store and a few minutes later Sugarman went outside to
talk to Barbakoff. Barbakoff was sitting in his car which
was in the driveway. Sugarman knocked on the window
on the passenger side of the car to get Barbakoff's atten-
tion. Barbakoff signaled him to walkin front of the car to
come to the driver's side. Sugarman did so and as he
passed in front of the car, Barbakoff put the car in for-
ward gear. The car struck Sugarman with such force as
to toss him onto the hood of the car. Barbakoff raced the
car out onto the adjacent six-lane street and swerved
abruptly such that Sugarman was thrown off the car in
front of oncoming traffic which stopped without hitting
him.
Barbakoff's testimony as to the February 6 incident is
as follows. He visited the pharmacy that day to explain
to Sugarman that he had no reason to contest Barba-
koff's unemployment compensation claim as the pay-
ments were not to be charged against Respondent's ac-
count. He asked Sugarman to come outside where they
could discuss the matter privately. Sugarman agreed to
do so. Barbakoff waited outside and when Sugarman
failed to appear, he walked to his car. As he was leaving
in his car, Sugarman came out of the store and stationed
himself in front of the car. Barbakoff stopped his car. Su-
garman walked to the side of the car. At that point, Bar-
bakoff put the car in gear to leave. Sugarman then leapt
onto the hood of his car and before Barbakoff could
slow the car down, the car was out on Hillside Avenue.
Barbakoff stopped the car and Sugarman fell off.
Maria Kaufman testified as follows. She observed the
incident from inside the store. Barbakoff and Sugarman
were talking excitedly outside. Then Barbakoff walked
away to go to his car. A short while later, Sugarman
stood in front of the car as it approached the driveway.
Barbakoff stopped the car. Sugarman, in a belligerent at-
titude, folded his arms and positioned himself at the front
of the car with his posterior resting on the front grille.
Barbakoff edged the car forward. Sugarman tried to hold
it back with his body stance. Then she observed Sugar-
man was straddling the hood and being driven out onto
Hillside Avenue where he fell off when the car stopped.
Kaufman testified for the General Counsel. Sugarman,
in his testimony, stated that he had asked her to be a wit-
ness to the event and he also testified that the account
she gave of the incident was substantially accurate.
I credit Kaufman's account and reject Sugarman's ver-
sion and also Barbakoff's version. I do not accept Barba-
koff's testimony that Sugarman leapt suddenly onto the
hood of a moving vehicle as it is unlikely that a man of
Sugarman's years would have that agility. Neither do I
accept Sugarman's account that he was tossed onto the
hood when the car had been stopped a foot or so away
from him when he crossed in front of it, according to his
version. It is more likely that, at most, the car would
have but bumped him, in the manner recounted by Maria
Kaufman.
From the overall testimony and from especially Kauf-
man's account, I conclude that Sugarman physically
blocked the egress of Barbakoff's car and that Barbakoff
then sought to push him out of the way but that Sugar-
man resisted. A fair inference as to what happened then
is that Barbakoff kept the car moving ahead slowly and
that Sugarman, who would not give up, then stepped up
onto the bumper of the car and straddled the hood. I be-
1620
HILLSIDE AVENUE PHARMACY, INC.
lieve Barbakoff took up the challenge, and gave him a
short ride with an abrupt end.
F. Analysis
1. Matters other than alleged discrimination against
Barbakoff
The credited evidence discloses that Respondent, by
its president, Gerald Sugarman, asked:
(a) Donald Barbakoff on January 9 if he were a union
member.
(b) Thomas Hall in mid-January what he knew about
the Union.
(c) Hall in mid-February and on February 27 how he
intended to vote.
(d) Maria Kaufman in mid-January and in late January
if she would vote for the Union.
(e) Brian Loftman in late January, in early February,
and on February 23 if he would vote for the Union.
(f) Brooks McShalo in late January if he signed a
union card.
The credited evidence also shows that Sugarman: (a)
effectively promised benefits to employees by telling
Thomas Hall in mid-January when discussing the Union,
that those who made his life easier will be rewarded and
by making substantially the same comment to Hall in
mid-February, and (b) promised McShalo wage increases
and medical benefits at various times during February,
while urging him to reject the Union.
The credited testimony further reveals that Sugarman
threatened employees to discourage their support for the
Union when he: (a) told employees Hall and Clay on
February 20 that if the Union came in, some of the part-
time employees would be let go; (b) told Maria Kaufman
on February 27 that, if the Union came in, her paycheck
would be reduced by $10, $15, or $20; (c) told Brian
Loftman in January that, if the Union got in, he could
not be given time off from work and that the part-time
employees would be laid off or the store would be
closed; (d) told McShalo in late January, while informing
him that he could not afford the Union, that he would
have to close the store on Sundays and holidays; and (e)
told McShalo on February 27 that his paycheck would
be $15 less if the Union were to come in.
The evidence also demonstrates that Sugarman, while
urging Brian Loftman on February 23 to reject the
Union, gave him an unusually large discount in the price
he paid for prescriptions and creams he received that
day.
The uncontroverted evidence establishes that Sugar-
man approached Loftman on January 9 and told him that
he learned that Loftman was going to vote for the
Union; Sugarman also corrected McShalo in late January
when McShalo denied that he had signed a card for the
Union when Sugarman told McShalo then that he had in
fact signed a union card. It is evident from the foregoing
that Respondent, by Sugarman, left the impression with
the employees involved that it was keeping itself in-
formed on the union activities of these employees.7
7 See Clements Wire and Manufacturing Company. Inc., 257 NLRB 206
(1981).
The credited testimony shows too that Sugarman told
Thomas Hall in mid-January to keep him informed about
the efforts of the employees to bring in a union and that
Sugarman extracted from McShalo in late January a
promise to vote against the Union.
The credited testimony of Hall and Loftman estab-
lishes that Sugarman's wife, while shouting at them
along with Sugarman himself, stated that the store would
be closed if the Union got in. Sugarman's conduct under-
scored that statement and there is no evidence that he at
any time made any effort to negate it. In those circum-
stances, Respondent is to be held responsible for that
threat.8
The evidence also establishes that Loftman's working
hours were summarily reduced after the election and that
Respondent gave him no reason for that action. Sugar-
man's attempt to account for that reduction was uncon-
vincing. He explained that he originally had increased
Loftman's working hours because Loftman had request-
ed it and that he reduced them after the election to Loft-
man's "normal" hours because he was not needed. No
explanation was offered to show why the schedule Loft-
man worked just prior to the election was not "normal."
The evidence rather indicates that that was his normal,
permanent schedule then. Sugarman's failure to have ex-
plained to Loftman after the election why he could not
continue to work that schedule suggests to me that the
reason was not based on economics. Sugarman offered
no explanation at the hearing in this case as to why he
could accommodate Loftman's request before the elec-
tion for more hours of work and why he could no longer
do so after the election had been held.
The testimony of Loftman made out a prima facie case
for the General Counsel that his work hours were re-
duced after the election to discourage support for the
Union, particularly as Sugarman on more than one occa-
sion threatened reprisals against the part-time employees
to induce them to abandon their support for the Union.
Respondent's effort to rebut that prima facie case at best
suggests that it may also have an economic basis for
having reduced Loftman's working hours but it made no
effort to demonstrate that his hours would have been re-
duced notwithstanding the evidence of unlawful motiva-
tion. In these circumstances, I find that Loftman's work-
ing hours were reduced after the election in order to dis-
courage support for the Union.9
As to the allegations that Respondent threw out em-
ployee lunches and searched employee smock jackets in
order to discourage union support, the credited evidence
discloses only suspicious circumstances and is insufficient
to establish that Respondent's motivation was discrimina-
tory in nature. Suspicions alone are not enough to prove
a violation.10 For substantially the same reason, I find
that the evidence is insuffcient to demonstrate that Su-
garman discriminatorily asked McShalo for a doctor's
note in early March to excuse a 1-day absence due to ill-
ness. In that regard, the evidence is clear that McShalo
' See Berger Transfer and Storage. Inc.. 253 NLRB 5, 12 (1980).
9 Century Moving d Storage, Inc., 251 NLRB 671, 678 (1980).
'o The Murray Ohio Manufacturing Company, 207 NLRB 481 (1973).
1621
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not required to furnish the note; the matter was not
pursued. l
I find also that Sugarman's inquiry of Union Repre-
sentative Ferrara on January 10 as to whether pharma-
cist Donald Barbakoff signed a union card is not inde-
pendently coercive as to employees' Section 7 rights as
no employees were present then. 1'2
2. Alleged discrimination against Barbakoff
The first allegation raised by the General Counsel as
to unlawful discrimination by Respondent against Barba-
koff is that he was given more onerous, less agreeable
tasks to discourage activities on behalf of the Union. A
careful reading of Barbakoff's testimony reveals that he
asserted that the work assignments he received never
changed but that Sugarman's attitude in dealing with him
changed in that Sugarman became openly hostile to him
after he received the Union's letter demanding recogni-
tion. The credited evidence however shows that Sugar-
man had become increasingly critical of Barbakoff before
he, Sugarman, was made aware of the Union's organiz-
ing activities and that it appears to have been the change
in Sugarman's attitude toward Barbakoff that induced
Barbakoff to contact the Union in late December. In
short then, the credible evidence is insufficient to estab-
lish that Barbakoff was assigned more onerous, less
agreeable duties because he supported the Union.
The General Counsel also has alleged that Respondent
discharged Barbakoff on January 24 to discourage sup-
port for the Union. In support thereof, evidence was of-
fered to establish, as it clearly did, that Barbakoff was
the employee who initiated the Union's drive, that Su-
garman made a specific inquiry as to whether or not he
had signed a union card when the Union's representative,
Ferrara, visited the store on January 10, that Respondent
thereafter committed a series of acts coercive of employ-
ees' rights under Section 7 and that Barbakoff's employ-
ment with Respondent ended about 2 hours before he
was scheduled to finish his workday on January 24. The
credited evidence is that he was discharged from Re-
spondent's employ on January 24 and that he did not
quit. I note too that Sugarman had told one employee
that a "vengeful" person was trying to bring the Union
in and that Sugarman had, but a few days before that,
placed an advertisement in the New York Times for a
full-time or part-time pharmacist "who must be happy."
Based on the evidence as to the nature of Barbakoff's ac-
tivities for the Union, Sugarman's concern therefor, the
union animus expressed by Sugarman, the fact of Barba-
koff's discharge only 2 weeks after the Union demanded
recognition and the pretextual reason given by Respond-
ent respecting Barbakoff's termination of employment, I
find that Barbakoff was discharged on January 24 be-
cause of his activities in support of the Union. '
As noted earlier Respondent has indicated that Barba-
koff forfeited any right he may have had to reinstatement
to his former position because he tricked Sugarman on
February 6 into walking in front of his car and then
iI Cf. Central Cartage, Inc, 236 NLRB 1232, 1256 (1978).
" Cf. Sibilo's Golden Grill Inc., 227 NLRB 1688, 1692-93 (1977).
1" Cf. Publishers Printing Co.. Inc., 233 NLRB 1070 (1977).
struck Sugarman with his car. The General Counsel had
offered testimony by Barbakoff to show that Sugarman
was entirely at fault for that incident. Also, as noted
above, I have rejected both of these versions and accept-
ed instead that of Maria Kaufman.
Relevant to determining whether Barbakoff should be
reinstated to employment with Respondent are several
factors, pro and con. Obviously, the first in his favor is
that he had been unlawfully discharged. Second, his ap-
plication for unemployment benefits was improperly held
up by Sugarman's fabrication that Barbakoff had quit.
Third, after his discussion with Sugarman on February 6,
he did attempt to leave the premises peacefully by
simply driving away. Fourth, Sugarman was the one
who blocked his egress and then resisted Barbakoff's ini-
tial effort to nudge him away from the front of the car.
Fifth, it was Sugarman who climbed onto the car, as best
as I can determine from the overall situation, and there-
by dared Barbakoff to drive out onto Hillside Avenue,
notwithstanding the fact that Barbakoff was already in a
state of anger.
The factors weighing against a reinstatement order are
the following. Barbakoff went to the pharmacy on Feb-
ruary 6 to confront Sugarman when the result would be
that he would be able, at best, to vent his own anger
and, at worst, there could have been serious injury.
Second, Barbakoff was maneuvering an automobile
against a mere human who also was in his later years.
Misconduct after discharge may warrant denial of a
reinstatement order, depending on the nature of the mis-
conduct, the provocation, if any, and the likelihood that
it will lead to future strained relations on the job if the
employee is returned to work.14 I view the misconduct
of Barbakoff in driving Sugarman out onto a six-lane
road as serious in nature. I view the provocation of that
act by Sugarman as equally serious under the circum-
stances.'5 It is also patently clear to me that a resump-
tion of relations between them should not be ordered as
those relations would be strained, to put it mildly. The
policies of the Act will not be served by permitting a
party to be absolved of all responsibility when its own
acts materially contributed to the result. A proper bal-
ance will be struck by requiring Respondent to make
Barbakoff whole for all monetary losses he suffered from
his discharge on January 24 until he obtained substantial-
ly equivalent employment elsewhere. 6
II1. THE REPRESENTATION CASE
The Board's order in Case 29-RC-5255 directed that a
determination be made as to whether Barbakoff's ballot
should be counted. His ballot is determinative of the
election results. As I have found that he was discrimina-
14 See Booth Services, Inc., 206 NLRB 862, 872 (1973), and cases cited
at 872 in fn. 24.
'6 Cf. J. W. Microelectronics Corporation, 259 NLRB 327 (1981).
'6 Cf. Atlantic Company, 79 NLRB 820, 828, fn. 17 (1948), where the
Board fashioned a remedy, in lieu of the usual one, because the discrimin-
atorily discharged employee had, by reason of his actions while dis-
charged, lost his right to reinstatement to his former job. The backpay
shall be computed in the manner prescribed in F W Woolworth Company,
90 NLRB 289 (1950), Isis Plumbing d Heating Ca, 138 NLRB 716 (1962),
and Florida Steel Corporation, 231 NLRB 651 (1977).
1622
HILLSIDE AVENUE PHARMACY, INC.
torily discharged on January 24 but that he was not enti-
tled to reinstatement to employment in the unit involved
in Case 29-RC-5255 since February 6, I conclude he
was not employed in that unit as of the date of the elec-
tion, February 27. Accordingly, his ballot should remain
unopened and uncounted.
The Board's order further directed that a determina-
tion be made as to whether Objections 1, 2, and 6, filed
by the Union, have merit. These objections pertain to al-
leged unlawful interrogation by Respondent, threats to
lay off its part-time employees, and threats to close if the
Union won and to other alleged acts and conduct of im-
proper interference with the employees' right to choose
freely whether or not they wished to be represented for
purposes of collective bargaining by the Union. Those
other alleged acts and conduct related to allegations of
harassment, of creating the impression of surveillance of
union activities, and of informing employees that dues
would be deducted from their pay if the Union won.
As I have concluded that Respondent engaged in un-
lawful acts, as detailed above, and as these fall within the
scope of Objections 1, 2, and 6, I recommend that the
Board find that those acts interfered with the employees'
free choice, that the results of the February 27 election
be set aside, and that a new election be held.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating its employees as to their support
for the Union, Respondent has engaged in and is engag-
ing in unfair labor practices proscribed by Section 8(a)(1)
of the Act.
4. By promising wage increases and medical benefits to
employees to induce them to vote against the Union and
by telling them they will be rewarded if they reject the
Union, Respondent has engaged in and is engaging in
unfair labor practices proscribed by Section 8(a)(l) of the
Act.
5. By threatening to discharge part-time employees,
threatening to close the store, threatening to reduce the
amount of employees' paychecks, and threatening not to
honor employee requests to be excused from work with
the object of such threats being to discourage employees
from supporting the Union, Respondent has engaged in
and is engaging in unfair labor practices proscribed in
Section 8(a)(1) of the Act.
6. By granting employees purchasing discounts in
excess of the normal discount in order to discourage
their support for the Union, Respondent has engaged in
and is engaging in unfair labor practices proscribed by
Section 8(a)(1) of the Act.
7. By creating the impression among its employees that
it has kept their union activities under surveillance, Re-
spondent has engaged in, and is engaging in, unfair labor
practices proscribed by Section 7 of the Act.
8. By requesting employees to keep it informed as to
any activities of its employees for the Union and by ex-
tracting promises from employees not to vote for the
Union, Respondent has engaged in, and is engaging in,
unfair labor practices proscribed by Section 7 of the Act.
9. By reducing the work hours of employee Brian
Loftman in order to discourage membership in the
Union, Respondent has engaged in, and is engaging in,
unfair labor practices proscribed by Section 8(a)(1) and
(3) of the Act.
10. By having discharged pharmacist Donald Barba-
koff from its employ on January 24 and by having failed
to reinstate him by February 6, or make him whole for
all losses of moneys since January 24 because he joined
and supported the Union, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
I 11. The unfair labor practices committed by Respond-
ent demonstrate that it has a propensity to violate the
Act and therefore a broad remedial order is warranted. 7
12. The unfair labor practices set out above in para-
graph 3 to 10 inclusive affect commerce within the
meaning of Section 2(6) and (7) of the Act.
13. Respondent did not, in order to discourage mem-
bership in the Union, prevent employees from bringing
lunch to work, or throw away employee lunches, did not
search employee smock jackets, did not require employ-
ees to furnish doctors' notes to excuse absences due to
illness, or assign more onerous, less agreeable tasks to
employees and, as a consequence, the allegation of the
complaint that it did so in violation of Section 8(a)(1)
and (3) of the Act must be dismissed.
14. The challenged ballot of Donald Barbakoff shall
remain unopened and uncounted as he was not employed
on the date of the election as an employee within the
unit found appropriate in Case 29-RC-5255.
15. The results of the election held on February 27
shall be set aside and a new election directed by reason
of the acts set out above in paragraphs 3 through 1.
Upon the foregoing findings of facts, conclusions of
law, and recommendations, and pursuant to Section 9
and 10(c) of the Act, I hereby issue the following recom-
mended:
ORDER' 8
The Respondent, Hillside Avenue Pharmacy, Inc., Ja-
maica, New York, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Interrogating its employees as to their support for
District 1199, National Union of Hospital and Health
Care Employees, Retail, Wholesale, Department Store
Union, AFL-CIO.
(b) Promising wage increases or other benefits to em-
ployees to induce them not to support the Union.
(c) Threatening to discharge its part-time employees,
to close its store, to reduce employees' working hours or
7; Hickmorr Foods, Inc. 242 NLRB 1357 (1979).
18 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1623
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to refuse requests by employees for time off in order to
discourage its employees from joining or supporting the
Union.
(d) Granting extra purchasing discounts to its employ-
ees to induce them to vote against the Union.
(e) Creating the impression among its employees that it
is keeping their union activities under surveillance.
(f) Requesting its employees to keep it informed as to
union activities among them or extracting promises from
its employees to vote against the Union.
(g) Reducing the work hours of any of its employees
or discharging any employee to discourage membership
in or activities on behalf of the Union.
(h) In any other manner interfering with, restraining,
or coercing its employees with respect to the exercise by
them of any of the rights guaranteed them under Section
7 of the Act.
2. Take the following affirmative action:
(a) Make whole Brian Loftman for all losses of pay he
suffered as a result of the reduction in his work hours
after the election and make whole Donald Barbakoff of
all losses of pay he suffered as a result of his discharge
on January 24; backpay for Loftman and Barbakoff is to
be computed in the manner set forth above in footnote
17 of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records and reports, and
all other records necessary to analyze the amounts of
backpay due herein.
(c) Post at its New York, New York, pharmacy copies
of the attached notice marked "Appendix."19 Copies of
said notice, on forms provided by the Regional Director
for Region 29, after being duly signed by Respondent's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken to
ensure that said notices are not altered, defaced, or cov-
ered by any materials.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order what
steps have been taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations of
the complaint which pertain to the matters set out in
paragraph 13 of the Conclusions of Law section of this
Decision are dismissed.
IT IS FURTHER RECOMMENDED that the challenge to
the ballot of Donald Barbakoff should be sustained; Ob-
jections 1, 2, and 6 filed by the Union with respect to
conduct affecting the results of the election held on Feb-
ruary 27, 1981, in Case 29-RC-5255 are sustained, and a
new election shall be directed.
"I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1624