Independent Drug Store Owners of Santa Clara County

National Labor Relations Board - Board Decisions

Jun 18, 1974

211 N.L.R.B. 701 (N.L.R.B. 1974)

INDEPENDENT DRUG STORE OWNERS 701
Independent Drug Store Owners of Santa Clara
County and Retail Store Employees Union, Local
428, Retail Clerks International Association,
AFL-CIO. Case 20-CA-8170
June 18, 1974
DECISION AND ORDER
On September 18, 1973, Administrative Law Judge
Martin S. Bennett issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. Counsel for the General
Counsel filed a brief in answer to Respondent's
exceptions and in support of the Administrative Law
Judge's Decision.
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
only to the extent consistent herewith.
In finding that the Respondent's refusal to recog-
nize and bargain with Retail Store Employees Union,
Local 428, on or about March 20, 1973, the
Administrative Law Judge relied upon a resolution
adopted at two meetings held in February and
March 1972.1 The 1972 resolution transferred the
operations of Pharmaceutical Clerks Association
(herein PCA) to Local 428, urged PCA members to
join Local 428, and provided for dissolution of PCA.
Notwithstanding the refusal of Respondent to
recognize Local 428 in 1972 or thereafter, the
Administrative Law Judge found that Local 428
became the exclusive representative of employees
represented by PCA, and inherited its contract with
the Respondent.
Contrary to the Administrative Law Judge, we do
not believe that Respondent was required to recog-
nize Local 428 as the bargaining representative of the
unit represented by PCA or as a party to the
contract. The resolution was not designed to insure
employees the continuity of their bargaining repre-
sentative. Rather, it provided for the complete loss of
identity of PCA, and the substitution of a new and
different labor organization with its own officers,
and thus a complete change in the representative. We
do not believe that this case is distinguishable in
principle from Gulf Oil Corporation, 135 NLRB 184,
where the Board refused to amend the certification
from one local to another local of the same
international. The membership of the certified local
had voted in favor of the merger. The Board held
that this requested substitution raised a question
concerning representation, which under Board policy
should be determined through a petition and secret
ballot election.2
We find that on March 20, 1973, Local 428's status
was not that of the exclusive bargaining representa-
tive with a presumption of continuing majority. We
find that the Respondent was not obliged to accept
in 1973 the Union-conducted poll of employees of
approximately a year earlier as proof of majority.
Respondent did not act unlawfully in refusing to
recognize or bargain with Local 428 until its majority
status was established in a Board-conducted elec-
tion.3
Accordingly, we shall order that the complaint be
dismissed in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBERS FANNING and JENKINS, dissenting:
The most important fact disclosed by examining
the record in this case is that in all respects the
employee vote to merge PCA into the Retail Clerks
was democratic and comported with the standards
required by the Board.4 Because of this and because
I The resolution was for the first time presented to and voted upon by
members of PCA at a regular meeting of PCA held on February 29, 1972.
PCA had approximately 38 members of which 16 were present at the
meeting . The second meeting was arranged by Local 428 and held on March
6, 1972 . Notice was given to members of PCA asking them to attend a "Get-
acquainted Meeting," as members of PCA had voted in the PCA meeting
held on February 29 to dissolve that organization and merge with Local 428.
However, the resolution was presented to and voted upon by 16 members of
PCA who had accepted Local 428's invitation to the get -acquainted
meeting . While it appears that members were not given notice prior to either
of these meetings that the dissolution of PCA and merger with Local 428
would be the subject of these meetings and voted upon , we find it
unnecessary in view of the disposition of the case to decide whether the
procedures followed measured up to the standards required by the Board.
2 Chairman Miller concurs in the applicability of the Gulf Oil precedent,
and would also rely on the decision of the circuit court of appeals in
American Bridge Division, United States Steel Corporation v. N.L.R.B., 457
F.2d 660 (C.A. 3, 1972), as setting forth a rationale for the result reached
here . Member Penello also concurs in the result , and would rely solely on
the rationale of the court decision in American Bridge Division, supra, in
reaching his decision herein.
Contrary to the assertion of the dissenters , we do not apply a different
standard in this 8(a)(5) case from that which we would apply in an
amendment of certification case . The issues are, to be sure, much the same:
(1) Is the new entity the same entity as the old ? and (2) did the union
seeking either certification or, as here , bargaining rights, succeed to the
bargaining rights of its predecessor? We have answered those issues here in
the negative, based on the facts before us . Nor do we see any relevance in
the Employer's alleged lack of good faith.
3 Linden Lumber Division, Summer & Co., 190 NLRB 718.
4 Although our colleagues intimate otherwise , in view of the small
number of employees involved, as well as the fact that the merits of the
proposed merger had apparently been discussed among employees for some
time prior to the meeting at which the first vote was taken , we believe the
notice of the February 29, 1972, meeting was sufficient to alert the
employees to the purpose of that meeting . The notice itself stated that the
meeting would concern the "new contract" with the Retail Clerks. It is
otherwise uncontroverted that the merger votes were democratic . Moreover,
(Continued)
211 NLRB No. 85
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he otherwise found that the 1969-72 contract had
been renewed through its termination date and duly
reopened by the Retail Clerks in January 1973, the
Administrative Law Judge concluded that Respon-
dent had an obligation to bargain thereafter with the
Retail Clerks as the representative of these employ-
ees.
In reversing the Administrative Law Judge's
Decision, the majority relies primarily on the
supposed disappearance of the old bargaining entity.
As the majority acknowledges, however, this is a
factor considered chiefly in amendment of certifica-
tion cases and even in those cases there is serious
question as to how much weight it is actually given .5
In arriving at their decision, our colleagues have
also chosen to ignore the record evidence of this
Respondent's general bad faith. Thus, contrary to the
suggestion of the majority, Respondent was not
presented for the first time in January 1973 with a
year-old employee poll in support of the Retail
Clerks; rather, Respondent was fully informed of the
employee vote in favor of the Retail Clerks early in
March 1972 and at that time made no claim that it
did not accurately reflect employee sentiment or that
it had not been fairly conducted. In fact, only after
discussing details of contracts which the Union had
negotiated with other employers-and apparently
finding those details not to its liking-did Respon-
dent strive to undo the employee vote by approach-
ing former PCA officials and offering to reopen and
renegotiate the 1969-72 contract. When this ploy
failed, Respondent threatened legal action under
California law to compel PCA to administer the
1969-72 contract, which by its terms had renewed
itself through 1973. At the hearing, however, Respon-
dent again reversed its field and asserted that this
contract, which only a few months before it had
threatened to sue on, was not binding and in fact had
never been agreed to. Indeed, the essence of
Respondent 's defense to the matters alleged in the
complaint was that PCA itself no longer had
majority status in 1969 and that Respondent had
therefore ceased bargaining with it in 1969. This, of
course, is a claim which the Administrative Law
Judge properly rejected as contrary to the record
evidence.
In our judgment, this is an unusual case and a case
that should be decided not on the basis of technicali-
ties but rather by continued adherence to the
longstanding Board policy of honoring the wishes of
employees with respect to their right to bargain
collectively through representatives of their own
choosing. By their decision here, our colleagues in
effect have sanctioned Respondent's conduct in
attempting to pick and choose its employees'
bargaining representative-its employees' wishes omissions in the transcript is hereby granted.
notwithstanding. This is a result with which we
cannot and do not agree.
it does not appear that any employee voted against the merger resolution or
subsequently voiced objection to it . Member Jenkins notes that there is no
evidence in the record to indicate that any employee in the unit was denied
the opportunity to vote at the time the merger votes were taken . See North
Electric Company, 165 NLRB 942; The Hamilton Tool Company, 190 NLRB
571
5 See, for example, Chairman Miller 's concurring opinion in Hamilton
Tool Company, supra.
DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Administrative Law Judge: This
matter was heard at San Jose , California, on July 19, 1973.
The complaint, issued May 11 and based upon a charge
filed March 22, 1973, by Retail Store Employees Union,
Local 428, Retail Clerks International Association,
AFL-CIO, herein the Union , alleges that Respondent,
Independent Drug Store Owners of Santa Clara County,
herein IDS, has engaged in unfair labor practices within
the meaning of Section 8(a)(5) and ( 1) of the Act. Briefs
have been submitted by the parties.'
On July 20, 1 day after the close of the instant hearing,
counsel for Tropicana Drugs, Inc., herein Petitioner, a
successor to Clifford's Pharmacy , Inc., the latter a former
member of Respondent , moved to intervene in this case,
seeking to present evidence on the issues involved , the right
to cross-examine adverse witnesses , and the right to reopen
the record after a decision issued in the instant matter to
introduce evidence supporting its position . It alleged that
the Union did not inherit any bargaining status from an
independent labor organization, namely Pharmaceutical
Clerks Association, herein PCA. This is one of the issues
litigated before me. Also complained of was the fact that
on July 20 the Regional Director of Region 20 refused to
issue a complaint based upon a charge of Petitioner
alleging a violation of Section 8(b)(7)(C) of the Act by the
Union and complaining that its RM petition had been
blocked by the charge in the instant case. The General
Counsel opposes the motion , inter alia, on the basis that the
issue Petitioner seeks to litigate was fully and fairly
litigated before me on July 19, 1973. Upon consideration of
said motion in its entirety , the motion to intervene is
hereby denied.
Upon the entire record in the case, and my observation
of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Independent Drug Store Owners of Santa Clara County
is a volunteer association of employers engaged in the
retail pharmaceutical business at various locations in Santa
Clara County, California, which represents most of its
members in labor relations matters. The employer-mem-
bers of Respondent annually enjoy gross revenues in excess
of $500,000 and also receive goods and supplies valued in
1 An unopposed motion by the General Counsel to correct certain
INDEPENDENT DRUG STORE OWNERS
excess of $50,000 shipped to them directly from points
outside the State of California . I find that the operations of
Respondent affect commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Retail Store Employees Union, Local 428, Retail Clerks
International Association, AFL-CIO, and Pharmaceutical
Clerks Association are and were at all times material herein
labor organizations within the meaning of Section 2(6) and
(7) of the Act.2
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the Issues
PCA and IDS were signatories to a collective-bargaining
agreement from June 1967 to March 31, 1969. A new
agreement was executed late in March or early in April
1969, and PCA allegedly merged into the Union in 1972.
At issue herein is whether the merger was democratically
and effectively consummated and whether Respondent
thereafter refused to bargain with the Union within the
meaning of Section 8(a)(5) and (1) of the Act.
B. Sequence of Events
As treated below more fully, a collective-bargaining
contract was executed between IDS and PCA, effective
April 1, 1969, and was due to expire on March 31, 1972.
This agreement provided that it was renewable from year
to year thereafter, absent 60 days' notice prior to its
expiration date. Such timely notice was not given.
PCA was a small independent labor organization with a
membership of approximately 38. Early in February 1972,
dissatisfied with its inability to achieve meaningful results
from IDS in problems affecting its membership, two
officials of PCA instituted a meeting with representatives
of the Union to discuss a merger into the latter.
Representatives of the Union were invited to attend a
regular meeting of PCA on February 29. Approximately 1
week prior to that date, the general membership of PCA
was sent a postcard reading as follows:
PHARMACEUTICAL CLERKS ASSOCIATION
OF S. C. CO.
IMPORTANT MEETING concerning our new con-
tract with the Union:
DATE: Tuesday-February 29
TIME: 8:30-10:00 p.m.
PLACE: Hyatt House-Room 502 San Jose
Dues accepted 8:30-9:00 p.m.
2 Respondent has adduced evidence bearing upon the relative ineffectu-
ality of PCA. This, to some extent, is agreed to by the PCA as a motivating
factor for its merger into the Union. PCA had a previous contract with IDS
from 1967 through 1969 . It operated pursuant to its constitution and bylaws
which set up the structure and operational procedures for the organization,
including monthly meetings . At these , there was an order of business
including the reading of minutes from past meetings , presentation of a
trea'surer 's report, treatment of new business , and the discussion of current
Marcellite Wall, Secretary
A copy of this was also sent to the Union. This direct
mailing of the notice of meeting was consistent with the
type of procedure and notice given concerning meetings in
past years. Some 16 members attended and, according to
the uncontroverted testimony of Vice President Wanda
Evans, this attendance was slightly higher than usual.
This meeting commenced as a normal business meeting
chaired by President Jane Noll of PCA. Representatives
Patricia Brady and William Reiser of the Union then
explained its workings and answered questions. A pro-
posed resolution previously prepared by the Union was
then read aloud to those present by a PCA official.
This resolution stated in essence that long experience
had taught PCA that, as an independent unaffiliated labor
organization , it lacked sufficient strength to achieve its
demands for fair wages and decent working conditions;
that PCA had learned of the activities of the Union; that
PCA had been advised that the Union represented not only
employees of pharmacies in the area, but also thousands of
retail store employees in other establishments; that the
Union was affiliated with an international labor organiza-
tion and therefore had the strength of that organization
behind it; and that the interests of its members would be
better served by a merger into the Union. It was then
resolved, in the proposed resolution, that all of the
operations of PCA be transferred to the Union, that the
members of PCA be urged to qualify as members of the
Union without delay and that PCA be dissolved effective
30 days after the adoption of the resolution.
Reiser then explained that the 1967-69 contract had not
been timely reopened and that this would therefore require
honoring that contract with the Union as bargaining
representative. He further announced that the Union was
not interested in the small PCA treasury of approximately
$1,500 and also would not collect dues until it, in turn,
negotiated a new contract for the membership. At this
point, and prior to the voting on the resolution, the
representatives of the Union were asked to leave the room
and did so. Ballots were then distributed among the
membership offering a "yes" or "no" vote on the
resolution. The ballots are in evidence, as supported by
oral testimony, and all 16 present voted unanimously in
favor of the resolution and merger into the Union.
The representatives of the Union were recalled and
informed of the results. All three of the PCA officials, the
president, the vice president, and the treasurer, then signed
a document identical with the proposed resolution except
that it was entitled "Resolution." It is undisputed that the
procedures leading up to the February 29 meeting and the
conduct of the meeting including a majority vote of those
problems. The treasurer collected dues from the members in attendance and
these were entered on individual membership file cards . The treasurer also
filed LM-3 reports with the U .S. Department of Labor reporting its
financial status as required . There is evidence of the existence of a grievance
committee for some years with slight action on its part which met with
resistance from the respective employers. I find nothing here to warrant a
finding, on a preponderance of the evidence, that PCA was not a labor
organization within the meaning of the Act.
703
Please be there!
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present were entirely consistent with the constitution and
bylaws of PCA.
On March 3 , the Union sent a letter to each of the
employers represented by IDS allegedly bound to the
1%9-72 contract, some 40 in all , inviting them to attend a
"get-acquainted meeting" on the evening of March 9. It
stated , inter alia:
At the request of the now dissolved Pharmaceutical
Clerks Association, we are the Collective Bargaining
Representative for its members under the existing
contract with you.
Earlier, on March 9, Reiser, Brady, and Secretary-
Treasurer James McLoughlin of the Union met with John
Bucholz,3 a pharmacy owner who had been active as one
of a committee of three in the 1%9 negotiations . According
to Brady, Bucholz, who did not testify, announced that
President Aldo Fontana of IDS had asked him to meet
with them.
Brady pointed out, in response to a query as to the role
of the Union, that it had been approached by PCA rather
than the opposite. Brady also stated that the Union
intended only to enforce the contract as it stood and then
make a timely reopening for the following contract year, as
indeed was done later . Reiser corroborated Brady and also
recalled that Bucholz inquired concerning the contracts
enjoyed by the Union elsewhere , welfare and pension plan
costs, short hour employees and the interchange of
employees within a store.
At the "get-acquainted meeting" set up for that evening,
only Bucholz appeared for IDS . The three representatives
of the Union as well as three PCA officials attended.
Bucholz' attitude had changed from the ostensible cordiali-
ty of the afternoon , according to Brady and Reiser, and I
so find . He directed his remarks to the erstwhile PCA
officials , Wanda Evans , Helen Sargol , and Jane Noll,
urging them to reconsider their merger move and to get
together with IDS . He opined that they could negotiate
new benefits and a pension plan. Bucholz added that the
employers were undecided what to do about the presence
of the Union on the scene . As Reiser put it, Bucholz in
effect offered to waive any time ban as to the reopening of
the 1969-72 contract .4
A second meeting of the PCA membership , similar to
that held on February 29, was arranged by a letter sent by
the Union to PCA members on March 6 . It asked them to
attend a "get-acquainted meeting" on March 14 and
further stated:
We wish to welcome you into the membership of Local
428. At the annual meeting of the Pharmaceutical
Clerks Association held February 29, the members
voted by unanimous secret ballot to dissolve that
organization by merging into Local 428 in recognition
of our strength and ability to serve our members.
3 Also appearing as Bucholtz.
4 I view this as an assertion of the binding effect of that contract upon
Respondent, in contrast with its contrary claim stated below.
S Although the sign in sheet for the meeting reflects 18 names.
6 Not counsel who appeared herein.
At this meeting, the procedure followed as to explanation
of the Union and its aim was identical with that of the
previous meeting. The union representatives left the room
as the vote was taken . It is undisputed that upon their
return they were advised, as was the fact, that 16 votes had
been cast in favor of the merger with one abstention.5 The
membership was advised of what had taken place at the
two meetings on March 9 with Bucholz . A total of some 21
members of PCA signed in favor of the merger at the two
meetings.
On the following day, March 15, a letter on the
letterhead of PCA was sent to the employer-members of
IDS covered by the 1969 contract . The four officers of
PCA signed the letter in their capacity as officers "of the
now disbanded" PCA. Its content was as follows:
This is to officially notify you that on Tuesday,
February 29, 1972 the members of the Pharmaceutical
Clerks Association of Santa Clara County by unani-
mous secret ballot voted concurrently to disband and
merge into the Retail Store Employees Union, Local
428-AFL-CIO for the expressed purpose of Local 428
becoming our official representative for all matters
affecting our jobs and future welfare.
On Tuesday, March 14, 1972 by secret ballot vote the
members again reaffirmed their previous action of
disbanding the Association and selecting Local 428 to
represent us in all matters of Collective Bargaining.
On April 5, 1972, the Union wrote to President Fontana
of IDS . Reference was made to the March 15 letter set
forth above and to the March 3 letter urging a meeting
between the parties which had not evoked a response. The
Union asked that an employer committee be selected so
that the parties could meet in the near future . Thereafter,
Brady, Reiser, and McLoughlin met for coffee with
Fontana who asked as to the intentions of the Union.
Reiser responded that the Union intended to enforce the
existing contract as it could not then be timely reopened.
According to Brady , Fontana , who did not testify herein,
doubted that the Union could do so.
Fontana claimed that many of the employer-members
could not afford the requirements of the contract. An offer
by the Union to inspect the books of the respective
employers and make an appropriate adjustment was
declined. I deem it a fair statement that the meeting was
inconclusive.
At this point, Respondent IDS turned to counsel,6 who
sent a letter dated May 16, 1972, to President Jane Noll of
PCA. Reference was made to the March 15 letter cited
above and the view was expressed that the vote to "disband
and merge" into the Union violated the law of California
and was contrary to the contract.?
Counsel therein also contended that the contract had
duly renewed itself that year and was "in full force and
effect" on March 15, 1972. Violation of any part of the
r This was a reference to art . XI of the 1969-72 contract which provided
that the contract could not be "assigned, transferred or in any manner
conveyed to any other labor organization." The merits of this claim are
treated below.
INDEPENDENT DRUG STORE OWNERS
contract was asserted to constitute grounds for civil
litigation. Attention was directed to the California Labor
Code providing fof enforcement of collective-bargaining
contracts. On May 30, the same counsel wrote again,
complained that there had been no response to the former
letter, and stated that this would be the last communication
prior to advising IDS to take appropriate action.
On June 13, the Union met again with the PCA members
and officials. The events of the preceding 4 months were
reviewed, including the two letters set forth immediately
above from counsel. The group, in essence, concluded that
the best recourse, in view of the slowness of events, would
be to wait until January 1973 when the contract could be
duly reopened. Nineteen former PCA members were
present on this occasion and signed attendance cards in
behalf of the Union.
Matters remained somewhat quiescent for some months
until January 29, 1973. On that date, on the letterhead of
the Union, President Jane Noll, in behalf of PCA, and
President James McLoughlin, in behalf of the Union,
wrote to President Fontana of IDS. He was notified therein
of an election to amend the contract effective April 1, 1973,
to conform with an enclosed copy of the Union's standard
drugstore agreement . IDS was asked to execute and return
a copy of same.
This met with no response and a meeting was arranged
on March 16, 1973 between representatives of the Union
and newly elected President Lombardi of IDS and its new
counsel , Herbert Matthews . The latter pleaded his lack of
familiarity with the case and the meeting was reset for
March 20. Representatives of the Union demanded
recognition, pointing to the two secret ballots as demon-
strating their status. After the employer representatives
caucused, they returned and announced that, in their view,
the Union had no representation rights. The union
representatives then pointed to the May 16 letter from
prior counsel claiming that the 1969 contract was in effect
in 1972. The employers were adamant that the Union had
no status at that time as the representative of the
employees of members of IDS.8
To sum up, in February 1972 the elected officers of PCA
which for some time had enjoyed a collective-bargaining
history with Respondent decided to contact the Union in
order to obtain more effective representation for their
members and did so. PCA held two separate meetings at
which the Union presented a full picture of its organiza-
tion. This resulted in unanimous votes by secret ballot of
those present to merge into the Union as the new
representative and also to dissolve PCA. The Union
notified Respondent of its representative status and
endeavored to establish a working relationship prior to the
expiration of the current contract. Respondent, through
various personnel , assumed various postures , including an
attempt to retain PCA within the old bargaining relation-
ship, and thereafter, in March 1973, refused the demand of
the Union to bargain.
C. Analysis and Conclusions
705
(1) I find , on a strong preponderance of the evidence, as
noted above , that PCA was a viable and functioning labor
organization until, of its own volition , and by a majority
and unanimous vote of its members , with one abstention, it
merged into the Union . While Respondent has attempted
to adduce evidence to the effect that this small, independ-
ent labor organization of 38 ladies lacked much muscle,
this rather supports the logistics of the merger . PCA had a
history of collective bargaining with Respondent. There
was a grievance committee which , on occasion, albeit
unsuccessfully, sought to redress complaints and there is
also evidence that, because of the smallness and weakness
of the organization , members were reluctant to pursue
grievances.
As set forth, minutes of previous meetings were read and
dues were collected at regularly scheduled business
meetings. It also filed regular LM-3 reports to the United
States Department of Labor , reflecting the disposition of
its funds . Stated otherwise, the duly elected officers abided
by the constitution and bylaws of this labor organization in
the performance of their duties.
(2) I find that PCA, of its own initiative, appropriately
and democratically chose to cease its own functions and
merge into the Union . It sent notices to its members setting
up the meetings of February 29 and March 14 , 1972, which
were slightly better attended than normal meetings. There
was a discussion of the issue of the merger on these
occasions and votes by secret ballot were taken in the
absence of representatives of the Union . The votes were
taken pursuant to the constitution and bylaws of PCA
which required only a majority of those present to vote in
favor of the proposition . I view this to be a fully
democratic procedure ; indeed, all of this was initiated by
PCA and not by the Union.
(3) Respondent has cast some aspersions on whether the
1969 contract was duly executed with it in behalf of all its
members signatory to the previous contract . Three repre-
sentatives of PCA met with a committee from IDS,
including Charles Longinotti, then its president . According
to Wanda Evans of PCA, and I so find, Longinotti and
Negotiator Bucholz stated that the three men were a
committee representing the employers whose names
appeared on a list supplied by the employers and this list
was ultimately attached to the 1969 contract as Appendix
A.
Longinotti admitted that a copy of the 1967-69 contract
was present at the negotiations . While he, in effect,
contended that no official document was signed, he
conceded that the three employer representatives were
present as a negotiating committee for IDS . He also
conceded that the 1967 contract had a list of the employers
bound thereto, and the supplement to the 1969 contract
lists six changes sought by PCA, all agreed to.
Longinotti also conceded that a final agreement was
reached and nothing else was to be ironed out, although
contending that this was to be signed by each employer.
This , of course, is not inconsistent with multiemployer
8 The findings as to this meeting are based upon the uncontroverted
testimony of Brady and Reiser; the Employer representatives did not testify.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining . Moreover, the signature page of the 1969
contract provides for signature only by its president. I
credit Evans herein and reject Longinotti 's testimony that
the respective members of IDS could approve or not as
they chose. I further find that the contract was not
contingent upon approval of individual members.
(4) Longinotti denied signing any official 1969 contract.
Evans , on the other hand, testified that the 1967 document,
as amended in the 1969 meeting , was signed on this
occasion . She uncontrovertedly testified , and I find, that
Bucholz , who did not testify, typed up the amended
contract and that it was picked up in his office. And
Longinotti conceded that he obtained a copy of the 1969
contract from Bucholz and put its terms , including a 15-
cent wage increase , into effect . Here as well , I credit Evans.
(5) As set forth, Respondent 's former counsel in May
1972 contended that the 1969 contract with PCA was in
full force and effect , this on an associationwide basis, and
in fact threatened litigation if it was not lived up to.
Indeed , Bucholz , in a prior meeting in April 1972,
recognized this by offering to waive the untimely failure to
reopen the contract and to grant concessions to PCA.
(6) The record is entirely devoid of evidence that any of
the affected employers communicated to PCA or the
Union any notice of withdrawal from IDS or that they
sought to obtain consent from PCA or the Union to so
withdraw . It follows that the respective employer-members
of Respondent were bound to the 1969 contract . N.L.R.B.
v. for. T. Strong, d/b/a Strong Roofing and Insulating Co.,
393 U.S. 357 ( 1969).
(7) Thus, the 1969-72 contract renewed itself through the
termination date of April 1, 1973. Having been duly
reopened in January of 1973, Respondent had an obliga-
tion to bargain thereafter with the Union as the representa-
tive of the employees in the unit.
(8) Respondent has asserted that article XI of the
contract, forbidding in essence the transfer or assignment
of the contract to another labor organization , nullifies all
of the foregoing . But the record amply demonstrates that
this was not a transfer of the contract to another labor
organization , but rather a merger of PCA into the Union
which therefore inherited the contract . This is so because
there were two democratic votes on the issue and the
employees thereafter attended meetings of the Union. And
there is also . precedent that freedom of choice of a
bargaining representative may not be circumscribed by a
nontransferability clause . See, e.g., New England Foundry
Corporation, 192 NLRB 785.
(9) The complaint has alleged that all pharmaceutical
clerks , excluding fountain personnel, licensed pharmacists,
office clerical employees , guards, and supervisors of
employer members of Respondent , as set forth in Appen-
dix A of the 1969-73 contract , constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act. This is a unit long
recognized by the parties. No evidence of its lack of
appropriateness has been proffered and I find that this unit
is appropriate as alleged . I further find, for the reasons
stated above , that PCA, at all times material herein up to
March 14, 1972, was the exclusive representative of the
above-described employees, and that the Union at all times
from on or about March 14 , 1972, was and now is the
exclusive representative of the aforesaid employees within
the meaning of Section 9(a) of the Act.
(10) I find that on January 29, 1973, the Union duly
reopened the contract for bargaining and that on March
20, 1973, Respondent refused to bargain with it on the
basis that it had no representation rights . As there is a
presumption of continuing majority status in the appropri-
ate unit and there is no contention or proof that this was
not the case , I find that Respondent has thereby engaged
in unfair labor practices within the meaning of Section
8(a)(5) and (1) 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. Independent Drug Store Owners of Santa Clara
County and its employer-members constitute an employer
within the meaning of Section 2(2) of the Act.
2. Pharmaceutical Clerks Association and Retail Store
Employees Union , Local 428, Retail Clerks International
Association , AFL-CIO, are and were at all times material
herein labor organizations within the meaning of Section
2(5) of the Act.
3. All pharmaceutical clerks , excluding fountain per-
sonnel, licensed pharmacists , office clerical employees,
guards , and supervisors , employed by employer members
of IDS covered by the 1969-73 contract with Pharmaceuti-
cal Clerks Association constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Pharmaceutical Clerks Association has been at all
times material herein, and the Union now is , the exclusive
representative of the employees in the above -described
appropriate unit within the meaning of Section 9(a) of the
Act.
5. By refusing to recognize and bargain with the Union
on and after March 20, 1973, Respondent has engaged in
unfair labor practices within the meaning of 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
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. As Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(5) and ( 1) of the Act, I shall recommend that it
recognize and bargain with the Union concerning wages,
hours, and other terms and conditions of employment and,
if an agreement is reached, sign same.
[Recommended Order omitted from publication.]