Owl Drug Co.

National Labor Relations Board - Board Decisions

Aug 10, 1960

128 N.L.R.B. 552 (N.L.R.B. 1960)

552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany is not :receiving. wood. When the scaler on the ev ning. shift-
,completes..his shift, he procures the gate; key and: looks the 'gate which_
remains .locked till the next day.
The record shows that the wood scalers while on duty at the south.
gate are responsible for all ingress to and egress from the plant
through that gate. They have been instructed to, and, do keep all,
unauthorized, persons out, directing them to the main entrance. They
also prevent : persons, including, employees, from. leaving,through the
south. gate. They prevent wood trucks with more .than one person
.aboard from entering or leaving... The scalers are not authorized to
.use, force or violence in the discharge of the above duties. In the event
a person refuses to comply with their. orders-or an unauthorized
person enters unnoticed, the scaler calls one of the deputized, guards.
There are six wood scalers at the plant. They work rotating shifts
between the south gate and a railroad entrance ` which the record
shows is unguarded. Thus, all wood scalers spend a portion of their
time at the Southgate.
It is clear - from the record that the wood scalers are solely respon-
sible for, policing the south gate, which is otherwise unguarded. We
therefore find that the wood scalers are guards, who, pursuant to
the provisions of Section 9 (b) (3), may not-be included in the existing
production and maintenance unit 4 Therefore, we shall dismiss the
petition.
[The Board vacated and, set aside the previous Decision and Direc-
tion of Election and dismissed the instant petition.]
8 Rabonier, Incorporated , 'Case No. 10-RC-4498, (unpublished) ; Augusta Chemical Co.,
124 NLRB 1021 ; W.W. Chambers Co., Inc., 124 NLRB 984 ; Aeroguild, Inc., 119 NLRB.
329; Tennessee Knitting Millis, 109 NLRB'628.
AThe Joint Petitioners ' request . that they be allowed to represent the wood scalers in it
residual unit is denied . See Section 9 (b) (3) of the Act.
Cam-Brese Corp . d/b/a Owl Drug Company and Retail Clerks
Union, Local 1428. Case No. 21-CA-3802. August 10, 1960
DECISION AND ORDER
On March 29,1960, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative - action, as set forth in the copy of the Inter-
mediate Report attached. hereto. ; Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, 'the Board haszdeleg'.ted its powers' in connection with
128 NLRB No. 62.
OWL DRUG COMPANY 553
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report, the exceptions,
and the brief, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Cam-Brese
Corp. d/b/a Owl Drug Company, Pomona, California, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Retail Clerks Union, Local 1428,
or any other labor organization, by discharging or refusing to rein-
state any of its employees, or by discriminating in any other manner
in regard to their hire or tenure of employment, or any term or con-
dition of their employment.
(b) In any manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Retail Clerks Union, Local 1428,
or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement requiring
'The Respondent has moved the Board to reopen the record in order to permit the
introduction of evidence which was not adduced at the hearing before the Trial Exam-
iner The Respondent does not assert that this is newly discovered evidence. The only
reason it assigns for its failure to introduce the evidence at the hearing is that it was not
represented by counsel and did not have the benefit of counsel 's advice in preparing an
answer to the complaint and in preparing its defense . The complaint in this case was
served on December 23, 1959 , and the Respondent answered by letter of January 5, 1960.
It does not appear, therefore, nor in fact does the Respondent assert, that it was not
adequately apprised of the charges against it, or that it was deprived of the opportunity
to prepare its defense The Respondent was represented at the hearing by its president.
No icquest for adjournment was made on the ground that it was unrepresented by counsel,
or for any other reason. The Respondent was granted ample opportunity at the hearing
to present its defense. In these circumstances , especially in view of the fact that no
assertion is made that the evidence it seeks to introduce is newly discovered , we do not
believe that Respondent has shown adequate reason in support of its motion to reopen
the record, and the motion is hereby denied. See A. M. Andrews Company of Oregon, at
at, 112 NLRB 626, 627; Cousins Associates , Inc., 125 NLRB 73.
Moreover, we note that while the Respondent in its motion to reopen the record
questions the legal jurisdiction of the Board by offering to show that its sales are wholly
intrastate, the Respondent does not deny, as alleged in the complaint, that annual pur-
chases in excess of $50,000 from directly outside the State of California are made by the
Respondent, together with Cal-Cam of California and Calabrese of California as an inte-
grated enterprise
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to James T. Kelly, Anna M. Hampe, Della McCuiston,,
Beth W. Reid, and Irma J. Newhouse immediate and full reinstate-
ment to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges, and make
them whole, in the manner set forth in the section of the Intermediate
Report entitled "The Remedy," for any loss of pay they may have
suffered by reason of the discrimination against them.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay due under
this Order.
(c) Post in its establishment at Pomona, California, copies of the
notice attached hereto marked "Appendix."' Copies of said notice, to
be furnished by the Regional Director for the Twenty-first Region,
shall, after being duly signed by the Respondent, be posted by the
Respondent immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-first Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing on Order."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in or activities on behalf
of Retail Clerks Union, Local 1428, or any other labor organiza-
tion of our employees, by discriminatorily discharging or laying
off any of our employees because of their union membership or
OWL DRUG COMPANY 555
activities, or by discriminating in any other manner in regard to
their hire or tenure of employment or any term or condition of
employment, except to the extent permitted by Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organiza-
tion, to form, join, or assist Retail Clerks Union, Local 1428,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activi-
ties, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL offer Beth W. Reid, Anna M. Hampe, James T. Kelly,
Della McCuiston, and Irma J. Newhouse immediate and full re-
instatement to their former or substantially equivalent positions,
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay suf-
fered as a result of the discrimination against them.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization. We will
not discriminate in regard to hire or tenure of employment or any
term or condition of employment against any employee because of
membership in, or activity on behalf of, such labor organization.
CAM-BRESE CORP. D/B/A OWL DRUG COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and an amended charge filed , respectively , on November 19 and
December 17, 1959, by Retail Clerks Union, Local 1428, herein called the Union,
the General Counsel of the National Labor Relations Board, herein respectively
called the General Counsel' and the Board, through the Regional Director for the
Twenty-first Region ( Los Angeles , California ), issued a complaint , dated December
22, 1959, against Cam-Brese Corp. d/b/a Owl Drug Company, herein called Re-
I This term specifically includes counsel appearing for the General Counsel at the
hearing.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent, alleging that Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8(a)(1) and (3) and
of Section 2(6) and (7) of the National Labor Relations Act, as amended from
time to time, 61 Stat. 136, herein called the Act.
Copies of the charges, complaint, and notice of hearing were duly served upon
Respondent and the Union.
Specifically, the complaint alleged that Respondent discharged Beth W. Reid on
October 15, 1959, and on the following November 7 discharged Anna M. Hampe,
James T. Kelly, Della McCuiston, and Irma J. Newhouse, and thereafter refused
to reinstate any of them, because each had joined or had assisted the Union or had
engaged in protected concerted activities.
By letter, dated January 5, 1960, and received at the Regional Office the following
day, Respondent denied the commission of the unfair labor practices alleged.
Pursuant to due notice, a hearing was held at Los Angeles, California, on January
11, 1960, before the duly designated Trial Examiner. The General Counsel was
represented by counsel; Respondent by its president. Full opportunity was afforded
all parties to be heard, to examine and cross-examine witnesses, to introduce
pertinent evidence, to argue orally at the conclusion of the taking of the evidence,
and to file briefs on or before February 1, 1960.2 Briefs have been received from
the General Counsel and from Respondent's counsel which have been carefully
considered.
On February 5, 1960, Respondent moved to reopen the hearing to receive further
evidence which was not adduced at the hearing. Copies of the motion papers, the
originals of which are hereby received in evidence and marked Trial Examiner's
Exhibit No. 1, were duly served upon the General Counsel, the Union, and the
Union's counsel. Under date of February 9, 1960, the General Counsel filed a
written memorandum and duly served copies thereof on Respondent's counsel, in
opposition to said motion to reopen the hearing. The original of said memorandum
of the General Counsel is hereby received in evidence and marked Trial Examiner's
Exhibit No. 2 On February 11, 1960, the Trial Examiner, by teletype directed to
Respondent's counsel, the General Counsel, the Union, and the Union's counsel,
denied the motion to reopen the hearing. A copy of said teletype is hereby received
in evidence and marked Trial Examiner's Exhibit No. 3. In their brief, Respondent's
counsel renewed the motion to reopen the hearing. The motion is hereby denied
again.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS OPERATIONS
Respondent, Cal-Cam of California, and Calabrese of California have been and
are California corporations, and Respondent has been engaged in and is engaged
in the operation of a retail drug store in Pomona, California. The capital stock of
the three corporations hereinabove mentioned is owned by members of the Calabrese
family and the three corporations have one general manager who decides all labor
policies and other employee policies. The payroll records and other records of
the aforementioned three corporations are maintained in common and 85 percent
of their purchases are made from a common source. There is an interchange of
employees among the three corporations.
Respondent is a part of a single integrated enterprise consisting of the three
corporations which operate under centralized control and management and the
single integrated enterprise constitutes a single employer within the meaning of the
Act. This single integrated enterprise, in the course and conduct of its business
operations, annually sells products at retail, having a value in excess of $500,000, and
annually purchases products valued in excess of $50,000 directly from outside the
State of California.
On the basis of the foregoing facts, the Trial Examiner finds, in line with established
Board authority, that Respondent is engaged in, and during all times material was
engaged in, business affecting commerce within the meaning of the Act and that its
operations meet the standards fixed by the Board for the assertion of jurisdiction.
1 At request of Respondent's counsel, who were retained after the close of the hearing,
the time,to file briefs was extended to February 29, 1960
OWL DRUG COMPANY 557
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICE
A. The pertinent facts 3
James T. Kelly credibly testified that he worked continuously for Owl from 1938
until the store was taken over by Respondent; that about a week prior to October 8,
at which time he was employed as a pharmacist, Samuel Calabrese and Westlund
came to the store and the former said to him, to quote from Kelly's testimony, "He
would pay us union wages and also he had a better bonus plan than Owl had ever
given which he would explain to me when they took over and that he would posi-
tively pay the union scale . . . that he wanted me to take over the prescription
department"; that Calabrese also stated that Respondent was not union but nonethe-
less Calabrese desired him to stay; 4 that Calabrese further remarked that Westlund
had stated that Owl would grant him a 30-day leave of absence, which could be
extended for another 30 or 60 days provided the Union would permit him to work
for Respondent; and that "I told him [Calabrese] if the union agreed for us to go
on that way that I would stay if he would do as he said, pay the union scale and
'give us the same benefits that we were getting there as a bonus and so forth."
Kelly credibly, and without contradiction, further testified that on October 8, the
day Respondent took over the store, "I asked Chuck 5 if all the things that Sam had
agreed to would be in effect, and he said they would just do as Sam had said"; that
on November 6, he noticed an advertisement which appeared in a Pomona newspaper
of that day reading: "POSITION available for aggressive pharmacist who is looking
for something better than just a job. Owl Drug"; and that the following day,
November 7, he had the following conversation with Charles Calabrese.
I told Chuck that I noticed they had an ad in the paper for a phamacist the
night before, and wanted to know whether it was I to go or whether they were
trying to get somebody to assist there, and he said no that it was true that I was
the one that was suppose to go because I belonged to the union, that I would
have to, that he had orders from other people that he had to get rid of the old,
all of the union help or else they would have to align themselves with the union.
That is they would have to join the union or else get rid of all the old help,
the union help.
* * * * * * *
I told him that we were hired as regular help and that that was our
intentions, that when we told them we would stay that we were supposed to
be permanent. It was supposed to be a permanent job.
* * * * * * *
He said that he thought it was that way himself, that it was the understand-
ing he supposed when we started, but he had had recent orders.
* * * * * *
He said my work had been superior in many ways and that he didn't see
how anybody else could have done it. It was very satisfactory; at any time
s Most of the facts found in this section are based upon the testimony of James T.
Kelly, Anna M. Hampe, Della McCuiston, and Beth W. Reid. In the light of the
entire record in the case, all of which has been carefully read, and parts of which have
been reread and rechecked several times, and being fully mindful of the contentions of
the parties with respect to the importance which each has placed upon the credibility
problems here involved, the Trial Examiner finds that Kelly's, Hampe's McCuiston's, and
Reid's version of what was said and and what was done with respect to the incidents
about which each testified to be substantially in accord with the facts. This finding is
based mainly upon the fact that the four named witnesses particularly impressed the
Trial Examiner as being persons who were meticulous in not enlarging their testimony
beyond their actual memory of what occurred, whereas Samuel Ray Calabrese and
Kenneth A. Westlund, on the other hand, gave the Trial Examiner the impression that
,they were attempting to conform their testimony to what each considered to be the best
interest of Respondent.
4 At that time Calabrese knew Kelly was a union member.
6 Charles Calabrese, Respondent's vice president and a brother of Samuel Calabrese.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he could be of service to me he would certainly like to be, but he didn't
feel like they wanted to align themselves with the union at this time.
Chuck said, "Anytime that you are not a member of the union we will
be glad to put you on . . ., or to have you work for us"
* * * * * * *
I asked him with regards to these narcotic forms and -things as to whether
I was, that I was put on there as a permanent because my name would have
to go on the form for making, ordering narcotics and hypnotics and it takes
from 30 to 60 days to get those things.
I asked him what about that and he said he did not know. The only thing
was that he had been informed that all the union help had to go.
Kelly was discharged on November 7.
Anna M. Hampe worked for Owl from October 1955 until the store was taken
over by Respondent, and worked thereafter as a salesgirl for Respondent. She
was discharged on November 7. She was a union member at the time of her
discharge.
Hampe, credibly, and without contradiction, testified that about mid-October,
Charles Calabrese said to her, "I notice that you are a very good sales person . .
I would like to have you remain with us"; and that she responded, "Why I would
as long as I can."
According to Hampe's undemed and credible testimony on or about October 15,
Ray Churchill, the then store manager, said to her, "Well, I guess you know that
Miss [Beth W.] Reid was fired tonight"; that she replied, "Yes. When do I go?";
that Churchill said, "You don't. You stay"; that when Churchill said, "We hope
you will," she remarked, "Well, I certainly would like to and I will stay as long
as I can"; that in the latter part of October, she said to Churchill, "Ray, if we are
going to stay, first are we going to stay? We would like to get uniforms"; that
he replied, "As far as I know you are"; that when she asked, "Is it all right if we
get uniforms?", Churchill answered in the affirmative; and that he likewise answered
in the affirmative when she asked, "Will you pay for" the uniforms.
Hampe also credibly, and without contradiction, testified that on November 7,
the following transpired.
Well, I had gone in to go to work and as I went back to put my purse up,
Chuck says, "Anna, I want to talk to you before you go on the floor." So
he said, "Let's go over to the fountain and we will have a cup of coffee and
we will talk." So we did. So, when he sat down he said, "Now, this is
something I just hate to do. I don't want to do this but it has to be done."
I said, "What." And he said, "Well, we are going to have to lay you off.
We have got word that we have to lay off all the union members by Monday
or become union," and I said, "Oh." He said, "Yes, I am really sorry."
Hampe testified credibly further that on November 7, the day of her discharge,
Charles Calabrese also said to her,
"I was so pleased with the way that you covered the floor yesterday.. . .
Believe me if there was anything I could do about it I wouldn't do this. .
That it just couldn't be helped. That if at any time I could see my way clear
to drop the union, why they would be glad to help me or keep me on."
I said that I couldn't do that because I had too much at stake. I have
been in the union too long for that. So I told him I couldn't think of that
and I think that's about all.
* * * * * * *
. He said that of course in the future they do expect to become union,
but he said he didn't know when and he said that they couldn't think of it
right now because they are just a new and up and coming concern.
* * * * * * *
He also said .. . "If you could see your way clear or if you decide to
quit the union, you could still go to work for us; but, I can't ask you to do it."
Della McCuiston worked for Owl from November 11, 1946, until the store was
taken over by Respondent, and thereafter worked as a salesgirl for Respondent
until she was discharged on November 7. At the time of her discharge she was
a union member.
OWL DRUG COMPANY 559
According to McCuiston 's undenied and credible testimony the following trans-
pired between her and Charles Calabrese on November 7.6
Well, he just told me that he was going to have to lay me off, that he was
very sorry , but because I was a union member he couldn't keep me, and he
says, "Believe me, I have nothing against the union because I was a union
member myself for five years, but . . . . It isn't against your work, and any
time you want me to give you a recommendation , I will be glad to. I will give
it to you in writing. I will mail it to your home. There is nothing against your
work. I am very pleased with your work."
Well, he said right then why it was a family affair and they couldn't see their
way clear to go union, but if they did in the future, why he could get in touch
with me.
Beth W. Reid worked as a salesgirl for Owl from December 19, 1952, until the
store was taken over by Respondent, and worked thereafter as a salesgirl for Re-
spondent. At the time of her discharge, October 15, she was a union member.
According to Reid's undenied and credible testimony, she had a conversation with
Charles Calabrese, which took place during the week immediately prior to her dis-
charge, wherein the following ensued.
[Charles Calabrese] came up to the counter and he asked me how long I had
been there, and I said I had been there about seven years ... he asked .. .
how was the business there and I said it was good; and in the course of the con-
versation I mentioned that Al 7 had told me I could go to the Palm Springs
store and, but I said it was to my advantage to stay in Pomona because I
owned my home there, and I would like to stay here if something could be
worked out with the union.
I told him that I had a lot at stake in the union, fifteen years retirement and
health and insurance benefits, and I would hate to give that all up, and he said,
"Well, it would be a shame to give that up."
* * * * * * *
he said when I said that I would hate to give that all up, all my union
affiliations, he said well they weren't operating as union stores.
Reid credibly, and without contradiction, further testified that on October 15
Churchill told her that he was going to fire her; that he "had to let two go"; and that
he "wished the Calabreses would do their own firing. [I don't] like to do it."
During the course of the hearing the following stipulation was entered by and be-
tween the General Counsel and Samuel Calabrese:
That if Irma J. Newhouse were called to testify under oath, she would
testify that she resides at 868 West Third Street, Pomona, California, that she
was employed at the drug store known as an Owl Drug Store at Second and
Garey Avenue in Pomona as a drug sales clerk at least during the period of
October 8, 1959 to November 7, 1959, that she was a member of the Retail
Clerks Union, Local 1428, that on November 7, 1959, she received a phone
call from Mr. Pumpa, Al Pumpa, that as a result of that phone call she went
to the store and had a conversation with Mr. Chuck Calabrese in his office,
that Mr. Chuck Calabrese said in substance that he was very sorry but he was
having to let the employees go, that Mr. Chuck Calabrese said he was pleased
with Mrs. Newhouse's work, and that she was a good worker, and that he would
like to keep everyone but it was one of those things, and he wasn't able to; that
Mrs. Newhouse asked Mr. Calabrese whether if she had a withdrawal from the
union or if she took a withdrawal she would be able to continue to work, and
that Mr. Calabrese said yes, and that Mr. Calabrese added that they weren't
just big enough for the union, that they just weren't ready for the union at that
time.
The stipulated testimony of Newhouse remains uncontradicted.
6Kelly's version , which the Trial Examiner credits, regarding this incident , is substan-
tially in accord with McCuiston's
7 Al Pumpa , assistant store manager
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Concluding findings
This case presents the comparatively rare situation where the recitation of the facts.
leading up to the discharges vividly reveals their discriminatory character .8 The
record reveals, and the Trial Examiner finds, that prior to taking over the store, Re-
spondent had decided to operate it as a nonunion store and that it would discharge all
the employees who remained members of the Union. The reason advanced by Re-
spondent for refusing to keep any employees who refused to either abandon the
Union entirely or who refused to secure a union withdrawal card was because, to
quote from Samuel Calabrese's testimony, "It was not economically feasible for
[Respondent] to operate with union help." Thus, it is plain that the sole reason for
discharging the five persons here involved was their union membership.
Upon the record as a whole, the Trial Examiner finds that the five complainants
were discharged because of their union membership. By so doing, Respondent
violated Section 8(a)(3) of the Act and since such conduct necessarily interfered
with, restrained, and coerced the said complainants in the exercise of the rights
guaranteed in Section 7 of the Act, Respondent also violated Section 8 (a) (1) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent described in section 1, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
It having been found that Respondent discriminated in regard to the hire and
tenure of employment of James T. Kelly, Anna M. Hampe, Della McCuiston, Beth
W. Reid, and Irma J. Newhouse by discharging them, the Trial Examiner will recom-
mend that Respondent offer them immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of pay they may have
suffered, by reason of said discrimination, by payment to each a sum of money
equal to that which they would have earned as wages from the date of the discrimi-
nation against them to the date of the offer of reinstatement, less their net earnings
during such period. Loss of pay shall be computed and paid in accordance with the
formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289.
The unfair labor practices committed by Respondent in the instant case are such
as to indicate an attitude of opposition to the purposes of the Act generally. In order
therefore, to make effective the interdependent guarantees of Section 7 of the Act,
thereby minimizing industrial strife which burdens and obstructs commerce, and thus
effectuate the policies of the Act, it will be recommended that Respondent cease
and desist from infringing in any manner upon the rights guaranteed in Section 7 of
the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Retail Clerks Union, Local 1428, is a labor organization within the meaning
of Section 2(5) of the Act.
2. Cam-Brese Corp. d/b/a Owl Drug Company, during all times material herein,
was engaged in and now is engaged in commerce within the meaning of Section 2(6),
and (7) of the Act.
3. By discriminating in regard to the hire and tenure of employment of James T.
Kelly, Anna M. Hampe, Della McCuiston, Beth W. Reid, and Irma J. Newhouse,
thereby discouraging membership in Retail Clerks Union, Local 1428, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
8 Compare the oft-quoted observation of Chief Judge Parker in Hartsell Mills Com-
pany v N.L.R B., 111 F. 2d 291, 293 (C.A. 4) ". . . direct evidence of a purpose to
violate the statute is rarely obtainable." Accord : N.L.R,B. v. Bird Machine Company,
161 F. 2d 589, 592 (C.A. 1).
N