Potter's Chalet Drug

National Labor Relations Board - Board Decisions

Oct 18, 1977

233 N.L.R.B. 15 (N.L.R.B. 1977)

POTTER'S CHALET DRUG
Potter's Drug Enterprises, Inc., d/b/a Potter's Chalet
Drug and Potter's Westpark Drug and Retail Store
Employees Local Union No. 631, Retail Clerks
International Association, AFL-CIO. Case 19-
CA-8856
October 18, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On June 22, 1977, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions and a brief which, in relevant part,
supported his cross-exceptions, answered Respon-
dent's brief, and supported the Administrative Law
Judge's findings.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, except
that the remedy is modified so that interest is to be
computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977). 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Potter's Drug
Enterprises, Inc., d/b/a Potter's Chalet Drug and
Potter's Westpark Drug, Yakima, Washington, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I Respondent has moved that we strike the materials submitted by the
General Counsel as being untimely filed. We find this motion to be without
merit and it is hereby denied.
2 The 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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
3 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (196%2).
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This case
was heard before me in Yakirma, Washington, on March
17, 18, and 21, 1977. The charge was filed August 27, 1976,
by Retail Store Employees Local Union No. 631, Retail
Clerks International Association, AFL-CIO (Union). The
complaint, which issued October 18, was amended during
the hearing, and alleges that Potter Drug Enterprises, Inc.,
d/b/a Potter's Chalet Drug and Potter's Westpark Drug
(herein called Respondent) has violated Section 8(a)( 1), (3),
and (5) of the National Labor Relations Act, as amended.
The parties were permitted at the hearing to introduce
relevant evidence, examine and cross-examine witnesses,
and argue orally. Posttrial briefs were filed for the General
Counsel and for Respondent.
1. JURISDICTION
Respondent is a Washington corporation engaged in the
operation of two drugstores in Yakima. Another Washing-
ton corporation, Potter Drug, Inc., an entity apart from
Respondent in name only operates drugstores in Ephrata,
Moses Lake, Othello, and Quincy, Washington. The two
corporations realize annual revenues exceeding $500,000,
and annually purchase goods of a value exceeding $50,000
from suppliers in Washington who obtain them directly
from outside the State.
The complaint alleges, the answer admits, and it is found
that Respondent is an employer engaged in and affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
11. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. ISSUES
The complaint alleges that, upon taking over the
operation of the two Yakima stores in August 1976,
Respondent refused to hire seven named employees l of the
former owner-operator to escape the seller's bargaining
obligation, thereby violating Section 8(a)3) and (1).
The complaint also alleges that Respondent refused to
recognize the Union as the representative of its employees
in the two Yakima stores in circumstances violating
Section 8(aX5) and (1); and coincidentally established new
conditions of employment for those employees without
giving the Union a chance to bargain, further violating that
section.
The complaint alleges, finally, that William Wallace, to
become general manager of the two Yakima stares, made
Thomas Fischer, Janet Harrison. Betty Huck, Beata Johnson, Lois
Marcy, Jewell Miller, and Phyllis Wade.
233 NLRB No. I
15
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
various comments to employees in late July 1976 that
violated Section 8(a)(1).
The answer denies any wrongdoing.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
On August 2, 1976, Respondent became the owner-
operator of two Yakima drugstores formerly owned and
operated by Tufts' Drug Company. The stores had been
known as Tufts' Chalet Drug and Tufts' Westpark Drug.
Respondent renamed them Potter's Chalet Drug and
Potter's Westpark Drug, and installed William Wallace,
formerly manager of the sister corporation's Ephrata store,
as the general manager of both. Respondent remodeled
and rearranged the two stores to some extent, but did not
alter their basic character as purveyors of the manifold
items associated with the contemporary drugstore - drugs,
sundries, foodstuffs, cosmetics, books and magazines, toys
and games, greeting cards, tobacco, etc. The two stores are
about a mile apart.
The changeover derived from an earnest-money agree-
ment entered into July 20. The agreement specified that
Tufts' last day of operation would be Friday, July 30; that
the premises were to be inventoried over the weekend; and
that Respondent would take over Monday, August 2.
Other features of the agreement were that Respondent
would acquire Tufts' leaseholds in the buildings housing
the two stores; 2 all equipment, fixtures, and transferable
licenses used in the operation of the stores; all inventory
and accounts payable as of close of business July 30; and a
Tufts indebtedness to the Small Business Administration of
$135,000. Expressly excluded from the transfer were Tufts'
accounts receivable and cash on hand as of July 30.
Respondent was not to acquire any shares of Tufts' stock.
The earnest-money agreement also contained this clause:
Purchaser assumes no obligation between Seller and
Seller's employees at said two businesses, nor between
Seller and any union which represents Seller's employ-
ees at said two businesses ....
For some 10 years preceding Respondent's takeover, the
Union had been the collective-bargaining representative of
Tufts' sales and delivery employees in a single, two-store
unit. The latest contract between the Union and Tufts'
went into effect on February 1, 1975, and was to run until
February 1, 1977.3 The unit consisted of 12 employees just
before the changeover - 7 at Tufts' Chalet, 5 at Tufts'
Westpark. All belonged to the Union. Of the 12 employees,
8 were full-time, or nearly full-time.
Respondent retained only 5 of the 12: 4 of the 7 at the
Chalet remained there, while another Tufts' Chalet em-
ployee, Debra Brackett, was shifted to the Westpark store.
The two Chalet employees not retained were alleged
discriminatees Thomas Fischer and Betty Huck. Respon-
dent rounded out its Chalet complement by hiring four
2 Respondent nevertheless negotiated new leases with the landlords.
3 The contract described the unit as "all employees coming under the
jurisdiction of' the Union. The Union's chief executive officer, Paul
Rickman, testified credibly and without refutation that this embraced "the
retail sales force employed on the floor of the stores, in addition to delivery
part-time employees not previously with Tufts' and by
keeping Bob Scott, the store manager under Tufts', in a
lesser capacity. None of the five unit employees at Tufts'
Westpark - alleged discriminatees Janet Harrison, Beata
Johnson, Lois Marey, Jewell Miller, and Phyllis Wade -
survived the changeover. Respondent replaced them with
three full-time and three part-time employees, of whom
only Brackett had been with Tufts'.
Concerning Respondent's heavy use of part-time help, its
president, Jack Potter, testified:
We use part-time help to supplement the hours because
we do not have the volume to carry all full-time
employees. We try to use high school girls as part-time
help to help the kids out and get them started in
life. ... They're usually good help. They work when
you want them to work, and it gives them a start in life.
That's my philosophy of it.
Preliminary hiring plans regarding the Tufts' employees
were worked out by Potter and Wallace in concert,
purportedly deriving mainly from their assessment of the
employees while anonymously visiting the stores a month
or so before the changeover. Quoting Potter's testimony:
There were some employees that I felt we should keep
because they were friendly and were doing work when
there was not customers in the store. There was others
that I did not want to keep because they were not
friendly and were not working when the customers
were not in the store.
Wallace testified similarly, asserting that, "because of
our observation and because of people who we knew had
told us of their treatment of customers - this type of
thing," he and Potter "had discussed and decided that the
majority of the people would not be retained at Westpark,"
but that all the Chalet employees "were pretty good."
Wallace continued, with reference to the Westpark em-
ployees:
We had previously observed their work habits, had
recommendations from salesmen who had called upon
the stores, customers of the stores, and, in Mr. Potter's
words, "they were a bunch of'sourpusses.' "
Wallace expanded that the Westpark employees had "very
poor work habits; poor customer relations; and, in general,
the cleanliness of the store was very poor."
Pointedly sidestepped by Potter and Wallace in their
evaluation of the Tufts' employees were the opinions of
Tufts' management. Acting on the advice of Wesley M.
Wilson, a Yakima attorney specializing in labor relations
and Respondent's counsel in this proceeding, Potter
declined the offer of his Tufts' counterpart, Roy Tufts, to
"go over the employees" and give "personal thoughts on
each one." Even so, Roy Tufts testified that he "might
service employees," and excluded, among others, office clerical employees.
It is concluded that the retail sales and delivery employees at Tufts' Chalet
Drug and Tufts' Westpark Drug, excluding office clerical employees,
professional employees, guards, and supervisors as defined in the Act,
constituted an appropriate unit for purposes of the Act.
16
POTTER'S CHALET DRUG
possibly" have told Potter or Wallace that alleged discrimi-
natee Miller had been one of his best employees; 4 and
David Tufts, Roy's son and the manager of Tufts'
Westpark, told Wallace that the Westpark employees
"were all reliable." Roy Tufts in addition asked Potter that
"special dispensation" be given Bob Scott.
Discussions between Potter and Roy Tufts leading to the
ultimate transaction began in April 1976. Tufts informed
Potter at the outset that Tufts' employees were under union
contract. In their subsequent discussions, however, that
circumstance was "purposely avoided," according to
Potter; or, as Tufts put it: "By mutual agreement, we
agreed not to discuss it." Although the record fails to
explain the subject's being off limits, it plainly was not
because of Potter's indifference to the situation. He told
Wallace in the early stages of discussions that the two
stores "were union," confiding that he "didn't want to have
a union representing the employees" should Respondent
acquire them.5 The sister corporation's four stores are
nonunion.
Potter and Wallace first conferred with the aforemen-
tioned Wesley M. Wilson in early July, and met with him
twice later in the month. Potter's regular attorney had
recommended that they see Wilson in view of the Union's
incumbency at Tufts'. Potter and Wallace both were vague
and evasive concerning their meetings with Wilson.6 Thus,
despite the reason for their seeking him out, Wallace
"stonewalled" that Wilson "never touched. . . not to my
knowledge" on the possibility of a bargaining obligation to
the Union, and even went so far as to say that he could not
recall that "the subject of the Union" was discussed with
Wilson.
Potter was somewhat more forthright, conceding that,
because Tufts' "had been union," he "wanted to know
[from Wilson) whether I could hire employees and who I
could hire and who I couldn't hire .... " Potter further
conceded that Wilson "might have" explained - "I cannot
say to a fact" - that Respondent could inherit a
bargaining obligation to the Union, "depending on who
you hire or how many people you hire." Astonishingly,
however, Potter testified that this was of no moment to him
"because I had already picked the people that I was going
to hire."
It was during one or the other of the Wilson meetings
that Potter and Wallace were advised against seeking the
opinions of Tufts' management about the employees.7
Wilson also went over a list of "do's and dont's" regarding
labor relations matters, and made suggestions concerning a
job application form and an interview outline to be used in
the hiring process.8
As earlier stated, an earnest-money agreement was
entered into July 20. Starting July 24, Respondent ran a
help-wanted advertisement in the Yakima Herald-Repub-
4 Tufts testified that he always considered Miller "a very good
employee."
s Wallace's testimony that Potter so stated was rendered with greatest
reluctance. He testified just before that he and Potter had newr discussed
"the subject of the Union, or questions concerning or related to the fact that
a union was a representative of the employees at Tufts'."
6 At no time, however, was the attorney-client privilege invoked.
7 Respondent tendered no explanation for this advice.
s Wilson advised, among other things, that this question be deleted from
the interview outline: "Are you a union member?"
lic; and, on July 26, it provided job application forms for
the Tufts' employees at the two stores. Six of the seven
discriminatees, Fischer being the exception, filled out and
returned the forms.
All interviewing of applicants was done by Wallace,
beginning July 27. Of 16 interviewed, only 2 - alleged
discriminatees Betty Huck and Jewell Miller - were not
hired. Wallace did not bother to interview the other four
alleged discriminatees who submitted applications. They,
along with Miller, had comprised Tufts' Westpark staff,
and assertedly had been ruled out beforehand as "sour-
pusses," etc., as mentioned above. Nor did he interview
Fischer, purportedly because, there being no application
from Fischer, Wallace "knew nothing of" him.
Potter and Wallace decided in advance of the interviews
that it would be "only fair" to tell the Tufts' employees
being considered "that if they accepted employment . . .
they would be working for a nonunion company." Asked
why he felt that this would be "advisable or fair," Potter
begged the question, testifying: "To be fair and honest with
the employees." Wallace in this instance was the more
candid, explaining that the Tufts employees "may have a
preference whether they would prefer to work in our stores
knowing" this.9
Wallace interviewed Huck on July 27, at 9:30 p.m. He
began by saying he had dined with Huck's brother the
night before,10 then stated: "We're not union and I hope
that won't cause any problems." Huck responded by
asking about wages and medical coverage. Wallace said
that wages would remain as with Tufts' and that Respon-
dent carried medical insurance for its employees. Huck
asked to see a copy of the medical plan. Wallace excused
himself to look for one, returning shortly to report no
success. Huck asked, in that case, that he bring a copy to
her at the store, and he said, "Okay."
Wallace then stated that, although "the girls" at Tufts'
Westpark would not be retained "because they weren't
worth their salt," Respondent "needled] you." Huck
understood the "you" in this instance to be a reference to
the Tufts' Chalet employees generally, not to her specifical-
ly. Wallace testified, on the other hand, that he made an
explicit job offer to Huck, either then or later in the
interview. Wallace told Huck that Eleanor Oberlander, a
Tufts' Chalet employee interviewed just before, wanted to
handle the greeting cards department, and that Donna
May, a Tufts' Chalet employee yet to be interviewed, was
to be assigned cosmetics. He asked if Huck would be
interested in small appliances. She answered that she would
like to "think about it," adding that she did not know much
about appliances but would be "willing to learn."
Huck reiterated her wish to examine a copy of Respon-
dent's medical plan, coincidently stating: "I thought our
union contract was binding." Wallace said it was not,
s Potter and Wallace would have it that they decided to and did disclose
only that Potter's Columbia Basin stores - i.e., the sister corporation's four
stores - were nonunion; and that the disclosure was made to all applicants.
not just Tufts' employees. The weight of evidence and plausibility leaves
scant doubt, however, that the revelation was restricted to Tufts' employees
and that its burden - whatever the precise verbal formulation - was that
the Yakima stores were to be nonunion.
o1 Huck's brother is a sales manager for McKesson & Robbins, a
wholesaler in pharmaceuticals and related items.
17
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prompting Huck to ask: "Well, how are you going to get
out from under it?" Wallace replied: "By numbers." The
interview ended at or about that point."
The next day, July 28, was Huck's day off. On July 29, at
the Chalet in the evening, she asked Wallace if he had
obtained a copy of the medical plan. He said he had not,
and she asked again if he would get one for her. He replied
that he would "speak to Mr. Potter about that."
On July 30, after lunch, Huck learned from Tufts' Chalet
manager, Bob Scott, that she was not scheduled to work
the next - Respondent's first - week. She asked Wallace
about it later in the afternoon. He answered: "Well, you
just didn't seem to be very receptive to what I had to offer."
Huck protested that she would not have pursued the matter
of the medical plan had she not been interested. Wallace
countered: "Well, I was in a hurry to make a decision, and
I felt that Eleanor Oberlander and Donna May, with their
departmental responsibility, would be more use to me than
you would be." Huck asked if that was the only reason for
her not being hired. Wallace said it was.
As indicated earlier, Wallace interviewed Eleanor Ober-
lander, a Tufts' Chalet employee, immediately before
interviewing Huck. After Wallace had disclosed his plan to
install Oberlander in greeting cards and Donna May in
cosmetics, Oberlander inquired of his intentions concern-
ing Huck and Molly Curtis, also a Tufts' Chalet employee.
Wallace replied that he had Huck in mind for small
appliances and foresaw Curtis as "the part-time girl" since
she was receiving social security payments and did not
wish to work full-time, Wallace then stated: "I hope that
Molly is not hung up on the Union like Betty [Huck] is." 1 2
Similarly, while interviewing Curtis on July 29, after
announcing that the Yakima stores would be nonunion,
Wallace said he "hoped" that this would not be a "hang-
up" with Curtis "like it was with Betty Huck." 13
Wallace testified that Huck was not hired because she
failed to communicate a job acceptance to him in timely
fashion, emphasizing that he had only a few days to get the
stores staffed and ready for business. He conceded, based
on Huck's interview, that he felt she "was probably
stronger union than the rest of the employees interviewed,"
but insisted that this had nothing to do with her not being
hired.
Jewell Miller was interviewed by Wallace on July 28, in
the morning. As the only Tufts' Westpark employee to be
i" Huck's version of the interview is adopted. Wallace's denial that he
made reference to numbers as a means of avoiding the Union is discredited.
Although having a stake in the outcome, Huck was a forthnght and
eminently believable witness. Wallace. by contrast and as elsewhere
indicated, was lamentably self-serving and evasive under oath - so much so
that it would be difficult to credit him in any instance of testimonial conflict
on a significant point. Moreover, as is later developed. Jewell Miller credibly
testified that Wallace made a like remark to her. Wallace also is discredited
that he furnished Huck, and all other interviewees, with a written summary
of Respondent's medical plan. Not only Huck, but others interviewed,
denied that this happened. Wallace is discredited, finally, that Huck said she
did not care whether she was hired or not "because she had her 10 years in
for her union retirement," Huck having credibly denied so stating.
12 Oberlander's version of the interview is adopted. She also credibly
testified that Wallace said to her, "You do realize that we are a nonunion
store," after which he asked: "Do you have any objections?" Wallace's
denial that he mentioned Huck's being "hung up on the Union" is
discredited. Oberlander came across as a conscientious and capable witness.
while Wallace, as noted before, was markedly to the contrary. Respondent's
argument that Wallace could not have made the comment because he had
interviewed, she evidently was spared the "sourpuss"
appellation given generally to the Westpark people.14
Wallace began by asking if Miller was interested in
working for Respondent. She answered that she "definite-
ly" was; that she was self-supporting. Wallace said: "You
realize we are not union." Miller replied: "Our union has
been good to us," to which Wallace stated:
Well, you understand the position we're in, we can only
hire 49 percent of the help back, because we don't want
the Union to have a majority.
Miller commented that she was just short of qualifying for
a 10-year pension with the Union, and that she did not
want to jeopardize that. She quickly added, however, that
she had another 2 years in which to gain the additional
time in a union store, so that was of no great concern.
To Wallace's asking what Miller considered her virtues
to be, she said she was "honest, fair, and hardworking";
and, when Wallace asked what departments she would be
interested in, she mentioned cosmetics and small appli-
ances, excluding greeting cards because that was Beata
Johnson's department at Tufts' Westpark. This prompted
Wallace to say that the Westpark clerks were "very
unfriendly." Miller asked where he got that impression,
and he replied: "It's our general observation." The
interview ended with Wallace saying he would contact
Miller the next day and with her giving him her home
telephone number.' s
Miller was home sick the next day, July 29. Wallace did
not call. On July 30, at or about 5:30 p.m., still having
heard nothing from Wallace, she telephoned him at the
Chalet asking if she had a job. He said: "No, we don't need
you at this time." Miller said she needed the work, but
Wallace persisted: "Well, we just can't use you at this
time."
Wallace testified that, as with Huck, Miller was not hired
because she did not communicate a timely acceptance.
Thomas Fischer, a high school student, had been one of
two part-time delivery boys employed by Tufts'. Kyle
Braden was the other. Both were nominally assigned to
Tufts' Chalet, but worked out of the Westpark store as well.
Because of the in-and-out nature of his work, Fischer never
learned that application forms were available. Several
times during Tufts' last week, however, and particularly on
yet to interview Huck, and thus had no means of forming such an
impression, ignores that Wallace dined with Huck's brother the night before
and the myriad other indirect ways he might have formed that opinion of
her.
13 Curtis is credited that Wallace so spoke. Wallace also stated to Curtis,
much as he had to Huck, that Respondent was not going to hire "any of the
girls at Westpark because they weren't worth their salt."
14 It will be remembered that Roy Tufts considered Miller to be "a very
good employee," and "might possibly" have so informed Potter or Wallace.
In addition, Wallace testified: "[W le felt that there may be one person that
we may retain, if any, at Westpark." This presumably was a reference to
Miller, although the record does not say.
1i Miller's version of the interview is adopted. Wallace's denial that he
made the remark about hiring only 49 percent of the Tufts' employees is
discredited for the reasons previously given and for the further reason that
Miller projected conviction while testifying. Wallace is also discredited, in
the face of Miller's denials, that he expressly offered her a job, that he told
her that a job could not be held open for her because of time strictures, and
that he instructed her to call him later in the week rather than saying he
would contact her.
18
POTTER'S CHALET DRUG
July 30, he asked Bob Scott if he would be retained by
Respondent. Scott's answer, invariably, was to the effect
that he had "no idea." On August 2, seeing that his name
was not on the work schedule, Fischer "assumed" that he
was not needed and made no further inquiry about his
status.
Respondent has had only one delivery boy since taking
over, that being Braden initially.' 6 Braden was required to
work virtually full time the first week or so, reverting to his
usual part-time hours when Respondent implemented its
plan to discontinue certain deliveries to the Yakima
hospitals.
In June 1976, the Union brought a wage grievance
against Tufts' on Fischer's behalf, which was still unre-
solved when Respondent took over. Potter and Wallace
credibly denied any knowledge of that matter; and, as
mentioned previously, Wallace testified that he "knew
nothing of Fischer," period.
By letter dated August 24, 1976, to Wallace from Paul
Rickman, the Union's chief executive officer, the Union
demanded "immediate recognition and compliance with
the current Agreement .. ." and requested that a represen-
tative of Respondent meet with Rickman on August 26 "to
discuss the existing Agreement and labor relations prob-
lems relating to same." Attorney Wilson sent a responding
letter, dated August 25, stating in part:
Since Potter Drugs is not a successor to the seller, and
apparently a majority of the employees of Potter Drugs
do not desire to be represented by any union, we do not
see any need to meet with the union. Of course, any
collective bargaining agreement which the seller may
have had with a union does not apply to Potter Drugs.
Except for maintaining the wage levels of at least some of
Tufts' employees that it did hire, Respondent made no
point of adhering to the terms and conditions of employ-
ment extant between Tufts' and the Union; and at no time
contributed for the employees to the Union's health and
welfare and pension plans as had Tufts'.
B. Analysis
The refusal to hire: It is concluded that six of the seven
alleged discriminatees - Fischer being the exception -
were denied employment at least in part to enable
Respondent to disinherit Tufts' bargaining relationship
with the Union, and that Respondent consequently
violated Section 8(aX3) and (1) as to all but Fischer.
This conclusion rests on a number of mutually consistent
considerations:
(a) Potter's disclosure to Wallace, early in the discussions
with Roy Tufts, that he "didn't want to have a union
representing the employees" should Respondent acquire
the two stores; and their later decision to tell the Tufts'
interviewees that the stores would be nonunion. An early
and ongoing predisposition to avoid the Union was thus
shown.
(b) The pointed exclusion of the union situation from the
prechangeover discussions between Potter and Roy Tufts.
Although this presumably was intended to create an
illusion of Potter's indifference to the situation, its very
pointedness worked to the contrary.
(c) Respondent's studied, counsel-advised avoidance of
the opinions of Tufts' management about the Tufts'
employees, while assertedly relying on the opinions of
salesmen and customers and going to the pains of personal
observation. In the context of Respondent's other conduct
and Potter's stated desire to elude the Union, this
calculated disregard of the most obvious source of
information about the employees suggests that Respondent
was not so much interested in enlightenment as in
advancing a strategy of unlawful elimination.
(d) Respondent's blanket condemnation of the Westpark
employees as "a bunch of sourpusses," without citation to
specific incident or employee and without according any
but Miller so much as an interview. In overall context, this
indicates an indiscriminate "smear" in further advance-
ment of a strategy of unlawful elimination.
(e) Wallace's revelation to Jewell Miller that Respondent
could "only hire 49 percent of the help back, because we
don't want the Union to have a majority," and his remark
to Betty Huck that Respondent would avoid Tufts' union
obligation "by numbers." So saying, Wallace revealed for
the first time how Respondent proposed to carry out its
antiunion design.
(f) Respondent's in fact hiring just less than a majority of
Tufts' employees - 5 out of 12; or, accepting Wallace's
assertion that Respondent knew nothing about Fischer, 5
out of 11. The plan disclosed in Wallace's remarks just
cited thus was followed to the letter.
(g) Potter's and Wallace's frequently evasive, self-serving,
and mutually self-contradicting testimony. This betrayed
their awareness that Respondent's interests would not be
served by the truth.
Some additional observations are necessary concerning
Huck, Miller, and Fischer. Respondent's defense that
Huck would have been hired had she but communicated a
timely job acceptance is rejected. Not only was the delay
induced by Wallace's failure to deliver a promised copy of
the medical plan, but he admittedly thought Huck to be
strongly prounion. Moreover, he was troubled by her union
"hang-ups," as witness his remarks to both Eleanor
Oberlander and Molly Curtis. It is altogether inferable that
this anxiety about Huck's union sympathies, in combina-
tion with Respondent's determination generally to elude
the Union, was a prominent factor in Wallace's foot-
dragging over the medical plan.
Respondent's claim that Miller, too, would have been
hired if only she had made a timely acceptance is likewise
rejected. It presupposes that she received an unequivocal
offer. The credited evidence establishes, however, that her
interview ended with Wallace saying he would contact her
later - which he failed to do. Wallace induced delay here
much as he did in the Huck situation; and remembering
Miller's interview comment that "our union has been good
to us," it is no less inferable here than there that perceived
union sympathies were a contributing factor.
'6 Braden, unlike Fischer, did submit an application.
19
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is not to say that Respondent violated the Act
concerning Huck and Miller only because Wallace's
motivation in nurturing the delays was unlawful. The
delays, whatever their motivation, were no more a reason
for the nonhire of these two than being "sourpusses" was a
reason for the nonhire of the four Westpark employees
denied interviews. The real reason was Respondent's
imposition upon itself of the carryover quota to escape
Tufts' bargaining obligation. Six of the Tufts' employees
were foredoomed. Which six is irrelevant; the underlying
antiunion purpose tainted the winnowing process, regard-
less. As the Supreme Court observed in Howard Johnson
Co., Inc. v. Detroit Local Joint Executive Board Hotel &
Restaurant Employees & Bartenders International Union,
AFL-CIO, 417 U.S. 249, 262, fn. 8 (1974):
Of course, it is an unfair labor practice for an employer
to discriminate in hiring or retention of employees on
the basis of union membership or activity .... Thus, a
new owner could not refuse to hire the employees of his
predecessor solely because they were union members or
to avoid having to recognize the union. [Emphasis added.]
See also N.L.R.B. v. Burns International Security Services,
Inc., et al., 406 U.S. 272, 279-280 (1972); Houston
Distribution Services, Inc., 227 NLRB 960 (1977); Macomb
Block and Supply, Inc., 223 NLRB 1285 (1976).
Regarding Fischer, it is concluded that a violation has
not been shown. He failed to submit an application,
lending credence to Wallace's story that he knew nothing
about Fischer; and Respondent quickly eliminated the
need for a second delivery boy in any event. See Houston
Distribution Services, Inc., supra, fn. 2.
The refusal to recognize: The Tufts' unit consisted of 12
employees. Five of them were retained by Respondent,
while it increased the complement to an arguable 14.17 As
just concluded, Respondent improperly failed to retain six
others from the Tufts' unit. All of the Tufts' employees
belonged to the Union. It thus is apparent that, but for
Respondent's misconduct, the Union's majority would
have survived Respondent's takeover of the two stores.
That, together with Respondent's continued operation of
the stores at the same locations and in substantially the
same manner as before, compels the result that it is a legal
successor of Tufts' with respect to Tufts' bargaining
obligation to the Union. Quoting from N.LR.B. v. Burns
International Security Services, supra at 406 U.S. 279-280:
It goes without saying, of course, that Burns was not
entitled to upset what it should have accepted as an
established union majority by . . . committing the
unfair labor practice of which it was found guilty by the
Board.
Respondent therefore violated Section 8(aX5) and (1) by
disavowing Tufts' obligation to the Union.18
Respondent also violated that section by unilaterally
departing from certain terms and conditions of employ-
1T The parties are in disagreement as to the unit status of 3 of the 14 -
Wallace's wife and son and Bob Scott. For purposes of this decision, it is
assumed without deciding that they were in the unit.
18 The changes made by Respondent in the operation of the two stores
ment in effect between Tufts and the Union, coincident
with its takeover. Again extracting from the Supreme
Court's Burns decision (at 294-295):
Although a successor employer is ordinarily free to
set initial terms on which it will hire the employees of a
predecessor, there will be instances in which it is perfectly
clear that the new employer plans to retain all of the
employees in the unit and in which it will be appropriate
to have him initially consult with the employees'
bargaining representative before he fixes terms. [Em-
phasis supplied.]
The emphasized portion of this passage is not descriptive of
the present situation only because of Respondent's predis-
position to hire less than a majority of the Tufts' employees
for an unlawful reason. Consequently, to "prevent Respon-
dent from reaping financial gain from its unlawful
conduct," 9 the principle must obtain. Respondent's
successorship status was never sufficiently inchoate in
point of law to entitle it to set initial terms of employment.
It follows that Respondent is under a present obligation to
bargain with the Union, on request, concerning any terms
and conditions of employment over which it would have
been required to bargain had the Union's lawful status
been acknowledged on August 2, 1976 - the date
Respondent assumed operation of the two stores. Bachrodt
Chevrolet Co., 205 NLRB 784 (1973). See also Donn
Products, Inc. & American Metals Corporation, 229 NLRB
116, 117 (1977).
The Wallace remarks: It is concluded that Wallace
violated Section 8(a)(l) substantially as alleged by:
(a) Telling prospective employees that the Yakima stores
would be nonunion.
(b) Asking prospective employees if they had any
objections to the stores' being nonunion, or if it would
present any problems, or words to that effect.
(c) Telling Miller that Respondent could "only hire 49
percent of the help back, because we don't want the Union
to have a majority"; and telling Huck that Respondent
would avoid Tufts' union obligation "by numbers."
CONCLUSIONS OF LAW
I. By telling prospective employees that its Yakima
stores would be nonunion and asking them if they had any
objections or if that would present any problems, and by
telling prospective employees that it would hire less than
one-half of the former employer's employees "because we
don't want the Union to have a majority," as found herein,
Respondent in each instance violated Section 8(a)(1) of the
Act.
2. By failing to hire Janet Harrison, Betty Huck, Beata
Johnson, Lois Marey, Jewell Miller, and Phyllis Wade, as
found herein, Respondent in each instance violated Section
8(a)(3) and (1) of the Act.
3. By disavowing its bargaining obligation to the
Union, and by departing from preexisting terms and
were not sufficient to preclude successorship. First Food Ventures, Inc., 229
NLRB 1228, 1229-30(1977).
19 Ellis Tacke Company, 229 NLRB 1296 (1977).
20
POTTER'S CHALET DRUG
conditions of employment, as found herein, Respondent
violated Section 8(a)(5) and (I) of the Act.
4. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
5. Respondent's failure to hire Thomas Fischer did not
violate the Act as alleged.
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(b) of the
Act, I hereby issue this recommended:
ORDER 2o
The Respondent, Potter Drug Enterprises, Inc., d/b/a
Potter's Chalet Drug and Potter's Westpark Drug, Yakima,
Washington, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Telling employees or prospective employees that its
Yakima stores will be nonunion, and asking them if they
have any objections to that or if that will present any
problems; and telling them that it will hire less than a
majority of the former employer's employees "because we
don't want the Union to have a majority."
(b) Refusing to hire, or otherwise discriminating against,
employees to avoid bargaining with a union.
(c) Refusing to recognize Retail Store Employees Local
Union No. 631, Retail Clerks International Association,
AFL-CIO, as the exclusive collective-bargaining represen-
tative of its employees in this appropriate unit:
All retail sales and delivery employees at Potter's
Chalet Drug and Potter's Westpark Drug, excluding
office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
(d) Making changes in the working conditions of the
employees in the above unit without notice to and
consultation with said union.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights under Section 7
of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain with the above union as the
exclusive representative of all the employees in the above
unit concerning their terms and conditions of employment;
and, if an understanding is reached, embody it in a signed
contract if asked to do so.
(b) Upon request of the above union, cancel any
departures from working conditions that existed immedi-
ately before its takeover of Tufts' Yakima stores, making
the employees whole for any losses of pay or benefits
suffered as a result of such departures.
(c) Offer immediate and full employment to Janet
Harrison, Betty Huck, Beata Johnson, Lois Marey, Jewell
Miller, and Phyllis Wade, without prejudice to their
seniority and other rights and privileges, discharging if
necessary employees hired from sources other than Tufts'
Chalet Drug and Tufts' Westpark Drug to make room for
them; and make them whole for any loss of earnings and
benefits they may have' suffered by reason of the unlawful
failure to hire them. 21
(d) Post at its stores in Yakima, Washington, the notice
which is attached and marked "Appendix." 22 Copies of the
notice, on forms provided by the Regional Director for
Region 19, after being duly signed by Respondent's
authorized representative, shall be posted by 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. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that that portion of the
complaint concerning Thomas Fischer is dismissed.
20 All outstanding motions inconsistent with this recommended Order
hereby are denied. 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.
21 Backpay to be computed in accordance with F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962). The "make-whole" portion of this paragraph is to be
applied consistently with par. 2(b), immediately preceding.
22 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the Unted States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The hearing held in Yakima, Washington, on March 17, 18,
and 21, 1977, in which we participated and had a chance to
give evidence, resulted in a decision that we had committed
certain unfair labor practices in violation of Section 8(aX I),
(3), and (5) of the National Labor Relations Act, and this
notice is posted pursuant to that decision.
The National Labor Relations Act, as amended, gives all
employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity except
to the extent that the employees' bargaining
representative and employer have a collective-
bargaining agreement which imposes a lawful
requirement that employees become union mem-
bers.
WE WILL NOT tell employees or prospective employ-
ees that our Yakima stores will be nonunion, nor will
we ask them if they have any objections to that or if
21
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that will present any problems; and WE WILL NOT tell
them that we will hire less than a majority of the former
employer's employees "because we don't want the
Union to have a majority."
WE WILL NOT refuse to hire, or otherwise discrimi-
nate against, employees to avoid bargaining with a
union.
WE WILL NOT refuse to recognize Retail Store
Employees Local Union No. 631, Retail Clerks Inter-
national Association, AFL-CIO, as the exclusive
collective-bargaining representative of our employees
in this appropriate unit:
All retail sales and delivery employees at Potter's
Chalet Drug and Potter's Westpark Drug, exclud-
ing office clerical employees, professional em-
ployees, guards, and supervisors as defined in the
Act.
WE WILL NOT make changes in the working condi-
tions of the employees in the above unit without notice
to and consultation with said union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in their exercise of rights
under Section 7 of the Act.
WE wuLL, upon request, bargain with the above
union as the exclusive representative of all the employ-
ees in the above unit concerning their terms and
conditions of employment; and, if an understanding is
reached, embody it in a signed contract if asked to do
so.
WE WILL, upon request of the above union, cancel
any departures from working conditions that existed
immediately before our takeover of Tufts' Yakima
stores, making the employees whole for any losses of
pay or benefits suffered as a result of such departures.
We WILL offer immediate and full employment to
Janet Harrison, Betty Huck, Beata Johnson, Lois
Marey, Jewell Miller, and Phyllis Wade, without
prejudice to their seniority and other rights and
privileges, discharging if necessary employees hired
from sources other than Tufts' Chalet Drug and Tufts'
Westpark Drug to make room for them; and WE WILL
make them whole for any loss of earnings and benefits
they may have suffered by reason of our unlawful
failure to hire them.
POTrER DRUG ENTERPRISES,
INC., D/B/A POTrER'S
CHALET DRUG AND
POTTER'S WESTPARK DRUG
22