Revco Drug Centers of the West, Inc.

National Labor Relations Board - Board Decisions

Jan 25, 1971

188 N.L.R.B. 73 (N.L.R.B. 1971)

REVCO DRUG CENTERS OF THE WEST 73
Revco Drug Centers of the West, Inc. and Retail Clerks
Local Union No. 99 , AFL-CIO. Case 28-CA-2008
January 25, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On September 18, 1970, Trial Examiner Sidney D.
Goldberg issued his Decision 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
attached Trial Examiner's Decision. The Trial Exam-
iner also found that the Respondent had not engaged
in other unfair labor practices alledged in the com-
plaint. Thereafter, the Respondent filed exceptions to
the Decision and a supporting brief, to which the
General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner and hereby orders that
the Respondent, Revco Drug Centers of the West,
Inc., Maricopa and Pinal Counties, Arizona, its offi-
cers, agents , successors , and assigns , shall take the
action set forth in the Trial Examiner's Recommend-
ed Order.'
' In footnote 18 of the Trail Examiner 's Decision, substitute "20" for "10"
days.
the West, Inc. (Revco or Respondent), which operates a
chain of drugstores in Arizona,-had interfered with employ-
ees' rights of self-organization by granting wage increases
and other benefits to them after Retail Clerks Local Union
No. 99, AFL-CIO (the Union), had filed representation
petitions seeking elections , and that this action by Respon-
dent constituted discrimination to cause its employees to
refrain from becoming members of the Union.
Respondent answered , admitting that it had granted the
wage increases and other benefits , but denying that it had
done so after the filing of representation petitions and deny-
ins that its actions were to cause employees to refrain from
joining the Union.
The issues so raised were tried before me at Phoenix,
Arizona, on May 13 and 14, 1970. The General Counsel and
Respondent were represented by counsel, afforded an op-
portunity to adduce evidence , cross-examine witnesses, and
argue on the facts and the law . Briefs filed by the General
Counsel and by counsel for Respondent have been consid-
ered.
For the reasons hereafter set forth , I find that the wage
increases and other benefits conferred by Respondent upon
its employees were for the purpose of impeding the organi-
zational campaign among the employees and constituted an
interference with employees ' rights in violation of Section
8(a)(1) of the Act.
Upon the entire record herein 2 and the demeanor of the
witnesses while testifying, I make the following:
FINDINGS OF FACT
1. THE EMPLOYER
The pleadings and the uncontroverted evidence show that
Respondent is an Ohio corporation and a wholly owned
subsidiary of Revco D. S., Inc ., another Ohio corporation.
Revco D. S., Inc ., operates, under its own name and through
Respondent and other subsidiaries , a chain of 228 retail
drugstores in the States of Michigan, Ohio, West Virginia,
Kentucky, North Carolina, and Arizona . Respondent oper-
ates the 38 stores in Arizona , 28 of them located in and
around Phoenix and the remainder around Tucson. This
Arizona chain was purchased in July 1968 from Ryan-Ev-
ans Co . which had operated the stores for 10 or more years.
The answer admits that Respondent is an employer engaged
in commerce and I so find.
II THE UNION
The answer admits, and I find, that the Union is a labor
organization.
III FACTS AND ISSUES
A. Summary
The facts in this case are generally undisputed. On De-
cember 21, 1969, Respondent substantially increased the
wage rates of its salesclerks and conferred other benefits
upon them. It announced the changes to its Tucson employ-
TRIAL EXAMINER'S DECISION
SIDNEY D. GOLDBERG, Trial Examiner: The question for
decision in this case is whether Respondent's grant of wage
increases and other benefits to its employees during an or-
ganizing campaign interfered with their right to self-organi-
zation.
The complaint herein 'alleges that Revco Drug Centers of
' Issued February 24, 1970, on a charge filed December 24 and an
amended charge filed December 31, 1969.
2 The transcript of testimony has been corrected by and pursuant to an
order issued August 4 Official notice is taken of the Board proceedings in
Cases 28-RC-1992 and 28-RC-2000 involving Respondent as employer.
While some of the papers in those cases were admitted into evidence for
convenience of reference, I consider that any formal action or document in
those proceedings may be considered in this case.
188 NLRB No. 9
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees on that date and to its Phoenix employees, who are the
ones involved in this case, on the 24th. At the time, the
Union was engaged in an organizing campaign among the
Phoenix employees and, since December 1'7, there had been
a petition on file with the Board for a representation elec-
tion among them. Upon these facts the General Counsel
contends that Respondent's motive in granting the wage
increases and other benefits was to interfere with the self-
organizational activities of its employees; Respondent con-
tends that the petition on file was defective, that its wage
increases had been in preparation for a considerable time,
and that the grant of benefits had nothing to do with the
employees' self-organizational activities.
B. Background
The Arizona chain of stores which Respondent pur-
chased in July 1968 had been in operation for a long time
and the transfer of ownership was not accompanied by any
important change in the rank-and-file personnel . In October
1969 the Union sent International Representative Gary Ne-
beker to Phoenix to or ganize the drugstore employees in the
area , designated as 1blarico a, Pinal , and Gila Counties.
After some organizing work by Nebken and others, on No-
vember 26 the Union filed a petition requesting an election
among Respondent 's employees designated as `all working
pharmacists in Maricopa and Gila counties " for the purpose
of being certified as their bargaining representative. On De-
cember 19 , 1969, the Regional Office issued a notice of
hearing on the petition.3
C. Organizational Activities Among the Clerks
According to Nebeker, his organizational efforts involved
all of the employees of the several drug chains in the Phoe-
nix area and, on his visits to Respondent's stores, he made
contact with both the pharmacists and the salesclerks. He
testified that he participated in the first meeting with the
pharmacists in Respondent's employ on October 19, 1969,
at the union hall and that, after he received inquiries from
some of Respondent's salesclerks , he held a meeting of
salesclerks on November 20. Immediately following his
meeting with the salesclerks, Nebeker testified, he began
visiting the stores, passing out leaflets to the clerks, and
talking with them as they left the stores. At times, he testi-
fied, pharmacist-managers or assistant managers were pre-
sent while he talked with the clerks and he specifically
named Kenneth Connell of store 615, Charles Hoel of store
620, and Mike Guiterrez of store 639 as having been present
at such times. During some of the organizing meetings of the
pharmacists, Nebeker testified, he asked them to assist in
the organization of the clerks. Nebeker further testified that
he was assisted in his organizing work by his supervisor in
the Retail Clerks International organization, by Joseph Ze-
lasko, secretary-treasurer of the Union, and by Lavina M.
Thelan, a salesclerk employee of Respondent.
Mrs. Thelan, since she had been employed by the chain
for almost 10 years, was more specific in her testimony
concerning contacts with Respondent's employees. She tes-
tified that she had called the union hall November 10,
talked with Nebeker and asked him what the Revco em-
3 The hearing was held January 6 and closed January 15, 1970. In that
proceeding Respondent took the position that the pharmacists and assistant
pharmacists were the managerial personnel of the stores and that, therefore,
they were supervisors. The Regional Director adopted that position and, in
a decision dated March 20, 1970, dismissed the petition The Union' s request
for review by the Board was denied June 20, 1970
ployees would have to do "to organize the Union in the
chain." Nebeker met her 2 days later and gave her authori-
zation cards which she circulated among the women 4 in
about 10 of Respondent's stores. She also testified that she
talked with about 25 of the clerks, most of them in the stores
but a few of them at home. At one of the stores, 620, she
testified, both Manager Shaw and Assistant Manager Hoel
were present while she talked with the clerks and at store
615, where she was employed at the time, she spoke directly
with Manager Connell and Assistant Manager Martin, tell-
ing them that she was organizing the salesclerks.
On December 17 the Union executed and filed with the
Board's Regional Office a petition for an election among
Respondents "selling and non-selling employees" exclud-
ing pharmacists, guards, and supervisors. The petition stat-
ed that
A substantial number of employees wish to be repre-
sented for purposes of collective bargaining by peti-
tioner and Petitioner desires to be certified as
representative of the employees.
On the same day the Union wrote a letter to Respondent,
claiming that it represented "the majority" of the selling and
nonselling employees in the stores in Maricopa and Pinal
Counties and requesting a meeting to negotiate concerning
wages, hours, and other terms and conditions of employ-
ment. This letter was admittedly received on December 18
by Mr. Louis A. Klein executive vice president of Respon-
dent and its highest official.
Although Klein denied any prior knowledge of the organ-
izational activity among the salesclerks of Respondent,
there was no contradiction of the testimony of Nebeker and
Mrs. Thelan that at least three store managers and one or
two assistant managers were aware of this activity at the end
of November and that Nebeker's activities included the
circulation of handbills in the stores as well as direct ap-
proaches to employees as they were leaving the premises. In
addition to these open activities, Mrs. Thelan testified that
she talked about the Union with two employees in each of
two stores, with three employees in one store, with four
employees in each of three other stores, and, in a store where
she was not employed at the time, with six employees. Since
Respondent operated 28 stores in the area with 198 emplo -
ees, the average store complement was only 7 salesclerks
and, therefore, Mrs. Thelan s contacts were with a substan-
tial part of the personnel in the 11 stores she visited.
In addition to the open character of the activities of both
Nebeker and Mrs. Thelan, there was admittedly in existence
at the same time an active organizational campaign among
the store manager-pharmacists during which they were
asked to assist in organizing the salesclerks and it is a fair
inference that they were in a condition of heightened sensi-
tivity manifestations of employee organizational activi-
ties.
Tto
he organizational campaign among the pharmacists,
moreover, had been actually brought to the notice of Re-
spondent by the filing of a petition for an electiononNovem-
ber 26 and the Board investigation thereof, which resulted
in the issuance, on December 10, of a notice of hearing.
As stated, none of the foregoing testimony was contro-
verted by Respondent and none of the managers named was
called to testify. Respondent's onl evidence on this point
was the testimony of Executive Vice President Klein that
prior to December 18, when he received the Union's de-
mand letter and a copy of the filed petition concernin the
clerks, nobody had told him about their organizational ac-
tivities and he had no knowledge of them, and the testimony
of Max Bunin, vice president of the parent company in
As a general rule, Respondent's salesclerks are women and its pharma-
cists are men
REVCO DRUG CENTERS OF THE WEST
Cleveland and in charge of store operations in all the States,
that he first heard about these activities on December 18
when Klein called to tell him about them.
On the basis of the General Counsel's evidence and the
attendant circumstances set forth above, and despite the
testimony of Klein and Bunin concerning their lack of per-
sonal knowledge-which I do not accept-I find that Re-
spondent, at the beginning of December 1969, was charge-
able with and had knowledge of the self-organizational ac-
tivities of its sales employees.
D. The Wage Increases and Other Benefits
Mrs. Thelan, who worked for Ryan-Evans for 7 years
before Respondent bought the chain in July 1968, contin-
ued to work for Respondent in the same store until about
March 1970 when she was transferred to another of its
stores . At the time Respondent became her employer, she
testified, she was being paid the legal minimum wage, $1.65
per hour. In the latter part of 1968, she testified, the manag-
er of the store handed her a letter telling her that her wage
rate was being raised $.05 per hour but he told her not to
"leave the letter lay around the store because it wasn't of
interest to the rest of the employees." This was the only raise
she received and, she testified, there were no general wage
increases.
Except for Mrs. Thelan's testimony, the record is unclear
concerning the wage rates of Respondent's salesclerks pnor
to the December 21 wage increase involved in this case.
Executive Vice President Klein, called as an adverse witness
by the General Counsel, testified that there was no distinc-
tion between "selling" and "non-selling" clerks, but he also
testified that the maximum wage rate of nonselling clerks
prior to the December increase was $1.60 per hour while the
maximum wage rate of selling clerks prior to the December
increase was $2.20 per hour. Klein also testified that, by
reason of the increase granted December 21, any "non-
selling" clerks who had been in the store for more than 18
months would be advanced $.40 per hour. Although the
General Counsel asked the correct questions to elicit the
wage rates of Respondent's employees pnor to the increase
in question, Klein was evasive, his counsel was excessively
obstructive and contentious, and the General Counsel failed
to pursue his inquiry effectively. Comparison of Klein's
testimony with the written schedule put out by Respondent
showing the increase in benefits granted as of December 21,
1969, leads me to conclude that the answers he gave to
questions concerning wage rates prior to the date were actu-
a71y the rates after that date.5 I also conclude that, with
minor variations such as Mrs. Thelan's 5-cent raise at the
end of 1968, the general wage rate of salesclerks in
Respondent's employ was, pnor to December 21, 1969, ap-
proximately the minimum wage of $1.65 per hour. This
conclusion, however, has only a limited effect in this case
since the answer admits that wages were increased and ben-
efits granted as of December 21, and the circular distributed
by Respondent to its employees about that date sets forth
the future wages and benefits in detail.
Klein confirmed Mrs. Thelan's testimony concerning the
lack of general increases to the extent that, he testified, there
S This is not a finding that Klein deliberately misstated the facts but that,
in the confusion engendered by the objections of Respondent's counsel to
almost every question put by the General Counsel on this subject, by his
prolonged argument following each ruling or attempt to clarify the question,
and by his insistence that the record show his exception to every adverse
ruling, Klein probably forgot the question and answered it, if at all, by
referring to the rates current at the time of the trial, since those were the rates
with which he was familiar at the time.
75
had previously been no schedule for periodic reviews of
wages . The December 21 announcement, however, sets
forth an initial wage rate of $1.70 with progressive periodic
increases up to $2 . 10 and a statement of a "$.15 per hour
increase across the board ." In view of the comparatively
brief period of past service-18 months- required to reach
the $2 . 10 per hour rate , it is obvious that the increase for
most employees was substantial and, for those in the employ
of Respondent or its predecessor more than 18 months and
still receiving $ 1.60, they were actually $.50 per hour, more
than 30 percent.
There is , fortunately , less confusion regarding other terms
of employment prior to December 21 and the change in
them effected by the announcement of that date. (1)
Vacations : Mrs. Thelan testified that prior to the increase
she was entitled to 2 weeks ' vacation but that , not having
completed 10 years of employment with Respondent and
Ryan-Evans combined, she would still receive 2 weeks' va-
cation until she had completed the 10 years . Klein con-
firmed her testimony that the maximum vacation period,
prior to the announcement of December 21, was 2 weeks.
The announcement established a range of vacations, based
on length of total service , up to 4 weeks for an employee
with 20 years of service . (2)Holidays: Mrs. Thelan named 5
days as holidays prior to the announcement : Christmas
Day, New Year's Day, Thanksgiving Day, July 4th, and
Labor Day. Klein testified that the employees had six hol-
idays but he agreed with Mrs . Thelan that the change effect-
ed by the announcement of December 21 was merel y to add
the emplo ee's personal birthday as a holiday for that em-
ployee . (3)Rate of pay for work on consecutive Sundays or
holidays : They agreed that the straight rate had been appli-
cable for the second day so worked and that the announce-
ment established the overtime rate as the one payable for
the second day, but Klein testified that care was taken to
assure that no employee would be required to work on
consecutive Sundays or holidays so that the benefit appar-
ently extended would rarely become a reality . (4) Area
parties": Mrs. Thelan testified that, prior to the dinner given
December 21, 1969, she had never heard of any parties for
the employees . Klein testified that there had been one in
September 1968 and one in March 1969 , as well as some
"golf outings ." The reference to "Periodic Area Parties" in
the list of new benefits , he testified , contemplated their con-
tinuation without change . (5) Employee discounts: Both Mrs.
Thelan and Klein testified that, prior to the announcement,
employees were entitled to a discount of 15 percent on
cosmetics and that the announcement added a 20 percent
discount on prescriptions . There was no testimony on other
changes in established conditions but the circular states that
the medical and life insurance programs would continue
unchanged, and that there would be a suggestion system.
IV DISCUSSION AND CONCLUSIONS
The brief submitted by the General Counsel consists en-
tirely of a perfervid summation based upon the evidence but
without articulation of the legal theory underlying his case
or citation of a single authority.6 The rule of decision which
6 The allegation in the complaint concerning the grant of "wage increases
and other benefits to employees, after representation petitions . . had been
filed" indicates a theory ofper se violation of Section 8(a)(1) based upon these
two facts (although, when pressed on the subject, the General Counsel disa-
vowed this theory) and, obviously so interpreting it, Respondent's counsel
expended considerable time and energy in an attack upon the validity of the
second of the filed petitions-the one relating to the salesclerks . If that was
the theory of the General Counsel when the complaint was prepared, he was
in error the applicable rule of decision herein, as set forth below, precludes
Continued
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find apppplicable herein is the one that has been repeatedly
invoked, by the Board and the courts , in cases involving the
grant of benefits in a setting of organizational activity, and
which was stated by the Supreme Court , in the Exchange
Parts case,7as follows:
The broad purpose of § 8(a)( 1) is to establish "the right
of employees to organize for mutual aid without em-
ployer interference. ' ... it prohibits not only intrusive
threats and promises but also conduct immediately fa-
vorable to employees which is undertaken with the ex-
press purpose of impinging upon their freedom of
choice for or against unionization and is reasonable
calculated to have that effect.
Although in Exchange Parts the wage increases and other
benefits were granted at a time when an election was immi-
nent and the decision is expressed in language reflecting
that situation, there is nothing in that or any of the other
pertinent cases to indicate that there is a difference in the
applicability of Section 8(a)(1) to situations involving wage
increases during self-organizational activity before or after
an election has been directed . In Tonkawa Refining Co.. 175
NLRB No. 102 , the organizational activity was brought to
the employer's attention on December 8, 1967 , by a letter
from the union claiming representation of a majority of the
employees and requesting bargaining . This notice was fol-
lowed by the union's filing of a representation petition on
December 11, 1967 . On January 24, 1968 , the employer
promised wage increases to the employees involved and, on
January 28, put them into effect . The Direction of Election
was issued February 1. In finding this extension of benefits
by the employer violative of Section 8(axl) of the Act, the
Board relied on and quoted from the Exchange Parts opin-
ion of the Supreme Court.8
From the opinion of the Supreme Court in Exchange
Parts, however, it is apparent that the mere grant of wage
increases or other benefits during organizational activity
will not automatically result in a finding of violation of
Section 8(a)(1). The relevant portion of that opinion (at
page 409) reads as follows:
We think the Court of Appeals was mistaken in con-
cluding that the conferral of employee benefits while a
representation election is pending, for the purpose of
inducing employees to vote against the Union . does not
"interfere with" the protected right to organize. [Em-
phasis supplied.]
Accordingly , as the Board pointed out in Tonkawa Refin-
in& supra . the grant of a wage increase during an organiza-
tional campaign will not necessarily lead to a determination
that the wage increase was violative of Section 8(a)(1) on the
ground that the former "tends to interfere" with the latter,
but it must be established , by evidence or inference from the
facts, that it was the employer 's motive , in giving the wage
a finding of violation of Section 8 (a)(l) of the Act upon no more than the
grant of benefits at a time when a representation petition was on file . Equally
in error , however, was the effort of Respondent , since the status of a repre-
sentative petition of file is not subject to collateral attack by an attempt to
impugn the "showing of interest" upon which the petition was accepted for
filing (N.L R.B. v. National Truck Rental Co. 239 F 2d 422, 425 (C.A.D.C),
cert. denied 352 U.S. 1016 ; General Engineering . Inc., and Harvey Aluminum
123 NLRB 586).
r N.L.R.B. v. Exchange Parts Co. 375 U.S. 405 , 409, reversing 304 F.2d 368
and enfg . 131 NLRB 806.
5See also Goodyear Tire & Rubber Company. 170 NLRB No. 79 , in which
it was found that the employer learned of union activity at the end of January
and granted wage increases and other benefits in March. Although there was
not even the filing of a representation petition in this case , the Trial Examiner
relied on Exchange Parts in finding a violation of Section 8(axl) of the Act
and the Board adopted his finding.
increase , to interfere with employees ' self-organizational ac-
tivity9
The inquiry into Respondent 's motive in grantin wage
increases and other benefits in this case starts with the un-
disputed fact that Respondent had known for several days
about the self-organizational activity among its em loyees
when it made its announcement on December 24 (putting
aside , for the moment , the finding herein that its awareness
dated back to the beginning of December ), since it had
admittedly received , on December 18, both the filed petition
and the letter from the Union . With this relationship be-
tween its knowledge and its action indubitably established,
the burden of going forward with evidence shifts to Respon-
dent.10
Respondent 's evidence in support of its contention that,
despite their timing, the wage increases and other benefits
to the salesclerks in Phoenix were not granted for the pur-
pose of interfering with their self-organizational efforts,
came almost exclusively from Max Bunin , vice president of
the parent company, who is in charge of store operations for
the entire chain of 228 stores.
Bunin testified that, during the week of November 9,
1969, wage increases were given to the pharmacists in the
Cleveland area and that there was, at that time, "a potential
strike which did materialize shortly afterwards ." Because of
this situation , he testified, he determined to "do a little
anticipating to try to avoid trouble" and he began to request
information concerning "competitive wage rates" in areas
where the operating companies did not have union con-
tracts . On November 14, he testified , he asked Klein to get
a list of comparative wage rates in the Tucson and Phoenix
areas. Shortly thereafter , when he received the competitive
wage information from the several operating companies,
Bunin testified, he turned the data over to the parent
company's labor counsel , John E. Purdy , whose function it
was to recommend wage rates to Bunin and President
Dworkin in Cleveland, and that new wage rates were "es-
tablished" about the 18th or 19th of November . On Decem-
ber 1, he testified , a circular was issued to all stores in the
chain making "a small adjustment" in prices on new pre-
scriptions , which he characterized as an increase , and the
price increases were put into effect on that day.
According to Bunin , he first heard of the organizing activ-
ity among the salesclerks on December 18, when Klein in-
formed him of the receipt of the demand letter from the
Union . Because of the organizing activity, he testified, the
wage increases were not announced at the employees' din-
ner on December 21. The Tucson employees , however, both
pharmacists and clerks , were not engaged in organizing, and
they were directed to remain after the dinner at which tune
the salesclerks were informed of the wage increase and a
recommendation was made to the pharmacists that they
form a committee to discuss wage increases with manage-
ment.
On December 24 11 Respondent distributed to its Phoenix
9 See also J J Newberry. 183 NLRB No. 69
10 Preston Products Company, Inc,. 158 NLRB 122, 345, enfd. 392 F.2d 801
(CA.D.C.).
i i In explanation of this delayed announcement to the Phoenix salesclerks
Respondent attempted to adduce evidence concerning conferences it had
with the Resident Office of the Board in Phoenix . An outline of this trans-
action, most of which is supported by testimony, is as follows : Respondent
noticed that the petition relating to the salesclerks states the number of
employees in the unit involved as "approx. 96" and that there was no mark
in either the "yes" or "no" box under the question "Is this petition supported
by 30% or more of the employees in the unit?" Aware that it had approxi-
mately 198 salesclerks in the area, Respondent reported the information to
a Board agent and raised a question concerning the sufficiency of the Union's
"showing of interest." The Board agent apparently agreed with Respondent
REVCO DRUG CENTERS OF THE WEST
salesclerks a statement of its "New Clerk Benefit Program-
Effective 12/21/69" showing the wage increases and other
benefits detailed above.
Respondent's contention, in short, is that the wage in-
creases it granted on December 21 came as the result of a
decision made , on a chainwide basis, by the parent corpora-
tion on November 18 or 19, and were not made by Respon-
dent for the purpose of interfering with the organizational
activities of its employees in Phoenix.
In support of this contention, Respondent's evidence con-
sists of- the unsupported testimony of Bunin,12 a circular
instructing store managers throughout the chain to raise
prices on prescriptions as of December 1, an analysis pur-
porting to show that, during the year 1969, there were about
100 voluntary quits among the 198 employees in
Respondent's stores , and some papers relating to the ar-
rangements for the dinner party of December 21.
Neither Bunin's testimony on this point nor the "doc-
umentary" evidence of Respondent is very impressive. Bu-
nin made it clear that it was the bargaining situation and the
subsequently executed threat of a strike in Cleveland that
prompted him to begin a survey of wages throughout the
unorganized portions of the chain about the middle of No-
vember. Moreover, by December 1, separate and apart from
the organizational activities among the Phoenix salesclerks,
Respondent was aware of similar activities among the phar-
macists in Phoenix, since the petition relating to them had
been filed November 26. 13 Klein testified that there had
theretofore been no schedule for periodic review of wages,
and stated that the Union would be given 48 hours within which to submit
the additional authorization cards required to support a petition involving a
unit of 198 employees . Respondent 's counsel offered to prove that the Board
agent notified the Union's secretary that unless the additional cards were
submitted by the 24th the petition would be dismissed . The questions ad-
dressed to Klein concerning statements of the Board agent were excluded as
irrelevant but Nebeker , the Union 's organizing agent, conceded that the
Union's secretary told him of the Board agent's request for additional cards
by the 24th and that he tried to obtain them. Whether he obtained them does
not appear , but the petition was not dismissed and an amended petition, still
stating the number of employees involved as "approx . 96" was filed Decem-
ber 29, 1%9.
As stated above , Klein's testimony was excluded in part upon the ground
that the "showing of interest" is not a litigable issue . In addition , the testimo-
ny was excluded because an informal action or an oral statement by a Board
employee cannot be made the justification for conduct found to be an unfair
labor practice (West Texas Utilities Company. Inc. 85 NLRB 1396, 1397-98,
enfd. 184 F.2d 233 (C.A.D.C.), cert. denied 341 U.S. 939; see also Winter Seal
Corp.. 117 NLRB 659,661 , Stokely-Van Camp. Inc. 130 NLRB 869, 870-871)
and, finally , whether this representation petition was, or was not, on file is
immaterial in this case since the critical element is Respondent 's knowledge
of organizational activity (see Gordon Mfg. Co.. 158 NLRB 1303, in which
increases given after the representation petition was withdrawn were held to
constitute a violation of Section 8(axl) of the Act).
12 Klein was called by the General Counsel as an adverse witness under
Rule 43(b) of the Rules of Civil Procedure for the United States District
Courts . Respondent's counsel, on cross-examination, asked Klein when he
first found out about a wage increase for the Phoenix salesclerks and he
answered "November 14." When Respondent's counsel pursued the subject,
which had not been touched by the General Counsel, he was reminded that
Rule 43 (b) restricts cross-examination of an adverse witness to the subject
matter of his examination in chief and that , therefore, the witness should be
recalled and the subject pursued during the presentation of Respondent's
case . Respondent's counsel agreed and terminated his questioning of Klein
with the statement that he would bung him back . Klein was recalled as a
witness during Respondent's case but was not questioned on this subject
13At this time, i .e., between November 26 and December 24, 1%9. Re-
spondent had no way of knowing that the petition concerning the pharma-
cists would be dismissed in March 1970, upon acceptance of its contention
that these pharmacists , by reason of their duties , were supervisors within the
meaning of the Act . Bunin 's testimony indicates , by his reference to negotia-
tions and a strike, that the pharmacists in Cleveland are organized
77
and it was, therefore, against this background of general
concern about union demands and specific awareness of
organizational activity in Phoenix that Bunin made his deci-
sion with respect to wage increases. Furthermore, although
I agree with Respondent that the setting of wage rates may
be a routine function of management and that actions of
that nature might not be reflected in minutes of the board
of directors, it nevertheless seems to me reasonable to ex-
pect that in a chainwide move of that sort some documenta-
tion would exist directly concerning the matter and
explaining the reasons for the costly change.
The argument that the direction to raise prescription
prices on December 1 indicates that a decision had alread
been made to increase wages, places an unsupportable
strain on my credulity and I reject it. According to Bunin,
wage adjustments had been made in Cleveland and they
were being considered for other places, so that a chainwide
increase in prices was probably indicated, but it ap,pears to
me to have no relevance specifically to Respondent s stores.
Despite Mrs. Thelan's lack of recollection concerning prior
"area parties," Respondent is insistent that they had been
a regular feature of management-employee relationships.
Accordingly, neither the holding of the dinner-party on De-
cember 21 nor the contents of President Dworkin s invita-
tion dated December 11 gives any support to the contention
that, by making arrangements for it early in December,
Respondent has proved that it had, at that time, reached a
decision to announce wage increases at the dinner.
The list of "voluntary quits" I also find unconvincing. In
the first place, the highest number of quits in any month, 16
out of a complement of 196 employees, does not seem large
in a relatively unskilled labor pool, and Respondent has
offered no evidence that a turnover of that size signals a
serious problem in retaining employees. Moreover, the evi-
dence shows that it was only in the months of January, May,
and August-long before Bunnin claimed to have begun
investigating the adequacy of Respondent's wage rates-
that there were 10 or more of these quits. In sum, I cannot
see that the number of voluntary quits proves anything at
all.
From the foregoing it follows, and I find, that Respon-
dent has not shown that the wage increases and other bene-
fits conferred upon its employees were the result of a
decision reached without regard to the organizational activ-
ities of its employees. This is not to say that I disbelieve
Bunin completely in his statement that top management
had been giving consideration to granting general wage in-
creases: it is simply that the evidence convinces me that the
wage increases and other benefits to the Phoenix salesclerks
were granted, to the substantial extent indicated and at that
particular time, for the purpose of checking the impetus of
the Union's organizational campaign and to put it in a less
favorable position should an election subsequently be held.
As the Court of Appeals for the Fifth Circuit recently wrote,
in N.L.R.B. v. Southwire Co..429 F.2d 1050, holding a wage
increase unlawful:
The crucial fact to evaluate "is not whether [the
Company] would have increased wages at some time or
another ... but whether the increase was granted when
it was because of union activities." N.L.R.B. v. Laars
Engineers Inc., 9 Cir. 1964, 332 F.2d 664, 667.
Accordingly, I find that Respondent's grant of wage in-
creases and other benefits to its employees as of December
21, 1969,14 was for the purpose of interfering with the self-
14 Respondent's argument that its good faith is somehow enhanced by its
"circumspection" in delaying the announcement of wage increases to the
Phoenix salesclerks , after it became aware , by the filing of the petition and
Continued
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizational activities of its employees and that Respon-
dent thereby violated Section 8(a)(l) of the Act.15
The General Counsel argues that Respondent's conduct
also "had the effect of discouraging employees from joining
the Union" and that it was, therefore, also violative of Sec-
tion 8(a)(3) of the Act. That section, however, defines the
conduct made an unfair labor practice therein as "discrim-
ination ... to encourage or discourage membership" and,
since there is no proof of discrimination in this record, the
complaint must be dismissed to the extent that it alleges
such violation.
V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in sections 3 and
4, above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow thereof.
VI THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take affirmative action designed to
effectuate the purposes of the Act.
Upon the foregoing findings of fact and upon the entire
record herein, I reach the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By granting wage increases and other benefits to its
salesclerks for the purpose of affecting the organizational
campaign of the Union among those salesclerks, Respon-
dent has interfered with, restrained, and coerced employees
in the exercise of rights guaranteed in the Act and has
committed an unfair labor practice within the meaning of
Section 8(a)(1) thereof.
4. The foregoing unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER 16
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case, and pursuant to
Section 10(c) oh the National Labor Relations Act, as
amended , it is recommended that Revco Drug Centers of
the West, Inc., its officers , agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Granting wage increases or other benefits to em-
ployees for the purpose of impeding or interfering with their
self-organizational activities; provided, however, that noth-
ing herein shall be construed to require said Corporation to
revoke any wage increases or benefits heretofore granted.
receipt of the demand from the Union, of the self -organizational activity and
did not announce them until the 48-hour period had expired, has been dealt
with above . It is hardly an argument to be used in a matter involving a
question of motive or good faith but one more suited to areas of law where
the consequences can be made responsive to factual conditions within the
control of the interested parties
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
right to self-organization, to form, join, or assist the above-
named Union, or any other labor organization, to bargain
collectively through representatives 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.
2. Take the following affirmative action to effectuate
the policies of the National Labor Relations Act, as
amended:
(a) Post immediately at each of its stores in Maricopa
and Pinal Counties, Arizona, copies of the attached notice
marked "Appendix."" Copies of said notice, on forms pro-
vided by the Regional Director for Region 28, after being
duly signed by Respondent's representative, shall be posted
by it 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 Re-
spondent to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for Region 28, in writ-
ing, within 20 days from the receipt of this-Decision, what
steps, have been taken to comply herewith. 18
S FURTHER RECOMMENDED that the allegations of the com-
plaint, insofar as not found violative of the act in the Deci-
sion, be dismissed.
15 See Great Atlantic & Pacific Tea Company, Inc 162 NLRB 1182, 1184;
J J Newberry, 183 NLRB No. 69, St Louis Car Division General Steel
Incustries Inc 184 NLRB No. 55.
16 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , recommendations , and Recommended Order herein shall, as
provided in Section 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
17 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
enforcing an order of the National Labor Relations Board."
18 In the event that this Recommended Order is adopted by the Board, this
provision shall be modified to read: "Notify the Regional Director for Re-
gion 28, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The trial which was held May 13 and 14, 1970, at Phoenix,
Arizona, on the complaint issued by the General Counsel of
the National Labor Relations Board, and at which all par-
ties had an opportunity to present evidence, has resulted in
a decision that our grant of wage increases and other bene-
fits as of December 21, 1969, to the salesclerks in our stores
in Maricopa and Pinal Counties was for the purpose of
interfering with the organizing campaign then being carried
on by some of our employees in conjunction with Retail
Clerks Local Union No. 99, AFL-CIO, and that our con-
duct constituted an unfair labor practice in violation of the
National Labor Relations Act, as amended. The order is-
sued with the decision, however, states that nothing therein
REVCO DRUG CENTERS OF THE WEST
shall be construed to require us to revoke any wage increas-
es or benefits granted.
In accordance with that decision , and as directed by the
order issued with it , we are posting this notice to assure our
employees that
WE WILL NOT grant wage increases , or other benefits,
for the purpose of interfering with the self -organiza-
tional efforts of our employees or to interfere with their
activities on behalf of the above -named Union or any
other labor organization.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of their right to self-organization , to form, join, or assist
the above-named Union, or any other labor organiza-
tion , to bargain collectively through representatives 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.
All our employees are free to become or remain, or
79
to refrain from becoming or remaining , members of the
above-named Union or any other labor organization.
Dated By
Ravco DRUG CENTERS OF THE WEST,
INC
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 7011
Federal Building & U.S. Courthouse, 500 Gold Avenue,
Southwest, P.O. Box 2146 , Albuquerque, New Mexico
87101, Telephone 505-843-2507.