Sav-On Drugs, Inc.

National Labor Relations Board - Board Decisions

Dec 18, 1980

253 N.L.R.B. 816 (N.L.R.B. 1980)

I)DCISIONS OF NATIONAL LABOR REI.ATIONS H)OARD Sav-On Drugs, Inc. and Guild for Professional Phar- macists and Howard A. Lipton. Cases 31-CA- 8641, 31-CA-8726, 31-CA-9081, and 31-CA- 9143 December 18, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS ANI) PNE I IO On July 1, 1980, Administrative Law Judge Clif- ford H. Anderson issued the attached Decision in this proceeding. Thereafter, Respondent and Guild for Professional Pharmacists filed exceptions and supporting briefs, and the Guild filed an answering brief to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 2 ' W i aIgiec willt the Adlllllli tralt c ias Judge that tie citlrlact grie ance procedures here, e ,t ar sulnilig their alidity, apply neither to thic origial tso discharges 1harrgs t iac Ma;lagers Kunlysz and Vogel, who w er tint coe red hy t i t recert c olintract thiough they hid been ili the expired contract vvlh th Retail Clerks. tinr to the strike itself. and that the contract nro-strike clallse caniot lnlil the rights of employees to slrike i protest of such discharges W'e note particularly tile role of Kulivys aid Vogel i s active prponertllis if a separate prlfcessilonal unlit for pharmacisls sought to be rpreseilltd hb tilt: (iuill fir I'rfcssional I'halr- macisis, ad the intimidatilig efflct 1 ,lhe t so discharges ilt the circun- slaces I hus e finld t lillii -,ssary t rach the Adnlitislratil e L.aw Jlldge' discussion f ca es such as Matlro PIlatici Corp. and I- renih- 4,eriewun Reed. Mfi. (R. Inc Is .IR.., 3150 U S. 27) (1956). aid .Arln' Ieprlrtment Store o . ichigan. Inc., 1 NER1B 892 (hl), with respect Io strikes in protest against "srious" unfair labor practices Although Member Jenkins has preslously tidicated that he cotnsiders the pharmacy managers to be supervisory, the lmajority of the iBoard has concluded that the' are employees, and therefore etitled to cverage under the Act See Sulv-On IDrug. Inc. 241 NIRH '59 (1979)1 ad his disseint therein Meniber Jenkins accept, thalt majority determinatilonl for the purposes of this cae. ad therefre agrees with the result reached hereill. Member Pcnello agrees that Responidernt unllawfully discharged 59 em- ployees .ho struck to proitest the dismissal of Kunysi and Vogel How- ever, as regards hlose eployees allegedly subject to collective-bargain- ing agreements, he finds their discharges illegal solely because the con- tracts, evenl if valid, containedl a nio-strike clause expressly limited It mla ters subject it tile grievallce ai arbitration procedulre Member Pcncl ti adheres to his positioli. articulated his colncurring pinitn in Interna- lional fUnon of Operaing Engners. Local Uf'nion 18, AFL-CIO (Davis- McKee. Inc.). 238 NL.RB 52 (1978). that an unrestricted 1no-strike provi- sion saives the right of employees to engage in strikes except i the cir- cumstances noted therein. 2 IB letter dated September 23. 190, the Charging Party Guild e- quested that the names of Lonnie lrown, D)ale Gorskl, Roger Miller, Gene I sukamoto, and Robert Small be added to the Order herein, otn the ground that the facts concerning these employees "are identical toI those included in the decision" On Novenber 18. 1980), the (;General (Counsel filed with the Board a motion Ito amend the Administrative Lass Judge', recommended Order as suggested by the Guild, togelher th a cerili 253 NLRB No. 45 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Sav-On Drugs, Inc., Anaheim, California, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order. cate f serv lce (i the partlis N rsporlise to said motion has been filed hy Respondent I'h. l ( ;ncrlral Coul'sel ase Cr II, the nitlr l ht i(. hased on an ivesligation if he Charging Parnls allg;at,lns set forth above, tle (ilneral Coulsel has .oiltcluded that L.otlltlie lli, I)ale (iorski Roger Miller, and (iene I ilka.tioto properl heloing i that class f,1 Inidl:lduals ,5 alleged in fihe comnplaillt lithe llani of Robe rt Slall is tinclt [luldedl in th fregilng hby the (icrl Counsel htcalu, Ii, raname is already present iin the Adnlnitralilse a. Julgt's recinllnlended ()rder II these crcunm- 1anllccs, includlilg lack of rcsponse by Re sponrldeni wce hall lot amerlnd It.e recoimmended Order at this tlillle. hut grant the (cnlleral Couiil]'s l- urlti. requ4 est to permit the parties to lingate dluring compliance pro- ceedlings the status of te indivlduals olmitLd is Indicated above. and any othlers who. may properly hbelitlg in the class of "(,eher pharmacists >hose lames are curlrcit~t unkllion rl" , ho were discharged be cause t(hcl. engage. i the strike as ;altgL i lle t conlplaintl herei DECISION SrA IMILNI 01 HIl CASE CI.IFFORi) H. ANDI RSON, Administrative Law Judge: This case was heard before me at Los Angeles, Califor- nia on March 10, 1980, pursuant to a consolidated com- plaint issued by the Acting Regional Director of the Na- tional Labor Relations Board for Region 31 on October 19, 1979, based on the following charges filed against Sav-On Drugs, Inc.: Case 31-CA-864 filed on January 9, 1979, by the Guild for Professional Pharmacists (herein called the Guild): Case 31-CA-8726 filed on February 8, 1979, by the Guild; Case 31-CA-9081 filed on June 14, 1979, and amended on July 18, 1979, by the Guild; and Case 31-CA-9143 filed on June 28, 1979, by Howard A. Lipton, an Individual. The consolidated complaint as amended at the hearing alleges that Sav-On Drugs, Inc. (herein called Respondent), discharged two employees because of their union activity and later discharged some 59 other employees because they concertedly struck in protest of the original two discharges, all in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act). All parties were given full opportunity to participate, to introduce relevant stipulations and other documentary evidence, to examine and cross-examine witnesses, to argue orally, and to file post-hearing briefs. Timely and helpful briefs were received from the General Counsel, Respondent, and the Guild. Upon the entire record herein including the stipula- tions of the parties and from my observation of the wit- nesses and their demeanor, I make the following: SAV-ON DRUGS, INC. FINDIN(iS OF FACT' I. JURISDIICTION Respondent is a California corporation engaged in the retail sale of general merchandise and prescription drugs at numerous locations throughout the State of California with its principal office and place of business at Ana- heim, California. Respondent annually derives gross rev- enue from its business operations of a value in excess of $800,000 and annually purchases and receives goods and services from outside the State of California of a value in excess of $50,000. II. THE LABOR ORGANIZATIONS INVOLVEI) The Guild and Retail Clerks Union Locals 137, 324, 770, 899, 905, 1167, 1222, 1428 and 1442, chartered by United Food and Commercial Workers International Union, AFL-CIO, formerly Retail Clerks International Union, AFL-CIO-CLC (sometimes referred to collec- tively hereinafter as the Clerks and along with the Guild as the Unions), are labor organizations, and each of them is a labor organization within the meaning of Section 2(5) of the Act.2 III. THE ALIEGEI) UNFAIR LABOR PRACTICES A. The Basic Issues Respondent fired two pharmacy managers because of their activity on behalf of the Guild. The General Coun- sel contends these terminations violated Section 8(a)(3) and () of the Act. At the time of the terminations, a re- gional director of the Board had dismissed representation petitions filed by the Guild. Finding, inter alia, that the Guild was not a labor organization within the meaning of the Act and that the pharmacy managers were super- visors. At the time of the discharges the Regional Direc- tor's decision had been appealed by the Guild and a re- quest for review had been granted by the Board. The Board's ultimate decision on review did not issue, how- ever, until after the discharges. The Board's decision on review reversing the Regional Director held the pharma- cy managers to be employees and the Guild to be a labor organization. Respondent argues it was entitled to rely on the Regional Director's decision as a defense to the alleged violations. The General Counsel and the Guild disagree. Pharmacists and pharmacy managers struck to protest the above-described discharges. Respondent fired the strikers because of their concerted strike. The General Counsel alleges that the striker's discharges violated Sec- tion 8(a)(3) and (I) of the Act. The Respondent argues again that it may rely on the Regional Director's deci- sion as a defense. It further argues that the no-strike ' Substantially all he facts f the case were stipulated by all parties Except where specificall noted, the facts herein were undisputed as a result of the pleadings, the stipulated exhibits' which include the Reg.ional Director's and the Hoard's decisilons in related representaltion cases. writ - ten and oral factual stipulations. nd the uncontroverled testimony of w it- nesses. 2 Sav-on Drugi. Inc., 243 NI.RB 859) (1q979 the Boards decision in the related representation cases sometimes referred to hereinafter as the Board's decision on review clause of existing collective-bargaining contracts ren- dered the strike unprotected. B. Facts Respondent operates various stores engaged in the retail sale of general merchandise and prescription drugs in the States of California, Texas, and Nevada. In mid- 1979 Respondent operated approximately 123 stores in California of which some three-quarters of these were covered by identical collective-bargaining contracts with various locals of the United Food and Commercial Workers Internatonal Union, AFL-CIO, including the Clerks. Some bargaining relationships had existed since 1949. The contracts, expiring on June 30, 1978, covered all employees within the union stores including, inter alia, pharmacists and head pharmacists. Beginning on May 1, 1978, the Guild filed numerous representation petitions seeking to represent units of pharmacists at various of Respondent's California facili- ties. Ultimately 11 petitions3 were consolidated for hear- ing and on September 26, 1978, the Regional Directo, for Region 31 of the Board issued a Decision and Order (hereinafter called the Regional Director's decision) dis- missing the petitions on the grounds, inter a/ia, that the employees in the classification pharmacist manager were supervisors within the meaning of the Act and that the Guild was dominated by pharmacist managers, i.e., su- pervisors, and therefore was not a labor organization within the meaning of Section 2(5) of the Act. The Guild filed a timely request for review of the Re- gional Director's decision on or about October 6, 1978, with service on Respondent. No request for a stay of the Regional Director's order was made by the Guild or or- dered by the Board at any time. On November 8, 1978, the Board granted the Guild's request for review of the Regional Director's decision. Negotiations between Respondent and the Clerks for new contracts to replace those expiring on June 30, 1978, were delayed by the Guild's petitions. These negotiations were resumed on October 6, 1978. at which time Re- spondent informed the Clerks that it no longer intended to bargain over the pharmacy managers inasmuch as it felt Respondent had no obligation to bargain over super- visors pursuant to Section 14(a) of the Act. On Novem- ber 8, 1978, following a discussion of the contractual status of staff pharmacists, the Clerks and Respondent agreed to extend the old, now expired, contract which included pharmacists 4 but for the first time excluded ' he petitions bore case numbers 31 -RC 4134, 31 RC-4135. 31 RC- 4136. 31 RC-4137 31-RC-4138 31-RC-4139. 31 RC-314) 31--RC 3141, 31-RC 4187 31-RC 41906 and 31-RC--4219 The petitions soughl professional elections primarily among units already represented by the Clerks as part f storewide units. 4 he Board in Its decision on review of July 31, 1979, noted that. "All of the partie. agree that there is n contract bar to an election il this case" II furthe nteld. "The Employer's nd the Inmervcnoirs' lhe Clerksl current collective-hargaining agreements exclude pharmacists" VWhile not hasing ll materials filed wlth the Hoard, I conclude based on the record before me that this statementt h the Boiiard is an inadsertlnt erro I o not rel\ it Rather I heliese the HB ard meant, and the record bef ore me Ilaltalcs, that the arious contracts extant in Juls 1979, v hich were identical sase for differing local unils or , ered pharmacists ( onlnued 817 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pharmacist managers from coverage. The extension was designed to allow continued bargaining for a new agree- ment between the Clerks and Respondent covering phar- macists, separate and apart from other store employees who would be covered in separate agreements. On November 6, 1978, the Guild by letter to Respond- ent sought wage increases for the pharmacists and threat- ened to strike in support thereof. On November 8, 1978, Respondent, by letter, responded to the Guild by inform- ing it, inter alia, that negotiations with the Clerks were continuing in an attempt to replace the extended contract with a new separate agreement covering pharmacists. Respondent's letter specifically noted that the pharmacy managers had been designated by the National Labor Relations Board as "part of management." The letter concluded with the reminder that the extended contract with the Clerks included a no-strike clause and that anyone who violated its terms would be terminated with dispatch. Sometime thereafter a new contract was reached cov- ering pharmacists separate from other store employees and specifically excluding pharmacy managers. Various Clerks and Respondent signed their identical contracts and around December 19, 1978, through February 1, 1979.5 The grievance and arbitration language of the current contracts is identical to the language in the ex- pired contracts. 6 On January 5, 1979, Respondent discharged Pharmacy Managers Terrance Kunysz and Jerold S. Fogel because of their activities on behalf of the Guild. It has at all times since failed and refused to reinstate them. Kunysz and Fogel at the time of their discharge were officers on the Guild's 11 person executive board. The Guild, through counsel, by letter, on or about January 12, 1979, demanded of Respondent that it rein- state employees Kunysz and Fogel. The letter stated, inter alia: If they are not reinstated immediately, the pharma- cists of Sav-On Drugs will take whatever action is necessary, including a work stoppage, in order to protect the rights of these two men as well as all of the pharmacists employed at Sav-On. The Guild held a general membership meeting on Jan- uary 14, 1979. Executive board elections were to be held at that meeting. Kunysz and Fogel had each been run- ning for reelection to the Guild's board. Their discharges and excluded only pharmacy managers. This is consistent with the posi- tion of Respondent in its negotiations with the Clerks in October 1978 " Respondent as part of its motion for reconsideration filed on August 29, 1979, with the Board attached a contract between it and Clerks Local 770 executed on December 19, 1978. The record contains a separate but identical agreement between Respondent and Clerks Local 324 executed on February 7, 1978. Presumably other contracting Clerk locals signed their identical contracts on or about the same period " The language of the no-strike provisions of the old aid the new con- tracts seem to differ because of a typographical error in the printed copy of the old contract in evidence omitting a sentence fragment. I conclude that the old contracts' correct language is identical to the new. In any case, the langauge in the old contracts even if intended is not materially different from language In the new contracts quoted in full and analyzed, infra. were discussed at the meeting and those attending voted to authorize a strike in protest of the firings. From on or about January 21, 1979, to on or about February 1, 1979, some 59 pharmacists and pharmacy managers7 at both organized and unorganized stores ceased work concertedly and engaged in a strike. The in- dividuals engaged in the strike in order to protest the dis- charges of Kunysz and Fogel. During the period of Jan- uary 21, 1979 to February 1, 1979, Respondent dis- charged these employees because they engaged in the strike. On or about February 2, 1979, Respondent received the following telegram from a representetive of the Guild: Terry Kunysz and Jerry Fogel have requested and demanded that the Guild formally terminate the work stoppage. These two men cannot accept any further loss or suffering by their fellow pharmacists on their behalf. In accordance with the above please consider this as a formal notice to Sav-On Drugs Inc. from the Guild for Professional Pharma- cists that all action in the form of withholding work by Pharmacists is ended as of 10PM February 1, 1979, we fully expect your company to treat any pharmacists returning to work in a just and honor- able manner. On or about February 3, 1979, Respondent requested that the discharged striker employees return to work to report for rehire interviews. Some 43 employees8 did report but none were rehired. None of the discharged employees had been rehired as of the time of the hearing. On July 31, 1979, the Board issued its decision on review reversing the Regional Director's decision find- ing, inter alia, that the Guild was a labor organization within the meaning of Section 2(5) of the Act and that pharmacy managers were not supervisors within the meaning of Section 2(11) of the Act. The Board directed an election in a statewide unit of Respondent's pharma- cists and pharmacy managers. On August 29 and 30, 1979, Respondent and Clerks Locals 770 and 1167 filed with the Board motions for re- consideration arguing, inter alia, that the contracts then in effect barred the directed election. The Board, on Sep- tember 7, 1979, in an Order Denying Motions, held, inter alia, that the contracts could not bar an election. Insofar as the record reflects, the representation cases are still being processed. C. Analysis and Conclusions I. The discharges of Kunysz and Fogel a. The prima facie case The Board's decision on review made conclusive find- ings with respect to the supervisory status of the Re- For the sake of convenience the employees are set forth in App I, infra Those employed as pharmacy managers are so identified Those employees who worked in unorganized r "non-union" stores are also identified (App I has been omitted from publication.) a For the sake of convenience these employees are set forth in App. II. 818 SAV-ON DRUGS, INC. spondent's pharmacy managers including employees Kunysz and Fogel as of the time of the representation hearing. The parties stipulated that the duties of the pharmacy managers, including Kunysz and Fogel, were unchanged from the time of the representation case hear- ing to the time of the hearing in the instant case. Ac- cordingly, it is clear and I find that the pharmacy man- agers, including Kunysz and Fogel, were at all times ma- terial, employees and not supervisors. The parties further stipulated that Kunysz and Fogel were discharged by Respondent because of their activi- ties on behalf of the Guild. The Board's decision on review found the Guild to be a labor organization. The activities of the employees were therefore union activi- ties. Thus an undisputed prima facie case has been made out that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Kunysz and Fogel because they engaged in union activities. b. Respondent's defenses based on the Regional Director's decision Respondent argues on brief: Respondent had an absolute right to rely on the Re- gional Director's Decision and Order as being final and binding. The Respondent maintains that the ef- fects that would be caused by the Board's reversal of the Regional Director's Decision ten months after it was originally issued cannot and should not he applied retroactively to make what was legal in Jan- uary illegal at a later date.9 The Board is empowered to process representation pe- titions pursuant to Section 9 of the Act. In so doing, it of necessity makes factual determinations concerning the status of labor organizations, employees, and supervisors within the meaning of the statute. While Respondent does not seek to challenge before me the factual findings of the Board, it argues that, at least until the Board's de- cision in July 1979, it was entitled to rely on the factual findings made by the Regional Director in his dismissal of the representation cases in September 1978. to The following statutory language and sections of the Board's Rules and Regulations and Statement of Proce- dure are relevant to Respondent's arguments. Secticn 3(b) of the Act states in part: The Board is authorized to delegate to any group of three or more members any or all the powers which it may itself exercise. The Board is also au- thorized to delegate to its regional directors its powers under section 9 to determine the unit appro- 9 It is important in reading the arguments of the parties and the lan- guage of the Act, the Board's Rules and Regulations, and the relevant decisional law to be aware of the ambiguous meaning of the word 'final" when used in describing a judicial or administrative decision. "Final" in the sense of conclusive, decisive, or last is the meaning used here. The definition of "final decision" as a decision which may be appealed ie final as opposed to interlocutory is a technical usage inapplicable to the current analysis. 10 No issue of "good faith" is before me Mistaken belief is recognized by the parties as not constituting a defense to a discharge for union activ- ities. International Ladies' Garment Workers' Union, AFL-CIO v N.L.R.B., 366 U S 731 (1961) priate for the purpose of cllective bargaining, to investigate and provide for hearings, and'determine whether a question of representation exists, and to direct an election or take a secret ballot under sub- section (c) or (e) of section 9 and certify the results thereof, except that upon the filing of a request therefor with the Board by any interested person, the Board may review any action of a regional di- rector delegated to him under this paragraph, but such a review shall not, unless specifically ordered by the Board, operate as a stay of any action taken by the regional director . . . The Board has established procedures in its Rules and Regulations for review of regional director de- cisions made under Section 3(b) of the Act, includ- ing: Section 101.21(a), in part: In the event the regional director decides the issues in a case, his decision is final subject to the review procedure set forth in the Board's Rules and Regulations. Section 101.21(d), in part: The regional director's action is not stayed by the filing of such a request [for review] or the granting of review unless other- wise ordered by the Board. Section 102.67(g), in part: The granting of a request for review shall not stay the regional director's de- cision unless otherwise ordered by the Board. The Board's Case Handling Manual on Representation Proceedings contains similar language. While Respondent has not stated its arguments con- cerning the effects of the Regional Director's decision in a discrete fashion, I believe Respondent's arguments may be categorized and analyzed as follows: Respondent's First Defense: Respondent could rely on the Regional Director's decision because it was not stayed by the Board. The Regional Director's decision was issued pursuant to the statutory delegation discussed supra and its review was subject to the Board's Rules and Regulations. The party requesting review in that case, the Guild, did not ask for a stay of the Director's decision nor did the Board, in granting the Guild's request for review, order a stay on its own motion. Therefore, argues Respondent, under Section 3(b) of the Act the Regional Director's decision was "final and the Respondent was entitled to rely upon it." The General Counsel argues that Respondent could not rely on the Regional Director's decision once the Board undertook review of the matter. He concedes that the Board's Rules and Regulations are "unclear as to the reliance that may be placed on the Regional Director's Decision where a Request for Review is granted." The General Counsel argues however that a reading of the Board's Rules and Regulations in context shows that they provide a scheme for processing of representation t The cited language was added to the Act h the I abor Manage- ment Reporting and )isclosure Act of 1959 ()n April 2, 1961 the Board. pursuant to Sec 3(b). delegated certain authority in representation cases to its regionall directors 2h F R 31ql1 819 DECISIONS OF NATIONAL LABOR RE1.ATIONS H)OARD cases in an orderly manner and that the language in the Rules pertaining to stays and finality "apply to the [re- gional] director and not the parties. Study of the legislative history of the "stay" language of Section 3(b) as it was being considered by Congress in 1959 reveals little concerning its intended purpose. Con- gressman Carroll D. Kearns of Pennsylvania made the following remarks in discussing proposed language amending the Act to allow representation case delegation to regional directors: To make certain Board policy is followed by re- gional directors, provision is made for appeal to the Board. Action of the Director is not stayed pending the appeal, however, to avoid the making of an appeal as a delaying technique. This change of pro- cedure will materially decrease the time spent in processing representation cases and eliminate advan- tages which parties have long sought to obtain by delays. [Congressional Record, Appendix-May 2, 1959, A 4307-4308, 2 Legislative History of the Labor Management Reporting and Disclosure Act of 1959, pp. 1749-1750.1 With respect to the argument of Respondent that the Director's decision had some greater force because no motion was made or order granted to stay its effects, I am unable to find that there was anything to stay. Ac- cordingly I find there was no need or purpose for a stay order to be either requested or issued. A stay is: "A stop- ping; the act of arresting a judicial proceeding by the order of a court."' 2 A decision of a regional director di- recting an election requires certain actions be taken by both the parties and the Board. There is no action to be taken by a regional director, or by the parties after a dis- missal of a petition such as the Regional Director's deci- sion herein. Thus a stay would be relevant only in the situation where an election was directed. Further an appeal from or a request for review of a dismissal of a representation case does not seem to me to be within the rationale explicated by Congressman Kearns, supra, in in- cluding the stay language in Section 3(b) of the Act. In a dismissal there is no advantage to be obtained by delay. The Board's Rules do not seem to expand or explain the "stay" language of Section 3(b) of the Act or its applica- tion to the instant case. Therefore I find that neither the language of the Act nor the Board's Rules and Regula- tions were intended to or have acted in this case to give the Regional Director's decision greater force or effect as a result of the fact that a stay order was neither asked for nor issued. Respondent's Second Defense: A Regional Director's decision may be relied on until it is reversed. In addition to its technical argument concerning the absence of a "stay order," Respondent asserts generally that a regional director's representation case decisions, including dismissals, are entitled to be relied on by par- ties, without peril, unless and until the Board rules to the contrary. For the reasons set forth, infra, I find no grounds to sustain such an argument. 12 Black's Law Dictionary, Fifth Edition (West Publishing Co . St Paul. Mmin 1979) First, the clear meaning of the Board's Rule 101.21(a) is that a regional director's decision is not "final" when the "review procedure" is either in process or susceptible to being timely invoked. The Board's procedures for review, while not entitling parties to a Board decision on the merits of each case, are consistent with the statute and are regularly utilized by litigants. ' Respondent was aware that a request for review had heen filed by the Guild and had been granted by the Board at the time it discharged the employees. It knew that a decision by the Board on various issues, including the supervisory status of pharmacy managers and the labor organization status of the Guild, would be forthcoming. There was no possi- ble surprise in the fact that a Board decision was to re- place that of the Regional Director after the Board granted the Guild's request for review. Second, the implications of a general rule, advanced by Respondent, that a regional director's decisions may be relied on, without peril until reversed by the Board, are profound. Regional directors' decisions routinely make findings concerning the statutory supervisor status of specific individuals and classifications. Supervisory status, and other status determinations have important implications for the statutory rights and obligations of the individuals and entities involved in the proceeding. To allow parties to take action with impunity based on the potentially reversible findings of regional directors while they are potentially reviewable or under review is to give them a greater weight and consequence than Congress or the Act intended. Rights and obligations would appear and disappear with the processing of cases through the review procedure. Uncertainty and inconsis- tency would be the rule rather than the exception. Respondent also seeks to label the Board procedure in the instant representation case as retroactively applying a new holding. Respondent argues that the Board's hold- ing in July 1979, that the Regional Director's dismissal September 1978 is in error, is a retroactive determina- tion. I believe this characterization is inappropriate. Any adjudication involves facts which must be gathered and analyzed before a decision is issued. Thus inevitably a decision speaks at a time after the events have occurred. This is not retroactive application. Where levels of review are provided in the system of adjudication there is the likelihood of greater passage of time between the events in litigation and the ultimate determination. There is also the risk that the higher levels of review will re- verse or modify the findings below. These risks are in- herent in our system of law. Retroactivity is simply not an issue. The Board's procedures are no different. The instant case, while involving both substantial delay and a reversal of a lower decision, is not an extraordinary out- come in any given case.'4 l In fiscal year 1978. he year il s hich the (uild's request for review vwas filed the various regional directors of the agency issued 1,959 repre- senltalion case decisions. The parties filed and the Board ruled on 676 re- quests fr relics he Board granted 99 (Forty-lhird Annual Report of Ihe National I ahl Rela ions Hoard, p 243 ) 4 )celays n Board adludication re unfortunate and regrettable. Equi- table aguments concerning latches have been held not to be available against the Board Se. e g. Internuionl 4mxoiution of Bridge. Structural Continued 820 SAV-()N )RL'tIS, INC Absent provision to the contrary, all litigants run the risk that an inferior forum will be reversed. Parties are on notice that the decision is not final until the last appeal is taken or time for review tolled. In this sense, a regional director's decision cannot be relied on. he ulti- mate decision in a case is not a retroactive or reversing act anymore than any single adjudication is retroactive in that it speaks to facts extant at the time of the hearing rather than at the time of the issuance of the decision. Conceptually, it is as if the Board, in reversing the Re- gional Director, had issued the only decision in the case. This is so because the Regional D)iuactor's decision was never allowed to stand unchallenged. The Guild filed a timely appeal. Respondent's assertion, in my vie is equivalent to the argument that no decision may ever speak as of the time of the hearing but must be prospec- tive only to the time following the issuence of the deci- sion because of the lapse of time between hearing and a decision in any given case. I also find Respondent's citations concerning "retroac- tivity" are inopposite because the cases deal with situa- tions where the Board has changed its policy and/or par- ties have relied on previous separate, independent deci- sional holdings, instructions, and/or advice. The instant representation case, involving only one case at the inter- mediate and review level, at no time had a final decision which was then changed in a later case. Further, even if the concept of retroactivity as Respondent would char- acterize it applied to the instant facts, I find that Board law would not provide shelter for Respondent under all the circumstances. Respondent cited cases where the Board retained juris- diction over an employer or acted in other ways to avoid withdrawing statutory protection from employees who previously had protection but lost it as a result of a change in law or policy. The Board is properly zealous to preserve employee rights and may take special pains to avoid withdrawing coverage which may have been relied on. Thus these cases hold that the Act's protection may be retained where reliance may have occurred. In the instant case it is the rights of employees to be free from discharge for union activities which will be lost if the employer's argument prevails. Thus Respondent seeks to deny, not protect, employees. In such situations the Board has not acted to deny employee rights and protections despite arguable employer reliance on earlier decisional law or regional advice. In George Washington University Hospital a Division of the George Washington University, 227 NLRB 1362 (1977), a Board panel found a violation of the Act, Member Walther dissenting, where the employer, relying on previous case law and an earli- er agreement with a regional director, maintained a rule which become illegal through a change in Board law. As the dissent noted, employer reliance was an issue in the case, yet the Board acted to preserve employee rights. In summary then, the Board's decision determined the status of the Guild and the pharmacy managers as of the date of the hearing, not from the date of the Board's de- cision. The passage of time during deliberations and the and Reinforced Iron orkers Union. Lal 378. A..-(/0 Jidwn Sl.i Corporation), 211 NLRHI 45 (74) Preston I. IIsAlIlCi (Compunv, 238 NLRB 943 (1978) reversal of the Regional Director's decision, hile la- mentable, does not cause the decision to speak only from the date of its publication. There s no aspect of retroac- tivity in its holdings nor may the decision of the Region- al irector be relied oi b any party to derogate from the consequence of the Board's decision on reviewk. This is especially true here where Respondent seeks a holding which would deprive employees of the protections of the Act. Respondentrs Third Def/in.se: During the time hetween the Regional Director's decision and the loard's decision on rcview it was necessary for Respondent to take the action it did to avoid committing unfair labor practices against the Clerks Respondent argues that it was caught between Scilla and Chyribdis during the 10-month period betvsceni the issuance of the Regional Director's Decision and the is- suance of the Board's Decision on Review. Had Re- spondent not resulmed the suspended bargaining \kith the Clerks after the dismissal of the representation cases hy the Regional Director, Respondent argues, it ssould havec been susceptible to meritorious unfair labor practice charges filed by the Clerks alleging a failure to bargain by Respondent. Necessity to act, in Responidenit's vies'. therefore must excuse any error made by it in relilng on the Regional Director's decision which at the time as the only formal guidance available to the parties. In order to consider this argument, it is relevant to examine Board cases dealing with the situation Respondent found itself ill. Respondent and the Clerks had suspended bargaining during the processing of the representation petitions. After receipt of the Regional Director's decision, the ne- gotiations resunmed and continued with Respondent Clerks contracts first being extended before, and then new Respondent Clerks contracts signed after, the Board's granting of the Guild's request for review In (;rehounrid Airport Service Inc.. Greyhound A4irport Serv- ice, Inc. of CVirginia, 204 NLRB 900 (1973), the Board adopted the decision of an administrative lavw judge dis- missing an allegation that an employer failed to bargain with an incumbent union during the pendency of a repre- sentation proceeding involving an outside union. The Administrative Law Judge noted at page 906: Under these circumstances, the Respondent was clearly dutybound to defer negotiations until the Board resolved this question of representation pur- suant to the election procedures prescribed by the Act. Had it acted otherwise, it would have arrogat- ed to itself the statutory function of the Board, in- terfered with the fundamental right of employees to select their own representative, and thereby violat- ed Section 8(a)(l) and (2) of the Act. I, therefore, find that the Respondent's refusal to bargain with the [incumbent] Union pending the outcome of the representation proceeding was not in violation of Section 8(a)(5) and (1) of the Act. Greyhound is, of course, ambiguous concerning the precise meaning of the words "outcome of the represen- tation proceedings." It does not address the period be- ~1 DECISIONS OF NATI()NAL LABOR RELATIONS BOARD tween the time when a regional director has dismissed a representation petition and a subsequent Board decision on review. An earlier Board case, however, is inform- ative as to the employer's obligations during the hiatus between the dismissal of an outside union's representa- tion petition and the subsequent action on the petition taken by the Board on appeal. In National Carbon Divi- sion, Union Carbide and Carbon Corporation and National Carbon Company, Inc., 105 NLRB 441 (1953), modifying in relevent part 100 NLRB 689 (1952), the Board ad- dressed a situation where an outside union filed a petition on September 12, 1949, which was dismissed by the re- gional director on March 30, 1950. On April 21, 1950, the regional director's dismissal was sustained by the Board. The Board held that the employer was entitled to rely on the "pendency" of an outside union's representa- tion petition to justify a refusal to bargain with an incum- bent union. This pendency continued, in the Board's view, even after the regional director had dismissed the petition and ended only on April 21, 1950, when the Board affirmed the dismissal. Thus in this decision the Board considered the outside union's representation peti- tion to have life in a competing union situation beyond its dismissal to and until the Board had acted on the appeal from the regional director's dismissal. Further, both it and Greyhound. supra, demonstrate a risk-free course of conduct available to Respondent after the Re- gional Director's dismissal, i.e., continued suspension of recognition pending the Board's ruling on the request for review. Thus the Board has provided employers with the right and indeed obligation15 to withold or suspend rec- ognition and bargaining with an incumbent union pend- ing disposition of the representation petition of the out- side union-a resolution which under National Carbon, supra, is defined as the Board's action on the petition not an earlier regional director's dismissal. 6 C. Summary I find Kunysz and Fogel were statutory employees dis- charged because of their union activities. I have rejected Respondent's contentions that the Regional Director's representation decision provided any excuse for or miti- gation of Respondent's conduct. I specifically find that the absence of a request for or Board order staying the Regional Director's decision did not increase or allow reliance on the Regional Director's dismissal of the rep- resentation petition. Further, I find no basis in the Act, the Board's Rules and Regulations, decisional law, or the equities of this case to allow reliance on a regional director's decision at '' See also the discussion of Shea Chemnicl Corporation, 121 NLRB 1027 (1958), infra. ' Respondent also argued that,. in the interregnum following the Re- gional Director's Decision, it had to prevent what it then thought were its supervisors and agents, Kunysz and Fogel, from violating the Act by favoring the Guild at a time when the Clerks were the employees' repre- sentative. Without addressing the implicit assumptions of Respondent's argument which are discussed elsewhere, there is a significant line of Board cases holding employers are riot liable for the conduct of supervi- sors who are in the bargaining unit and whose conduct is not ratified by the employer See, e.g.. Montgomery Ward Company, Incorporated, 115 NLRB 645 (1956); Dayton Blueprint Company, Inc., 193 NLRB 1100 (1971). a time when a request for review could still have been timely filed, had been filed, or where review had been granted by the Board. This is especially true when the reliance sought would excuse the termination of employ- ees who engage in union activities. Having found a prima facie violation of the Act and further having rejected Respondent's defenses thereto, I find Respondent violated Section 8(a)(3) and (1) of the Act by terminating employees Kunysz and Fogel be- cause of their union activities. 2. The discharge of striking employees a. The prima facie case I have previously found that Respondent violated Sec- tion 8(a)(3) and (1) of the Act by discharging employees Kunysz and Fogel on January 5, 1979. From January 21 to February 1, 1979, some 59 pharmacists and pharmacy managers from both Respondent's organized end unorga- nized stores ceased work concertedly and engaged in a strike in order to protest the discharges of Kunysz and Fogel. From January 21 to February , 1979, Respond- ent fired all of the strikers because of their concerted strike. I have previously found that Respondent may not rely on the factual findings of the Regional Director's deci- sion or the delay in the subsequent issuance of the Board's decision of review to defend or excuse its ac- tions. Accordingly, I find that Respondent discharged statutory employees, both pharmacists and pharmacy managers, because they concertedly ceased working and struck to protest Respondent's unfair labor practices in discharging Kunysz and Fogel. In proving that Respond- ent has terminated employees for striking in protest of Respondent's unfair labor practices, the General Counsel has established a prima facie violation of the Act. N.L.R.B. v. United States Cold Storage Corporation, 203 F.2d 924 (5th Cir. 1953), cert. denied 346 U.S. 818; West- ern Exterminator Company v. N.L.R.B., 565 F.2d 1114 (9th Cir. 1977). b. Respondent's contract defense Respondent contends that the striking employees were terminated because they violated the no-strike language in the identical collective-bargaining agreements between the various Clerks and Respondent. Respondent correct- ly notes that a no-strike clause may cause a strike to be unprotected and allow an employer to discharge those employees who strike in violation of its provisions. Rogate Industries, Inc., 246 NLRB No. 143 (1979); Chrysler Corporation, Dodge Truck Plant, 232 NLRB 466, 474 (1977). The coverage and language of the no-strike clause, the validity of the contracts, and the applicability of the grievance and arbitration and no-strike clause to 7 Respondent makes the same arguments in defense of its termination of the striking employees that it made, supra, with respect to the dis- charges of Kunysz and Fogel For the reasons given previously I do not accept the arguments of Respondent concerning the reliance it feels could be placed on the Regional Director's decision. It is unnecessary to repeat these argunients and my analysis and rejection of them here. 822 SAV-ON DRUGS, INC. the strike of the discharged employees is therefore rele- vant to Respondent's defense. The contracts clearly do not apply to the "non-union" or unorganized stores or the employees in those stores. So, too, the contracts do not apply to those employees not covered by their terms. The relevant contracts ex- clude the classification pharmacy managers. Thus the issue of the contract's no-strike language rendering the employees' strike unprotected is a matter involving only a portion of the discharged employees. Some 16 dis- charged strikers were from nonunion stores and some 15 discharged strikers were classified as pharmacy manag- ers. These employees are not within the reach of Re- spondent's defense. The contracts contained the following language: ADJUSTMENT AND ARBITRATION A. DISPUTES OR QUESTIONS. When disputes or questions of interpretation or application arise under the terms of this Agreement, they shall be, if possible, solved by the parties to this Agreement. B. NOTICE. If the parties fail to solve such griev- ances within ten (10) days of written notice, the matter may be submitted to arbitration by either party. * * i * D. SUBMISSION. 1. Within ten (10) days following the selection of the arbitrator the parties must agree on a submission agreement which shall state the question to be de- cided by the arbitrator. 2. Should the parties fail to conclude a submis- sion agreement, the question then shall be framed by the arbitrator at the commencement of the hear- ing. E. ARBITRABILITY. The arbitrator shall also decide the question of arbitrability, should it arise. F. LIMITATIONS. The arbitrator shall not have the power to alter, change or modify this Agree- ment in any respect. The rights of the parties to make any changes, modifications or amendments to the Agreement shall be reserved to themselves only, and shall not be subject to the arbitrator's authority. G. FINAL AND BINDING. The arbitrator's deci- sion shall be final and binding on all parties hereto. J. WORK STOPPAGES. Matters subject to the procedures of this Article shall be settled and re- solved in the manner provided herein. During the term of this Agreement, there shall be no cessation or stoppage of work, lockout, picketing or boycotts, except that this limitation shall not be binding upon either party hereto, if the other party refuses to per- form any obligation under this Article or refuses or fails to abide by, accept or perform a decision or award of an arbitrator, and fails to appeal to a court of competent jurisdiction. And, as a separate article: UNION PRINCIPLES. The Employer shall not discharge or discriminate against any employee for upholding Union principles as long as such act does not constitute a violation of this agreement, and nothing herein shall be so construed as to abrogate an employee's rights under the law, including the right individually to refuse to cross a bona fide picket line established by any bona fide labor orga- nization. The principle underlying the effectiveness of a no- strike clause in prohibiting work stoppages is that the ar- bitration clause is a quid pro quo for the waiver of the right to strike. Thus, because the union or employee may take a dispute under the contract to binding arbitration, there is no need for the right to strike in support of rights cognizable under the contract. Cf. Local 174. Teamsters, Chauffeurs, Warehousem en & Helpers of Anmer- ica [Lucas Flour Co.] v. .L.R.B., 39 U.S. 95 (1962). The Board in Gary-llobart ater Corporution, 210 NLRB 742 (1974), enfd. 511 F.2d 284 (7th Cir. 1975), noted a limitation on the reach of no-strike clauses: And at least where statutory rights are involved, unless they are specifically waived, the contracting union does have the right to strike in connection with a dispute not subject to grievance-arbitration, for the no-strike clause is only as extensive as the grievance arbitration procedure. [210 NLRB at 745. The instant contractual language cannot be held to prohibit strikes concerning matters outside the grievance clause of the contract. The "Work Stoppages" clause is clearly limited to matters "subject to the procedures of this Article," i.e., matters subject to resolution by the grievance procedures. The "Union Principles" clause, therefore, does not narrow the employees' right to strike beyond the limitations in the "Work Stoppages" provi- sion. The parties stipulated that the cause of the strike was the discharge of Pharmacy Managers Kunysz and Fogel. It is also clear that the applicable contracts did not then cover pharmacy managers. I find therefore that the contract grievance procedures apply neither to the original two discharges nor to the strike itself. Accord- ingly the contract no-strike clause cannot be held to limit the rights of employees to strike in support of Kunysz and Fogel. C. K. Smith & Co.. Inc., 227 NLRB 1061 (1977). The Board has also established a second line of cases finding inapplicable no-strike clauses where the strikes are caused by unfair labor practices based upon the Court's holding in Mastro Plastic Corp., and French- American Reeds Mfg. Co., Inc. v. iN:L.R.B., 350 U.S. 270 (1956). The Board, rejecting the contention that no-strike clauses in contracts do not apply to any unfair labor practice strike, concluded "only strikes in protest against serious unfair labor practices should be held immune 8231 L DECISIO)NS OF NATI()NAI. LAIO()R RF..ATI()NS BOARD from general no-strike clauses." Arlan s Department Store of Michigan Inc., 133 NLRB 802, 807 (1961). While I find the employee strike herein to be for the reasons dis- cussed, supra, an unfaiir labor practice strike. I am unable to conclude that the discharge of two employees amongst the many here involved at many locations, meets the Board's test of "serious."' Accordingly I do not find the instant strike to be a serious unfair labor practice strike. A final question concerning the contracts is their va- lidity. All contracts in force at the time the strikers were discharged were entered into by Respondent after the filing of the representation petitions by the Guild. Ii Shea Chemical Corporation supra, the Board, overruling prior law, stated: We now hold that upon presentation of a rival or conflicting claim which raises a real question con- cernirig representation, an employer may not go so far as to bargain collectively with the incumbent [or any other] union unless and until the question con- cerning representation has been settled by the Board. [At 1029.] I have determined. supra, that the Regional Director's decision dismissing the petitions did not "settle" the question concerning representation of Respondent's phar- macy employees. Accordingly, Respondent's continued collective bargaining and the resulting contracts with the Clerks were improper at their inceplion. The Board, in its denial of reqtuest for reconsidcr: lion of its July 31, 1979, decision on review, specificelly rejected Respond- ent's and the Clerks contention thalt these postpetition contracts could bar the election direct'd by the Board in its decision oin review. The Shea Chemical remelcdy for the 8(a)(2) siolation found therein as to require em- ployer withdrawal and withholding f recognition f the incumbent union and to require the parties not to give effect to the contract or any extension, renewal, or modi- fication of it. I do not have a allegation that Respond- ent violated Section 8(a)(2) of the Act before me T'he validity of the contracts however las a direct hearing on the legality of the discharges now i ssue insofar as the language of the contracts is offered to derogate from otherwise extant statutory rights Inasmuch as I have found that the contracts. even if ~alid, did not limit employec's right' 'o strike urind!r the circumstances presented here, iand lor other difficulties present on the limited facts before nm, .'9 I do not find it i t Ih (eirrri ('iun'..l . ithiruine ill aall t lml s i I f ithe i.mlvpl.iain ill- leging vioilatiiils ,ther hal;ln the diseharge oi ti I t io phlarnmtc Illlanager and the suhsequent sinkers I hicr is no sug stlonn thlt lalr strikers wenlt lit iin strike ili ',upprrl <,f srike, s dichiarged a;rlier 1, ['he 511 '.lii( ;i.ttili tiill of rlhe cim t lis in que'sit)i wits I1n the Board's di e IMsill ill tile reprti'iitaltat ii ca;'s', llilt a; Icprisenltailll C.AIt may tak a ctisiTritdleal time 1Il process. le statute oif lilitiiimo i)r il;llr l;lr pl li' c', i, fixed He're he prl.Sillg linie fir the rprtnl- talll ila eS, till unlldl'rv l has Iar exeeded Ihe 6-1lli t h pelel t , 't .c I(h) o Ihe Act (iiiltracis. even t enltered Il a ianler ohl tl s.ili have viilatcd Se X1(a)(2) ,f thie 'ct, rllSi rl ll he1 ichallen cdil oiluslde o1 tie Isoad',, 65-111¢0llth ..I l of lirui t',, ns1 t i I hl(igt .v., /44. /,Iterfnl- liorii/ . oifttm.l i /%whnttt flrwa [ knI |I eitr I[/,L( .] ' I..R / , ) 2 L S 411 (l1rut I)e.pD c t l il l ilg.illy .re.r l ltl oll ktst lll li, lill. litlh -ll1 tracs, were en't'red into itIttS he re et chie Ir IiiC i 21 TisitItls hadt pass'dl before tle hlig 1 the lilslistant charges hich i lt tie coiltiraclit necessary to determine the validity of the contracts under the Shea Chemical doctrine. Accordingly I will riot rule on the validity of the postpetition contracts. c. Summary I have found a prima face violation of the Act by Re- spondent in discharging the strikers and I have rejected Respondent's contract defenses. Accordingly, I find Re- spondent violated Section 8(a)(3) and (1) by discharging the individuals named in Appendix 11 because they struck concertedly to protest the discharge of employees Kunysz and Fogel. lHaving found the strikers' discharges to be in violation of Section 8(a)(3) and (1) of the Act, I find it unneces- sary to deal further with the factual stipulations concern- ing purported offers to return to work and related mat- ters. The Board in its recent decision it .4ilites and Goodwill. Inc., 241 NLRB 27 (1979). enforcement denied on other grounds 612 F.2d 6 (st Cir.), has ruled that a discharged striker need no longer offer unconditionally to return to work in order to become entitled to backpay and reinstatement. Other related questions may be taken up at the compliance stage of these proceedings. N L.R. B. v. International Association of Bridge, Structural and Ornamtental Iron orkers. Local 433. 6(X) F.2d 70, 778 (9th Cir. 1979): Trident Scaiod Corporation. 244 NILRB 566 (1979). It is appropriate then to order rein- statement and backpay for all strikers commencing as of the dal( f' their discharge d. The Dohh llouwe', theorl o' the Charging Parry The uidd argues that,eve if I find that Respondent The Couild argues that, eveii if I find that Respontldent could have relied on the Regional Director's decision in firing Kunysz and ogel, i.e., that they were at the time to he considered supervisors, that the strike by the em- ployees was still protected conic,_ted activity, and that the discharges v iolated the Act. The Guild asserts that strikes by employees t protest the discharge of supervi- sors is protected in manv situations under the Dohh¥ llIuas"' line of cases. lihe Guild notes particularly the Board's decision in : '. 1' Paper. Ire.., .1 Diviion7 of /,' Mead Corporation, 211 NL.RB 657 (1974), in which a ow level supervisor as dischaiged for engaging in union activities and the Board foulid an employee strike cek- inl: the supervisor's reinstatnelnt to be protected con- c( ted activity. I decline to rule oil the "moreover theory" of the Guild inasmuch as I have found, supra, that Respondent may ot rely oil the Regional Director's decision and therefor cmployees Kunysz and Fogel were at all times eniployees and not supervisors. I have found the viola- tions as alleged on the basis of the theories advanced by the General Counsel. I need not go further. Were I to rule on the Guild's theory, I would find that it would apply only to parmacists and riot pharmacy managers is A1 dt't' liS .'.AS (itidtc prstC iIusly, ,nl) t, t1 l iiuin colltracls iar in - t'N iC k ii t' eor il ",/') Irh It, u'. In . 115 NI KItl 5 15 902). hrecremcnt denied 325 t 2d 531 ( 5th (Cir I le3) 824 SAV-ON D)RUC;S, INC. inasmuch as pharmacy managers are considered supervi- sors under the assumptions implicit in the Dobbs Ifouses theory. "2 Further, I do not accept the Guild's theory for I find a fatal variance between identifiable, direct impact on employee's job interests that I believe supervisors must have under the Dobbs Ifou.ses line of cases and rela- tionships of Kuiiysz and ogel to the striking employees herein. The record does not show that Kunysz and Fogel, separate from their efforts on behalf of the Guild, interceded on behalf of other employees. I would find that it was their role as Guild, i.e., union, supporters rather than intercessors on behalf of employees with the Employer that was the basis of employee interest in their reinstatement. This is not sufficient under my readilig of the law to raise the protections of Dobbs Houses and its progeny. See, e.g., Asia Garden Restaurant of San Fran- cisco Inc., 205 NLRB 882 (1973); Permaglass Divivion. Guardian Industries Corp., 210 NLRB 184 (1974). IV. H RI M 11 f Having found that Respondent engaged in unfair labor practices, I shall recommend that it cease aild desist therefrom and take certain affirmative action designed to effectuate the purposcs of the Act. Having found that Respondent has terminated the em- ploymeit of employees Terrance Kunysz and Jerold Fogel because of their union activities and having found that Respondent has terminated the employment of t ile employees set forth in Appendix I (omitted from publica- tion) because they engaged in a strike to protest Re- spondent's unfair lahbor practices, all of the above in io- lation of Section 8(a)(3) and (I) of the Act, I shall ordcr that Respondent offer all the above employees and each of them immediate and full reinstatement to their foi-i er positions of employment, or, if said positions no longer exist, to substantially equivalent positions, without preju- dice to any seniority or other rights and privileges to which they may have been entitled, discharging, if neces- sary any replacements hired after the date of their dis- charges. bilities and Goodwill. Inc., supra. I shall also order that Respondenit make all the employees and each of them whole for any loss of earnings they may have suffered y reasoln of the discrimination against them, to be conmputed in the mailiner described in F J U Woolworth Company, 90 NLRB1 289 (1950), together with interest calculated in acc rdance with the policy of the Hoard set forth in Florida Sieel Corporation, 231 NI RB 651 (1977); see also Isis Plumbing & eating. Co., 138 NLRB 716 (1962). Inasmuch as the discharges herein involve a substantial fraction of the professional bargaining unit, I find the nature and extent of Respondent's unfair labor practices goes to the heart of the Act. Accordingly I shall order Respondent to cease and desist flom violating the Act in any other manner lickmott oods, 242 NRB 1357 (1974). Inasmuch as the discharged employees were em- ployed at various union and nonunion facilities through- out the State, I shall require Respondent to post the no- 2t ()th r prohlem, in pl 'ing the Iher~ of lthe Guild Inc-lud tie i l, ,equence, ,-1 tith er colIc rk-hr:lrganilrng .ri1 n llt'ril'% il ffe.cl .t the itl it, f the dl.chalgcs ulnder Iht ;.istl'llipli OIrl I lil Rcpnlirdetl c1Oid1 rel 5 ,iI the Rcglornfl I)lrector' s den.lOl i tices required herein at each and every one of its Califor- nia facilities at which pharmacists and/or pharmacy man- agers are employed. Upon the foregoing findings of fact. and the entire record herein, I make the following: CONCI SIONS OF L wU 1. Respondent is an employer engaged in commerce vithin the meaning of Section 2(6) and (7) of the Act. 2. The Unions are labor oganizations, and each of them is a labor organization, within the meaning of Sec- tion 2(5) of the Act. 3. Respondent has violated Section 8(a)(3) and (1) of the Act by unlawfully discharging employees Terrance Kunysz and Jerold Fogel fr engaging in union activity on behalf of the Guild for Professionsl Pharmacists. 4. Respondent has violated Section 8(a)(3) and (1) of tile Act by unlawfully discharging the employees named in Appendix I (omitted from publication) because they concertedly struck to protest Respondent's unfair labor practices in discharging Terrance Kunysz and Jerold Fogel ifor their union activity i behalf of the Guild for l'rofessional Pharmacists. 5. Ihe ufair labor practices set forth above affect commerce 'within the meaning of Section 2(6) aid (7) of the ,Act. U pon the basis of the foregoitg flidings of fact and conclusions f las' and upon thle ltire record in this case, and pursuant to Section 1()( of tlhe Act, I hereby issue the follov, ing recolmnmendcd ()R D)R" The Respondent, Sav-On I)rugs. Inc., Anaheim. Cali- fornia., its officers, agents. succesors, and assigns, shall: 1 Cease and desist from: (t) I)ischarginiig elploy ees for engaging in union acti - its on behalf of the Guild for Professional Pharmacists. (h) I isclharging cii plo ces for conlcertedly engaging i a strike Io protest Rcspondent'sI uinfir labor practices i) discharging employees Terrancee Kunysz and Jerold Fogel for their union activities on behalf of the Guild for Professional Pharmacists. (c) In any other manner interfering with. restrainiig. or coercing employees in the exercise of the rights guar- anteed under Section 7 of the Act. 2. Take the following affirmative action which is nec- essarv to effectuate the policies of the Act: (a) Offer to the employees named below immediate and full reinstatement to their former jobs or, if such jobs are no longer available, to substaitially equivalent positions, without prejudice to their seniority or anN other rights and privileges, discharging, if necessary, any repiacements hired after the date of their unlawful dis- charges. 1In lilt tI t 'n!I no cxcepI Irn are filet l a. ro, icd I Sec IO2 4t of the Rule, an: d ReguIhtini. oI f the Nalllonal I ahor Rlaillilns Ia.lrd. the finllIng. rlclusitIMl%. ard recorillrlidcd ()rdt her .il .al] p ros itded ii S 1!2 4I ! It Rl ' titm RtRe I r.Ltlll on. h .adopted h e Ih i, lrd and hC.lli Its illlll g, Cr. lillrt1 i, ilnl. a )I rder, lllld il ob hlectllr theleto shall h dtclritdn san.tid tor nli purp-sc, 825 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Make the employees named below whole for any loss of earnings which they may have suffered by virtue of the discrimination against them by paying them an amount equal to what they would have earned from the date of discharge to the date that they are offered rein- statement. Such backpay is to be computed in the manner set forth in the section of this Decision entitled "The Remedy." spondent to ensure that said notices are not altered, de- faced, or covered by any other material. (e) Within 20 days from the date of this Order, Re- spondent shall write a letter to the Regional Director for Region 31 of the Board and tell him what Respondent has done to comply with this Order. APPENDIX III Brad Alexander Steve Andrisevic Harold Beck Monty Black Terry Bottoroff Reed Bonham Terrence Bjelajac Roger Cranwell Edwin Carli Alan De Herrera Linda Dumpfl Charles Dugas Josephine Dosal Daryl Ek David Fraunfelter Tony Felix Jerold Fogel Bruce Garcia C. J. Golondzinier, Jr. Lloyd Greg Lyle Harrison Renyaldo Hernandez Lesley Jones Morgan Jones Cary Kimula Ron Kunetsky Terrance Kunysz Edward Koriner Frank Lucas Michael Laufenberger Howard A. Lipton Frank Lucas Justin Lau Ronald Miller Christopher Martus Melvyn Masters Harvey Machoy Hildegard Miller Ron McKibben Robert Peltzman Reed Rasmussen Robert Rosen Spencer Santage Jerry Schwartz Joe Seibert John Silva Robert Small Roger Smith Bill Spahr Ronald Tibbets John Vinjie Ralph Vogel Harold Volb Paul Vesely Robert C. Wieck John Whitaker Larry Wilson Bruce Winchester Robert Wilson Bud Yuloff Yoichi Yamamoto (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, the payroll records, social security payment records, time- cards, personnel records and reports, and all of other re- cords necessary to analyze the amount of money due under the terms of this Order. (d) Post at each of its California facilities at which pharmacists and/or pharmacy managers are employed copies of the attached notice marked "Appendix III." : Copies of the said notice, on forms provided by the Re- gional Director for Region 31, after being duly signed by its authorized representative, shall be posted by it imme- diately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- 2' In he event that his Order is enforced by a Judgment of a United States Courl of Appeals, the words in the notice reading "Po'sted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the Unted States Court of Appeals Enforcing an Order of the National l.abor Relations Board" NoTICE To EMPI.OYEiES POSTED BY ORDER OE THE NATIONALi LABOR RELAI IONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has or- dered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own choice To engage in activities together for the pur- pose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. Wt wll.l Nor discharge employees because of their activities in behalf of the Guild for Profession- al Pharmacists or any other labor organization. WtF wit I Nor discharge employees because they concertedly engage in a strike to protest Sav-On Drugs, Inc.'s illegal termination of their employees Terrance Kunysz and Jerold Fogel for their union activities on behalf of the Guild for Professional Pharmacists. WE Wll.[. NOT in any other manner interfere with, restrain, or coerce our employees in the exer- ciae of the rights guaranteed them by Section 7 of the National Labor Relations Act. Wi wll.l offer the employees named below im- mediate and full reinstatement to their former jobs, or, if such jobs no longer exists, to substantially equivalent positions without prejudice to their se- niority or other rights and privilege, discharging if necesssry any replacements hired after the date of their discharge. WI Wll.L pay to employees named below the amount of their loss of earnings, with appropriate interest thereon, which resulted from our termina- tion of them. Brad Alexander Steve Andrisevic Harold Beck Monty Black Terry Bottoroff Reed Bonham Terrence Bjelajac Frank Lucas Justin Lau Ronald Miller Christopher Martus Melvyn Masters Harvey Machoy Hildegard Miller 826 SAV-ON DRUGS, INC. Roger Cranwell Edwin Carli Alan De Herrera Linda Dumpfl Charles Dugas Josephine Dosal Daryl Ek David Fraunfelter Tony Felix Jerold Fogel Bruce Garcia C. J. Golondzinier, Jr. Lloyd Greg Ron McKibben Robert Peltzman Reed Rasmussen Robert Rosen Spencer Santage Jerry Schwartz Joe Seibert John Silva Robert Small Roger Smith Bill Spahr Ronald Tibbets John Vinjie Lyle Harrison Renyaldo Hernandez Lesley Jones Morgan Jones Cary Kimula Ron Kunetsky Terrance Kunysz Edward Koriner Frank Lucas Michael Laufenberger Howard A. Lipton Ralph Vogel Harold Volb Paul Vesely Robert C. Wieck John Whitaker Larry Wilson Bruce Winchester Robert Wilson Bud Yuloff Yoichi Yamamoto SAV-ON DRUGS, INC. 827