Shear's Pharmacy, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1960

128 N.L.R.B. 1417 (N.L.R.B. 1960)

SHEAR ' S PHARMACY , INC. 1417
14 of Gregorio Fresquez, Adon Padilla, and Eloy Montoya, each of whom was again
laid off the following day.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. By discharging or laying off Victor Escarcida on December 4; Henry Trujillo,
Alex Sandoval, Cleofas Fresquez, Benny Martinez, Rudy Serna, Manuel Montoya,
and Valentin Montoya on December 7; Gregorio Fresquez, Adon Padilla, and Eloy
Montoya on December 7 and 15; Elias Montoya on December 11; and Eliseo Lucero
and Candido Jiron on December 15, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
3. By the discharges or layoffs, by interrogating employees concerning attendance
and happenings at a union meeting, by conditioning reemployment upon abandon-
ment of the Union, by suggesting the possibility of a wage increase if the men would
leave the Union, by saying that the business would be closed if the men insisted
upon a union, and by saying that employees would not be disturbed if the Union did
not bother the Respondent, the Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act
and has thereby engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Shear's Pharmacy, Inc. and Frances Budnick and Retail Drug
Employees' Union Local 1199, Retail , Wholesale and Depart-
ment Store Union , AFL-CIO, Party to the Contract
Retail Drug Employees ' Union, Local 1199, Retail , Wholesale
and Department Store Union , AFL-CIO and Frances Budnick
and Shear 's Pharmacy , Inc., Party to the Contract . Cases Nos.
2-CA-6363 and P-CB-2442. August 31, 1960
DECISION AND ORDER
On November 6, 1959, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above-entitled proceeding finding that
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent Local 1199
filed exceptions to the Intermediate Report and a brief in support
thereof and the General Counsel filed a memorandum in support of
the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
128 NLRB No. 124.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions of the Trial Examiner with the following additions and
modifications :
1. We agree with the Trial Examiner that in refusing to reinstate
Mrs. Budnick Shear's violated Section 8(a) (1), (2), and (3) of the
Act and that in causing such action Local 1199 violated Section
8(b) (1) (A) and (2) of the Act. The pertinent facts are as follows:
Shear's Pharmacy is engaged in the retail pharmacy business at Hunt-
ington Station, New York. Frances Budnick, the Charging Party,
was hired by Shear's on January 21, 1958, as a soda fountain waitress.
At that time, a collective-bargaining agreement between Shear's and
Local 1199 was in effect, covering, among other employees, soda
fountain waitresses.' In August 1958, Mrs. Budnick learned from
her physician that she would have to undergo an operation and, on
September 3,1958, she stopped working at Shear's. On September 30,
1958, Mrs. Maniotis was hired to replace Mrs. Budnick. Sometime
around November 25, 1958, Mrs. Budnick went to Shear's seeking
reinstatement to her position as waitress. Berkhoff, soda fountain
manager, after consulting with Mrs. Gordon, Local 1199's steward
at Shear's, gave Mrs. Maniotis her termination notice.' Shortly
thereafter, Mrs. Gordon told Berkhoff that "things were changed"
and that Mrs. Budnick was not entitled to reinstatement. Early in
January 1959, Mrs. Budnick received a letter from Weiner, president
of Shear's, stating that Shear's was willing to put Mrs. Budnick back
to work "provided it was agreeable to our Union." Mrs. Budnick was
not reinstated, however, and she filed the instant charge.
Local 1199 takes the position that, in instructing Shear's not to
reinstate Mrs. Budnick, it did not violate the Act. According to Local
1199, its action was based on the nondiscriminatory ground that Mrs.
Budnick had quit her job in September 1958 and under the contract
she had no right to be restored to her position as waitress. We reject
this contention. The Trial Examiner found, and the record supports
his finding, that in informing Berkhoff that Mrs. Budnick should
not be reinstated Mrs. Gordon expressly stated as the reason that
Mrs. Budnick was not a member of the "store union." 3 According to
Mrs. Budnick's union book, she was at that time a fully paidup mem-
ber of Local 1199, and it is not denied that Mrs. Budnick's dues were
current. Under these circumstances, we construe Mrs. Gordon's re-
1 The contract , which contained a union-security clause, was effective from April 8,
1957, until June 30, 1959.
2 Berkhoff 's action was based on his view that Mrs. Budnick had taken sick leave and
that, under the contract , she was entitled to reinstatement . The contract provides for
sick leave with pay for a specified period and paragraph 9 further provides that "All
employees who are sick for a longer period shall be on sick leave for such period in
excess of the aforesaid days or hours , and upon their recovery shall be returned to their
position without any loss of rights"
s Similarly , Mrs. Budnick testified that in January 1959, she asked Mrs Gordon
whether she could see the union contract , and Mrs. Gordon told her that she had no
right to see it since she was not a member of he "store union."
SHEAR'S PHARMACY, INC. 1419
mark as indicating that for reasons not explained in the record Mrs.
Budnick was no longer considered a member in good standing of
Local 1199. We find, therefore, that Mrs. Budnick was refused re-
instatement because she was in disfavor with Local 1199 for reasons
other than her failure to tender periodic membership dues; that
Shear's, in refusing to reinstate Mrs. Budnick, violated Section
8(a) (1), (2), and (3) of the Act; and that Local 1199, in causing
such refusal, violated Section 8(b) (1) (A) and (2) of the Act.
Moreover, even assuming that the refusal by Local 1199 to clear
Mrs. Budnick was not based on discriminatory grounds, we find
nonetheless that Respondents violated the Act. In Pacific Inter-
mountain Express Company ,4 the Board found that the delegation by
an employer to a union of authority to determine the seniority of
employees, in itself-and even absent evidence of discriminatory im-
plementation of the authority-violated the Act, on the ground that
such delegation inherently encourages union membership since the
standards relevant to the determination of seniority ordinarily derive
from information "peculiarly within the knowledge of the employer."
In the instant case, the question of the right of Mrs. Budnick to rein-
statement turned solely on the question whether she had quit or taken
sick leave. The facts bearing on this issue were obviously "peculiarly
within the knowledge of the employer." Yet, despite his initial de-
termination that Mrs. Budnick had taken sick leave and should be
reinstated, Berkhoff later permitted Local 1199 to override his decision,
in effect accepting the Local's determination that Mrs. Budnick had
quit and was therefore not entitled to reinstatement. We find that
Shear's action in delegating to Local 1199 a prerogative so clearly
within its competence inherently encouraged union membership,
thereby violating Section 8(a) (1), (2), and (3) of the Act. We find
further that Local 1199 violated Section 8(b) (1) (A) and (2) of the
Act by insisting on, and implementing, such delegation, thereby pre-
venting the restoration of Mrs. Budnick to her position.5
2. We also agree with the Trial Examiner that the 1957 contract
between Shear's and Local 1199 was unlawful in that (a) it contained
a union-security clause which failed to afford old employees a 30-day
grace period; (b) it contained a hiring-hall clause which failed to
'107 NLRB 837, enfd . as modified , 225 F. 2d 343 (C.A. 8). Cf. Turner Construction
Company, et al., 110 NLRB 1860, enforcement denied, 227 F. 2d 498 (CA. '6).
s Our decision in Armour and Company , 123 NLRB 1157, is not to the contrary. In
that case , the employer was held not to have violated the Act by allowing a union to
choose between two equally reasonable constructions of an ambiguous contract clause.
Unlike the situation in Pacific Intermountain Express and the instant case, the construc-
tion of an ambiguous contract clause is not a matter "peculiarly within the knowledge
of the employer ." In view of his finding above that Mrs. Budnick was denied reinstate-
ment for a discriminatory reason, Member Fanning does not find it necessary to pass
upon the applicability of Pacific Intermountain Express to this case
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conform to the standards set forth by the Board in Mountain Pacific
Chapter of the Associated General Contractors, Inc., et al.'
THE REMEDY
To remedy Respondents' unlawful refusal to reinstate Mrs. Budnick,
we shall order Respondent Shear's to offer her reinstatement to her
former or substantially equivalent position and we shall order Re-
spondents jointly and severally to make her whole for any loss of pay
she may have suffered by reason of their unlawful practices.
Having found that Respondents maintained in effect an unlawful
hiring-hall arrangement,' we shall order the usual reimbursement of
dues remedy. The Trial Examiner recommended that the reimburse-
ment order should cover all dues paid until the "abandonment" by
Respondents of their unlawful hiring practices. This language is
inappropriate, however, since the record indicates that the Respond-
ents did not actually engage in unlawful hiring practices in imple-
mentation of the unlawful hiring-hall contract, and consequently it
would be impossible for them to abandon such practices. We shall
instead cutoff the reimbursement of dues remedy on January 15, 1959,
the date on which Shear's and Local 1199 entered into a modification
agreement eliminating the unlawful hiring-hall clause from their 1957
agreement.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. Respondent, Shear's Pharmacy, Inc., its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in the Respondent Union, or in any
other labor organization of its employees, by refusing to reinstate
employees unless they have been cleared or approved by the Respond-
ent Union or by discriminating against them in any other manner in
regard to their hire or tenure of employment or any term or condi-
tion of their employment, except to the extent permitted by Section
9119 NLRB 883
7 The fact that the contract did not afford a 30-day grace period to old employees
does not, in itself, warrant applying the reimbursement of dues remedy Chun King
Sales, Inc., 126 NLRB 851; Nordberg-Selah Fruit, Inc., et al., 126 NLRB 714 . Board
Member Rodgers does not agree that the fact that the contract did not afford a 30-day
grace period to old employees , is not, by itself sufficient reason for applying a reim-
bursement remedy. See his dissent In Chum. King Sales , Inc., supra . The Trial Exami-
ner also found that Local 1199 unlawfully required employees of Shear ' s at the end of
11 month of employment to pay dues for the first month of their employment as well as
for subsequent months We do not reach this issue as the contract then in effect con-
tained an unlawful hiring clause and a finding on this issue would not affect the remedy
herein.
SHEAR'S PHARMACY, INC. 1421
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
(b) Performing, maintaining, or otherwise giving effect to pro-
visions of any agreement with the Respondent Union or any other
labor organization, which unlawfully conditions the hire of appli-
cants for employment, or the retention of employees in employment
upon clearance or approval by, or membership in, the Respondent
Union or any other labor organization, except to the extent by Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
(c) In any other manner, encouraging membership in the Re-
spondent Union or in any other labor organization, or otherwise inter-
fering with, restraining, or coercing employes in the exercise of
rights guaranteed in Section 7 of the Act, except in the manner per-
mitted by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Frances Budnick immediate and full reinstatement
to her former or substantially equivalent position, without prejudice
to the seniority or other rights and privileges previously enjoyed by
her.
(b) Jointly and severally with Respondent Union, make whole
Frances Budnick for any loss she may have suffered as the result of
the refusal to reinstate her, in the manner set forth in the section of
the Intermediate Report entitled "The Remedy."
(c) Jointly and severally with Respondent Union, reimburse to its
present and former employees the dues, fees and assessments which
these employees have paid to Respondent Union as a condition of
employment. The liability for reimbursement shall include the
period beginning 6 months prior to the filing and service of the instant
charge against it and shall extend to the date specified in the section
of this Decision and Order entitled "The Remedy."
(d) Preserve and, upon request, make available to the Board and
its agents for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to compute the amount of backpay
due under the terms of this Order.
(e) Post at its offices and those places where notices to employees
customarily are posted copies of the notice attached hereto marked
"Appendix A." 8 Copies of said notice, to be furnished by the Re-
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an
Order."
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gional Director for the Second Region, shall, after being duly signed
by representatives of the Respondent Company, be posted by it im-
mediately upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter in conspicuous places, including all
places where notices customarily are posted. Reasonable steps shall
be taken by Respondent Company to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Post at the same places and under the same conditions as set
forth in (e) above, and as soon as they are forwarded by the Regional
Director, copies of the Respondent Union's notice herein marked
"Appendix B."
(g) Mail to the Regional Director for the Second Region signed
copies of the notice attached hereto marked "Appendix A" for posting
by Respondent Union at its offices where notices to members and
other persons using its facilities are customarily posted. Copies of
said notice, to be furnished by the Regional Director, shall, after
being duly signed by representatives of the Respondent Company,
be forthwith returned to the Regional Director for such posting.
(h) Notify the Regional Director for the Second Region, in
writing, within 10 days from the date of this Decision and Order,
what steps it has taken to comply herewith.
B. Respondent, Retail Drug Employees' Union, Local 1199, Retail,
Wholesale and Department Store Union, AFL-CIO, its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause Respondent Company, its offi-
cers, agents, successors, or assigns, to discriminate against employees
or prospective employees of the Respondent Company in regard to
their hire or tenure of employment or any term or condition of their
employment, except to the extent permitted by Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
(b) Performing, maintaining, or otherwise giving effect to pro-
visions of any agreement with the Respondent Company, which un-
lawfully conditions the hire of applicants for employment or the
retention of employees in employment with any employer upon clear-
ance or approval by, or membership in, the Respondent Union, except
to the extent permitted by Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
(c) In any other manner restraining or coercing employees or pro-
spective employees of the Respondent Company in the exercise of the
rights guaranteed in Section 7 of the Act, except to the extent per-
mitted by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
SHEAR'S PHARMACY, INC. 1423
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Notify Frances Budnick and the Respondent Company im-
mediately in writing that it has no objection to Frances Budnick's
reinstatement.
(b) Jointly and severally with Respondent Company, make whole
Frances Budnick for any loss she may have suffered as the result of
the refusal to reinstate her, in the manner set forth in the section of
the Intermediate Report entitled "The Remedy."
(c) Jointly and severally with Respondent Company, reimburse
to the present and former employees of Respondent Company the
dues, fees, and assessments which these employees have paid to the
Respondent Union as a condition of employment. The liability for
reimbursement shall include the period beginning 6 months prior to
the filing and service of the amended charges and shall extend to the
date specified in the section of this Decision and Order entitled "The
Remedy."
(d) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all membership, dues, permit
and other records necessary to compute the moneys illegally exacted
from employees of the Respondent Company.
(e) Post at its offices, in conspicuous places, including all places
where notices to members are customarily posted, copies of the notice
attached hereto marked "Appendix B." 9 Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall, after
being duly signed by Respondent Union's representative, be posted
immediately upon receipt thereof and be maintained by Respondent
Union for 60 consecutive days thereafter. Reasonable steps shall be
taken by Respondent Union to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Post at the same places and under the same conditions as set
forth in (e) above, and as soon as they are forwarded by the Regional
Director, copies of Respondent Company's notice herein marked
"Appendix A."
(g) Mail to the Regional Director for the Second Region signed
copies of Appendix B for posting by Respondent Company as pro-
vided herein. Copies of said notice to be furnished by the said
Regional Director, shall, after being signed by Respondent Union's
representative, be forthwith returned to the Regional Director for
such posting.
(h) Notify the Regional Director for the Second Region, in writ-
ing, within 10 days from the date of this Decision and Order, what
steps it has taken to comply herewith.
See footnote 8.
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER JENKINS, concurring in part and dissenting in part :
Although I concur in the substantive findings of violations made
by the majority, I cannot agree that a Brown-Olds 10 reimbursement
remedy is warranted in the factual context of this case.
It is clear from the facts adduced at the hearing that the provisions
in the 1957 contract between the parties, found unlawful by the Trial
Examiner and the Board, were nonetheless at no time enforced. I
deem the latter fact significant in relation to the fashioning of an
appropriate remedy for the unfair labor practices which occurred.
While I do not question the authority of the Board to impose the re-
imbursement remedy in circumstances which warrant it, I do question
the desirability of applying this form of remedy on a mechanical basis
without the use of a factual frame of reference as a predicate for its
imposition. I am, of course, fully mindful of the authority which the
Supreme Court acknowledged the Board possesses in the area of de-
termining remedial provisions, as made clear in the Virginia Electric
and Power Company case (319 U.S. 533, at pages 539-540). The Su-
preme Court, in adverting to the Board's authority, stated that the
Board "has wide discretion in ordering affirmative action," and in the
context of that case commented that the Board "in the exercise of its
informed discretion has expressly determined that reimbursement in
full of the checked-off dues is necessary to effectuate the policies of
the Act." It continued by stating that "We give considerable weight
to that administrative determination. It should stand unless it can
be shown that the order is a patent attempt to achieve ends other
than those which can fairly be said to effectuate the policies of the
Act." I take the Court's use of the term "informed discretion" to
be more than a casual reference, but rather an indication that the
Board's discretion was to be employed in the context of the factual
situation giving rise to the unfair labor practice findings. In other
words, I construe it as an admonition that in fashioning a remedial
provision, it is presupposed that the prescribed remedy will fit the
violation, or, to use a commonplace expression, that "the punishment
will fit the crime."
Where, as here, it is apparent-and indeed, my colleagues do not
dispute this-the unlawful provisions of the 1957 contract were not
enforced and the parties to the contract in fact thereafter entered
into a stipulation to delete these provisions, it is my conviction that
an appropriate predicate for a reimbursement order does not exist.
As I view this situation, there is no causal relationship, which I re-
gard as a sine qua non, between the unfair labor practices and the
moneys exacted. Nor is this the type of contract which is of such a
nature that there must necessarily be a causal relationship between
10J S. Brown-E. F. Olds Plumbing & Heating Corpoi ation, 115 NLRB 594.
SHEAR'S PHARMACY, INC. 1425
the two. The fact that the contract was not enforced, in my judg-
ment, destroys this vital and necessary element.
I am aware of the fact that I have in the past joined in decisions of
the Board which may be considered inconsistent with the views I am
expressing here. But I feel that in this important area of admini-
strative labor law, a reevaluation of past decisions is always in order.
When a rule, at first grounded upon sound considerations, and as I
have already indicated, valid doctrine wholly consonant with Supreme
Court acknowledgement of Board authority, lapses subsequently into
a mechanistic application, the time has come to call attention to the
deterioration of policy. I take the admonition of the Court to exer-
cise "informed discretion" seriously, and I believe that the formula
I have suggested based upon causal relationship to be a desirable one
in assuring that the wide discretion the Board concededly possesses
should also be an informed discretion. Only by a careful examination
of the facts of each case and by a determination from those facts that
a reimbursement remedy is warranted can the Board, I submit, carry
out what is expected of it.
It is for these reasons that I feel constrained not to apply the
Brown-Olds reimbursement remedy in this case.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we notify you that :
WE WILL NOT encourage membership in the Retail Drug Em-
ployees' Union, Local 1199, Retail, Wholesale and Department
Store Union, AFL-CIO, or in any other labor organization of
our employees, by refusing to reinstate employees unless they
have been cleared or approved by the above-named labor organi-
zation or by discriminating against them in any term or condi-
tion of their employment, except to the extent permitted by
Section 8(a) (3) of the National Labor Relations Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT perform, maintain or otherwise give effect to
provisions in any agreement with the Retail Drug Employees'
Union Local 1199, Retail, Wholesale and Department Store Union,
AFL-CIO, or any other labor organization, which unlawfully
conditions the hire of applicants for employment, or the retention
of employees in employment upon clearance or approval by, or
membership in, the above-named labor organization or any other
labor organization, except to the extent permitted by Section
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a) (3) of the National Labor Relations Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT in any other manner encourage membership in the
Retail Drug Employees' Union, Local 1199, Retail, Wholesale and
Department Store Union, AFL-CIO, or in any other labor organi-
zation or otherwise interfere with, restrain, or coerce employees
in the exercise of their rights guaranteed in Section 7 of the
National Labor Relations Act, except in a manner permitted by
Section 8(a) (3) of the National Labor Relations Act as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer to Frances Budnick immediate and full rein-
statement to her former or substantially equivalent position, with-
out prejudice to the seniority or other rights or privileges
previously enjoyed by her.
WE WILL jointly and severally with the Retail Drug Employees'
Union, Local 1199, Retail, Wholesale and Department Store Un-
ion, AFL-CIO, make whole Frances Budnick for any loss she
may have suffered as a result of the refusal to reinstate her.
WE WILL jointly and severally with Retail Drug Employees'
Union, Local 1199, Retail, Wholesale and Department Store
Union, AFL-CIO, reimburse to our present and former employees
the dues, fees, and assessments which these employees have paid
to the above-named labor organization as a condition of employ-
ment. The liability for reimbursement shall include the period
beginning July 29, 1958, and shall extend to all moneys thereafter
collected until January 15, 1959.
SHEAR'S PHARMACY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we notify you that :
WE WILL NOT cause or attempt to cause Shear's Pharmacy, Inc.,
its officers, agents, successors, or assigns, to discriminate against
employees or prospective employees of Shear's Pharmacy, Inc.,
in regard to their hire or tenure of employment or any term or
condition of their employment except to the extent permitted by
the Section 8(a) (3) of the National Labor Relations Act, as
1*
SHEAR'S PHARMACY, INC. 1427
modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL NOT perform, maintain, or otherwise give effect to pro-
visions of any agreement with Shear's Pharmacy, Inc., which
unlawfully conditions the hiring of applicants for employment
or the retention of employees in employment with any employer
upon clearance or approval by, or membership in, the Retail Drug
Employees' Union, Local 1199, Retail, Wholesale and Department
Store Union, AFL-CIO, except to the extent permitted by Sec-
tion 8(a) (3) of the National Labor Relations Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT in any other manner restrain or coerce employees
or prospective employees of Shear's Pharmacy, Inc. in the exer-
cise of their rights guaranteed in Section 7 of the National Labor
Relations Act, except to the extent permitted by Section 8 (a) (3)
of the National Labor Relations Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE wrr.L notify Frances Budnick and Shear's Pharmacy, Inc.,
immediately, in writing, that we have no objection to Frances
Budnick's reinstatement.
WE WILL jointly and severally with Shear's Pharmacy, Inc.
make whole Frances Budnick for any loss she may have suffered
as a result of the refusal to reinstate her.
WE WILL jointly and severally with Shear's Pharmacy, Inc.
reimburse to present and former employees of Shear's Pharmacy,
Inc., the dues, feeds, and assessments that these employees have
paid to us as a condition of employment. The liability for reim-
bursement shall include the period beginning with July 23, 1958,
and shall extend to all moneys thereafter collected until January
15,1959.
RETAIL DRUG EMPLOYEES' UNION, LOCAL 1199, RETAIL,
WHOLESALE AND DEPARTMENT STORE UNION, AFL-
CIO,
Labor Organization.
Dated---------------- By--------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act, as
amended, 61 Stat. 136; 28 U.S.C.A. Sec. 151 et seq., herein called the Act.
On the basis of a charge filed on December 29, 1958, and an amended charge
filed on January 22, 1959, in Case No. 2-CB-2442, and a charge filed on January 27,
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1959, in Case No. 2-CA-6363, the General Counsel of the National Labor Rela-
tions Board, on behalf of the Board, by the Regional Director for the Second
Region, on April 30, 1959, issued an order consolidating cases, complaint, and
notice of hearing.
The complaint sets forth that at all tines since on or about July 1958, and more
particularly since the date 6 months prier to the service and filing of the charges
and amended charge above mentioned, Shear's Pharmacy, Inc. (hereinafter some-
times called Shear's or the Company) and Retail Drug Employees' Union, Local
1199, Retail, Wholesale and Department Store Union, AFL-CIO (hereinafter
sometimes called the Union or Local 1199) have maintained in effect and enforced
a collective-bargaining agreement, effective since March 20, 1957, relating to hire
and terms and condition of employment of the Company's employees at its store
at Huntington Station, New York. The agreement, it is averred, contains inter alia
a provision which requires membership by the Company's employees in Local 1199
as a condition of continued employment with the Company, such provision not
complying with the requirements of Section 8(a)(3) of the Act in that no 30-day
grace period for joining the Union is allowed to employees who were employed by
the Company on the date of the execution of the agreement; that the said agreement
contains inter alia exclusive referral provisions which require that the Company
shall hire employees exclusively through the Union except when the Union does
not furnish such employees within 48 hours after being requested to do so; that the
said agreement fails to incorporate, and the Respondent Company and Union have
failed to put into effect, standards or criteria for preference in referral, or explicit
provisions respecting the nondiscriminatory basis of selection of applicants for
referral, or the Company's right to reject applicants referred pursuant to the agree-
ment, or the posting of notices containing all provisions relating to the functioning
of the exclusive referral arrangement. The complaint alleges further that at all
times since 6 months prior to the service of the charges above mentioned, the
Company and the Union have maintained in force and effect an agreement, arrange-
ment, practice, and understanding which required and requires employees of the
Company, as a condition of continued employment to pay dues to the Union for
all periods of employment, including the first 30 days thereof; that during such times
the Company and the Union and each of them have maintained in effect and enforced
an agreement, arrangement, practice, and understanding whereby the Union was
delegated authority to effect the discharge of employees and was delegated control
over the retention of employment by employees; that at all times since prior to or
on or about July 2, 1958, the Respondent and each of them have required the
employees of the Company to pay to the Union dues, initiation fees, assessments,
and fines, while maintaining and enforcing the collective-bargaining agreement
above mentioned, and the agreement, arrangement, practice, and understanding
above mentioned and that the employees of the Company have so paid such dues,
initiation fees, assessments, and fines.
It further is alleged in the complaint that on or about November 25, 1958, the
Respondent Company refused to reinstate from sick leave, and discharged and there-
after continued to refuse to reinstate one Frances Budnick, employed by the Com-
pany at its Huntington Station store, because this employee did not have clearance
or consent from the Union for employment and because the Union requested and
demanded such action; and since on or about the last date above mentioned the
Union requested and demanded that the Company refuse to reinstate from sick
leave and that it discharge and thereafter continued to refuse to reinstate the said
Frances Budnick because she had not obtained clearance or consent from the Union.
By the acts set forth in the complaint, above summarized, the Company is alleged
to have violated Section 8(a)(1), (2), and (3) of the Act; and the Union is alleged
to have violated Section 8(b) (1) (A) and (2) of the Act.
Each Respondent filed timely answer to the complaint, effectively denying viola-
tions of the Act.
Pursuant to the notice of hearing, this case came on to be heard before the duly
designated Trial Examiner at New York, New York, on September 8, 1959. The
hearing was adjourned on that day to September 11, 1959, testimony being taken
on that day and on September 15, 16, and 17, the hearing being closed on the latter
date. At the hearing each party was represented by counsel, and participated fully
therein.
Upon the entire record in this case, from his observation of the witnesses, and
upon careful consideration, the Trial Examiner makes the following:
I
SHEAR'S PHARMACY, INC. 1429
FINDINGS OF FACT
1. THE BUSINESS OF SHEAR'S PHARMACY, INC.
At all times material hereto the Respondent, Shear's Pharmacy, Inc., has main-
tained its principal office and retail store at 1570 New York Avenue, in the Town
of Huntington Station, State of New York, and is now and has been continuously
engaged at said retail store and place of business in the sale and distribution of
drugs, accessories, stationery, soda fountain products, and related products. During
the year 1958, this Respondent sold goods valued at in excess of $500,000 at its said
retail store; and during the same year purchased goods valued at in excess of $10,000
from Thomas & James, Inc., a supplier located in Brooklyn, New York, of which at
least goods valued at $2,500 were received by Thomas & James from suppliers
located in States other than the State of New York.
This Respondent is, and has at all times material hereto, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
Retail Drug Employees ' Union, Local 1199, Retail , Wholesale and Department
Store Union , AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
The Contract
On March 20, 1957, the Union and the Company entered into a collective-
bargaining agreement to commence April 8, 1957, and to run until June 30, 1959.
This contract provided in part:
FIRST: (A) The Employer recognizes the Union as the sole and exclusive
representative of all his employees in respect to rates of pay, wages, hours and
all other conditions of employment.
(B) The Employer agrees to employ only members of the Union in good
standing. Any employee designated by the Union as not in good standing shall
be immediately discharged.
Hiring
SECOND : The Employer agrees to hire all employees through the office of
the Union . The Union agrees to supply the Employer with competent em-
ployees within forty-eight (48) hours after a request therefor . In the event
that the Union shall fail to supply the Employer with competent employees
within forty-eight ( 48) hours after a request therefor , the Employer shall have
the right to procure in any other way the help needed , provided however that
if the Union has been advised of vacancies whenever they occur and has been
unable to supply competent eiployees to fill such vacancies, employees pro-
cured by the Employer shall become members of the Union within thirty (30)
days from the commencement of their employment.
On January 15, 1959, the Union and the Company modified by written agreement
the provisions of Article First and Second of the 1957-59 agreement, above
quoted , and as follows:
1. Article "FIRST" subdivision (B) of the aforesaid agreement is hereby
modified and, as so modified , made a part of this agreement and shall read
as follows:
It shall be a condition of employment that all employees of the Em-
ployer covered by this agreement who are members of the Union in good
standing on the effective date of this agreement shall remain members in
good standing , and those who are not members on the effective date of
this agreement shall, on the thirtieth day following the effective date of
this agreement , become and remain members in good standing in the
Union.
It shall also be a condition of employment that all employees covered
by this agreement and hired on or after its effective date shall, on the
3 See Carolina Supplies and Cement Co , 122 NLRB 88; Siemons Mailing Service, 122
NLRB 81.
577684-61-vol 128-91
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thirtieth day following the beginning of such employment, become and
remain members in good standing in the Union.
2. Article "SECOND" of the aforesaid agreement is hereby modified and as
so modified made a part of this agreement, and shall read as follows:
The Employer agrees to hire all its employees through the union hiring
hall. It is understood and agreed, however, that the union hiring hall
shall be operated by the Union on a non-discriminatory basis. Referrals
by the Union shall not be affected by union membership, by-laws, rules,
regulations, constitutional provisions or any other aspects or obligations
of union membership, policies or requirements.
It is further understood and agreed that any job applicant referred by
the Union through its union hiring hall may be rejected by the Employer.
Both the Union and the Employer agree that each of them will post
notices in places where notices to employees and applicants for employ-
ment are customarily posted in their respective establishments of the pro-
visions relating to the functioning of the within hiring arrangement and
the safeguards relating thereto.2
Payment of Initiation Fees and Dues
Local 1199 has approximately 6,000 members, employed in some 2,000 drug
stores in the Metropolitan New York area. In none of the collective-bargaining
agreements covering the employees in these stores, including Shear's, is there a
provision for deduction or checkoff of union initiation fees or dues. Members
customarily pay their initiation fees and dues directly to the Union at its office.
Deborah Gordon, employed as bookkeeper by Shear's for approximately 12 years,
interviews potential new employees of the drugstore proper and if satisfied they are
competent refers a prospective new employee to the president or the other managing
owner of the Company, either one of whom may hire on a probationary basis or for
permanent work or may reject the applicant. Arthur Berkhoff, manager of the soda
fountain, hires new employees for work there. Under the collective-agreement
between the Union and the Company new employees are allowed 30 days in which
to become members of the Union, after which they must join the Union in order to
become a permanent employee of the Company, either as a drugstore employee or
as a soda fountain employee.
At the time they are hired, new employees have explained to them the require-
ments of the union agreement with respect to permanent employment and union
membership after the first 30 days of employment.
9 A written agreement effective from July 1, 1959, up to and including September 30,
1956 between Local 1199 and Nassau-Suffolk Pharmaceutical Society, Inc, and the indi-
vidual members of the Society, including Shear's Pharmacy, Inc., provides in part:
HIRING
FOURTH : Each Employer agrees that in the event he requires new or additional
employees, he will hire such employees through the Employment Office of the Union
In the event that the Union Employment Office is unable to supply employees
satisfactory to the Employer within forty-eight (48) hours after a request therefor,
the Employer shall be free to hire the employees needed in the open market In
such event the Employer shall promptly notify the Union of such hiring
The Employment Office shall be operated by the Union on a non-discriminatory
basis and referrals by the Union Employment Office shall not be based on or in any
way affected by Union membership, by-laws, rules, regulations, constitutional provi-
sions or any other aspects or obligations of Union membership, policies or
requirements.
Selection of applicants for referrals to jobs shall be on a non-discriminatory basis
as hereinabove set forth in conformance with the National Labor Relations Act as
amended. In making such selection the Union Employment Office may, in view of
the nature and special characteristics and requirements of the retail drug industry,
give consideration to matters such as, but not limited to, competence , experience,
reputation for good character, honestly and integrity, reliability and language
requirements.
The Employer shall retain the right to reject without discrimination any job
applicant referred by the Union Employment Office.
The parties hereto agree that each of them will post notices of the provisions
relating to the functioning of the within hiring arrangements and safeguards relat-
ing thereto in places where Notices to employees and applicants for employment are
customarily posted in their respective establishments.
SHEAR'S PHARMACY, INC. 1431
After June 2, 1957, Mrs. Gordon , who is also shop steward for Local 1199 at
the store , received written authorization from some 62 employees over . a period of
time from the latter date to the time of the hearing herein , for deduction of dues and
initiation fees from certain individual employees . At the time of the hearing there
were some 25 employees at the store , 16 such employees having voluntarily au-
thorized Mrs. Gordon to withhold dues and remit the same to the Union , which she
did by her personal check. The other seven or eight employees pay their dues
directly to the Union at its office.
In no case of new employment are union dues or initiation fees paid until after
the first 30 days of employment . After that period has elapsed , however, the em-
ployee is advised of his obligation to pay the initiation fee and dues for 2 months-
the dues payments being for the first 30 days of the first month of employment and
dues in advance for the following month . Frances Budnick, employed January 21,
1958 , James Berkhoff, hired May 30, 1958, and Josephine Maniotis , hired Septem-
ber 30 , 1958, were three employees who authorized Mrs. Budnick to withhold their
initiation fees and dues. On July 16, 1958, Mrs. Gordon withheld $10 from the
wages of Berkhoff, and the entries in his dues book show that $5 of this amount
were for dues for the months of June and July and $5 was for a so-called part-time
initiation fee. Thereafter Mrs. Gordon withheld $2 . 50 per month dues for him
for each month between August 1958 and September 1959. Mrs. Maniotis' dues
book shows first dues and initiation payments on December 17, 1958, in the amount
of $22.50, that amount representing dues payments in the amount of $2.50 per month
for October , November , December , and the initiation fees. On March 17, 1958,
Mrs. Budnick was credited with a total payment of $22 which included $ 15 initiation
fee and dues payments and 3 months ' dues including dues for the month of January
1958. Thereafter Mrs. Gordon deducted from Mrs. Budnick's wages monthly dues
for April through September inclusive , 1958. Mrs. Budnick left the employ of
the Company or took sick leave on August 25. Thereafter her dues book shows
monthly dues paid for November and December 1958. Mary Fonda, employed at
the soda fountain in late July 1958, was not retained in the employ of the Company
after the expiration of the 30-day probationary period, although she did work
I or 2 days a week thereafter . She testified that at the time she was employed
nothing was said to her about the payment of intitiation dues or initiation fees.
Margaret Bishop , employed September 1958, also was let go after her 30-day trial
or probationary period. At the time she was employed Mrs. Gordon informed her
that after 30 days she would be required to join the Union ; she paid no dues or
initiation fees during the time of her employment . Another witness , 13euefly
7 oll'er, employed by Shear's Pharmacy for approximately 2 years at tie time
of the hearing herein, had previously been a member of the Union . For some 12
years he paid dues to the Union by his check mailed to the union headquarters.
Another witness , Harry Elkin , employed by Shear's for approximately 3 years,
testified that he pays his dues to the Union by check.
The facts disclosed show that new employees customarily were required to pay
dues for the first 30 days of their employment . They may or may not have been
told by Mrs . Gordon that they were required to become members of the Union
for the first month after they had been put on permanent status-the record is not
completely clear in this respect. In the cases of Budnick , Berkhoff , and Maniotis
it is apparent that they were under the impression at least that they were required
to pay the first month 's dues. The testimony of Mrs. Maniotis exemplifies an under-
standing or belief on the part of the employees that payment of the initiation fee and
the dues for the first month must be paid if the employee desired employment after
the probationary period. The Trial Examiner so finds.
The exclusive hiring-hall arrangement set forth in writing in the collective agree-
ment of March 20, 1957, is illegal on its face . The amendment of January 15,
1959, came too late to cure the inherent violation of the Act .3 The hiring-hall
arrangement set forth in the contract between the Union and the Company is
clearly illegal under the decision of the Board in Mountain Pacific Chapter of the
Associated General Contractors , Inc., et al., 119 NLRB 883. In that case , as here,
the employers and union involved had entered into an arrangement under which
union clearance of employees was made a prerequisite to employment . An exclusive
hiring system of this kind was then determined by the Board to constitute "apart
from all other evidence in the case " ( 119 NLRB at 894 ), unlawful encouragement
3 As noted above the original charge in Case No. 2-CB-2442 was filed December '29,
1958 , and the charge in Case No. 2-CA-6363 was filed January 27, 1959. The violations
alleged in the complaint fell within the 6-month limitation period contained in Section
10(b) of the Act.
1432 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
of union membership in violation of Section 8(a)(3) and (1) and 8(b)(2) and
(1) (A) of the Act.4
The rationale set forth in Mountain Pacific clearly shows that by entering into
the agreement that the company obtain its employees through the union, by this
conduct alone Local 1199 violated Section 8(b)(1)(A) and (2). Also implicit
in that case is the principle that an employer engages in discrimination which
encourages union membership, within the meaning of Section 8(a)(3), by entering
into a bare exclusive hiring arrangement-an arrangement which binds the employer
to hire only persons referred by the union and prohibits him from hiring persons
not referred by the union. The Board holds that such a provision is illegal on its
face, without regard to the practices under it, because first, by its terms it causes
the employer to discriminate in hiring between employees from the union hall and
those from outside; second, this discrimination encourages union membership, be-
cause of the character and history of exclusive hiring arrangements. This case
stands for the proposition that a union which is a party to such an agreement vio-
lates Section 8(b)(1)(A) and (2); the position of the Board is sustained by uni-
form judicial authority that a union violates these provisions when it enters into
an agreement which on its face enables the union to cause the employer to violate
Section 8(a)(3). N.L.R.B. v. Gottfried Baking Co., Inc., et al., 210 F. 2d 772,
777-780, 782 (C.A. 2); Eichleay Corporation v. NL.R.B., 206 F. 2d 799, 803-804
(C.A. 3); Leo Katz et al., d/b/a Lee's Department Store v. N.L.R.B., 196 F. 2d
411, 415 (C.A. 9).
Even though the record herein shows that Berkhoff was accustomed to hire new
employees through the medium of newspaper advertising or other means than
calling the union office, and although it appears that only once was the Union re-
quested to furnish a new employee (that being in the case of a possible replacement
for Mrs. Budnick), it is apparent from the whole context of this case that the
Union and the Company were and are in violation of those sections of the Act
above noted.
The Case of Frances Budnick
The complaint alleges, and the proof herein sustains these findings that: on or
about November 25, 1958, the Company refused to reinstate from sick leave and
discharged, and continued to refuse to reinstate, Frances Budnick because she did
not have clearance or consent from the Union for reinstatement; and the Union
requested and demanded such action; the Company refused to reinstate her and
discharged her because she had not obtained clearance or consent from the Union
for reinstatement or new employment.
Paragraph "NINTH" of the collective-agreement between the Union and the
Company provides in part that:
All employees who are sick for a longer period shall be on sick leave without
pay for such period in excess of the aforesaid days or hours, and upon their
recovery shall be returned to their positions without loss of any rights.
Mrs. Budnick was hired by Arthur H. Berkhoff, the soda fountain manager, on
January 21, 1958, and, as above noted was accepted for permanent employment
and paid her initiation fees and 2 months' dues on March 17, 1958, and thereafter
paid monthly dues through the month of September and for November and Decem-
ber 1958 Sometime prior to August 25, 1958, Mrs. Budnick informed Mrs. Gordon,
the bookkeeper and shop steward for Local 1199, that she anticipated having to
undergo an operation and therefore was planning to leave her employment for that
purpose. She did leave on August 25, and signed the payroll showing payment to
her in full of all wages due her. In late November she spoke to Mrs. Gordon and
told the latter that she was able and wanted to return to work, and was told that
her position had been filled. Mrs. Budnick then communicated by telephone with
Harry Epstein, union division director for the Long Island area, at union head-
quarters and told him that she had requested permission to return to work. Epstein
arranged to meet with her, Mrs. Gordon, and Berkhoff at the store and a meeting
was held during the first week in December. At that meeting Mrs Budnick asserted
her right to the job and denied that she had quit her job when she left on April 25.
Epstein was there to try to determine the facts and the equities of the case.
4 The Board added in its opinion in Mountain Pacific, however, that the parties to such
an arrangement could neutralize its improper effect on employees , and thereby avoid
illegality under the Act by writing into their agreement designated safeguards against
union favoritism and posting for employees ' observation the provisions relating to hiring
119 NLRB at 896-897 As remarked above, the attempted designation of safeguards, in-
6ofar as the issues in this case are concerned , came too late Statements of the General
Counsel , 43 LRR14 40 ; 43 LRRDI 63, 66.
SHEAR 'S PHARMACY, INC. 1433
Mary Fonda had been hired as her replacement in July 1958 but was released at
the end of her probationary period as was Margaret Bishop who was hired after
Mrs. Fonda was released . Mrs. Josephine Maniotis was working in Mrs. Budnick's
prior job at tht time Mrs. Budnick applied for reinstatement . There is some conflict
of testimony as to what Mrs. Budnick told Mrs. Gordon and Berkhoff at the time
just before she left her job in August . Mrs. Gordon said that Mrs. Budnick had
stated definitely that she was quitting her job and that she hoped to get other
employment . Berkhoff first was under the impression that Mrs. Budnick had told
him she was either leaving or quitting her job and on that basis he went over her
head to arrange for a permanent replacement . Berkhoff testified concerning Mrs.
Budnick's advice to him:
She told me she was taking a leave of absence in Mrs. Gordon 's absence. She
sat at the fountain and let it be known in front of another girl there, and it
was very definite that she was taking a leave of absence , or that was the way
she was leaving the store . She did tell me that.
She let me know definitely that she was taking a leave of absence . This was a
definite [part of] the conversation . There was a little argument , as a matter of
fact, over it. She seemed to think that I thought otherwise . I hadn't been
informed , so she was letting me know at that time what course she was taking.
On or about November 25, Berkhoff had decided to give Mrs . Maniotis a 10-day
notice and to obtain a successor in the job; he spoke to Mrs . Gordon who agreed that
Mrs. Budnick could return to work. Mrs . Maniotis was given a 10-day notice on
the following day and shortly thereafter Mrs. Gordon told him that "things were
changed, that I couldn't take Mrs. Budnick back and that I would have to keep
Mrs. Maniotis ." Berkhoff said that at that time Mrs. Gordon advised him that
Mrs. Budnick was not a member of the store union "anymore."
After the conversation held during the first week in December at which Epstein
was present , Epstein and Mrs. Gordon called at Mrs . Budnick's home and at that
time there was some discussion as to whether or not the right of Mrs. Budnick to
the job as against Mrs. Maniotis should not be arbitrated . No conclusion was
reached in this respect ; in any event , Mrs. Budnick shortly thereafter was notified
that she would not be returned to her work.
Apparently there was some dispute between Mrs . Gordon and Mrs. Budnick
concerning whether or not Mrs. Budnick was entitled to certain welfare payments
which had been paid to her during her absence from the employ of the Company
after August 25.5
On the basis of statements made by Mrs. Gordon and Berkhoff, it clearly appears
that Mrs. Budnick was refused reinstatement to her job because she could not obtain
clearance from the Union and that the Company acquiesced to the Union 's demand
and refused her reinstatement or reemployment . The Trial Examiner so finds.
Concluding Findings
The Company has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (1), (2 ), and (3 ) of the Act ; and the Union has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A)
and (2 ) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Union and the Respondent Company set forth
in section III, above , occurring in connection with the operations of the Company
as described in section I, above , have a close , intimate, and substantial relation to
trade , traffic , and commerce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free flow thereof.
V. THE REMEDY
In order to remedy the unfair labor practices as found the Trial Examiner shall
recommend an order requiring the Respondents to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of the Act. It has
been found that the Respondents unlawfully discriminated against employee Frances
3 The Trial Examiner makes no finding with respect to the merits of the dispute as
to who was entitled to the job as between Mrs Budnick and Mrs Maniotis , nor does he
consider the dispute between Mrs Gordon and Budnick concerning welfare payments
material to any of the issues hereto.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Budnick. It therefore shall be recommended that the Respondent Company reinstate
the said Frances Budnick to her former or substantially equivalent position without
prejudice to her seniority or other rights and privileges and that the Respondent
Union and the Respondent Company jointly and severally make whole the said
Frances Budnick for any loss of pay she may have suffered as a result of the dis-
crimination against her. The amount of backpay will be computed in accordance
with the Board's usual formula. F. W. Woolworth Company, 90 NLRB 289; Crossett
Lumber Company, 8 NLRB 440, 497-498. The Respondent Union shall also notify
the Respondent Company that it has no objection to the employment of Frances
Budnick or the employment of 'any other person without referral from or approval
of the Respondent Union.
Having found that the Respondent Union is party to an illegal closed-shop hiring
arrangement with the Respondent Company and that by enforcing or maintaining
in effect the closed-shop conditions of employment contained in the written agree-
ment between the Respondent Union and the Respondent Company, while Respond-
ents have inevitably coerced employees to pay the dues, fees, and assessments neces-
sary to achieve and retain membership in the Respondent Union, it shall be recom-
mended that in order to expunge the coercive effect of these illegal exactions, and
adequately to remedy the unfair labor practices found, the Respondent Union and
Respondent Company be required to ,reimburse the employees of the Respondent
Company and any other employer within the territorial jurisdiction of the Respond-
ent Union for any dues, fees, assessments, permit fees, or other moneys that are
unlawfully exacted from them as a condition of obtaining or retaining employment,
such reimbursement to be made jointly and severally by the Respondents. The
liability for reimbursement shall include the period beginning 6 months prior to the
filing and service of the original charges against the Respondent Union and the
Respondent Company, respectively, and shall extend to all such moneys thereafter
collected until the abandonment by the Respondent Union and the Respondent
Company of the unlawful hiring practice.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Retail Drug Employees Union, Local 1199, Retail, Wholesale and Department
Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
2. By maintaining in effect an unlawful union-security agreement between them,
the Respondent Union and the Respondent Company have engaged in and are
engaging in unfair labor practices within the meaning of the Act. The Respondent
Union has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(b) (1) (A) and (2) of the Act; the Respondent Company has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(1),
(2),and (3) of the Act.
3. The activities of the Respondent Union, above described, occurring in con-
nection with the operation of the business of the Respondent Company, as set forth
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce and constitute unfair labor
practices as noted in paragraph 2, above.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
S. B. Thomas, Inc. and Ethel G. Fitzpatrick and Jacqueline H.
Hagner. Cases Nos. 2-CA-6387 and 2-CA-6388. August 31, 1960
DECISION AND ORDER
On April 29, 1960, Trial Examiner James T. Rasbury issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
128 NLRB No. 134.