Shears' Pharmacy, Inc.

National Labor Relations Board - Board Decisions

May 31, 1962

137 N.L.R.B. 451 (N.L.R.B. 1962)

SHEAR'S PHARMACY, IN C. 451
any labor organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any
or all such activities except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act, as amended.
WE WILL upon request, bargain collectively with Local 868, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Ind., as the exclusive representative of all employees in the unit herein found
to be appropriate, consisting of
All new and used car salesmen at the Employer's Manhasset, New
York, establishment, excluding all other employees, office clerical em-
ployees, service salesmen, parts and accessories salesmen, guards, watch-
men, and supervisors as defined in the Act.
WE WILL NOT discourage membership in Local 868, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind.,
or any other labor organization by discharging any employee or otherwise
discriminating in regard to hire or tenure of employment or any term or con-
dition of employment.
WE WILL offer to Ralph Glotzer immediate and full reinstatement to his
former or substantially equivalent position, and make him whole for any loss of
pay and commissions he may have suffered by reason of our discrimination.
MANHASSET MOTORS, 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.
Employees may communicate directly with the Board's Regional Office, 745
Fifth Avenue, New York 22, New York; Telephone Number Plaza 1-5500, if they
have any question concerning this notice or compliance with its provisions.
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 2-CB-94412. May 31, 1962
SUPPLEMENTAL DECISION AND ORDER
On August 31, 1960, the National Labor Relations Board issued a
Decision and Order in the above-entitled proceeding,' finding that
the Respondent, Shear's Pharmacy, Inc., violated Section 8(a) (3),
(2), and (1) of the Act and that the Respondent, Local 1199, violated
Section 8(b) (2) and (1) (A) of the Act, and ordering the Respond-
ents to cease and desist from such unfair labor practices and to take
certain affirmative action, as set forth therein. Thereafter, the Board
petitioned the United States Court of Appeals for enforcement of
its Order. On May 18, 1961, the Board filed in that court a motion
112S NLRB 1417.
137 NLRB No. 44.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requesting leave to withdraw its petition for enforcement in order to,
permit the Board to consider the effect, if any, of the decisions of the
United States Supreme Court in Local 357, Teamsters 2 and Local 60,
Carpenters,' upon the propriety of the Board's findings and Order
herein. No opposition having been filed thereto, on June 5, 1961,
the court granted the motion for leave to withdraw the motion for en-
forcement of the Board's Order, without prejudice.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Leedom, and Fanning].
Upon reconsideration, we hereby adopt the Intermediate Report
in this proceeding insofar as it is not inconsistent with this Supple-
mental Decision and Order.
1. In the original Decision herein, the Board, in agreement with
the Trial Examiner, found that Shear's by refusing to reinstate Mrs.
Frances Budnick, violated 8(a) (B), (2), and (1) and that Local
1199, in causing such refusal, violated Section 8(b) (2) and (1) (A)
of the Act. Relying on Local 1199's statement to Shear's that Mrs.
Budnick should not be reinstated because she was no longer a mem-
ber of the "store union," 4 the Board concluded that, for reasons not
explained in the record, Mrs. Budnick was not considered by Local
1199 to be a member in good standing and that she was refused rein-
statement because she was in disfavor with Local 1199 for reasons
other than her failure to tender periodic membership dues. The
Board further found that, even if Local 1199's refusal to clear Mrs.
Budnick was not discriminatorily motivated, the Respondents vio-
lated the Act for the following reasons : Relying on Pacific Inter-
mountain Express Company,5 the Board found that Shear's, by vest-
ing in Local 1199 unrestricted control to decide whether Frances
Budnick should be reinstated, violated 8(a) (3), (2), and (1) and
that, by implementing such delegation, thereby preventing the rein-
statement of Frances Budnick, Local 1199 violated 8(b) (2) and (1)
(A) of the Act.
On reconsideration, we reaffirm our earlier findings that the Re-
spondents Shear's and Local 1199, respectively, acted unlawfully in
refusing to reinstate Mrs. Budnick and in causing the refusal to re-
instate her. However, we make such finding solely on the basis of
the first ground stated in the earlier Decision, namely that Mrs. Bud-
2 Local 357, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America (Los Angeles -Seattle Motor Express ) v. N L R B , 365 U.S. 667.
Local 60 , United Brotherhood of Carpenters and Joiners of America , AFL-CIO, et at.
( Mechanical Handling Systems) v. N.L.R B , 365 U S. 651.
4 According to Frances Budnick's union book , she was, at all relevant times, a fully
paid-up member of Local 1199.
5 107 NLRB 837, enfd as mod , 225 F. 2d 243. Member Fanning did not find it neces-
sary, at that time, to rely upon Pacific Intermountain Express . (See footnote 5 of the
original decision , 128 NLRB at p. 1419.)
SHEAR'S PHARMACY, IN C. 453
nick was refused reinstatement because she was in disfavor with Local
1199 for reasons other than her failure to tender periodic membership
dues. We find unnecessary in these circumstances to reach any further
basis for our decision.
2. We also find, in accord with the Board's earlier decision, and in
agreement with the Trial Examiner, that the 1957 collective-
bargaining agreement between Shear's and Local 1199 was unlawful
in that it contained a union-security clause which failed to afford old
employees a 30-day grace period. In the original decision, the Board
further found that the 1957 contract between Shear's and Local 1199
was unlawful in that it contained a clause obligating Shear's to hire
employees exclusively through Local 1199, without providing the safe-
guards required by the Board's decision in Mountain Pacific.' How-
-ever, in Local 357, Teamsters, the Supreme Court held that, where
there is no specific evidence of discrimination, an exclusive hiring con-
tract is not illegal per se by reason of the absence of Mountain Pacific
safeguards. Here, the record establishes that Shear's and Local 1199
did not implement the exclusive hiring clause. Thus, Arthur Berk-
hoff, Shear's soda fountain manager, testified without contradiction
that he hired employees for the soda fountain through newspaper ad-
vertising and not through Local 1199, and that, in doing so, he en-
countered no opposition from Local 1199.1 Several employees
corroborated Berkhoff by testifying that they had applied for jobs at
Shear's as a result of newspaper advertisements. In accord with the
Supreme Court decision in Local 357, Teamsters, as the exclusive hir-
ing agreement is not invalid on any basis apart from the absence of
Mountain Pacific safeguards, and in the absence of evidence that the
exclusive hiring agreement between Shear's and Local 1199 was en-
forced in a discriminatory manner, we shall dismiss the complaint
insofar as it alleged that the Respondents maintained in effect and
enforced an unlawful hiring agreement.8
In its original decision , the Board, in view of the finding that the
Respondents had maintained in effect an unlawful hiring agreement,
ordered that the Brown-Olds reimbursement-of-dues remedy be im-
posed. As we are now dismissing the allegations of the complaint re-
lating to the exclusive hiring agreement between Shear's and Local
1199, we reverse our earlier decision and shall not order any reimburse-
ment-of-dues remedy.
3. The complaint herein also alleged that Shear's and Local 1199
maintained and enforced an agreement and understanding requiring
Shear's employees, as a condition of employment, to pay dues to Local
6 Mountatn Pacific Chapter of Associated General Contractors , Inc., et al., 119 NLRB 883.
7 Berkhoff testified that on one occasion he asked Local 1199 to provide an employee, but
that "nothing came of it."
s See Otis Elevator Company, 132 NLRB 1444; Hood-River-Neill, 135 NLRB 43
See Local 450, International Union of Operating Engineers ( Proton ), 133 NLRB 1312
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1199, including dues for the first 30 days of their employment. The
Trial Examiner found that Shear's employees "customarily were re-
quired to pay dues for the first 30 days of their employment." The
Board, in its earlier decision, found it unnecessary to reach this issue,
inasmuch as a finding on this issue would not have affected the remedy
prescribed. However, as we are not now imposing a Brown-Olds
remedy, we shall consider this allegation of the complaint on the
merits.
Contrary to the Trial Examiner, we find that Shear's and Local
1199 did not maintain in effect an arrangement requiring employees,
as a condition of employment, to pay membership dues to Local 1199,
for the first 30 days of their employment. We rely on the following :
The collective-bargaining agreement in effect between Shear's and
Local 1199 expressly granted new employees hired by Shear's 30 days
in which to join Local 1199. Upon hiring new employees, Berkhoff,
Shear's soda fountain manager, explained to them that they had to
join the union but not until the end of their 30-day probationary
period. Similarly, Mrs. Deborah Gordon, Local 1199 shop steward at
Shear's and Shear's payroll clerk, when asked, advised new employees
of the union-security requirements in the Shear's-Local 1199 contract.
Two Shear's employees testified that they had never been told by a
Local 1199 representative that they were required to pay dues for
the first 30 days of their employment and there is no evidence in the
record that any Shear's employee was told by either Shear's or by
Local 1199 that, as a condition of employment, he was required to
pay dues for the first month of employment. In finding that em-
ployees "customarily" paid dues for the first 30 days of employment,
the Trial Examiner relied on the testimony of three of Shear's em-
ployees, Mrs. Budnick, Mrs. Maniotis, and James Berkhoff, and on
the fact that the union books of these employees indicated that they
had paid dues for the first month of their employment. However,
we are not persuaded by the record that these employees believed that
they were compelled to pay dues for the first month in order to keep
their jobs. The record establishes that these employees voluntarily
agreed that Mrs. Gordon, as a convenience to them, should deduct
membership dues and initiation fees from their wages. While it is
also true that these employees paid union dues for the first month of
employment, there is no basis for finding on this record that Mrs.
Gordon deducted the first month's dues contrary to their desires.
In view of the foregoing, we believe that the General Counsel has not
established by a preponderance of the credible evidence that the Re-
spondents maintained an arrangement requiring employees of Shear's
to pay union membership dues for the first month of their employ-
ment. Accordingly, we shall dismiss this allegation of the complaint.
SHEAR'S PHARMACY, INC.
THE REMEDY
455
To remedy the Respondents' unlawful refusal to reinstate Mrs. Bud-
nick, we shall order the Respondent, Shear's, to offer her reinstatement
to her former or substantially equivalent position and we shall order
the Respondents 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 the Respondents maintained in effect an unlaw-
ful union-security clause which failed to give old employees a 30-day
grace period, we shall order them to cease and desist from giving effect
to any such 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, succes-
sors, 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 em-
ployees or by discriminating against them in any other manner in re-
gard 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 Dis-
closure Act of 1959.
(b) Performing, maintaining, or otherwise giving effect to provi-
sions of any agreement with the Respondent Union or any other labor
organization, which unlawfully conditions the hire of applicants for
employment, or the retention of employees in employment, upon mem-
bership in the Respondent Union or any other labor organization, ex-
cept 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, encouraging membership in the Respond-
ent Union or in any other labor organization, or otherwise interfering
with, restraining, or coercing employees in the exercise of rights guar-
anteed in Section 7 of the Act, except in the manner permitted 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
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal to reinstate her, in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
(c) 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.
(d) Post at its offices and those places where notices to employees
customarily are posted, copies of the notices attached hereto marked
"Appendix A." 10 Copies of said notice, to be furnished by the Re-
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.
(e) Post at the same places and under the same conditions as set
forth in (d) above, and as soon as they are forwarded by the Regional
Director, copies of the Respondent Union's notice herein marked
Appendix B.
(f) 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 forth-
with returned to the Regional Director for such posting.
(g) Notify the Regional Director for the Second Region, in writ-
ing, within 10 days from the date of this Supplemental Decision and
'Order, as to 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 ofii-
•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 Dis-
closure Act of 1959.
10 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."
SHEAR'S PHARMACY, INC. 457
(b) Performing , maintaining or otherwise giving effect to provi-
sions of any agreement with the Respondent Company, which un-
lawfully conditions the hire of applicants for employment, or the
retention of employees in employment, upon membership in the Re-
spond Union, except to the extent permitted by Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
( c) In any other manner restraining or coercing employees or
prospective employees of the Respondent Company in the exercise
of the rights guaranteed in Section 7 of the Act, 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.
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) 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." 11 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.
(d) Post at the same places and under the same conditions as set
forth in (c) above, and as soon as they are forwarded by the Regional
Director, copies of Respondent Company's notice herein marked
"Appendix A."
(e) 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.
(f) Notify the Regional Director for the Second Region, in writ-
ing, within 10 days from the date of this Supplemental Decision
and Order, what steps it has taken to comply herewith.
11 See footnote 10, supra
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent violated the Act by
entering into or maintaining an unlawful hiring arrangement and by
requiring employees as a condition of employment to pay union dues
for the first 30 days of employment.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we 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 discriminating against them in any term or
condition 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 pro-
visions in any agreement with the Retail Drug Employees' Union
Local 1199, 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 membership in the above-named labor or-
ganization or any other labor organization, except to the extent
permitted by Section 8(a) (3) of the National Labor Relations
Act, as modified by the Labor-Management Reporting and Dis-
closure 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
organization, or otherwise interfere with, restrain or coerce em-
ployees 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 modi-
fied by the Labor-Management Reporting and Disclosure Act
of 1959.
WE WILL offer to Frances Budnick immediate and full reinstate-
ment to her former or substantially equivalent position, without
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
SHEAR 'S PHARMACY, INC. 459
Union, AFL-CIO, make whole Frances Budnick for any loss of
pay she may have suffered as a result of the refusal to reinstate
her.
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.
Employees may communicate directly with the Board's Regional
'Office, 745 Fifth Avenue, New York 22, New York; Telephone Number
Plaza 1-5500, if they have any question concerning this notice or com-
pliance with its provisions.
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 Re-
lations 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 con-
dition 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 pro-
visions of any agreement with Shear's Pharmacy, Inc., which un-
lawfully conditions the hiring of applicants for employment or the
retention of employees in employment upon membership in the
Retail Drug Employees' Union, Local 1199, Retail, Wholesale and
Department Store Union, AFL-CIO, except to the extent per-
mitted 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 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 WILL notify Frances Budnick and Shear's Pharmacy, Inc.,
immediately, in writing, that we have no objection to Frances
Budnick's reinstatement.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL jointly and severally with Shear 's Pharmacy, Inc.,
make whole Frances Budnick for any loss of pay she may have
suffered as a result of the refusal to reinstate her.
RETAIL DRuG EMPLOYEES ' UNION, LOCAL
1199 , RETAIL , WHOLESALE AND DEPART-
MENT 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.
Employees may communicate directly with the Board's Regional
Office, 745 Fifth Avenue, New York 22, New York; Telephone Number
Plaza 1-5500, if they have any question concerning this notice or com-
pliance with its provisions.
Waukesha Sales & Service , Inc. and Lodge 1877 , International
Association of Machinists , AFL-CIO. Case No. 16-CA-1557.
May 31, 1962
DECISION AND ORDER
On March 18, 1962, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding , finding that the
Respondent had engaged in certain unfair labor practices , and recom-
mending that it cease and desist therefrom and take certain affirmative
action as set forth in the Intermediate Report attached hereto. The
Trial Examiner also found that the Respondent had not engaged
in certain other unfair labor practices and recommended that
those allegations of the complaint be dismissed . Thereafter the Gen-
eral Counsel and the Respondent filed gxceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three -member panel [Members Leedom, Fanning, and
Brown].
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 and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions , and recommendations
of the Trial Examiner , only to the extent consistent herewith.
1. We agree with the Trial Examiner , that for the reasons set forth
in the Intermediate Report, the Respondent has not engaged in unfair
137 NLRB No. 51.