Skaggs Drug Centers, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1972

197 N.L.R.B. 1240 (N.L.R.B. 1972)

1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Skaggs Drug Centers , Inc. and Retail Clerks Union
Local # 99, AFL-CIO, Pharmacist Division.
Cases 28-CA-2074 and 28-RC-1990
June 30, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 16, 1971, Trial Examiner Maurice Alexan-
dre issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in certain
unfair labor practices within the meaning of the
National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial
Examiner further found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that such
allegations be dismissed. In addition, the Trial
Examiner found merit in certain objections to
conduct affecting the results of the election in Case
28-RC-1990 and recommended that the election be
set aside. Thereafter, Respondent filed exceptions to
the Trial Examiner's Decision and a supporting brief,
the Charging Party filed cross-exceptions and an
answering brief, and the General Counsel filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this proceed-
ing to a three-member panel.
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 Trial
Examiner's Decision, the exceptions, the cross-excep-
tions, the briefs, and the entire record in this
proceeding, and hereby adopts the findings,' conclu-
sions, and recommendations of the Trial Examiner as
modified herein.
1. We find, in agreement with the Trial Examiner,
and for the reasons stated in his Decision, that
Respondent violated Section 8(a)(1) of the Act, by
granting a wage increase on November 28, 1969.2
2. The Trial Examiner found that Kenneth
i We hereby correct the inadvertent ambiguity in the Trial Examiner's
remark that the office of Gutke , Respondent's vice president and director of
professional relations , is located in Missouri At the time of the hearing such
was the case , but at the time of all events relevant to the issues herein his
office was in Salt Lake City, Utah
2 All dates herein are 1969 unless otherwise indicated
3 Chairman Miller deems it unnecessary to make a determination as to
Hammon's supervisory status The stipulated unit in which the election was
held encompassed all working pharmacists at Respondent 's 10 stores
excluding supervisors The approximate number of unit employees set forth
Hammon, a head pharmacist at one of Respondent's
stores, was a supervisor within the meaning of
Section 2(11) of the Act; that statements made by
him were, therefore, attributable to Respondent; and
that his remarks at a meeting of employees on
December 27 constituted threats and promises on
behalf of Respondent which were violative of Section
8(a)(1).
Respondent contends that Hammon is not a
supervisor and therefore his remarks at the meeting
were not attributable to it and no violation of the Act
stems from Hammon's conduct. We agree.3
As noted by Chairman Miller, the stipulated unit in
which the election was held encompassed all working
pharmacists at Respondent's 10 Maricopa County
stores excluding supervisors. Each store has a head
pharmacist who voted in the election without
challenge from either party. The General Counsel,
though alleging that Hammon is a supervisor, does
not contend that all head pharmacists are supervi-
sors. The record reflects that head pharmacists,
including Hammon, receive higher pay because of
their responsibility for narcotics-their names appear
on the necessary licenses-and for seeing to it that
the pharmacy is stocked with supplies and materials,
kept in a clean condition, and is "covered" by a
pharmacist at all times. The record also shows that
other pharmacists order supplies from time to time,
and that there is much mutual give-and-take between
pharmacists, including the head pharmacist in
arranging and rearranging work schedules. Head
pharmacists have no authority to hire, fire, or
discipline other pharmacists, nor do they effectively
recommend action in such areas. They play no role
in the establishment of pay scales. Though they do
maintain work schedules, as noted above, the
assignments are not hard and fast. Head pharmacists
do not prepare evaluations of the work of other
pharmacists and they, like other pharmacists, spend
a substantial portion of their working time preparing
and dispensing prescriptions and serving customers.
Hammon testified that when problems come up, he
reports them to the store manager for solution.
On the basis of the foregoing and the entire record,
we find that Hammon is neither clothed with, nor
has he assumed, supervisory authority. Accordingly,
we find that Hammon is not a supervisor within the
meaning of the Act, and we shall dismiss the
in the petition indicates that the Union intended to include head
pharmacists in the unit and they were permitted to vote without challenge
Therefore, in the Chairman' s view, even if Hammon is a supervisor,
Respondent would not be responsible for his expression of views as to the
desirability of unionization unless it encouraged , authorized, or ratified such
expressions As this has not been shown , Chairman Miller joins in
dismissing the complaint insofar as it alleges a violation of the Act based on
Hammon's conduct See Montgomery Ward & Company, Incorporated, 115
NLRB 645, 647, enfd 242 F 2d 497 (C A 2), cert denied 355 U S 829
197 NLRB No. 171
SKAGGS DRUG CENTERS, INC. 1241
complaint insofar as it alleges a violation of the Act
based on Hammon's conduct.
3. The'Trial Examiner also found that Respon-
dent violated Section 8(a)(5) of the Act by refusing to
bargain with the Union on and after November 26,
and recommended the issuance of a bargaining
order. In so concluding, the Trial Examiner placed
reliance on his prior findings that Respondent
committed violations of Section 8(a)(1) by its
institution of the wage increase and by the state-
ments of Head Pharmacist Hammon. Herein we
have reversed the Trial Examiner's findings with
respect to Hammon's activities and have also,
therefore, dismissed the complaint insofar as it
alleges that they were violative of Section 8(a)(1).
Nevertheless, the serious nature of the wage-increase
violation which has been found herein leads us to
adopt the Trial Examiner's further finding that
Section 8(a)(5) was violated and his recommendation
that a bargaining order should issue.
We do so because the unfair labor practice was
pervasive in that all employees in the unit received a
substantial wage increase and extensive in that it
sought to eliminate what appears in the record to be
the primary, if not the sole, reason employees sought
union representation; namely, their expressed con-
cern that their wages were substandard when
compared to wages of employees working for
competing firms in the area. It is thus apparent that
the wage increase was granted to thwart the
employees' organizing initiative. It is also apparent
that our traditional remedies, which do not include a
requirement that the wage increase be rescinded,
cannot eradicate the impact of Respondent's action.
Such impact would continue to influence employee
choice in a rerun election were one to be directed,
for, whether or not the wage increase remained in
effect, employees are not likely to miss the inference
that "the source of benefits now conferred is also the
source from which future benefits must flow and
which may dry up if it is not obliged." N. L. R. B. v.
Exchange Parts, 375 U.S. 405. We conclude therefore
that by the grant of a substantial wage increase
Respondent has precluded the running of a fair rerun
election and that the authorization cards signed by
employees are a more reliable measure of their desire
for union representation than would be the results of
a rerun election. Accordingly, to effectuate those
desires, and as a bargaining order is "the only
available effective remedy."4 we shall order Respon-
dent to bargain with the Union as the representative
of the employees in the appropriate bargaining unit.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner, as modified below,
and hereby orders that Respondent, Skaggs Drug
Centers, Inc., Phoenix, Arizona, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order, as so
modified:
1. Delete paragraph A(l) of the Trial Examiner's
recommended Order and renumber paragraphs A(2),
A(3), and A(4), as A(l), A(2), and A(3), respectively.
2. Delete the word "other" from renumbered
paragraph A(3), and substitute therefor the words
"like or related."
3. Substitute the attached Appendix for the Trial
Examiner's Appendix.
IT IS ALSO ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations of
the Act not found herein.
IT IS FURTHER ORDERED that the election conducted
on January 7, 1970, among employees in the
designated unit of Skaggs Drug Centers, Inc., be, and
it hereby is, set aside and that the petition in Case
28-RC-1990 be, and it hereby is, dismissed.
a N L R B v Gissel Packing Companv. 395 U S 575. 614
5 N L R B v Gissel Packing Company. supra, Tower Enterprises, Inc,
d/b/a Tower Records, 182 NLRB 382. C& G Electric, Inc, 180 NLRB 427,
J C Penney Co. Inc v N L. R B. 384 F 2d 479. 485-486 (C A 10)
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT grant our employees wage
increases for the purpose of influencing their
choice of a labor organization as their bargaining
representative.
WE WILL NOT refuse to bargain with Retail
Clerks Union Local #99, AFL-CIO, Pharmacists
Division, as the exclusive representative of our
employees in the appropriate unit noted below,
with respect to rates of pay, wages, hours, or any
other terms or conditions of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our. employees
in the exercise of any rights guaranteed to them
by the National Labor Relations Act, as amend-
ed.
WE WILL, upon request, bargain collectively
with the said Local #99, as the exclusive
representative of our employees in the appropri-
ate unit noted below, with respect to rates of pay,
wages, hours, and all other terms and conditions
of employment and, if an understanding is
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reached , embody such understanding in a signed
agreement . The appropriate unit is:
All working pharmacists employed by us in
Maricopa County, Arizona, but excluding
all other employees , such as watchmen,
guards, clerks, office and clerical employees,
and supervisors as defined in the Act.
All our employees are free to become , remain, or
refrain from becoming or remaining members of the
above-named , or any other , labor organization.
SKAGGS DRUG CENTERS,
INC., ,PHARMACIST
DIVISION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 7011 Federal Building and US
Courthouse, 500 Gold Avenue, SW., P.O. Box 2146,
Albuquerque, New Mexico 87101, Telephone
505-843-2508.
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE , Trial Examiner: On November
25, 1969, Retail Clerks Union , Local #99, AFL-CIO,
Pharmacists Division (hereafter called the Union ), filed a
petition for certification as collective -bargaining represent-
ative of the working pharmacists employed in Respon-
dent 's drug stores in Maricopa County, Arizona . Pursuant
to a stipulation for Certification Upon Consent Election,
an election was held on January 7, 1970, at which time 18
ballots were cast against , and 16 were cast for , the Union.
On January 14, 1970 , the Union filed objections to
conduct affecting the election , and on April 3 , 1970, it filed
an unfair labor practice charge . On June 16 , 1970, the
Regional Director issued a report in which he recommend-
ed that the objections to the election be overruled. Upon
exceptions filed by the Union , the Board , on September 2,
1970, issued an order directing that a hearing officer hold a
hearing and make findings upon the objections. On
January 11, 1971, the Regional Director issued a complaint
alleging that Respondent had violated Section 8(a)(1) and
(5) of the National Labor Relations Act, as amended. On
January 13, 1971, the Regional Director issued an order
consolidating the two proceedings for the purposes of
hearing and decision by a Trial Examiner. In its answer to
the complaint, Respondent denied the commission of the
unfair labor practices alleged.
The consolidated proceedings were heard before the
undersigned Trial Examiner in Phoenix, Arizona, on
March 9 and 10, 1971. The principal issues presented are
(1) whether or not Respondent unlawfully interfered with,
restrained, and coerced its employees; and (2) whether or
not a bargaining order is warranted.
Upon the entire record, my observation of the witnesses,
and the briefs filed by the General Counsel, the Union and
the Respondent, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent has admitted the following allegations of the
complaint:
2. Respondent is, and has been at all time material
herein, a corporation duly organized under, and existing by
virtue of, the laws of Arizona.
3. At all times material herein, Respondent has
maintained its principal office and place of business at
3141 E. Indian School Road, in Phoenix, Arizona, and is,
and has been at all times material herein, continuously
engaged in the business of the retail sale of drugs and other
merchandise.
4. During the past calendar year, Respondent, in the
course and conduct of its business operations, sold drugs
and other merchandise, the gross value of which exceeded
$500,000. During the same period, Respondent purchased
and had delivered to its place of business in Phoenix,
Arizona, goods valued in excess of $50,000 which were
transported to its place of business directly from States of
the United States other than of Arizona.
5: Respondent is now, and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
I find the facts to be as admitted, and that Respondent
is, and at all times material, has been an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
The Union began organizing pharmacists in Arizona in
October 1969.i By November 25, a number of the
pharmacists employed by Respondent had signed authori-
zation cards designating the Union as their bargaining
representative, and the Union filed a petition for certifica-
tion on that date. On November 26, the Union's request for
bargaining was received in the office of Respondent, but
the latter never replied thereto. On November 28, Respon-
dent announced a wage increase which, the General
I All dates referred to hereafter relate to 1969 unless otherwise stated
SKAGGS DRUG CENTERS, INC.
Counsel contends , was unlawfully motivated . On Decem-
ber 27, Head Pharmacist Hammon conducted a breakfast
meeting of Respondent 's pharmacists to whom he made
remarks which , the General Counsel contends, contained
unlawful threats and promises attributable to Respondent.
On January 1, 1970, Gutke , Respondent 's vice-president
president and director of professional relations , sent to its
pharmacists a letter which , according to the General
Counsel , contained unlawful statements . As noted above,
the Union lost the election held on January 7, 1970 by a
vote of 18 to 16.
1. The wage increase
On November 27, Gutke, whose office is in Missouri,
went to Phoenix and, on the following day, he informed
the pharmacists employed in Respondent's stores in that
city that their wages had been increased from $5.65 to
$6.00 an hour. The General Counsel and the Charging
Party contend that Respondent was aware of the organiz-
ing campaign among its employees prior to the decision to
increase their wages, and that the motive behind the
increase was to induce the pharmacists not to unionize.
Respondent contends that the decision to increase wages
was made before it learned of the union activity; and that,
in any event, the increase was adopted solely in accordance
with established company policy of meeting competition. I
find that the wage increase was unlawful.
McCoy, Respondent's vice president and district manag-
er of the Arizona district, testified that he made the
decision to increase the wages, and that he sent the
following letter, dated November 20, to Gutke so that the
latter could advise the computer department to put the
increase into effect:
We decided last month as soon as our competition
executed a raise for their registered pharmacists we
would immediately effect a raise for Skaggs Pharma-
cists in the Arizona area to be competative [sic ] with
wages. This is to inform you that our competition will
effect a raise for their Registered Pharmacists Decem-
ber 1, 1969 and I would appreciate you [sic] executing
the increase in pay to Skaggs Drug Center Pharmacists
in the Arizona area starting Friday, November 21,
1969; which is the start of our pay period. Please
confirm that the raise is being executed.
According to Gutke, the decision to increase wages had
been made by McCoy on November 20, and he went to
Phoenix on November 27 solely in order to let the
pharmacists know that Respondent was taking care of
them. But this does not explain why he waited until that
date to disclose a decision assertedly made a week earlier.
In addition, Gutke did not immediately tell the pharma-
2 This testimony is also inconsistent with Gutke's testimony that he had
revealed the increase to Store Manager Larson on November 27, 1 e, before
satisfying protocol vis-a-vis Vice President McCoy
3 Pharmacist Neary testified without contradiction that, on the same day
that the wage increase was announced, Nakamura told him and pharmacist
Hill that he had made the said observation to Gutke For the reasons noted
below (fn 14), 1 find that Nakamura was a supervisor and, therefore, that
his statement to Neary and Hill constituted an admission
4 Gutke gave conflicting testimony as to whether Hawkings referred to
union activity in Phoenix or Tucson His preheating affidavit stated that
Hawkins referred to a union meeting "in Phoenix "
1243
cists about the wage increase when he saw them on
November 28. On the contrary, he pleaded ignorance when
pharmacist Ezrailson asked about the pay raise before
Gutke made it public and failed to respond to a similar
question from pharmacist Neary. Gutke testified that he
refrained from mentioning the increase to the pharmacists
because protocol required that he first talk to McCoy.
However, he also testified that he refrained from disclosing
the increase to the pharmacists prior to talking to McCoy
because he "wasn't sure we were right yet"-a remark
which I interpret to mean that a raise had not yet been
definitely decided on.2 Gutke finally informed the pharma-
cists of the wage increase on November 28 after Head
Pharmacist Nakamura told him that a failure to give a
wage increase would assure a union victory.3 I do not
credit the testimony of McCoy and Gutke who, I find,
were not reliable witnesses and reject Respondent's
contention that it decided on the wage increase on
November 20. Rather, I find that the decision was not
made until November 28.
I further find, contrary to Respondent's contention, that
Gutke knew of the union activity before the decision to
raise wages was made on November 28. While at a meeting
in Tucson during October, Pharmacist Hawkins told Gutke
that he had heard rumors about a union meeting, and
Gutke requested McCoy to find out what he could about
union activity among Respondent's pharmacists and report
back.4 McCoy then requested the store managers to report
back what they could learn. When asked whether any
complied, McCoy testified, "Not for quite some time, if
ever." On November 6, the Union mailed a campaign letter
to some 580 pharmacists in Maricopa County. On
November 13, it held two organization meetings at which
about 150 pharmacists were present, and during which
authorization cards were signed. On the same day, the
Arizona Pharmaceutical Association sent letters to its
member pharmacists urging them not to unionize. Gutke
testified that he could not recall when he received his copy
but admitted that he is a member of, and receives
information from, that association. It is thus apparent that
Respondent knew of the union campaign well before
November 28, and even before November 20. In addition,
the Union's petition for certification was filed on Novem-
ber 25 and was served on Respondent, and the Union's
request for bargaining, sent by certified mail, was received
by Respondent on November 26.5
Respondent contends that even if it knew about the
Union campaign at the time of the wage increase, such
knowledge was immaterial since the increase was simply an
implementation of a long-established policy of meeting, or
bettering, the wages paid by its competitors. According to
Respondent, it became aware in October and November of
a The receipt therefor was admittedly signed by an office employe of
Respondent on that date McCoy testified that he had been out of town on
business and did not see the petition and request until he returned to his
office on December I. 1 e. after Gutke's November visit to Phoenix I find it
unlikely that a certified letter would not be promptly called to the attention
of a responsible official of Respondent In any event , I am convinced that
Gutke was aware of the Union's petition and demand when he went to
Phoenix on November 27 Pharmacist Feldhusen testified without contra-
diction that on November 28 Gutke stated to him, "Well, you son-of-a-gun,
you went union on us "
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage increases by competitors through talks with the latter,
through employees who resigned to accept higher paying
jobs with such competitors, and through complaints from
other employees. Its own wage increase, Respondent
asserts, was a consequence of such competition, and thus
was adopted for a legitimate business purpose. I find that
the record does not substantiate the existence of the policy
claimed by Respondent. The evidence shows that in 1968,
Respondent's hourly wage scale was $5.45, as compared
with $5.55 paid by Super X, a competitor; and that in 1969,
Respondent's wage scale was $5.65 as compared with $5.70
paid by Super X and $5.75 paid by Walgreen, another
competitor. In con rast to its prior willingness to pay lower
wages than its competitors, Respondent's increase on
November 28 raised its wages to $6.00, the level paid by
the avove-named two competitors, and beyond the level
paied by Thrifty, a third competitor.6
It may be that some increase in Respondent's wage scale
was required by competitor increases. But Respondent has
failed to explain satisfactorily why it suddenly became
necessary to adopt a wage increase large enough to
eliminate the differential in wage scales which it had
heretofore been satisfied to accept. I find that the
explanation for such an increase lies in Respondent's desire
to induce its pharmacists to refrain from unionizing. In
addition to the absence of a convincing explanation for the
wage increase, its timing supports this conclusion. Gutke
went to Phoenix immediately after the Union's petition
was filed and its request to bargain was received by
Respondent, and the wage increase was not announced
until after Nakamura warned that the Union would win
the election if there were no increase. A further indication
of Respondent's motive lies in the fact that a few moments
after Gutke made his remark to pharmacist Fedlhusen
about having unionized (see fn. 5, supra) he asked the
latter and pharmacist Marks whether they had received a
raise as yet. The record also shows that the wage increase
was first reflected in the pharmacists' checks on December
4, but was retroactive to November 21. Respondent seeks
to explain such retroactivity by claiming a time lag
between approval and implementation of wage increases.
However, pharmacists Feldhusen and Neary credibly
testified that they had never before received retroactive
wage increases. I find the Respondent departed from its
past practice and made the wage increase retroactive to
November 21 in order to create the impression that the
decision to increase the wages had been made on
November 20, as well as to give the pharmacists an added
inducement to vote against the Union. The wage increase
thus violated Section 8(a)(1) of the Act
2. The breakfast meeting
Towards the end of December, Pharmacy Supervisor
Hammon, who at that time was head pharmacist of one of
Respondent's stores in Phoenix, telephoned the head
6 The record shows that, from November 1969 through January 1970,
Thrifty paid its pharmacists $5 90 an hour
r Hammon testified that he paid the cost of the meeting with personal
funds and was not reimbursed by Respondent
8 Hammon's note had called Gutke's attention to literature of the
Arizona Pharmaceutical Association relating to union activity Gutke was
pharmacist at each of Respondent's other stores in
Maricopa County, invited them to a breakfast meeting to
be held on December 27 at the Holiday Inn before
commencement of the workday, and requested each to
bang with him one of the pharmacists employed at his
store. Hammon conducted the meeting,7 during the course
of which he made certain statements. The General Counsel
and the Charging Party contend that Hammon was a
supervisor within the meaning of Section 2(11) of the Act,
that his statements are thus attributable to Respondent,
and that the said statements were violative of Section
8(a)(1). Respondent contends that the statements con-
tained neither threats nor promises prohibited by Section
8(a)(1), and that Hammon was not a supervisor. I agree
with the General Counsel and Charging Party.
At the meeting, Hammon made reference to a letter
dated December 17, which he had received from Gutke in
response to a note from Hammon.8 There is conflicting
evidence as to whether Hammon stated that he was
holding the meeting at the request of Gutke9 and was
conveying the latter's views. However, it is undisputed that
Hammon told those present that they would probably lose
their pension plan if they voted for the Union, and that, if
they voted against the Union, Respondent would pay them
any benefits the Union would be able to get for them.
Contrary to Respondent's contention, Hammon's state-
ments were more than a reminder of past benefits given by
Respondent and more than a predication of what the
Union could be expected to demand. Nor were they
ambiguous and susceptible of noncoercive interpretation.
Hammon clearly threatened a loss of pension rights if the
pharmacists voted for the Union and promised benefits
equal to those obtainable through the Union if they voted
against the Union. These were not statements of demon-
strably probable consequences of unionization beyond
Respondent's control. The threatened and promised
consequences were entirely within Respondent's control,
and Hammon made it clear that Respondent's exercise of
such control would depend on how the pharmacists voted
at the election. Such conduct, if attributable to Respon-
dent, was clearly violative of Section 8(a)(1). Bancroft
Manufacturing Co., 189 NLRB No. 90.10 I find that it was
so attributable because Hammon was a supervisor at the
time of the breakfast meeting.
Hammon was directly responsible to the manager of the
store where he was employed, who was not a pharmacist.
With respect to the responsibilities of the head pharmacist,
Gutke testified as follows:
Q. Are all the pharmacists in the area of Arizona,
in the Arizona area paid the same rate?
A. No.
Q. What is the variation?
A. We have a head pharmacist whose responsibili-
ty is-his name is on the license. He has the
responsibility for narcotics, he has the responsibility to
keep the pharmacy clean and to make sure the shifts
not Hammon's immediate superior and Hammon had not theretofore
written to Gutke
9 Gutke's letter contained no such request
1s The cases cited by Respondent in its brief (pp 41-42) either are
distinguishable on their facts, or preceded the teachings in N L R B v Gissel
Packing Co, 395 U S 575
SKAGGS DRUG CENTERS, INC.
are at work, that there is complete coverage at all times,
make certain that the merchandise is ordered, that
there are supplies on hand, and that the prices in his
pharmacy are competitive with close competitors and
also to contact doctors.
Q. All right. Now, you say the wages are not the
same. Are the head pharmacists then paid more than
the other pharmacists?
A. For that responsibility he is paid more. Usually,
$10 a week.
Mr. Ziprin: No, I'm asking what the function of a
head pharmacist was.
The Witness: The function is to keep the merchan-
dise in the store, regulate the shifts, make sure there
that they all work their 40 hours and keep the
department covered, and fill prescriptions.
Gutke further testified that a head pharmacist possessed
only the authority delegated to him by his store manager.
Although Hammon sought to minimize the significance of
his duties and responsibilities as head pharmacist, he
testified as follows:
Q. As head pharmacist, in view of the fact that you
received a pay differential, you must have had some
duties and responsibilities above and beyond those of
the other pharmacists. Is that correct?
A. In a sense, yes. I was in charge of all narcotic
buying. No one else could buy them. This was a federal
law. I was responsible for the stock in the pharmacy. I
tried to maintain a clean pharmacy, see that it was
cleaned up. I worked a full 40-hour week dust like the
rest of the other men did. If anything went wrong, I
tried to see that it was all right. I more or less oversaw
the pharmacy.
Q. Now, you testified, I believe, that you oversaw
the pharmacy. What did you mean by the word
"oversaw?"
A. It'd be my responsibility to see that there was
somebody on duty, adequate help on duty at different
times. In other words, early in the morning at 9:00
o'clock, one pharmacist would be sufficient . At 10:00
o'clock, you get busy and you needed two pharmacists
there.
s s s
Q. Let's assume that one of your pharmacists was
scheduled to work on a Saturday, and he had to go to a
doctor or had some other committments, would he
come to you and say, "Mr. Hammon, I have a problem.
Is it possible for you to arrange a substitute?"
A. If he did come to me, I would go to the store
manager and tell him, "Mr. Gertenbach or Mr. Jones
won't be here tomorrow. I'm here tomorrow, I will
work in his place" and that would do it.
11 The record contains conflicting testimony regarding certain state-
ments attributed to Hammon, eg, that Gutke had asked him to hold the
meeting , and that he could not invite all the pharmacists because he was
under orders and had no choice The record also contains testimony by
Gutke that, subsequent to the meeting , Hammon informed him that the
meeting had been held In view of my finding that Hammon was a
Q.
A.
Q.
A.
Q.
A.
1245
The store manager would tell you what?
What would he tell me?
Select someone in his place?
Anyone who was capable of fulfilling the duties.
And, you went ahead and selected?
I would work for him or he would work for me,
or anybody else volunteer. It was that way.
Q. In essence, you were responsible for the day-to-
day supervision of the pharmacy department?
A. I wouldn't say supervision of the pharmacy
department. I would say I was to see the pharmacy was
covered adequately.
Q. Mr. Hammon, you testified you were paid more
than the other pharmacists.
A. Twenty-five cents an hour.
Q. For what? What did you do that they didn't?
The Witness: The responsibility of the narcotics; I
had the responsibility of keeping the pharmacy clean; I
had the responsibility of seeing that it was adequately
stocked and that there was sufficient help to operate
the pharmacy, and to see that the service was good and
proper.
He further testified that on two occasions, infractions by
other pharmacists were called to his attention by manage-
ment, but that the infractions had ended by the time he
"got there."
Section 2(11) of the Act defines the term "supervisor" to
mean:
Any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall,
promote, discharge , assign , reward, or discipline other
employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such
action, if in connection with the foregoing the exercise
of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.
Respondent's position (brief p. 46) is that to constitute a
supervisor under the Act, an individual must possess
authority to exercise independent judgment with respect to
the functions enumerated in the Act; that it is not
sufficient for him to have authority to use independent
judgment with respect to some other aspect of his work;
and that Hammon did not possess the required authority.
It seems clear, and I find, that Hammon possessed the
authority to assign and responsibly to direct other
employees in a manner requiring the use of independent
judgment. I accordingly find that Respondent is chargea-
ble with Hammon's coercive conduct at the breakfast
meeting, and that such conduct violated Section 8(a)(1) of
the Act.ii
3. Gutke's letter of January 1, 1970
On January 1, 1970, Gutke sent to all of Respondent's
supervisor , it is unnecessary either to resolve the conflicts or to determine
whether , as the Charging Party contends , even if Hammon were not a
supervisor, Respondent must be deemed to have adopted his threats and
promises, because it was chargeable with knowledge that they were made in
Respondent 's name, was thus under a duty to disavow them, and failed to
do so
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pharmacists in Maricopa County a two-page letter setting
forth various reasons why they should vote against the
Union at the election scheduled for January 7, 1970. The
complaint alleges that on or about January 1, 1970,
Respondent, through Gutke, threatened its employees with
discharge or other reprisals if they selected the Union as
their bargaining representative, became or remained
members of the Union, or gave any assistance or support
to it. In their briefs, neither the General Counsel nor the
Union points to any language in the letter which
constituted an unlawful threat of reprisal, express or
implied, and I find none. Indeed, the Union does not
contend that the letter violated Section 8(a)(1), and the
General Counsel does not mention the letter. The only clue
to their position appears in the Union's objections to the
election, which stated that the letter "threatened the
employees with loss of employment if they voted for the
Union by stating `Please consider this letter as one from a
friend who is concerned about you and your position with
this company.' " I find that said language did not
constitute an unlawful threat.i2
B. Refusal to Bargain
As noted, Respondent received the Union's request for
bargaining on November 26 but never responded thereto.
In its answer, Respondent admits that the Union made a
request to bargain on or about November 29, and that
Respondent refused to bargain, but denies that its refusal
was unlawful. In its brief, Respondent contends that the
Union did not have a majority.
1. The complaint alleges, the answer admits, and I find,
that the following constituted a unit appropriate for the
purpose of collective bargaining within the meaning of
Section 9(b) of the Act:
All working pharmacists employed by the Respondent
in Maricopa County, Arizona but excluding all other
employees, including watchmen, guards, clerks, office
and clerical employees and supervisors as defined in
the Act. . . .
At the hearing, the parties stipulated that, as of
November 26, there were 35 pharmacists "in the employ"
of Respondent. However, the General Counsel and the
Union reserved the right to adduce evidence which would
establish that some of the 35 were supervisors and should
not be included in the unit. Respondent took the position
that all 35 were rank-and-file employees includable in the
unit .13 I have found that Hammon was a supervisor at the
time in question. I further find that Nakamura was also a
supervisor.14 I accordingly find that there were no more
than 33 pharmacists in the unit at that time.
12 At the close of the hearing, the General Counsel moved to amend the
complaint to include an allegation of unlawful surveillance , based on
McCoy's testimony that in October 1969 Gutke requested him to find out
what he could about the Union activity among Respondent's pharmacists,
and that McCoy in turn requested the store managers to report back what
they could learn Respondent opposed the motion and I reserved decision.
suggesting that the parties argue the matter in their briefs Since the briefs of
the General Counsel nor the Charging Party do not mention the matter, I
find that the motion has been abandoned and hence, in effect, withdrawn
13 In its brief (pp 10, 46 ), Respondent incorrectly states that there were
35 persons in the "agreed unit" In his brief, the General Counsel argues
that "at least Hammon and Nakamurea were supervisors " (p 13) but then
2. It is undisputed that Union authorization cards were
signed by 22 of the pharmacists in the unit prior to
November 26. At the hearing, the parties stipulated that 17
of the cards were genuine and valid. They further
stipulated that five additional cards were genuine, but
Respondent attacks their validity. Since valid cards were
signed by 17 of the 33 pharmacists in the unit, I find that
the Union had a majority as of November 26 even if the
five disputed cards are not counted
I further find that four of said five cards are valid and
should be counted, i.e., the cards signed by Auspring,
McAllen, Roggin, and White. The cards clearly and
unambiguously authorized the Union to represent the
signers "for the purposes of collective bargaining respect-
ing rates of pay, wages, hours of employment, or other
conditions of employment." Respondent does not find
fault with the language of the cards. Rather, it asserts that
the cards should not be counted because they were signed
following a pharmacists' meeting in November, at which
those present "were directly promised that the purpose of
the cards was limited to the holding of an election" (Resp.
brief p. 47). The record does not bear out that contention.
Union International Representative Nedeker testified that,
at an organization meeting on October 20 and at two
meetings on November 13, Britain , a union official, read
the card to those present, explained that the Union would
request recognition from Respondent if more than 50
percent signed cards, and stated that if Respondent did not
recognize the Union it would turn the cards over to the
Board "and let them follow through." The testimony of
Pharmacist Feldhusen substantially corroborated Nedeker,
whom I credit.
In N. L. R. B. v. Gissel Packing Co, supra, 395 U.S. 575,
the Supreme Court expressly approved the Board's
Cumberland Shoe doctrine, which the Court described as
follows:
... Under the Cumberland Shoe doctrine, if the card
is unambiguous ( i.e., states on its face that the signer
authorizes the union to represent the employee for
collective bargaining purposes and not to seek an
election), it will be counted unless it is proved that the
employee was told that the card was to be used solely
for the purpose of obtaining an election..
The Supreme Court then stated:
In resolving the conflict among the circuits in favor of
approving the Board's Cumberland rule, we think it
sufficient to point out that employees should be bound
by the clear language of what they sign unless that
language is deliberately and clearly canceled by a
union adherent with words calculated to direct the
signer to disregard and forget the language above his
erroneously states that "[ i It was stipulated that there were 35 pharmacists in
the unit on November 26, 1969" (p 10)
14 Employee Neary credibly testified that he and two or three other
pharmacists were employed in the store where Nakamura was "head
pharmacist", that Nakamura was "in charge of the pharmacy in regard to
the other pharmacists", and that he made out the work schedules for the
pharmacists , granted them time off and arranged for substitutes , arranged
the vacation schedules , received grievances from the other pharmacists, and
decided which pharmacists would work overtime Nakamura did not testify
I find that Nakamura had authority to assign and responsibly to direct other
employees in a manner requiring the use of independent judgment
SKAGGS DRUG CENTERS, INC.
signature. There is nothing inconsistent in handing an
employee a card that says the signer authorizes the
union to represent him and then telling him that the
card will probably be used first to get an election... .
Based on the testimony of Nedeker and Feldhusen, I find
that Union representatives made no statements which
require invalidation of the four cards referred to above.
Contrary to Respondent's contention, a different conclu-
sion is not required by the testimony given by signers of
those cards. Auspring, McAllen, and Roggin, whose cards
were signed on or after November 13, testified that they
signed at or after a meeting at which a Union representa-
tive stated that if a majority signed cards, an election
would be held to determine whether the Union would be
their bargaining agent. Ausprung could not recall whether
those present were also told that Respondent would be
requested to examine the cards to ascertain whether the
Union represented a majority, and that if it refused an
election would then be held. McAllen was a few minutes
late in arriving at the meeting and did not know what was
said prior to his arrival. White testified that a Union
representative explained the benefits of the Union, and
that he received the impression, from a source which he
could not recall, that an election would be held if a
majority signed cards. Nothing in such testimony was
inconsistent with the language in the cards authorizing the
Union to act as bargaining representative. I accordingly
find that 21 pharmacists signed valid authorization cards
prior to November 26 and, therefore, that the Union
represented a majority of the 33 unit employees on that
date.15
3. As found above, Respondent violated Section 8(a)(1)
by instituting a wage increase in order to induce the
pharmacists to vote against the Union, threatened them
with the loss of pension benefits if they voted for the
Union, and promised benefits equal to those obtainable
through the Union if they voted against the Union, all of
which conduct was calculated to destroy the Union
majority. I find that by engaging in these violations and by
refusing to bargain with the Union, which represented a
majority of the unit employees, Respondent violated
Section 8(a)(5) and (1) of the Act.16 I further find that as a
result of Respondent's unlawful conduct, the possibility of
erasing its effects and of insuring a fair election is slight;
and that on balance the rights of the unit employees and
the purposes of the Act would be better effectuated by
reliance on the employee sentiments expressed in authori-
zation cards rather than on the results of an election.
Accordingly, I find that a bargaining order against
Respondent is warranted.i?
IV. OBJECTIONS TO THE ELECTION
Objection I relates to the unlawful wage increase granted
by Respondent. Objections 2 and 3 relate to the unlawful
threats and promises made by Hammon at the breakfast
15 In view of this finding, it is unnecessary to determine the validity of
the card signed by pharmacist Horst , who testified that as a result of
answers by a Union representative to questions put to him at the October
meeting, it was his "understanding" that "we were only doing this" so that
the Union "would have enough cards to present a petition to the National
1247
meeting . I find that such conduct interfered with a free
choice in the election.
Objection 4 relates to the following interoffice communi-
cation, dated December 2, and signed by McCoy,
Respondent's vice president:
We have arranged with the National Labor Board to
conduct a secret ballot election at your store on
January 7, 1970 (Wednesday).
Each Pharmacist will have the right to cast his secret
vote in the privacy of a voting booth or secluded place
designated as to whether or not he believes the
Pharmacists working for Skaggs in the Phoenix area
should turn their affairs over and pay dues to
organizers for the Retail Clerks Local Union #99 or
not.
Union International Representative Nedeker testified
without contradiction that as late as a few days before the
election on January 7, 1970, he saw copies of the
communication pasted on the cabinets or walls of
Respondent's pharmacies; and that in some stores, the
copies were posted next to the Board's notice of election.
At a meeting on January 4, 1970, attended by about" 80
pharmacists, the Union told those present that the Board
would have charge of the forthcoming election, and the
election procedure was discussed, but McCoy's communi-
cation was not discussed.
The Union contends in its brief (pp. 20-21) that the
posting of the communication as aforesaid was so
damaging to the election process and to the Board's status
as a neutral agency as to warrant setting aside the election.
According to the Union, the communication conveyed the
impression that Respondent had engaged the Board as its
agent to conduct the election and that the Board shared
Respondent's opposition to the Union. I disagree.
The rationale applicable here is the one set forth in Allied
Electric Products, 109 NLRB 1270, and its progeny, on
which the Union relies. In that case, a participant in a
Board election had distributed a marked sample ballot to
the voters. The Board set aside the election, stating:
The Board particularly looks with disfavor upon any
attempt to misuse its process to secure partisan
advantage, [footnote omitted] and especially does it
believe that no participant in a Board election should
be permitted to suggest either directly or indirectly to
the voters that this Government Agency endorse a
particular choice.
More recently, the Board applied this principle in setting
aside the election where a union had distributed a handbill
which reproduced a portion of the Board's election notice,
including the Board's name and seal, and which set forth
on the reverse side, without mention of the Union's name,
a general explanation of what a union is, how it functions,
and what a collective bargaining contract contains.
Rebman, Inc., 173 NLRB No. 215.
The situation here differs from those cases. Respondent's
communication was not physically included in, or even
attached to, a reproduction of an official Board document.
Labor Relations Board to call for a vote of the working pharmacists
i6 The Dail Corp, 188 NLRB No 57. Gibson Products Corp, 185 NLRB
No 74, Mink-Dayton, Inc, 181 NLRB No 40
17 Ibid
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, it was signed by Respondent. In the circum-
stances, it cannot be regarded as having conveyed the
misleading impression that the partisan sentiments con-
tained therein emanated from the Board. Moreover,
nothing in the language of the communication suggested
that the Board endorsed such sentiments. I accordingly
find that the communication did not interfere with a free
election.
Objection 5 relates to the threat of reprisal allegedly
contained in Gutke's letter of January 1, 1970. I have
found that the letter did not contain such a threat. The
letter contains no other objectionable language. I therefore
find that it did not interfere with a free election.
CONCLUSIONS OF LAW
A. By unlawfully interfering with, restraining, and
coercing its employees, as found herein, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
B. All working pharmacists employed by Respondent
in Maricopa County, Arizona, but excluding all other
employees, such as watchmen, guards, clerks, office and
clerical employees, and supervisors as defined in the Act,
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
C. At all times on and after November 26, 1969, the
Union has represented a majority and has been the
exclusive bargaining representative of the employees in the
above unit.
D. By refusing to bargain with the Union on and after
November 26, 1969, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
E. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
F. The evidence does not support the allegation in the
complaint that on or about January 1, 1970, Respondent,
through Gutke, unlawfully threatened its employees.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices , I recommend that it cease and desist
therefrom , and that it take certain affirmative action which
I find necessary to remedy and remove the effects of the
unfair labor practices and to effectuate the policies of the
Act.
Having found that by the commission of such unfair
labor practices Respondent engaged in conduct which
interfered with the election held on January 7, 1970, I
recommend that the election be set aside. Having further
found that a bargaining order is warranted , I further
recommend that the petition in Case 28 -RC-1990 be
dismissed and that all proceedings held in connection
therewith be vacated and set aside.
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issued the following recommended: 18
ORDER
Respondent, Skaggs Drug Centers, Inc., its officers,
agents , successors, and assigns , shall:
A. Cease and desist from:
1. Unlawfully threatening its employees and unlawfully
promising to increase their benefits.
2. Unlawfully increasing the wages of its employees in
order to induce them to vote against the Union.
3. Unlawfully refusing to bargain collectively with
Retail Clerks Union Local #99, AFL-CIO, Pharmacists
Division, as the exclusive representative of its employees in
the appropriate unit found herein.
4. In any other manner, interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
B. Take the following affirmative action:
1. Upon request, bargain collectively with Local #99
as the exclusive representative of the employees in the
appropriate unit found herein, with respect to rates of pay,
wages, hours, and all other terms and conditions of
employment and, if an understanding is reached, embody
such understanding in a signed agreement.
2. Post at each of its stores where it employs pharma-
cists in Maricopa County, Arizona, in places where notices
to employees are customarily posted, copies of the attached
notice marked "Appendix." 19 Copies of said notice, on
forms provided by the Regional Director for Region 28,
after being signed by a representative of the Respondent,
shall be posted immediately upon receipt thereof and be
maintained for 60 consecutive days thereafter in conspicu-
ous places. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
3. Notify the Regional Director for Region 28, in
writing, within 20 days from the receipt of this Decision
what steps have been taken to comply herewith.20
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
IT IS FURTHER RECOMMENDED that the election held on
January 7, 1970, be set aside, and that the petition in Case
28-RC-1990 be dismissed and that all proceedings held in
connection therewith be vacated and set aside.
18 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes
19 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
20 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 28, in writing, within 20 days
from the date of this Order, what steps have been taken to comply
herewith "
SKAGGS DRUG CENTERS, INC. 1249
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully threaten our employees
with reprisals , promise to increase their benefits in
order to induce them to vote against unionization, or
increase their wages for that purpose.
WE WILL NOT refuse to bargain with Retail Clerks
Union Local #99, AFL-CIO, Pharmacists Division, as
the exclusive representative of our employees in the
appropriate unit noted below , with respect to rates of
pay, wages , hours, or any other terms or conditions of
employment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of any
rights guaranteed to them by the National Labor
Relations Act.
WE WILL, upon request , bargain collectively with the
said Local # 99, as the exclusive representative of our
employees in the appropriate unit noted below, with
respect to rates of pay , wages, hours, and all other
terms and conditions of employment, and, if an
understanding is reached, embody such understanding
in a signed agreement . The appropriate unit is:
All working pharmacists employed by us in
Maricopa County, Arizona, but excluding all
other employees, such as watchmen, guards,
clerks, office and clerical employees, and supervi-
sors as defined in the Act.
All our employees are free to become, remain, or
refrain from becoming or remaining , members of the
above named, or any other, labor organization.
SKAGGS DRUG CENTERS,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 7011
Federal Building and U.S. Courthouse, 500 Gold, Avenue,
S.W., Post Office Box 2146, Albuquerque, New Mexico
87101, Telephone 505-843-2508.