Thrift Drug Co. of Pennsylvania

National Labor Relations Board - Board Decisions

Sep 15, 1967

167 N.L.R.B. 426 (N.L.R.B. 1967)

426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thrift Drug Company of Pennsylvania and Retail
Clerks Union Local 526, Retail Clerks Interna-
tional Association , AFL-CIO. Cases 30-CA-458
and 30-RC-508
September 15, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On May 24, 1967, Trial Examiner Milton Janus
issued his Decision in the above-entitled
proceedings, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Tial Examiner's Decision. He
also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. The Trial Examiner further recom-
mended that the election held in Case 30-RC-508
be set aside and the petition filed therein be
dismissed. Thereafter, the Respondent and the
Charging Party filed exceptions to the Trial Ex-
aminer's Decision and supporting briefs; the
Respondent filed an answering brief to the excep-
tions of the Charging Party, and the General Coun-
sel filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the National Labor
Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the cases, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Thrift Drug Company of
Pennsylvania, Kenosha, Wisconsin, its officers,
agents, successors, and assigns, shall take the ac-
tion set forth in the Trial Examiner's Recom-
mended Order. I
' Delete from par 2(b) that part which reads to be furnished" and sub-
stitute "on forms provided "
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MILTON JANUS, Trial Examiner: These cases, involv-
ing unfair labor practice charges and objections to con-
duct affecting the results of an election, were heard at
Kenosha, Wisconsin, on December 12 and 13, 1966, pur-
suant to a complaint issued on November 15, 1966, and
upon a report on objections issued the same date. The
two cases were consolidated for hearing. The complaint,
against Thrift Drug Company of Pennsylvania, herein
called the Respondent or the Company, alleges violations
of Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended. Briefs were filed after the close of the
hearing by the Respondent and the Charging Union.
Upon the entire record and my observation of the wit-
nesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Pennsylvania corporation en-
gaged in operating retail drug stores in several States. The
store involved in these proceedings is located in Kenosha,
Wisconsin. During the past calendar year, a representa-
tive period, Respondent's sales through all its retail
stores, exceeded $500,000. During the same period, it
purchased goods and material from points outside the
State of Wisconsin in an amount in excess of $50,000,
which were shipped, in interstate commerce, to the
Kenosha store. I find that the Respondent is engaged in
commerce within the meaning of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union Local 526, Retail Clerks Interna-
tional Association , AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Sequence of Events'
The Union's campaign to organize the employees at
Respondent's drug store at Kenosha, Wisconsin, began
in May 1966 when it obtained three authorization cards
and continued into, or was resumed, in August when it
obtained another seven cards. With a total of 10 cards in
its possession, the Union mailed three separate communi-
cations on August 24 to the Respondent's president at
the home office in Pittsburgh, Pennsylvania. They were
(1) a recognition letter, in which it claimed that it
represented a majority of the employees in the Kenosha
store, requested a meeting at a specified time and place to
discuss contract terms, and offered to prove its majority
in an appropriate unit at that time by submitting its cards
to an impartial third party for authentication of its claim;
(2) a so-called warning notice in which the Union in-
formed the Company that it was organizing its employees
and already represented a "substantial number" of them,
gave what it called official notice of its campaign and in-
All dates herein refer to the year 1966
167 NLRB No. 57
THRIFT DRUG COMPANY OF PA. 427
terest in a storewide unit, and cautioned the Company
against intimidating its employees; and (3) a letter in
which it enclosed a copy of a representation petition to
the Board. The original petition was received by the
Board the next day.
The three letters were received by the Company on
Friday, August 26. The following Monday, August 29,
the Respondent's attorney wrote the Union
acknowledging receipt of the letters, stated that he con-
sidered the one requesting recognition and the one in-
forming the Company of its organizational activity as "in-
consistent and confusing," that the Company had advised
him of its doubts whether the Union represented an un-
coerced and informed majority of its employees in an ap-
propriate unit, and that it doubted the appropriateness of
a single-store unit. It also rejected the offer of a card
check because of the possibility of coercion or
misrepresentation as to the purpose of the cards, and
agreed to resolve the questions raised by the union letters
"in a secret ballot election among the employees of the
Company."
A stipulation for certification upon consent election
was approved by the Regional Director on September 20,
in which the appropriate unit was defined as all em-
ployees at the Kenosha store, excluding store manager,
assistant store manager, lunch counter manager, profes-
sional employees, guards and supervisors as defined in
the Act. A few days later, the Union filed its original
charge in this case, alleging that the Company had com-
mitted violations of Section 8(a)(1). The next day, it
requested the Board to proceed with the stipulated elec-
tion, notwithstanding its charges. The election was held
on October 12, and the employees rejected the Union by
a vote of 8 to 7. On October 18, the Union filed timely
objections to conduct affecting the election, and on the
same day it filed an amended charge alleging that the
Company had unlawfully refused to bargain with it.
B. The Issues
The basic issue is whether the General Counsel has
established that the Company's refusal to recognize and
bargain with the Union was undertaken in bad faith, for
the purpose of dissipating the Union's majority, or in re-
jection of the collective-bargaining principle. Resolution
of that issue necessarily requires examination and deter-
mination of other questions. whether there was a proper
request for recognition; the Union's majority status,
which involves the composition of the appropriate unit
and the validity of certain authorization cards; and
whether the Company's total conduct was sufficiently
grave to warrant setting aside the election and to direct a
second election or order the Company to bargain despite
the Union's loss of the first election.
nition was defective and invalid because its communica-
tions with the Company were inconsistent and confusing;
it thereafter failed to clarify its position although invited
to do so; and its offer to substantiate its majority showing
by a card check was meaningless since the cards were no
longer in its possession, having been submitted to the Re-
gional Director as its showing of interest to accompany
the petition.
Standing alone, the Union's letter requesting recogni-
tion for all employees at the Kenosha store and offering
to negotiate the terms of a bargaining contract upon proof
of its majority through examination of cards (G.C. Exh.
2) is unambiguous and unequivocal, and satisfies the
Board's requirements in that regard. Nor does the filing
of a representation petition simultaneously with a request
for recognition and bargaining constitute a withdrawal or
qualification of the Union's right to be recognized if, in
fact, the Employer has no good-faith doubt of the Union's
majority.2
The issue of the Company's asserted good-faith doubt
will be discussed later, in connection with the violations
of Section 8(a)(1) alleged in the complaint, and I limit
myself for now to the Company's assertion that the
separate communications of August 24 were, taken
together, so inconsistent as to leave the Company in
doubt as to how to proceed. Its confusion seems to be
self-engendered and without any rational basis in fact.
There was surely no real inconsistency between the claim
in the recognition letter that it already represented a
majority of the store employees, and the warning letter in
which it called attention to its organizing campaign and
claimed to represent a substantial number of employees.
In effect, the Union was noting, perhaps superfluously
but harmlessly, that it intended to continue its organizing
drive in order to hold on to, and to expand, the number of
its adherents. Nor was the Union required to answer the
attorney's letter of August 29 and thereby forego its
claim to be the exclusive representative of the employees,
simply because it had also filed a petition, and was willing
to rely on an election as one of several appropriate means
by which its majority status could be tested.
Finally, Respondent's claim that the Union could not
establish its majority by means of cards because it no
longer had them in its possession is without merit. If
Respondent had offered to examine the cards, instead of
rejecting that procedure in its letter of August 29, it
would have been in a better position to complain if the
Union was unable to produce the cards which it had
turned over to the Regional Director. In any event, a
bona fide offer on the Company's part to negotiate an
agreement if a card check substantiated the Union's
majority claim, would have enabled the Union to
withdraw the petition and to reclaim its cards from the
Regional Director.
C. Adequacy of the Request for Recognition
and Bargaining
As noted above, on August 24, in separate letters the
Union advised the Company that it represented a majori-
ty of the employees at the Kenosha store, that it was en-
gaged in organizing and already represented a substantial
number of the employees, and that it was filing a petition.
The Company argues that the Union's demand for recog-
D. The Union's Majority Status
The unit: The only variation between the unit stipu-
lated as appropriate by the parties for purposes of the
consent election, and that described in the demand letter
and petition, is that the former specifically excluded
professional employees while the latter did not. There
were three pharmacists employed at the store at all times
during the relevant period who, the parties agree, were
2 Mids'ectern Manufacturing Company, Inc, 158 NLRB 1698, and
cases cited in fn 3 thereof
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
professional employees within the meaning of Section
2(12) of the Act. Two of these were the manager and the
assistant manager of the store, who were therefore also
excluded as supervisory employees. The third phar-
macist, Divjak, was a regular part-time nonsupervisory
employee.
The parties agreed on the names of 14 employees who
were employed on August 26, when the demand letter
was received by Respondent. The Respondent also urges
that Divjak, the nonsupervisory pharmacist, and Peter-
sen, classified as a merchandiser, must also be included
in the count of employees against which the Union's
majority status must be measured.
I am satisfied that Petersen must be included. Although
he may have had some additional responsibilities for a
short time between May 1966 when he came to work and
July when a pharmacist was hired to act as store manager,
his duties in August and up to the date of his leaving,
around September 15, were clearly nonsupervisory.
Although he was not actually present at the store during
parts of these months because of an accident and service
in an Armed Forces Reserve camp, he was paid for those
periods of absence.
His duties as a merchandiser were to display sundries,
such as toys, pet supplies, etc., in the selling areas of the
store, to requisition merchandise from the Company's
central warehouse, take inventory, help unload trucks,
and put orders away. His duties as to ordering, inventory-
ing, and stocking were no different in kind from those per-
formed by the women employees in the cosmetics, tobac-
co, or drug departments. The testimony of the Company's
personnel director that Petersen exercised no supervisory
functions was not rebutted. Furthermore, his replacement
after he left about September 15, was included on the
eligibility list for the October election. I find that Petersen
was the 15th employee in the unit described by the
Union's demand letter.
Divjak presents a more difficult problem, because it
requires a statutory interpretation which, to my
knowledge, has not heretofore been squarely decided.
The question is whether the Board may issue a bargaining
order encompassing a unit in which a professional em-
ployee is_included, thereby depriving him of the right
prescribed by the proviso to Section 9(b)(1) of voting on
whether he wishes to be included in a unit with non-
professional employees.3 Preliminarily, I call attention to
the fact that my discussion and holding on this issue will
be dictum, since I also hold later on in this Decision, that
the Union had 10 valid authorization cards, sufficient to
establish its majority whether the appropriate unit con-
sists of 16 or 15 employees, that is, whether Divjak is to
be included or excluded. However, 2 cards, those of Hix
and McClelland, are included in that majority of 10, and
if I am wrong in counting them, the resulting total of 8 is
sufficient to prove majority only if Divjak is excluded,
and the unit is confined to 15 employees.
The Respondent argues that the Union's demand letter
of August 24, by claiming to represent all employees at
the Kenosha store, excluding only supervisors, implicitly
requested that Divjak be included in the unit as a regular
part-time professional employee, and that it act as his
representative. It is true, as Respondent points out, that
Section 9(b)(1) does not prohibit the establishment of bar-
gaining units composed of both professional and non-
professional employees, but requires only that the former
be given a self-determination election on whether they
wish to be included in such a mixed unit.
The Respondent also points out, that if it had voluntari-
ly recognized the Union as the exclusive representative
of the employees claimed to be the appropriate unit in the
Union's demand letter, the Union would have become
Divjak's bargaining agent, and if an agreement had been
entered into, he would have been bound thereby, even
though he had not been given a choice between exclusion
or inclusion. The case cited by Respondent for this
proposition, Retail Clerks Union Local No. 324 (Vincent
Drugs), 144 NLRB 1247, as well as the later
International Telephone & Telegraph Corporation (ITT
Federal Laboratories), 159 NLRB 1757, holds that the
Board will not strike down a relationship, voluntarily and
consensually agreed to by the parties, in which profes-
sional employees have been joined without their prior
consent, in a mixed unit with nonprofessional employees.
There is, in each of those cases, language to the effect
that the Board is precluded by Section 9(b)(1) from
establishing such a mixed unit, without self-determination
by the professional employees, in a representation
proceeding, or from certifying such a unit, thereby giving
rise to a possible inference that the Board may do other-
wise in proceedings where a Board-directed election
under Section 9(c) is not invoked. Such an inference is
not warranted because the Act, in my opinion, precludes
the Board from establishing a mixed unit of professional
and nonprofessional employees, without self-determina-
tion for the former, as prescribed by Section 9(b)(1) either
in a representation proceeding under Section 9(c), or in an
unfair labor practice proceeding under Section 8(a)(5) or
8(a)(1).
A union may achieve the status of exclusive bargaining
representative for an appropriate unit, under Section 9(a),
without first winning a representation election under Sec-
tion 9(c).4 The Board recognizes and validates the status
thus obtained under Section 9(a), by a proceeding pur-
suant to Section 8(a)(5), or under certain circumstances,
pursuant to Section 8(a)(1). But whichever paragraph of
Section 8(a) is invoked, the Board must find that the unit
1 The relevant statutory provisions to which I will refer are set out here
I he italics in all cases is, of course, mine, for emphasizing particularly
pertinent language
Sec 8 (a) It shall be an unfair labor practice for an employer-
(5) to refuse to bargain collectively with the representatives of his
employees , subject to the provisions of section 9(a)
Sec 9 (a) Representatives designated or selected for the purposes
of collective bargaining by the majority of the employees in a unit ap-
propriate for such purposes, shall be the exclusive representatives of
all the employees in such unit for the purposes of collective bargain-
ing
(b) The Board shall decide in each case whether, in order to assure
to employees the fullest freedom in exercising the rights guaranteed
by this Act, the unit appropriate for the purposes of collective bar-
gaining shall be the employer unit, craft unit, plant unit, or subdivision
thereof Provided, That the Board shall not (I) decide that any unit is
appropriate for such purposes if such unit includes both professional
employees and employees who are not professional employees unless
a majority of such professional employees vote for inclusion in such
unit,
" United Mine Workers of America v Arkansas Oak Flooring Co , 351
U S 62, 71-72, Ray Brooks v NLRB , 348 U S 96, 100-101
THRIFT DRUG COMPANY OF PA. - 429
in which the Union has achieved majority status is ap-
propriate, and it must follow the applicable mandates of
Section 9(b). The Board's validation of a unit as ap-
propriate under Section 9(a) and (b) is necessarily quite
different from a Board holding that parties who have con-
sensually agreed to bargain with respect to an inap-
propriate unit may be permitted (or required) to continue
their past course of action. In the former situation, the
Board must affirmatively find a particular unit to be ap-
propriate in all regards; in the latter, it simply allows the
parties to resume their extended history of bargaining for
an inappropriate unit, without condoning their action but
without declaring their conduct to be void ab initio.
I hold, therefore, that I am precluded from finding the
unit sought by the Union in its recognition letter to be ap-
propriate, because the Board may not, under Section
9(b)(1), include a professional employee in any unit if he
has not had the opportunity to decide whether he wishes
to be joined with nonprofessional employees.5
The unit for which the Union requested recognition
was not inherently inappropriate, as I have mentioned
above, if the Company had voluntarily accorded recogni-
tion upon being satisfied that the Union had valid
authorization cards from a majority of its employees.
Since the Company refused to do so, the Regional
Director approved a stipulation for a consent election for
a unit from which professional employees were excluded.
The basic character of the unit originally requested (all
store employees excluding supervisors) was unchanged
by the exclusion of a single nonsupervisory professional
pharmacist, and the variation between the units defined
in the original request and in the stipulation, is insub-
stantial.e I find, therefore, that the unit agreed to in the
stipulation for certification upon consent election is a unit
appropriate for the purposes of collective bargaining.
Authentication of signatures: Ten dated and signed
authorization cards were offered and received in
evidence. Four employees (Alberta Story, Lana Pfeiffer,
Jacquelyn Zellen, and Sophie Zebrowski) personally
identified their own signatures, and no question is raised
as to the authenticity of those cards.
Paul Whiteside, Jr., a representative of Retail Clerks
International Association, District Council No. 14,
testified that he had witnessed the signing of four addi-
tional cards. They are those of Evelyn Massie, Louis
Vena, Lois Wasiulewski, and Teresa Witt. In its brief, the
Respondent urged that the four cards which Whiteside
said had been signed in his presence, but which were not
personally authenticated by their signers, should not be
counted towards the Union's majority, because the
General Counsel failed to call the four signers to identify
their signatures or to establish that they were unavailable
to testify. The contention has been uniformly held to be
without merit. A card may be properly authenticated by
a witness who testifies that he observed its signing.7 Since
Whiteside's testimony was competent and probative, it is
immaterial that the General Counsel may have relied on
other methods of proving the authenticity of the cards.
The last of the 10 cards are those purporting to be
signed by Hazel Hix and Nancy McClelland (G.C. Exhs.
9 and 10). The General Counsel called Beverly Crowe as
his witness to vouch for the genuineness of Hix's and Mc-
Clelland's signatures on these two cards. Crowe is not
employed by the Respondent, and at her place of employ-
ment she serves as a steward for the Charging Union.
After preliminary questions as to her name and employ-
ment, Crowe testified as follows, in response to the
questions of Mr. Selby, counsel for the General Counsel.
Q. I hand you what has been marked General
Counsel's Exhibit 9, for identification, and ask you
if you recognize the signature.
A. Yes.
Q. Whose is it?
A. Hazel Hix.
Q. When was that card signed?
A. May 26th, 1966.
Q. I hand you what has been marked General
Counsel ' s Exhibit 10, for identification , which pur-
ports to be an authorization for representation. Do
you recognize the signature on that card?
A. Yes.
Q. Whose is it?
A. Nancy McClelland's.
Q. When was that card signed?
A. August 19th, 1966.
I admitted these two cards over the objection of Respon-
dent 's counsel that they had not been properly identified.
He was afforded the opportunity to examine the witness
on, voir dire and to cross -examine her , but chose not to do
so.
This was the extent of General Counsel 's efforts to
establish the genuineness of the signatures on these cards.
I merely restate the obvious , for emphasis, by pointing
out that Crowe did not testify that the cards were signed
in her presence , or that they had come into her possession
in connection with her duties as a steward for the Union.
On the other hand , the Company did not question her
claim that she recognized the signatures of Hix and Mc-
Cleiland. It chose to forego examining her on her basis for
comparing these signatures with other signatures of Hix
and McClelland which she knew to be genuine . For all
that appears here , Crowe's claim that she recognized the
signatures might have been supported by exact and
detailed knowledge based on her prior examination of
many known genuine signatures of Hix and McClelland,
or it might be an outright falsehood , or else based on
ridiculously inadequate opinion . But neither the General
Counsel nor the Company wished to inquire further, for
reasons best known to themselves. Each was willing to
rest his case on the barest minimum . For example, neither
party claimed that Hix or McClelland was unavailable to
testify, nor did Respondent attempt to prove the falsity of
the signatures by comparing them with samples of
authentic signatures from tax withholding forms, payroll
records, etc., which it might have in its possession. Of
course , it was unnecessary for the Respondent to put
5 The distinction between a Board finding and a Board certification of
an appropriate unit is explicity drawn in Section 9(b)(3) with respect to the
two separate standards for labor organizations which represent guards
See The William J Burns International Detective Agency, Inc , 134
NLRB 451, where the distinction between the two is discussed and
specifically relied upon
8 Heck's Inc , 156 NLRB 760, 765-767, Ottenheimer and Company,
Inc, 144 NLRB 38, 46, Galloway Manufacturing Corporation, 136
NLRB 405 , 408, and The Hamilton Plastic Molding Company, 135
NLRB 371, 373
' Don the Beachcomber , 163 NLRB 275, fn 2, Lifetime Door Com-
pany, 158 NLRB 13 , Colson Corporation v N L.R . B , 347 F 2d 128, 134
(C A 7), N L R B v Economy Food Center , Inc, 333 F 2d 468, 471
(C A 7)
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth any effort to help the General Counsel prove his
case, and the question as to whether I was right in receiv-
ing General Counsel's Exhibits 9 and 10 is whether the
General Counsel' s submission , through Crowe's
testimony, established a prima facie case.
Respondent 's brief states that "The Board and the
Courts have consistently held that , if authentication by
other than the signer is to be permitted , the party authen-
ticating must have been a witness to the execution." The
statement is incorrect . The cases do not so hold, nor do
the three cases which Respondent cites in his brief for the
proposition in fact support his argument . The Board will
accept as authentic , for example , authorization cards
which were returned to the person soliciting them even
though the solicitor did not witness the act of signing 8
Turning to the three cases cited by Respondent as sup-
porting the contention set out above, in The Colson Cor-
poration , 148 NLRB 827, the Trial Examiner rejected
Stimel ' s card because he did not believe Crayne's
testimony that Stimel had returned a signed card to him,
rather than because Crayne had not seen Stimel sign the
card. See footnote 5 of the Trial Examiner' s Decision at
page 840. In the second case, Winn-Dixie Stores, Inc.,
153 NLRB 273, 306, the Trial Examiner rejected
Mobley's card because the testimony of Johnson , the sol-
icitor, as to when the card was signed was not persuasive,
rather than because he had not seen Mobley sign
Nor does Henry Colder Company, 163 NLRB 105,
support Respondent 's argument that authentication of a
signature may be established only through the testimony
of the signer or of someone who witnessed the signing. It
may be that Colder casts doubt on the precedential value
of the holding in I Tattel and Son, 119 NLRB 910, enfd.
211 F.2d 1 (C.A. 7), that cards may be authenticated by
a union representative (a) where his testimony shows that
they were obtained in the course of the union 's organiza-
tional campaign from key employees who secured them
and (b) where opportunity is given the employer before
or at the trial to check their authenticity . But whatever
may be inferred from the Board 's remand to the Trial Ex-
aminer in Colder, as to the Taitel holding, it does not have
the scope which Respondent attributes to it, since in
Colder itself the Board approved the genuineness of the
card signed by Arlene E. Locke whose authenticity was
established through the comparison of the signature on
the card with an admittedly genuine sample of the same
person 's handwriting . In the Colder case, the comparison
of Locke's signature with other samples of her signature
was made by a handwriting expert, and the use of such
experts has been approved by the Board in other cases.9
Furthermore, the Board has accepted a comparison of
signatures even by nonexperts.10
There is thus no reason to believe that signatures must
be authenticated in a more restrictive manner in Board
proceedings than in other administrative or in judicial
proceedings . Wigmore's treatise on Evidence (3d ed.
1940) supplies overwhelming precedent that the genuine-
ness of signatures may be proved by the testimony of
those who did not witness the actual signing. Handwriting
experts may state their opinion as to whether A signed a
particular document , by comparing A's purported signa-
ture thereon with his known genuine signatures; and
nonexperts may state their opinions based on their
familiarity with A' s handwriting The competency of a
nonexpert witness to state an opinion as to the genuine-
ness of A's signature may be tested by examining him on
his claim that he is familiar with A' s handwriting. But if
the party who contests the genuineness of A's signature
does not impugn the witness ' claim of familiarity, the
document is admissible in evidence , and the question of
genuineness is then left for the trier of fact."
To return to the specific evidence in the instant case,
Crowe testified that she recognized Hix's and McClel-
land's signatures . Her assertion of recognition was in ef-
fect a claim that she was familiar with their signatures and
had made a mental comparison of the purported examples
shown to her with other examples which she knew to be
genuine , and that in her opinion , the signatures on
General Counsel' s Exhibits 9 and 10 were indeed those
of Hix and McClelland. If Respondent believed that
Crowe was not competent to express an opinion because
of her lack of familiarity with the signatures of Hix and
McClelland, it need only have asked her on what she
based her claim of being able to recognize these signa-
tures. Its failure to do so was a calculated gamble, not an
oversight , since it had already examined Whiteside on his
claim of recognizing the signatures on the cards which
had been signed in his presence , and was able to show the
insubstantiality of his opinion . Respondent might have
been able to do the same with Crowe if it had tried, but it
chose not to.
On the basis of the thin and barely adequate identifica-
tion by Crowe that she recognized the signatures on
General Counsel 's Exhibits 9 and 10 as being those of
Hix and McClelland, I affirm my ruling admitting those
exhibits in evidence , and find that the purported signa-
tures are genuine, and the authorization cards valid.
The alleged misrepresentations : The signed cards
which the Union obtained in its organizational campaign
are headed "Authorization for Representation." The sub-
stantive provisions of the cards authorize the Union to
represent the employee signing it for the purposes of col-
lective bargaining in accordance with applicable law.
Respondent 's brief argues that the Union made material
misrepresentations to most of the employees who signed.
" Texas Electric Cooperatives , Inc , 160 NLRB 440 (cards of
Christian , Whinery , and others ), Gordon Manufacturing Company, 158
NLRB 1303 (Oliver), and Lifetime Door Company, 158 NLRB 13
(Holmes)
9 Aero Corporation , 149 NLRB 1283 , and Benson Veneer Company,
Inc, 156NLRB781,792
"Phdamon Laboratories , Inc, 131 NLRB 80, fn I of l R , enfd 298
F 2d 176, 180 (C A 2), Tom's Supermarket, Inc, 157 NLRB 1276
(Tweedie ' s card)
See 7 Wigmore , Evidence § 2131 (3d ed 1940)
Modes ofAuthenticating Documents Some of the various possible
modes of evidencing a document 's genuineness are, of course, never
questioned to be sufficient to entitle it to go to the jury Those about
which question has arisen are only certain kinds of circumstantial
evidence
It will be necessary therefore to eliminate at the outset the kinds of
evidence as to which there is no dispute from the present point of
view
(3) Circumstantial evidence is of various sorts, and first, of those
not here involved
(a) Style of handwriting, i e , similarity between that of the docu-
ment and that of the person alleged as its maker , is a sort of circum-
stantial evidence (ante , § 383) undisputed in its sufficiency , the con-
troversies have arisen over the proper modes of proving the fact of
similarity 4
' The type of handwriting may be evidenced by persons familiar with
it (ante §§ 693, 2008),
THRIFT DRUG COMPANY OF PA.
It argues that Lana Pfeiffer's card should not be
counted because Zellen told her that the "only" purpose
of the card was to obtain an election, and that the Union
needed cards from a majority of the employees to insure
an election. Respondent's contention loses much of its
force since its inquiries were based on its understanding
at that time that Pfeiffer had signed a card on Zellen's
solicitation. Pfeiffer's later testimony showed that this
was not so. Pfeiffer said she had complained to Jackie
Zellen that her wages were low, and Zellen had said the
wages would be higher if they had a union. Zellen then
said they needed so many girls to have a union, that she
herself had signed up, and if Pfeiffer wanted to sign up she
could be a member to help the majority. Zellen did not
have an authorization card with her and did not solicit
Pfeiffer's signature. A few weeks later, on her own initia-
tive, Pfeiffer asked Nancy McClelland to bring her a card
when McClelland went to get hers. Pfeiffer's answer to
Respondent's question as to whether Zellen had told her
that the only purpose of the card was for an election was,
"for a union, yes, for higher wages." The answer, as well
as Pfeiffer's entire testimony, shows clearly that Zellen
nor anyone else misrepresented the purpose or effect of
the card.
Zellen testified at one point that Crowe had told her
that in order for the Union to obtain an election it needed
cards of two-thirds of the employees. Respondent alleges
that this is a material misrepresentation which should in-
validate Zellen's card. This is apparently a claim that Zel-
len was misled into signing a card, but I fail to see why.
Crowe told Zellen, according to the latter's testimony,
that if the Company did not recognize the Union volun-
tarily they would then have an election if two-thirds of the
employees had signed cards. The misstatement, or Zel-
len's misunderstanding of what Crowe told her, was not
material since Zellen's testimony also clearly shows that
she was told that an election would only be necessary if
the Company refused to recognize the Union on the basis
of a card check.
Respondent also contends that the five cards solicited
by Union Representative Whiteside are invalid because
"the obvious intent and effect of Whiteside's statements
is that the only purpose of the card is to obtain an elec-
tion." What Whiteside actually said was that the
authorization cards would be used for a card check and if
that failed, for an election. He also told the employees
who signed the cards that companies usually do not agree
to card checks, and if their employer did not, they could
vote as they pleased in the election. He did not tell them,
as Respondent contends he should have, that their
authorization cards might be used to support a bargaining
order or might supersede their vote. It is this omission,
Respondent contends, which amounts to a representation
that the only purpose of the card was to obtain an elec-
tion. It is obvious that Whiteside was only soliciting
cards, and not attempting to give a quick course in labor
law. What he said was accurate and correct, and his basic
point, that the cards could be used to establish the
Union's majority without an election, is an accurate sum-
mary of what the cards themselves say.
In summary, I find that the Union had obtained 10
valid authorization cards when it requested recognition,
and that this constituted a majority of the 15 employees
in the unit of all store employees, excluding professional
employees, guards and supervisors, which I have found
appropriate.
E. Alleged Violations of Section 8(a)(1)
1. Before the election
431
The Company's supervisors immediately responsible
for day-to-day operations at the Kenosha store during
August and September were Donald Schneider, store
manager; Charles Wearing, assistant store manager; and
Dolores Davis, fountain manager. E. A. Montini, food
service director, and Donald Bell, the personnel director,
were management and supervisory officials with the du-
ties and responsibilities indicated by their titles, for
operations at all stores. Montini and Bell both visited the
Kenosha store during September and spoke to various
employees there.
Schneider, Wearing, Davis, and Montini were not
called to testify, and their various conversations with
store employees, as testified to by witnesses for the
General Counsel, are in effect uncontradicted. Story,
Zebrowski, and Zellen testified that Store Manager
Schneider had spoken to each of them individually on
many occasions between August 26 and October 12, the
date of the election, telling them that the store would
close down if the Union came in. Pfeiffer also testified
that Schneider had told her several times, in effect, that
there was no need to worry about little things because if
the Union got in, the store would close down.
Story also testified that she participated in a conversa-
tion with Schneider, Sophie Zebrowski and her husband,
and employee Evelyn Massie about September 10, when
Schneider said he was planning to give everyone a raise
to $1.50 per hour. Mrs. Zebrowski then asked him what
guarantee they had that they would not be fired after the
election, and that Schneider had promised that none of
the girls would be fired if the Union did not come in. On
another occasion, according to Story, Schneider asked
her and Pfeiffer if there wasn't to be a union meeting the
next day and when she said, "We know you've got your
spies," he answered, "Yes, I know everything that's
going on with the union business."
A few days after the consent election was agreed to,
Schneider asked Story if she would like to come in to
work for a couple of hours on the day of the election, even
though she was not scheduled to work that day. Story
said she would be in to vote election day, to which
Schneider said, "I thought jou'd like to get some time in
before the 12th, because if the Union gets in, you're not
going to get any time in after the 13th."
Zellen testified that she had gone to the store on Sep-
tember 15 to meet Lana Pfeiffer and go with her to a
union meeting. Schneider said to them that he did not
know why they bothered going to a union meeting, it was
not going to do them any good anyway, but that he could
get a job anywhere.
Although Assistant Manager Wearing does not seem to
have been as active as Schneider during this period,
Zebrowski did testify that whenever she met him in the
stockroom he also said that if the Union got in, the store
would close.
Based on their uncontradicted testimony and their
demeanor while testifying, I credit Story, Pfeiffer, Zellen,
and Zebrowski and find that Schneider and Wearing
made the statements recited above. I find that their re-
marks that the store would be closed if the Union came
in, Schneider's offer to let Story work on a nonscheduled
day, his statement that he was planning to raise everyone
to $1.50 per hour, the threat implicit in his remark that
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
none of the girls would be fired if the Union did not come
in, and his statement implying that he knew what was
going on with the union business, and that it would not do
them any good to go to a union meeting, all constituted il-
legal interference, restraint, and coercion within the
meaning of Section 8(a)(1).
Pfeiffer testified that Davis, the fountain manager,
asked her on two occasions in mid-September how she
was going to vote in the union election. During this
period, Davis also asked her if she had gone to a union
meeting which had been held the evening before.
Pfeiffer and Zellen testified that in separate conversa-
tions with each of them Davis had told them that if any
applicants for employment appeared in response to a
help-wanted advertisement which the Company had just
run, that they were to find out whether the applicant was
for a union, and, if she was, to tell her that the job had al-
ready been filled or that the manager was not in to take
the application.
Zellen also testified that a week or so before that con-
versation, Davis had told her, while Nancy McClelland
was also present, that she, Davis, was to find out how
they were going to vote.
Based on their uncontradicted testimony and their
demeanor while testifying, I credit Pfeiffer and Zellen,
and find that Davis made the statements recited above.
Inquiries as to how an employee is going to vote, and
whether she had gone to a union meeting, and orders to
turn away applicants who are favorable to a union
reasonably tend to intimidate employees in the exercise
of their right to support a union and are thereby violative
of Section 8(a)(1). I so find here.
Pfeiffer testified as to three conversations in September
with Montini, the food service director. In the first such
conversation, Montini asked her if she had been to union
meetings and if she had a personal gripe, since anyone
who wanted the Union must have a personal gripe. He
also said that the fountain employees would not neces-
sarily get a raise even though the other employees might,
that they might lose their separate store and food
discounts, and in the long run would lose more than they
would gain if the Union got in. She also testified that
Montini had said in the same conversation that the foun-
tain was a separate department in the store, that it was not
making as much money as it should, and that he could
close it any time.
In their second conversation, Montini told her he knew
that she, Alberta (Story), and Jackie (Zellen) had been to
a union meeting and asked her if she knew what wage rate
the Union was offering. She said she did not, and Montini
then said that if the Employer and Union decided on
wages, it would not be more than $1.15 per hour and that
the employees would lose their food and store discounts
Again he asked her what her gripes were and she told him
that the employees were interested in the Union because
they thought it could get them higher wages, to which he
replied that he was not allowed to make any promises
then, because it might look like a bribe but that in October
the Company would decide which employees were
deserving of a raise.
In their third conversation, a few weeks later but before
the election, Montini repeated some of the points he had
previously made, such as the loss of food discounts if the
Union got in.
Zellen's testimony as to her conversations with Mon-
tini substantially corroborates that of Pfeiffer. Zellen said
that Montini told her he was there because of the union
activities, that the fountain employees were overpaid at
$1.10 per hour because employees at other stores were
not given a store discount or a food allowance, and that if
the employees obtained a union they would lose their
discounts.
Based on their uncontradicted testimony and on their
demeanor while testifying, I find that Pfeiffer and Zellen
testified credibly as to what Montini said to them. I find
that Montini threatened them with loss of their store and
food discounts, and threatened Pfeiffer with closing down
the fountain department if the Uion won. His statement
that the employees would not get more than $1 15 per
hour if the Union got in, accompanied by his statement
that in October the Company would decide on raises,
would reasonably tend to impress on Pfeiffer and the
other employees that their chances for wage raises would
be improved if they defeated the Union. Respondent vio-
lated Section 8(a)(1) by Montini's threats and promises of
benefits detailed above.
In connection with his duties as personnel director,
Bell visited the Kenosha store about September 8 and 9
and spoke to all the employees individually. He testified
that he did so because Kenosha was a fairly new opera-
tion and he wanted to inform himself about the personal
background of the store employees, to explain the com-
pany benefits, and to find out what problems the em-
ployees might be having. Only Story and Zebrowski were
called by the General Counsel to testify as to their inter-
views with Bell. During Bell's inquiry as to their
problems, both Story and Zebrowski brought up their
desire for more money. Bell took advantage of the open-
ing thus presented him by telling them in effect that his
hands were tied while the union business was unfinished,
but that the Company was aware of the problem. Story
amplified this by testifying that Bell also said everyone
could count on a substantial raise in October, while
Zebrowski said that Bell had told her the Company was
in the process of talking about giving raises to the girls,
but that their hands were tied now that the Union was
talking about coming in. Bell testified that he said only
that the Company reviewed wages in October.
I think it more likely that Bell limited himself to the re-
marks he testified to - that the Company reviewed wages
in October. Although Story and Zebrowski forthrightly
told him in their interviews that they wanted more money,
and thereby gave him a favorable opportunity to let them
know that raises might be forthcoming next month,
neither Story's nor Zebrowski's testimony indicates that
the possibility or expectancy of a raise was conditioned
on the Union's defeat. I am satisfied that the Company's
annual wage review for employees at all its stores did
occur in October. I find that Bell's implicit promise that
their complaints about wages would be considered was
made pursuant to the Company's regular practice of
reviewing employee wages every October, and was not
conditioned on their rejection of the Union. I therefore
find no violation of Section 8(a)(1) in any of Bell's re-
marks to Story and Zebrowski.
2. After the election
About 2 weeks after the election, and while the Union's
objections were pending before the Regional Director,
the Company granted wage increases to its employees.
The complaint alleges that the grant of increases at that
time was an independent violation of Section 8(a)(1), as
well as a violation of Section 8(a)(5).
THRIFT DRUG COMPANY OF PA. 433
Within a week or so after the election, about half the
employees at the store quit voluntarily. Some of these had
been earning less than $1.40 per hour. Their replace-
ments were hired at $1.40, and those old employees who
remained and who were not above that minimum were
given raises so that their new rates matched or exceeded
the newly established minimum.
The Company argues that the grant of wage increases
after the election was prompted by its normal policy of
reviewing all wages throughout its chain of more than 100
stores each October; that it had already established a
$1.40 minimum at the stores it was currently opening,
because that was to be the new statutory minimum as of
February 1, 1967, under the Federal Wage-Hour Laws,
and because many of the employees who had recently
quit had been dissatisfied with their low wages.
I consider these to be legitimate business considera-
tions warranting the grant of wage increases at that time
despite the pendency of the objections to the election. I
am aware of those cases in which the Board has held that
wage increases or benefits granted after an election, while
objections are pending, are in violation of Section 8(a)(1)
as being calculated to influence the employees' choice of
a bargaining representative if a second election were
directed, and as a reward for having rejected the Union.12
These were, however, cases in which the benefits granted
would have been illegal, under the rationale of N.L.R.B.
v. Exchange Parts Company, 375 U.S. 405, if they had
been bestowed before the election. In the instant case, on
the contrary, the evidence shows no deviation from the
Company's normal and regular practice of reviewing
wages throughout its entire chain of stores in October,
and to make such adjustments as were called for by legiti-
mate business considerations. 13
On the basis of the evidence presented in this case, I
believe that the wage increases granted late in October
were justified by the approaching February 1967
deadline for raising the minimum under the Wage-Hour
Laws, and were not, therefore, either premature or exces-
sive. I find no independent violation of Section 8(a)(1)
thereby, but in view of my intention to find a violation of
Section 8(a)(5) in the Company's refusal to recognize and
bargain with the Union as the authorized representative
of a majority of its employees in an appropriate unit, I
nevertheless find that the unilateral institution of these
wage adjustments was a violation of the Respondent's
obligation to bargain with the Union.
F. Alleged Violations of Section 8(a)(5)
I have found that the Union represented a majority of
the employees in an appropriate unit at the Company's
Kenosha store when it requested recognition and bargain-
ing. The General Counsel, however, is also obligated, as
part of his case, to establish that the Respondent refused
in bad faith to recognize and bargain with the Union after
it attained its majority status or, as the principle is
frequently stated in expanded terms, because it rejected
the concept of collective bargaining or sought to use the
time thus gained to undercut and destroy the support of
its employees for their chosen representative. The inde-
pendent violations of Section 8(a)(1) which I found have
occurred were pervasive and substantial. They consisted
of threats by every one of the three supervisors in actual
charge of the store's operations, and by Montini, who
because he represented a higher level of management
would tend to impress upon the employees the concern
which top officials of the Company felt about their activi-
ties. Four employees, out of a total of 16 nonsupervisory
employees, testified credibly to the month-long effort of
the Respondent to convince them of the dire con-
sequences likely to result from their continued support of
the Union, through their threats and coercive interroga-
tions. In circumstances such as these, the Respondent's
reliance on cases in which the Board found no causal rela-
tionship between isolated violations of Section 8(a)(1)
and the loss of the Union's majority is misplaced.14
Affirmatively, Respondent contends that it had a good-
faith doubt as to the Union's claim of majority representa-
tion. Its argument that the Union's conduct on August 24
in sending it three separate communications was am-
biguous and inconsistent, has already been considered
and rejected. It also relies on the fact that the Kenosha
store had been in operation only 8 or 9 months, that it had
had a high rate of employee turnover, and that it had al-
ways attempted to keep in close contact with its em-
ployees and was therefore dubious of the Union' s claim
on the extent of the support it had won at the store. It also
urges, as evidence of its good-faith doubts, that it was
willing to proceed with a consent election to test the
Union's claims. These assertions might, in other circum-
stances, have established a good-faith doubt, but here
their force has been effectively blunted by its aggravated
conduct in coercing and intimidating its employees,
thereby making impossible a fair test of the Union's
majority claims.
The Respondent also contends that a bargaining order
against it would not be warranted because the Union has
in the meantime lost the effective support of its former ad-
herents, and because the doctrine of the Bernel Foam
case, 146 NLRB 1277, is not applicable here. I will con-
sider the contentions in that order.
Respondent expresses concern that its present em-
ployees will be deprived of their right to refrain from self-
organizing activities if a bargaining order is issued here.
It is true that seven employees left almost immediately
after the election, and that apparently none of them
claimed that the Union's loss of the election was the
=reason for their quitting. It is worthy of note, however,
that all seven had signed authorization cards. In any
event, the Respondent argues that the Union would have
lost its majority without regard to whether Respondent
had committed some unfair labor practices. In effect, it
seeks to benefit from its own illegal actions in thwarting
12 Ambox, Incorporated, 146 NLRB 1520, 1521, enforcement denied
on this point 357 F 2d 138, 141 (C A 5), Northwest Engineering Com-
pany, 148 NLRB 1136, 1144, enfd 376 F 2d 770 (C A D C ), Gal Tex
Hotel Corporation, d/bla Admiral Semmes Hotel and Motor Hotel, 154
NLRB 338, 342, and Ralph Printing & Lithographing Co, 158 NLRB
1353
13 See Sheboygan Sausage Company, Inc, 156 NLRB 1490, 1497, and
True Temper Corporation, 127 NLRB 839, 842
14 Compare Aaron Brothers Company of California, 158 NLRB 1077,
Hammond & Irving, Incorporated, 154 NLRB 1071, and Cameo Lin-
gerie, Inc, 148 NLRB 535, which the Respondent relies on , with thefol-
lowing cases in which the Board , with court approval , held that the em-
ployer had rejected the union's request to bargain , in bad faith Elliott-Wil-
liams Co, Inc, 143 NLRB 811, enfd 345 F 2d 460 (C A 7), Boot-Ster
Manufacturing Company, Inc , 149 NLRB 933, enfd 361 F 2d 325 (C A
6), Gotham Shoe Manufacturing Co, Inc , 149 NLRB 862, enfd 359
F 2d 684 (C A 2), and Frank C Varney Co, Inc, 151 NLRB 280, enfd
359 F 2d 774 (C A 3)
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its former employees' desire for representation by ad-
vocating the right of its present employees to refrain from
such activities. The Supreme Court's decision in Franks
Brothers Company v. N.L.R.B., 321 U.S. 702, exposes
the untenability of Respondent's argument.
Since the facts in no two cases are ever exactly alike,
the Respondent is able to point out certain factual dif-
ferences between this case and Bernet Foam Products
Co., Inc., 146 NLRB 1277. 15 In Bernet , the petition was
filed after a request for recognition was refused; here, it
was filed simultaneously with the request. Respondent ar-
gues that Bernet does not govern this case since here the
refusal to bargain did not induce the filing of the petition,
and consequently that the Union had a genuine choice of
remedies here, unlike the union in Bernet. I think the fac-
tual differences between the two cases are immaterial.
Before Bernet, a union , knowing of an employer's unfair
labor practices, had a one-time choice between proceed-
ing with an election or seeking a bargaining order. The
reversal of that doctrine was intended to abolish the
necessity of making that choice , and to permit a union to
go forward with the election and thereafter, if it lost, to
prove its preexisting majority in an unfair labor practice
proceeding. Respondent's distinction based on which
came first, the petition or the request, would merely im-
pose an illogical limitation on what the Board clearly in-
tended to accomplish.16
Respondent also relies on another factual distinction
between this case and Bernet to argue that the Union
should be limited to a choice between an election or an
8(a)(5) proceeding. It points out that here the Union filed
charges of 8(a)(1) violations after it filed its petition but
before the election was held. In conformity with Board
regulations , it also requested the Regional Director to
proceed with the election despite its pending charges.
After the election, it filed objections and an unfair labor
practice charge alleging a wrongful refusal to bargain.
Respondent contends that this gave the Union an even
greater advantage than it was entitled to under the Bernet
doctrine , in allowing it to keep its 8(a)(1) charges in
abeyance until it knew whether it had won or lost the
election, and then to rely on those as the basis for its
8(a)(5) charge. This is said to permit the Union to harass
the Respondent and to abuse Board processes. Like the
previous argument, Respondent's concern that the Union
may act only in a fixed step-by-step fashion is misplaced.
That the Union filed 8(a)(1) charges before instead of
after the election does not affect the Board's reasons for
allowing a union to participate in an election and then
prosecute a refusal-to-bargain charge. The Respondent
believes the Bernet doctrine is unfair , and it is entitled to
urge the Board to overturn it, but its attempt to pay lip
service to it while distinguishing this case from it fac-
tually, is no more than a roundabout attack on Bernet
itself.
IV. OBJECTIONS TO THE ELECTION
The Union filed timely objections to the conduct of the
election. The Regional Director's report on the objec-
11 In Bernel, the Board reverted to its former doctrine that a union may
be entitled to a bargaining order based on its majority status even though
it had lost an election in which it participated with knowledge of the em-
ployer's commission of unfair labor practices
10 Midwestern Manufacturing Company, Inc , 158 NLRB 1698, and
cases cited in fn 3 thereof
1' International Shoe Company, 123 N LRB 682
tions refers to evidence tending to show that between the
filing of the petition and the election, supervisors and
agents of the Respondent coercively interrogated em-
ployees concerning their union activities, threatened
them with the closing of the Kenosha store and other
reprisals, and promised them increases in wages and
other benefits if they rejected the Union. I see no reason
to consider other conduct which was alleged in the objec-
tions as grounds for setting the election aside since, in my
opinion, the evidence at the consolidated hearing before
me amply supports the conclusion I have reached that the
election should be set aside, and that the Respondent
should be requii ed to bargain with the Union as the exclu-
sive representative of its employees at the Kenosha store,
based on its majority status as of August 26, 1966.
It is also immaterial that the objections did not specify
all the conduct which I have found to be grounds for
setting the election aside. The decision as to whether an
election should be set aside is properly made on the basis
of the investigation or hearing, and not on the allegations
specified in the objections to the election.17 Here,
moreover, the complaint alleged in what respects Section
8(a)(1) had been violated before the election, and such
violations, if proved, are a fortiori grounds for setting the
election aside, so long as timely objections were filed.
Conclusions
Accordingly, for the reasons stated above, I conclude
that Respondent, by rejecting the Union's request on Au-
gust 26 for recognition and bargaining, and thereafter en-
gaging in unfair labor practices designed to destroy the
Union's majority, refused to bargain with the Union in
violation of Section 8(a)(5) of the Act.11 I also find that by
unilaterally raising the wages of its employees in October
at a time when the Union was entitled to exclusive recog-
nition as bargaining agent, Respondent violated the same
section. 19
Furthermore, even if I were to assume that the Com-
pany acted in good faith in insisting upon an election, a
bargaining order is nonetheless appropriate in order to
undo the effects of its subsequent unfair labor practice S.20
Finally, the Board and the courts have also held in a
number of cases that, where an employer's violations of
Section 8(a)(1) have dissipated a union's majority and
prevented the employees from freely exercising their cho-
ice of representatives, the Board may, in order to remedy
the unfair labor practices, issue an order directing the em-
ployer to bargain with the union on request, provided that
the union had a majority at all relevant times 21 Under the
doctrine of these cases also, a bargaining order is ap-
propriate in this case.
CONCLUSIONS OF LAW
1. All employees at Respondent 's Kenosha, Wiscon-
sin, store , excluding the store manager , assistant store
manager, lunch counter manager , professional em-
ployees, guards, and supervisors as defined in the Act,
11NLRBv Joy Silk Mills, Inc, 185F2d732(CADC)
1" N L R B v Benne Katz, etc, d/b/a Williamsburg Steel Products
Co, 369 US 736
20 N L R B v Stow Manufacturing Co, 217 F 2d 900 (C A 2), and
Irving Air Chute Company, Inc v N L R B , 350 F 2d 176 (C A 2)
11 Editorial "El Impartial" Inc v N L R B, 278 F 2d 184, 187 (C A
1), and N L R B v Delight Bakery, Inc, 353 F 2d 344 (C A 6)
THRIFT DRUG COMPANY OF PA.
constitute an appropriate unit for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
2. At all times since August 24, 1966, the Union has
been the duly designated bargaining representative of the
employees in the aforesaid collective-bargaining unit.
3. The Respondent has interfered with, restrained, and
coerced its employees in the exercise of their nghts
guaranteed in Section 7 of the Act, in violation of Section
8(a)(1), by threatening them that the Kenosha store or its
fountain department would be closed down or that they
would lose their store or food discounts, by promising
them wage increases and other benefits, by coercively in-
terrogating them as to how they were going to vote, or if
they had attended union meetings , by intimidating them
through its orders to reject applications for employment
from prounion applicants, and by telling them that their
attendance at union meetings had been observed and
noted.
4. By failing and refusing on August 26, 1966, and at
all times thereafter, to recognize and bargain with the
Union as the collective-bargaining representative of the
employees in the aforesaid unit, and by unilaterally
changing the wages of employees in October 1966,
without notice to or consultation with the Union, the
Respondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(5) of the Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in un-
fair labor practices in violation of Section 8(a)(1) and (5)
of the Act, my Recommended Order will provide that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
As indicated above, an order to bargain collectively
with the Union is appropriate to remedy the Company's
violations of the Act. Even in the absence of a refusal to
bargain , I would find this remedy appropriate in the cir-
cumstances of this case in view of the Company's exten-
sive violations of Section 8(a)(1), which prevented the
employees from exercising a free choice in the election.
In view of these conclusions , my Recommended Order
will provide for dismissal of the pending representation
proceedings , Case 30-RC-508.
The unfair labor practices found here are such as to in-
dicate an attitude of opposition to the purposes of the Act
generally. I find therefore that a broad cease-and-desist
provision is necessary to effectuate the policies of the
Act.
In its brief, the Union has asked me to recommend ad-
ditional remedial provisions to enable it to retrieve the
losses it sustained through the Company's unfair labor
practices which effectively denied it the support of the
unit employees it had previously enjoyed. It asks for
provisions giving it access to the Company's bulletin
boards and premises under appropriate conditions, the
opportunity to address unit employees on company time
and propety during the compliance period, for additional
relief of an unspecified nature to restore its economic
strength to what it was when the Company refused to bar-
gain with it, and to compensate it for its organizational ex-
penses if the parties are unable to reach agreement under
435
the bargaining order. As an alternative, the Union sug-
gests a remedial provision recently recommended by
another Trial Examiner in a similar case, to make the em-
ployees whole by paying them the difference between the
compensation they actually received and the rates
received by employees in comparable units under union
contracts for the period of the refusal to bargain.
Although I appreciate the Union's position that its bar-
gaining strength has been seriously eroded by the Com-
pany's unfair labor practices, and that it is entitled to a
restoration of the situation as it would have been, absent
the unfair labor practices, it is nevertheless a question of
judgment whether the remedy I have prescribed above is
in fact inadequate. Trial Examiners have, in the first in-
stance, a responsibility to exercise their judgment in
fitting the remedy to the violation, but with a proper re-
gard for long-established Board practices in these mat-
ters. Since some, if not all of the proposals suggested by
the Union, have been advanced in other cases now pend-
ing before the Board, I believe it would be a gratuitous
gesture on my part to order such novel remedies until the
Board has established guidelines in similar cases. I there-
fore deny the Union's request.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, it
is recommended that the National Labor Relations Board
order that Thrift Drug Company of Pennsylvania, its of-
ficers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Threatening employees that its Kenosha store or
its fountain department would be closed down or that
they would lose their store or food discounts because of
their union activities.
(b) Promising employees wage increases and other
benefits in order to interfere with their free choice of
representatives.
(c) Coercively interrogating them as to how they were
going to vote or if they had attended union meetings, in-
timidating them by ordering the rejection of applications
for employment from prounion applicants, and telling
them that their attendance at union meetings had been ob-
served and noted.
(d) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their right to
join or assist Retail Clerks Union Local 526, Retail
Clerks International Association, AFL-CIO, or any
other labor organization , to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
(e) Refusing to recognize and bargain collectively with
Retail Clerks Union Local 526, Retail Clerks Interna-
tional Association, AFL-CIO, as the exclusive bargain-
ing representative of the employees in the appropriate
unit set forth in the conclusions of law above.
(f) Instituting changes in the wages, hours, or other
conditions of employment of its employees without notice
to, or consultation with , Retail Clerks Union Local 526,
Retail Clerks International Association, AFL-CIO, as
their exclusive bargaining representative.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
310-541 0 - 70 - 29
436 DECISIONS OF NATIONAL
(a) Upon request, bargain collectively with Retail
Clerks Union Local 526, Retail Clerks International As-
sociation, AFL-CIO, as the collective-bargaining
representative of all its employees in the appropriate unit
set forth in the conclusions of law above, with respect to
rates of pay, wages, hours of employment, or other terms
of employment and, if an understanding is reached, em-
body such understanding in a signed agreement.
(b) Post at its store at Kenosha, Wisconsin, copies of
the attached notice marked "Appendix. "22 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 30, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of the receipt of this
Decision, what steps Respondent has taken to comply
herewith.23
The petition for certification of representatives in Case
30-RC-508 is hereby dismissed.
22 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
23 I n the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 30, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT threaten employees that our
Kenosha store or its fountain department will be
closed down or that they will lose their store or food
discounts because of their union activities.
WE WILL NOT promise wage increases or other
benefits in order to interfere with a free choice of
representatives by our employees.
LABOR RELATIONS BOARD
WE WILL NOT coercively interrogate our em-
ployees as to how they are going to vote or if they
have attended union meetings , nor will we intimidate
them by ordering them to reject applications for em-
ployment from prounion applicants , nor tell them
that their attendance at union meetings has been ob-
served and noted.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to join or assist Retail Clerks Union Local
526, Retail Clerks International Association,
AFL-CIO , or any other labor organization , to bar-
gain collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mu-
tual aid or protection , or to refrain from any or all
such activities.
WE WILL NOT institute changes in the wages,
hours, or other conditions of employment of our em-
ployees without notice to, or consultation with,
Retail Clerks Union Local 526, Retail Clerks Inter-
national Association , AFL-CIO, as their exclusive
bargaining representative.
WE WILL bargain , upon request, with the above-
named labor organization as the exclusive bargaining
representative of all employees in the unit described
below , with respect to wages, rates of pay , hours of
employment , or other terms of employment and, if an
understanding is reached , embody such understand-
ing in a signed agreement . The bargaining unit is:
All employees at our store in Kenosha,
Wisconsin, excluding the store manager,
assistant store manager , lunch counter manager,
professional employees, guards and supervisors
as defined in the Act.
All our employees are free to become or refrain from
becoming members of the above -named labor organiza-
tion or any other labor organization.
Dated By
THRIFT DRUG COMPANY OF
PENNSYLVANIA
(Employer)
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Second Floor,
Commerce Building, 744 North Fourth Street, Milwau-
kee, Wisconsin 53203, Telephone 272-3861.