Walgreen Co.Download PDFNational Labor Relations Board - Board DecisionsSep 24, 1973206 N.L.R.B. 124 (N.L.R.B. 1973) Copy Citation 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Walgreen Co. and Retail Clerks' Union, Local 1532, Retail Clerks International Association , AFL-CIO. Cases 20-CA-7576, 20-CA-7689, and 20-RC- 10688 September 24, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On April 24, 1973, Administrative Law Judge George H. O'Brien issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief, counsel for the Gen- eral Counsel filed a brief in support of the Administrative Law Judge's Decision and cross-ex- ceptions and a supporting brief, and the Union, the Charging Party, filed cross-exceptions and a support- ing brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act,' as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 We agree with the Administrative Law Judge's findings that Respondent violated Section 8(a)(1) of the Act by various acts of interrogation, promises of benefits, threats, acts of reprisal, and creating the im- pression of surveillance, as fully described in the at tached Decision. We also agree that the Respondent violated Section 8(a)(1) and (3) by its discharge of Debra O'Neil on August 4, 1972. We further agree that the Union represented a majority of Respon- i The Respondent and the General Counsel have excepted to certain credi- bility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. The Respondent has requested oral argument . This request is hereby de- med as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. We hereby correct an inadvertent error in the Administrative Law Judge's Decision : in sec. III, E, 6, the year " 1951" should be "1971." 2 The Union requests in its cross-exceptions that the Order provide that Respondent be ordered to pay to the Board and the Union the costs and expenses incurred by each in the investigation , preparation , presentation, and conduct of this case as provided in Tiidee Products, Inc., 194 NLRB 1234, and 196 NLRB 158 . We do not find sufficient evidence to support a finding that Respondent's defenses constituted frivolous litigation within the meaning of Tiidee Products and, accordingly, deny the Union's request Cf. John Singer, Inc., 197 NLRB 158 dent's employees in an appropriate collective-bar- gaining unit at all relevant times and that the totality and the severity of Respondent's unfair labor prac- tices require,a Gissel bargaining order .3 Contrary to the Administrative Law Judge, however, for the rea- sons discussed below , we disagree with his dismissal of the 8(a)(1) allegations regarding certain statements made by Respondent's store manager, Thornton, within the 10(b) period to Warren Whitney, a hus- band of an employee. Since Warren Whitney was not an employee of Re- spondent, the Administrative Law Judge, relying on Joseph C. Asher d/b/a The Meat Cleaver, 200 NLRB No. 130, found that no statement made by Thornton to Whitney could support any 8(a)(1) allegations of the complaint . We find The Meat Cleaver case inappo- site, in that the individuals therein involved , unlike Whitney , were strangers to the employment situation and the conversations involved therein were not coer- cive . In the instant case, however , Warren Whitney was the husband of Judith Ann Whitney, the cosmeti- cian at the Respondent's store and whom the Respon- dent suspected was falsely giving the impression she was against the Union . Here the record shows that the Respondent deliberately attempted to use Warren Whitney as a conduit to the employees and fully in- tended and could reasonably expect Whitney to influ- ence his wife and other employees.4 The record shows that near the end of April 1972, after the Respondent received a copy of the Union's representation petition , Thornton met Whitney at a restaurant in the shopping plaza. In the conversation initiated by Whitney, Store Manager Thornton asked Whitney who started the organizational campaign and if he knew who was in favor of the Union , specifi- cally inquiring about certain employees. Thornton told Whitney that the Respondent would never let their stores go union and would never sign a contract. Thornton also said if the Union won the 1971 election the store would have closed . He further told Whitney to keep his ears open and to report anything he heard. One week later , when Whitney was picking up a 3 N.LR.B v. Gissel Packing Co., Inc, 395 U.S. 575 (1969). An election was held on June 14, 1972, in which the tally of ballots showed in Voting Group A (professional) the only eligible employee (Levin) voted to be included in the single unit with nonprofessional employees in Voting Group B, and of the 21 votes cast, 9 were for , and 8 against the Union. Four ballots were challenged. On October 2, 1972, the Regional Director for Region 20 issued his report overruling the challenge to one ballot and sustain- ing the challenges to three ballots . No exceptions were filed to the Regional Director 's report and his recommendations were adopted by the Board on October 19, 1972. However, a revised tally of ballots was not issued at that time. On August 13, 1973, the Board issued an order to the Regional Director to open and count the challenged ballot. The unresolved challenged ballot was subsequently opened and a revised tally of ballots issued showing that nine ballots were cast for, and nine ballots were cast against , the Union. 4 Cf. Redwing Carriers, Inc, 125 NLRB 322, 323, enfd. in relevant part 284 F.2d 397 (C.A. 5, 1960); Owego Street Supermarkets, 159 NLRB 1735, 1737; Chesterfield Chrome Co., 203 NLRB No. 15. 206 NLRB No. 15 WALGREEN CO. prescription at the store's pharmacy, Thornton told Whitney that "you will. have to get another job for your wife, because if the store goes union she won't be working here any more." Thornton again told Whitney that the store would not sign a contract and the Union would have to go on strike. Near the end of April 1972, Thornton told Whitney that Respon- dent was working on sick leave, improved hospitaliza- tion, and improved profit sharing, but Respondent could not put such benefits into effect while the Union was in the picture. In other conversations pre- ceding the election, Thornton again told Whitney that the Respondent would never, sign a contract and that he was not worried about the election since he could bring in certain individuals to work and thereby flood the vote. Thornton also told Whitney that if he found out that people were for the Union he could make it rough for them by staying on their backs, causing them to make mistakes in making change, and that this would be a way of dismissing them. In these circumstances we find that, in the above conversations and discussions with Warren Whitney, Respondent engaged in interrogations, threats of re- fusal- to bargain, of store closure, and of reprisal against employees, promises of benefit, and surveil- lance, in violation of Section 8(a)(1) of the Act. Ac- cordingly, the Conclusions of Law, the Order, and the notice to employees has been revised and amended to reflect the above conduct found violative of the Act .5 ADDITIONAL CONCLUSIONS OF LAW The Conclusion of Law 7 in the attached Adminis- trative Law Judge's Decision is renumbered 8 and the following Conclusion of Law 7 is added: "7. By coercively interrogating Warren Whitney, by threatening him that the store would close if the Union were successful and that the Respondent would not bargain with the Union, by informing him of reprisals to be made against employees who sup- ported the Union, by promising fringe benefits to its employees if the Union is out of the picture, and by requesting him to engage in surveillance, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that Respondent, Walgreen, Company, Petaluma , California, its officers, agents, successors, and assigns , shall take the action set forth 125 in the said recommended Order, as modified herein: 1. Insert the following as 1(d) and reletter the re- maiming paragraphs accordingly: "(d) Coercively interrogating the spouses of em- ployees concerning the union activities of employees; requesting such individuals.to spy on the union activi- ties of employees; threatening individuals with store closure, refusal to bargain, and reprisal against em- ployees if the Union is successful; and promising ben- efits if the Union is out of the picture." 2. Substitute the attached notice for that of the Administrative Law Judge. 5 The Charging Party and the counsel for the General Counsel excepted to the failure of the Administrative Law Judge to make certain additional findings of illegal conduct which they contend are supported by the record. In view of the fact that such findings would be cumulative and would merely add to the magnitude of Respondent's illegal conduct and give additional support for a Grssel bargaining remedy, we find it unnecessary to, and do not, pass on these exceptions. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated Federal law by question- ing employees about their union activities, by promis- ing benefits to induce employees to refrain from union activities, by threatening reprisals against em- ployees, and by discharging an employee for engaging in union activities: WE WILL offer full reinstatement to Debra O'Neil and pay her for the earnings she lost as a result of her August 4, 1972, discharge plus 6- percent interest. WE WILL NOT discharge or discriminate against any employee for supporting Retail Clerks' Union or any other labor organization. WE WILL NOT unlawfully interrogate our em- ployees, nor spy on their union activities, nor promise benefits to them for the purpose of influ- encing their union activities or sympathies. WE WILL NOT refuse to sign a collective-bar- gaining agreement, nor close the Petaluma store, nor deny promotions to employees, nor assign undesirable work to employees as punishment for engaging in union or other concerted activi- ties protected by the National Labor Relations Act. WE WILL NOT unlawfully question the spouses 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employees concerning the union activities of our employees; request such individuals to spy on our employees; threaten such individuals that the Petaluma store will close, that we will refuse to bargain with the Union, and that we will take reprisals against union adherents if the Union is successful; and promise various fringe benefits if the Union is out of the picture. WE WILL bargain collectively on request with Retail Clerks' Union, Local 1532 as the exclusive representative of all regular full-time and part- time employees in our Petaluma store, with re- spect to wages, hours of employment, and other conditions of employment and, if an agreement is reached, we will sign it. WALGREEN CO. (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, 13018 Federal Building, Box 36047, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 415-556-3197. DECISION AND REPORT AS TO DISPOSITION OF OBJECTIONS TO CONDUCT AFFECTING THE RESULT OF THE ELECTION STATEMENT OF THE CASE GEORGE H. O'BRIEN, Administrative Law Judge: This con- solidated proceeding was heard at San Francisco, Califor- nia, on November 28 through December ) 1, and on December 6 and 7, 1972.1 In this Decision and Report, Walgreen Co. is called Respondent and Retail Clerks Union, Local 1532, Retail Clerks International Association, AFL-CIO, is called the Union. The consolidated complaint issued October 2, 1972, is based on a charge filed by the Union on June 22, 1972, as: amended on September 21, 1972, and on a charge filed by the Union on August 9, 1972. The complaint alleges in substance that Respondent, by discharging an employee, by coercive interrogation, by 1 A preheating conference was conducted by Administrative Law Judge Herman Marx on November 15, 1972. threats of detriment, and by promises of benefit, violated Section 8(a)(1) and (3) of the National Labor Relations Act. By an order of consolidation issued October 2, 1972, certain objections by the Union to conduct of Respondent affecting the results of an election held June 14, 1972, were placed in issue.2 Upon the entire record 3 in the proceeding, including my observation of the demeanor of the witnesses, both on and off the stand, and after giving due consideration to the posthearing brief s,4 I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is an Illinois corporation with over 500 stores in over 200 cities in 36 States and Puerto Rico. It has about 28,000 employees. Its retail sales in 1971 were $817,486,642. At its drug and sundries store in Petaluma, California, its annual gross revenue exceeds $500,000 and it annually re- ceives, in Petaluma, merchandise valued in excess of $50,000 which originates at points located outside the State of California. Respondent is an employer within the mean- ing of Section 2(2) of the Act, engaged in commerce and in a business affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES AND THE CONDUCT ALLEGED TO HAVE AFFECTED THE RESULT OF ELECTION A. The Issues in Case 20-RC--10668 On April 14, 1972, the Union filed a petition for certifica- tion of representatives. Pursuant to a stipulation for certifi- cation upon consent election, executed May 10, 1972, an election was conducted on June 14, 1972, in a storewide unit, excluding only the manager, James Thornton, and the assistant manager, Philip Johnson. The pharmacist, Levin, was provided with a special ballot 5 with two questions: 2 The order of consolidation also placed in issue one objection by Respon- dent to conduct of the Union affecting the results of the same election. This objection was withdrawn by counsel for Respondent on November 28, 1972. The General Counsel's posthearing motion to correct errors in the steno- graphic transcript is granted. 4 Briefs filed by counsel for the General Counsel and counsel for the Union direct my attention to "incredible" portions of the testimony of Respondent's witnesses . The brief filed by counsel for Respondent directs my attention to incredible portions of the testimony of General Counsel 's witnesses. I find myself in substantial agreement, on these points , with all three of these very able advocates . As the hearing developed , I received the distinct impression that all witnesses , with the exceptions of Wessels, Johnson, Rogan, and Hotehng had been programmed before taking the stand, and were simply responding to cues provided by their direct interrogators. The separate,ballot was required by the following section of the National Labor Relations Act: Sec. 9 (b) ... Provided that the Board shall not (1 ) decide that any unit is appropriate [for the purposes of collective bargaining ] if such unit includes both professional employees and employees who are not pro- WALGREEN CO. 127 1. Do you desire to be included with non -professional employees in a single unit for purposes of collective bargaining? 2. Do you wish to be represented by Retail Clerks union, Local 1532, RCIA, AFL-CIO? The payroll period for eligibility was the 2-week period ending Friday, April 28, 1972, and there were 24 names, including Levin's, on the Excelsior list. Hara and Morgan had quit their employment before the date of the election and did not vote. Linda Dodd, whose name was carried on Respondent's payroll at least through June 23, but who had not worked since March 17, may or may not have voted. Twenty-one ballots were cast. The ballots of Brandner, Green, Claude Thornton, and June Thornton were chal- lenged by the Union's observer and impounded. Levin vot- ed "yes" on both questions on his ballot. The tally of ballots served on the parties at the close of the election showed: Approximate number of eligible voters-21 Votes cast for Petitioner-9 Votes cast against participating labor organizations-8 Challenged ballots-4 Timely objections were filed by both Respondent and Union. In his Report on Challenged Ballots and Objections is- sued October 2, 1972, the Regional Director found that the challenges to the ballots of Green and of June and Claude (Stan) Thornton should be sustained and that the challenge to the ballot of Brandner should be overruled. He further found that Respondent's Objection III and Union's Objec- tions 2 through 11 raised issues 'of fact which should be resolved through a hearing, and that Brandner's ballot should remain impounded pending the result of such hear- ing. No exceptions were filed to the Director's report and his recommendations were adopted by the Board on Octo- ber 19, 1972. The objections remaining in issue before me are: 2. Walgreen Co. told employees that it would defeat petitioner by having friends and relatives of the store manager vote in the election. 3. Walgreen Co. has unlawfully interrogated employ- ees about their and other employees Union member- ship, Union activities and Union sympathies. 4. Walgreen Co. has unlawfully granted pay raises and other improved conditions of employment to employ- ees and has unlawfully promised to grant pay raises and other improved conditions of employment to em- ployees. 5. Walgreen Co. has told employees it knows which of them support Petitioner and has engaged in surveil- lance of the employees' Union activities and has creat- ed the impression of such surveillance. fessional employees unless a majority of such professional employees vote for inclusion in such unit... . 6. Walgreen Co. has told employees not to cooperate with the National Labor Relations Board in the investi- gation of any cases filed against Walgreen Co. by Peti- tioner. 7. Walgreen Co. has told employees that Walgreen's would never permit the employees to select Petitioner as their bargaining agent; that Walgreen's would close its Petaluma store before it would recognize Petitioner; that employees would lose their jobs because of the Union activity; that if Petitioner won the election, there would be a strike and Walgreen's would bring in scab labor and that Walgreen's would never sign a contract. 8. Walgreen Co. has asked employees to report the Union activities of other employees to the Company. 9. Walgreen Co. threatened employees that if they se- lected Petitioner in the NLRB election, they would never get jobs in the Petaluma area. 10. Walgreen Co. threatened that they could retaliate against the employees for engaging in Union activity by changing their work schedules and conditions of work. 11. Walgreen Co. threatened employees that if they selected Petitioner to represent them, their jobs would be in jeopardy, that Walgreen Co. would find ways to discharge employees because of their Union activity, and that Walgreen would transfer employees to other locations because of their Union activity. B. The Issues in Case 20-CA-7576 The complaint in summary alleges and the answer denies that Store Manager James Thornton, on specified dates between and including April 15, 1972, and June 7, 1972: interrogated employees, promised wage increases, stated that Respondent would never sign a contract, threatened employees with layoffs and replacement, threatened to im- pose worse hours and working conditions, predicted that the store would close, threatened to deny promotions, promised improved medical and dental plans, engaged in surveillance of employees at a nearby coffee shop, created the impres- sion of surveillance, stated that Respondent would never let the store go union, threatened to force employees to resign, and threatened employees,,with blacklisting. The complaint further alleges and the answer denies that Respondent's director of employee relations, R. H. Wes- sels, on May 10, 1972, announced that Respondent would never let the store go union, threatened employees with layoffs and replacement, and threatened that Respondent would close the Petaluma store if the employees selected the Union to represent them. The complaint further alleges and the answer denies that Assistant Manager Philip Johnson, between May 26 and June 16, 1972, interrogated employees, threatened that the store would close, and created the impression of surveil- lance. The complaint further alleges and the answer denies that Respondent on June 14, 1972, promulgated and enforced more onerous hours and working conditions against em- ployees in reprisal for their membership in or activities on behalf of the Union. The complaint concludes with a prayer that Respondent 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be ordered to recognize and bargain with the Union as the exclusive representative of all of its Petaluma store employ- ees, including pharmacists, and excluding the manager and the assistant manager. This poses two additional issues: (1) whether the Union at any material time represented an uncoerced majority of Respondent's employees in any ap- propriate unit and (2) whether Respondent has committed unfair labor practices which undermined the Union's ma- jority, and whether the possibility of erasing the effects of past practices and ensuring a fair rerun of the election by traditional remedies is slight, so that employee sentiment, once expressed on cards, would, on balance, be better pro- tected by a bargaining order.' C. The Issue in Case 20-CA-7689 Whether James Thornton, when he discharged Debra O'Neil on Friday, August 4, 1972, was motivated by the intent to discourage membership in the Union. D. The Setting On February 8, 1970, Respondent's Petaluma store opened for business . It is located in a modem shopping plaza adjacent to an area which is rapidly changing from agricultural to residential. Its first manager, Petty, told his then second assistant, Philip Johnson, that the store was set up for the future, because of the new homes that were going to be built in the area, that it was expected to lose money for about 5 years, but would be established and "get most all of the business" of the new residents. On November 20, 1970, the Union by letter, requested recognition as the representative of all employees, excluding only the store manager. A Board-conducted election was held, pursuant to stipulation, on January 20, 1971. The two pharmacists, then employed, voted to be included in a bar- gaining unit with clerks and in favor of union representa- tion. Two clerks voted for the Union and seven clerks voted against union representation. On February 1, 1971, the Union, by letter, demanded recognition as bargaining agent of the two pharmacists in a professional unit. Upon Respondent's refusal to recognize the Union, a charge was filed, a complaint issued alleging refusal to bargain, and a trial was held before Administra- tive Law Judge James R. Hemingway on August 31, 1971. In his October 13, 1971, Decision dismissing the com- plaint, Administrative Law Judge Hemingway states: ... Respondent's second argument ... rests .. . upon the ground that the pharmacists had not, since the election, indicated that they wished to be repre- sented in a unit by themselves . Here, in a self-determi- nation election, the pharmacists, by choosing to be in a unit with non-professional employees , had voted not to be represented in a unit by themselves .... 6 Paraphrased from N.L.RB. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). On the facts of this case, there is absolutely no way g whether the pharmacists would have cho-of knowin sen the Union to represent them separately in a unit limited to professionals... . I conclude and find that the General Counsel has not proved that the pharmacists had chosen the Union to represent them in a unit limited to pharmacists and that Respondent has not refused to bargain with the Union in violation of the Act. The Union took immediate steps to remedy the deficien- cy by obtaining affidavits and new authorization cards from the pharmacists and filing a motion with the Board to sup- plement , the record by this newly created evidence. The Board , in its Decision and Order (195 NLRB 405) adopting the Decision of Administrative Law Judge Hemingway, de- nied the Union's motion to supplement the record. Following the issuance of Administrative Law Judge Hemingway's Decision , Respondent took immediate steps to ensure that it would not be required to recognize the Union in a professional unit. On November 11, James Thornton, a registered pharmacist, replaced Petty as man- ager of the Petaluma store , and one pharmacist , Bill Spater, was transferred to Respondent 's store in Stonestown. This left only-one employee, Levin, in the professional unit, and the Board cannot issue a certification in a one-man unit. Cutter Laboratories, 116 NLRB 260. The Petaluma store is a modern self-service establishment with a great variety of merchandise on its open shelves.-It is open for business from 10 a .m. to 7 p .m. on 6 weekdays and from 10 a .m. to 6 p .m. on Sunday. The pharmacy is located in an enclosed area in the rear of the store, and a, registered pharmacist must be on duty during all hours when the store is open . The open office, in the spring of 1972, was located in the front of the store between the liquor counter and the number I checkout cashier. E. The Witnesses 1. Richard H. Wessels Wessels is an attorney-at-law and director of employee relations for Respondent. His office is in Chicago. His pri- mary responsibilities are negotiating labor contracts, direct- ing Walgreen's responses to union organizing campaigns, and handling National Labor Relations Board proceedings. When petitions are filed by labor organizations, Wessels is. responsible for demonstrating to employees the disadvan- tages of union representation. Wessels testified with regard to the Petaluma store: I handled the first organizing situation which was back in the fall of 1970, about November of 1970, and then on through to the present date. I have been completely in charge. In early January 1972, all the store managers in Respondent's western district met at the district office in San Francisco to hear a promotional pitch from representa- WALGREEN CO. 129 tives of Max Factor. Wessels took this occasion to give a 2-hour lecture on the subject of union organizing campaigns and the responsibilities and limitations of store managers in connection therewith. At this meeting, he distributed a booklet, referred to in this record as the "dos and don'ts book." On either Tuesday, April 18, or Wednesday, April 19, 1972, upon receiving in the mail a copy of the Union's petition, Wessels telephoned Thornton, told him to follow the "dos and don'ts book" and to post the notice which Wessels was mailing to him. The notice, dated April 19, 1972, from J. R. Saunders, district manager of Respondent's California east district, and T. L. Hankinson, district manager of Respondent's California west district, recites: We learned over the weekend that the Retail Clerks Union is trying again to bring you into the ranks of DUES PAYING MEMBERS. This will mean that we will be having another union election sometime in the near future . The two of us and Mr. Thornton have faith and confidence in all of you that you will AGAIN REJECT this takeover attempt and tell these paid organizers that you don't wish to HIRE them!!'! It is our hope that we can soon get this ordeal behind us and get on with our objective of making our Petalu- ma store the VERY BEST store in California East and California West Districts. the reading of the dos and don'ts book?" Wessels testified: ... nothing was said, about reading it. I certainly didn't intend that the booklet be read. This is the worst way to conduct a union campaign. . . . I used kind of memory pegs in filling in management people on the disadvantages of having a union represent them and I always outline five things generally that they should talk about and I instructed, particularly Mr. Thornton that he should talk to employees about these things. Number one, that you've got an outsider that comes in to become your voice, that we're always available to listen to problems, and I have them write down in the booklet opposite one of the points, the word "outsid- er." Opposite another one I have them write the word "listen." The company is always willing to listen to grievances, to problems. I have them write down the word, "dues" for the fact that if the union represented them they would have to pay union dues. I have them write down the word "benefit," to ex- plain to the employees that the company already has a benefit structure. And I have them write down the word "strike." That the union's weapon at the bargaining table is to ,strike and that there's always the possibility that one would be called and that they would have to serve on the picket line. On Tuesday, May 9, 1972, Wessels spent 4 hours in con- ferences with Thornton and with Assistant Manager John- son at a restaurant in the shopping plaza discussing the "dos and don'ts book," and what Respondent would need for a campaign. The "dos and don'ts book" is directed to supervi- sors and labeled in bold letters, "CONFIDENTIAL." It recites: While your company is responsible under the law for every remark or opinion you make or give to an em- ployee, the manager has every right and obligation to express opinions and views relative to union matters so long as rules prohibiting threats, promises of benefits and interrogation are not violated. In fact, the Compa- ny depends on you to convey to the employees the Company's position on union matters and labor ques- tions. The booklet then lists 12 things which "you as a manager can do" and 15 things which you "cannot do." The booklet is an excellent summary, in less than 1,500 words of the rights and limitations of management in a union organizing campaign. Wessels told Thornton that he was "primarily responsi- ble" and should, between then and whatever date was set for the election, `stalk to each employee ... ,and let them know some of the disadvantages of having a union represent you. When asked by his cocounsel, Mr. Ames, "What, if any, instructions did you give to Mr. Thornton regarding At 6 p.m. on May 9, Wessels and Thornton returned to the store and Thornton relieved Levin in the prescription department. While Levin was changing clothes, he and Wessels had a private argument. On May 10, Wessels met with union representatives at the Board's office in San Francisco and signed the Stipulation for Certification Upon Consent Election. That afternoon he prepared a notice to be signed by Thornton and posted in the employees' breakroom in the store, advising employees of the date of the election and of the fact that Respondent was required by law to give the Union their names and their home addresses, and stating: ....Remember that you are free to forbid any union representative from entering your home if you so de- sire . The law protects you in this respect, and the Union's paid organizers have no right to enter your homes. If you have any problems in this regard or are intimidated in any way, let me know and we will do everything possible to protect your rights. Wessels then returned to Chicago where he prepared the literature to be used in the campaign. He delivered these papers in person to the district manager in San Francisco on May 25, with specific instructions as to the date and method of distribution of each of seven communications. Some were to be mailed, others distributed by hand, and others posted. On May 26, he saw Thornton at the store and gave him the literature which he was to distribute. Wessels' 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instructions were followed to the letter. No statement in any of his propaganda is demonstrably untrue, and none ex- ceeds the limits of Section 8(c) of the Act. The final act in Wessels ' campaign was a gathering at a fine restaurant after closing hours on June 13, election eve. Attendance was voluntary. Eligible voters, wives, husbands, and their guests were welcome . Sandwiches , coffee , and soft drinks were provided. Short talks were given by Respondent's vice president, Canning, by its division man- ager from Denver, by the two district managers, and by Wessels and Thornton. None exceeded the permissive limits of Section 8(c) of the Act. Wessels remained in Petaluma on the day of the election, June 14. Immediately after the vote was announced Thorn- ton said that he wanted to make , some changes in the sched- ule (which had remained substantially unchanged for many months). Wessels told him it would "look like hell," but Thornton was the manager and Wessels could not run his store for him. Wessels, Thornton, and Assistant Manager Philip John- son then conferred in an attempt to determine which clerks had voted for the Union and which had voted for Walgreen. Wessels testified from memory, with the "Excelsior list" in his hand that they determined that eight of the following named clerks had voted for the Company: Richard Rogan, William Coberly, Melanie Davis, John Holstein, Linda Dodd, Linda Duncan, R. Celani, L. Poole, and Mark Sage. 2. James Thornton Thornton was first employed by Respondent as a porter in its Klamath , Oregon , store while still in high school. He attended college and pharmacy school on Walgreen schol- arships, receiving his professional degree in 1953. After working as a pharmacist in Walgreen stores in Redwood City, Stonestown , and Santa Monica , he was promoted to manager of the Walgreen store in Oakland in 1957. Thereaf- ter, he managed in succession Respondent's stores in Palo Alto, Stonestown, Millbrae, Hayward, and Petaluma. On September 18, 1972, at his own request, he was relieved of managerial responsibilities and transferred to Respondent's Daly City store where he is presently employed as a phar- macist. Between November 1971 and April 1972, Thornton had several conversations with Warren Whitney, Judith Whit- ney, and Audrey Milligan. From April 15, 1972, through June 14, 1972, pursuant to his understanding of the "dos and don 'ts book" and Wessels' instructions , he had numer- ous private conversations with individual employees. He showed the "dos and don'ts book" to some of these and read portions of it to others. On the afternoon of Wednesday, June 14, he instructed Johnson to make radical changes in the work schedule for the following weeks. Levin was to work every weekend, .alternate Saturdays and Sundays . Milligan was to be re- placed as bookkeeper by Duncan and assigned to work the cigar counter and checkout stand on the night shift. The shifts of the cosmeticians were to be reversed, Judith Whit- ney to work the night shift, and Ginger Johnson, who had always worked nights , would work days. Although Philip Johnson protested that the "timing was wrong" and "it looks bad," he followed orders and the new schedule was posted Thursday morning, June 15. 3. Philip Johnson Johnson was hired as an assistant manager on April 10, 1970. He was an eligible voter in the January 20, 1971, election. Between November 1971 and August 18, 1972, when he resigned voluntarily, Johnson was clearly a super- visor within the meaning of the Act. Johnson prepared and posted the schedule of days and hours which each employee was required to work. On one occasion, he noted that Wil- liam Coberly had been credited on the payroll with hours when he had not been scheduled and which Johnson knew he had not worked. When he called this to Thornton' s atten- tion he was told that Coberly was doing a good job manag- ing the liquor department that he deserved more than the $2 per hour, which was his rate of pay, and that it was the manager's prerogative to give him extra hours. Shortly before April 15, 1972, Thornton told Johnson that "the union was going to be activated." Shortly after Thorn- ton received a copy of the Union's petition he told Johnson that he thought the Union would get only one vote in the election, and that would be Debra O'Neil's. Johnson re- sponded that he was wrong, that Robert Levin and Audrey Milligan would also vote for the Union. After the petition was filed, Johnson and Thornton spec- ulated as to why the Union was starting over again. They concluded that the initiative had not come from any em- ployee, but that some union official, checking back records, "found 12 possibles and he decided to go ahead and get them all. If he got one, he was happy. If he didn't, well there was no loss." Johnson testified that Thornton "remarked hundreds of times how he thought this was the best crew to every indi- vidual in the store." Thornton also told Johnson that the Union's promise of "job security" gave some employees the idea that "they have their jobs forever, whether they work or not" and that sim- ply was not true. Thornton had managed union stores and had fired union people. An employee could always be dis- missed for refusal to follow orders. The way the store was arranged, it was possible for a person in the office to carry on a conversation in normal tones with the person at the number one checkstand. On one occasion, Johnson overheard a portion of Thornton's re- marks to O'Neil while Thornton was in the office and O'Neil was putting out cigarettes. Thornton told O'Neil that he's worked with unions before and that whatever schedule was posted, they had to work, and if they didn't work it, it was reason for dismissal. 4. Audrey Milligan Mrs. Milligan is Respondent's bookkeeper in Petaluma. She was hired January 22, 1970, 2 weeks before the store opened. She was the Union's observer at the January 20, 1971, and at the June 14, 1972, elections. When Wessels visited the store on May 26, 1972, she asked him about her chances of becoming a travelling auditor for Respondent WALGREEN CO. and Wessels replied that her chances were excellent. She also complained that she was being harassed by Thornton on the subject of the Union. Wessels answered that Thorn- ton "was taking this union thing personally" and was "quite emotional and doesn't mean a lot of these things." Wessels also, commented that Milligan was emotional and some- times that caused personality conflicts. On May 30, Wessels wrote a personal and confidential letter to Milligan: Dear Audrey, - On the plane back, to Chicago last Friday, I gave con- siderable thought to our discussion in the store Friday morning. You can be certain, Audrey that you are NOT going to lose your job so long as you continue to do what is expected of you. Mr. Hankinson and before him Mr. Saunders, are deeply committed to the Wal- green principle of fair, decent and respectful treatment of Walgreen employees. I know that Mr. Thornton feels the same way. In keeping with your request that our conversation be held in strictest confidence, I have not discussed this matter with Mr. Thornton or with anyone else. Howev- er, I cannot emphasize too much the fact that you need not have concern about your job or your future with Walgreens so long as you continue to do well in your job. When, after the election, she was transferred from book- keeping to the cigar counter and relief cashiering, she tele- phoned Wessels. On Saturday, June 17, she was back at her bookkeeper's desk and was still there at the time of this hearing. Milligan's rate of pay,.$3.45 per hour, was higher than the rate of any regularly employed clerk, and was exceeded only by Levin's $7.25 and, presumably, Philip Johnson's and Thornton's.1 5. Judith Ann Whitney Mrs. Whitney was hired February 9, 1970. She went on authorized leave of absence on June 27, 1972, and did not return. She was the cosmetician and received commissions on sales of certain franchise items in addition to her hourly pay of $3.125. Her scheduled hours were 10 a.m. to 6:30 p.m., Monday through Friday. Shortly after Thornton be- came manager, she told him that she was responsible for the defeat of the Union in the 1971 election. In her conversa- tions with Thornton, she made it plain that she was procom- pany and antiunion. On June 5, 1972, when Saunders was at the store distributing one of Wessels' messages, she re- quested and was granted a leave of absence to begin Sat- urday, June 24. 7 Employees were paid biweekly by checks mailed from Chicago on the basis of payroll reports prepared by Milligan and signed by Milligan and Thornton. Reports covering the period from November 15, 1971, through June 23, 1972, were received in evidence. Although the column showing the hourly rate of each employee had been removed from the documents before they were offered in evidence, the report for the period ending December 10, 1971, shows the dollar amount each employee received for attending a 2-hour store meeting conducted by Thornton. 131 When she came to work Thursday, June 15, Thornton directed her attention to the new schedule, on which she was placed on the night shift, and asked what her last day would be. She answered, "Friday, June 23." Thornton did not hear the "June 23," and, assuming that she intended to begin her leave the next day, said, "Hell, it just looks like you stayed for the vote, and that was it." As she approached the cos- metic counter, she saw a Linda Rogan, whose name does not appear on any payroll, counting out her cash. She asked Thornton where she was to work, and he said, " in cosmet- ics." She went back of the counter, and Linda Rogan left. A few minutes later Philip Johnson asked her when she was quitting. She started to cry. Johnson took her to the break- room, and then to a bakery in the shopping plaza and told her she should take the rest of the day off. Thornton telephoned the district office and announced that Whitney had quit. Milligan telephoned Whitney and told her of Thornton's call. Whitney telephoned the union business agent, Marjorie Bridge. On Friday, April 16, Whit- ney clocked in at 10 a.m. and went to work. Thornton called her to the breakroom and, with Rogan as witnesses, told her, to turn in her badge and leave the store . She again tele- phoned Bridge. Bridge called the Union's attorney, Barry Jellison. Jellison called Wessels. Wessels called Hankinson. Hankinson called Thornton. Thornton called Judy Whit- ney, apologized for the "misunderstanding" and asked her to come right in to work because he "needed her desperate- ly." Whitney continued to work the day shift without fur- ther incident through Tuesday, June 27. 6. Warren Whitney Judith Whitney's- husband, Warren, is a union carpenter, and was a regular customer of the Petaluma store. Between November 1971 and April 1972, he had frequent conversa- tions with Thornton, in some of which the Union was one subject of discussion. Whitney made plain to Thornton his dissatisfaction with his own union, and particularly with its leadership. He told Thornton that his wife had been respon- sible for the defeat of the Union in the January 1971 elec- tion. His testimony as to conversations before April 15, 1972, was received as "background" and evidence of mo- tive. His testimony as to conversations on and following April 15 was offered in support of specific paragraphs of the complaint. Warren Whitney was not an employee of Respondent. Therefore no statement made by Thornton to him can sup- port any 8(a)(1) allegation of the complaint. Joseph C. Asher d/b/a The Meat Cleaver, 200 NLRB No. 130, fn. 2. A sum- mary of his testimony is here set forth because (a) on the theory of the General Counsel, it confirms and reinforces the testimony of all witnesses called by him and (b) on the theory of the Respondent that, as stated in Respondent's brief to me: Jim Thornton was the victim of a PLOT. It was de- termined early in the campaign that evidence would be developed to incriminate Thornton. Thornton was BAITED with constant questions and his answers and legitimate comments were duly noted in memoranda. These memoranda were deliberately slanted and soon' 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the individuals in question began to believe what they had written down. The more they discussed it among themselves, the more firmly they believed the slanted and distorted versions of what Thornton had said. Whitney, questioned by the General Counsel, testified: About a week and a half before Christmas 1971, in a restau- rant in the shopping plaza, Thornton told him there were three reasons he had been made manager. The store was a shambles and a mess and needed to be straightened up and put back on a profit-paying basis. Three other drug chains were coming in and Walgreens wanted to get its customers established. A third reason for the appointment of Thornton was to keep the Union out, to keep it from coming back in. This could be done by making people work undesirable shifts, transferring people to San Francisco, transferring Bay area people to Petaluma to counteract the prounion vote, and watching people and causing them to make mis- takes to afford grounds for dismissal. He could "flood the vote" with Guy Green and Claude and June Thornton. Thornton asked how the Union got started in 1951, and Whitney replied that it was Jim Sparks, who no longer worked there. On Friday, after Thornton received a copy of the Union's petition, at a restaurant in the shopping plaza Thornton asked Whitney who started the "whole damn mess," asked if there was anyone known to Whitney to be in favor of the Union and inquired specifically about Audrey Milligan, Linda Duncan, Linda Dodd, and Jo Davidson. Thornton told Whitney that Walgreens would never let their stores go union and would never sign a contract. He quoted Wessels as having told him that if the store had voted to go union in January 1971 it would have been closed because it was in such bad shape, and not making a profit. Thornton said that "with a store stuck out in the sticks like that" they wouldn't let it go union because they had 600 stores, and the only union ones were in the San Francisco bay area, which they let go union in the '30's for the protection of their people. Thornton told Whitney to keep his ears open and to report anything he heard. One week later, when Whitney was picking up a prescrip- tion at the pharmacy, Thornton said, you will have to get another job for your wife, because if the store goes union she won't be working here any more. The store won't sign a contract and the Union will have to go on strike. Thornton wouldn't have to worry because Walgreens could "bring in managers as scab labor or he could be transferred to anoth- er store in the Bay Area, and he didn't have to worry be- cause he had lots of money in the bank." Near the end of April, Thornton was talking to his ap- prentice in the pharmacy about O'Neil wanting $4 per hour, when Thornton asked Whitney to go to the employees' breakroom with him. There Thornton took out some books and told Whitney- how Walgreens was working on sick leave, improved hospitalization, improved profit sharing, and told Whitney they couldn't do these things while the union thing was going on, and if the store did go union they couldn't get these things. If the Union didn't come in, the employees would ,probably get these things in about 6 months. Just after the first of May, Thornton told Whitney that the store wouldn't sign a contract. The law was that they had to negotiate, but they didn't have to agree to anything. They could end up with the people making less. They could take 5 years, they wouldn't have to sign anything that would go against them and they were not about to let that store go union. On cross-examination, Whitney repeated the foregoing testimony with slight alterations and some additions. The talks about the Union were initiated by Whitney. When Whitney asked Thornton why he wasn't worried about the Union, Thornton replied that he could flood the vote by bringing in Claude and June Thornton and Green and two or three other people, helping out for a few days, and they would be eligible to vote. If he found out that people were for the Union, he could make it rough for them by staying on their backs, causing them to make mistakes in making change, making, their cash registers come up short and that this would be reason for dismissal and he could dismiss them. In the conversation after he received the union petition, Thornton asked who had voted for the Union the first time and Whitney named Audrey Milligan, Robert Levin, Linda Duncan, Linda Dodd, and Bill Spater. Thornton said the store would never go union, would never sign a contract, and they would close the store. Thornton said: I'm not kidding . . . I talked to Wessels a few days before this and he told me that if the store would have went union the first time, the first election, that they would have closed because they were losing money, the store was in bad shape, and at that time their decision would have been to close it. 7. Marjorie Bridge Bridge is business representative and organizer for the Union. She was involved in both organizing campaigns at Respondent's Petaluma store. Following the issuance of Administrative Law Judge Hemingway's Decision, October 13, 1971, she telephoned Levin and said she "needed anoth- er card." She mailed a blank to him and he mailed it back signed and dated October 30, 1971. Following the issuance of the Board's decision, February 15, 1972, she resumed her organizing• efforts. She telephoned for appointments and spoke to employees at their homes individually and in small groups. Debra O'Neil signed a card in her own home on February 29, 1972. Darlene Barlow signed in her own, home on March 1. Audrey Milligan, Judith Whitney, Linda Dodd, and Anna Jo Davidson signed in Milligan's home on April 7. William Coberly signed in his own home in the presence of his wife on April 10, after receiving a positive assurance from Bridge that no one from the Company would ever see the card. Richard Rogan signed in his own home in the "presence of his wife on April 10. Bridge had previously assured Ro- gan that no one would know that he had signed, other than her superior, Mr. Lewis, and a Labor Board agent. Rogan told her that if this pledge was violated it would void his authorization. WALGREEN CO. Ron Morgan signed in his own home on April 18. Ginger Johnson signed in her own home on April 20. All of these are- intelligent , articulate, literate persons. There is no ambiguity in the card, the full text of which is: RETAIL-CLERKS INTERNATIONAL' ASSOCIATION (Affiliated with the AFL--CIO) AUTHORIZATION FOR REPRESENTATION Desiring to enjoy the rights and benefits of collective bargaining I, the undersigned employee of the (Firm Name) Store Address Store No. Employed as (Job Title) Dept. Home Address Phone hereby authorize Retail Clerks Inter- national Association, AFL--CIO, or its chartered Local Union to represent me for the purposes of collective bar- gaining, respecting rates of pay, wages , hours of employment, or other conditions of employment, in accord- ance with applicable law. (Date) (Signature of-Employee) Beginning in March 1972, Bridge asked employees to keep notes of things that were happening in the store . Begin- ning in May 1972, Bridge reduced the reports which she had received from employees to typewritten form . These notes, and Bridge's interpretations, were submitted by the Union to the Board agent who investigated the Union 's charges. 8. Robert Levin Levin was hired in January 1970, with the understanding that he would be paid "whatever the going union scale was" for pharmacists. Johnson describes -Levin as "the"type of person that says what he believes. If he wants to say some- thing, he says it." Because of the form of the ballot, all persons who had knowledge of the 1971 election knew that he had voted'for the Union. Soon after Thornton became manager, Levin complained tol►im and to District Manager Saunders that he was not receiving ' the 25-cent ' increase required by union, contracts , -He also complained that he could not give proper service to customers because he did 133 not have a pharmacy clerk, and because much of Thornton's time, during their overlapping shifts, was occu- pied with managerial duties. He complained that Walgreens was not using biodegradable medicine bottles . He threat- ened to advise the State Board of Pharmacy that Thornton had left an intern in the pharmacy , unsupervised, unless the situation was corrected . He was still employed as a pharma- cist in Respondent 's Petaluma store as of the date of this hearing and in November 1972 his wage was raised to either $7.50 or $7.75 per hour. 9. Ginger Johnson Mrs. Johnson (no relation to Philip Johnson) was hired November 14, 1971 , and resigned September 27, 1972. She worked on the cosmetic counter from 12:45 p .m. to 9:15 p.m., Monday through Friday. She was paid $2 per hour and commission on certain franchised items. When after the election Thornton told her that she would work days and some weekends, and Whitney would work nights, she pro- tested that she could do neither . Day work would require that she pay half her salary to a babysitter , and she had other things to do on weekends. 10. Anna Jo Davidson Mrs. Davidson was hired in February 1970 at $2.45 per hour. After Thornton became manager, she also earned commission on franchised items. From April 1972, to the date of the hearing, she worked in the cosmetic department on Saturday and Sunday only. She was employed elsewhere on Monday through Friday. 11. James Scott Stone Stone is the son of Jo Davidson. He was hired by Thorn- ton at her request on Friday, April 7, 1972. He resigned 3 weeks after the Board election . Stone's rate of pay was $2 per hour. Before the election, he had been scheduled to work 5 days a week, Wednesday through Sunday. His hours were reduced on the new schedule posted by Thornton and Johnson explained that the total hours allocated to the store by Chicago headquarters had been reduced from 620 per week to 550 per week. Johnson told Stone, " It seems like a reprimand." 12. Gregory Charles Brandner Brandner was hired in October 1971 while still in high school. His rate of pay was $1.90 per hour. From February to June 1972, he was "on call." Whenever a cashier, due to illness, was unable to work, she would call'Brandner as her replacement without checking with Thornton. 13. Darlene Barlow Barlow was hired in August 1971' at $2 per hour. When Whitney left on her leave of absence,. Barlow was ' assigned the day shift on the cosmetics counter atao increase in pay. Her pay was'raised in October 1972: 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 14. Ronnie L. Morgan Morgan was hired about March 6, 1972, at $2.75 per hour as head of the camera department. He worked full time through Friday, May 26. In late April, he told Thornton that he had accepted the job of assistant manager at another store at a salary of $700 per month and would be leaving in 2 weeks. On May 31, 1972, he worked 1 day to break in a replacement and formally resigned. 15. William James Coberly III Coberly was hired October 9, 1971, as a stockboy and cashier . His rate of pay was $2 per hour . After he was put in charge of the liquor department in 1972, he received extra compensation through Thornton's falsification of the num- ber of hours worked . After Thornton left, he became "assis- tant manager as far as opening and closing the store." Coberly resigned November 3, 1972, and was rehired as a stockboy by the new manager on November 15, 1972. 16. Richard Rogan Rogan was hired as a clerk in April 1971 at $1 .90 per hour and quickly raised to $2. Prior to the December 1971 store meeting, he was given the title of management trainee and his pay was raised to $2.65 per hour . On the rare occasions when both Johnson and Thornton were absent , Rogan was in charge of the store. When Johnson resigned , Rogan be- came assistant manager. 17. Debra Jean O'Neil Miss O'Neil was hired September 1, 1971, and discharged August 4, 1972 . Her rate was $2 per hour . She worked full time on the number one checkout register through at least June 23 , 1972 . In July, she worked only 3 days a week, Friday, Saturday , and Sunday. On January 8, 1972 , Thornton questioned her about a customer complaint that she had been rude. She said that customers made her nervous . When she would call for cus- tomer service, Rogan and Coberly were slow to respond, and she asked Thornton to speak to them. On January 16, she was late to work . She explained that she had had a flat tire on the way from Santa Rosa . Thorn- ton accepted her excuse. On February 12 and on March 24, Thornton spoke to her about her discourtesy to customers. On Saturday, May 27, she was late to work . She explained to Thornton that when she had called in to ask what time she was to report Philip Johnson had misread the schedule, and that she came to work at the time Johnson told her to. Thornton did not accept her excuse and did not check with Johnson. In a telephone conversation on May 30 , Thornton told Wessels that he was having tardiness problems with O'Neil and had warned her that if she continued to be late she would be discharged . Wessels answered: ... be careful about this . . . because of the fact that we're facing an election , if there is a repetition , be sure that we 've got the facts and be sure that we do have proper cause, because we may be asked to defend her discharge in a Labor Board Proceeding. Philip Johnson testified that O 'Neil was no more and no less punctual than anyone else. Lack of punctuality was a problem with all of the clerks . Johnson also testified: "She was a good employee." 18. Robert Powers Hoteling Colonel Robert Hoteling , United States Army, retired, had, prior to August 1972 , shopped at Walgreens about once a week for about 2 years. He has not entered the store since Monday, July 31, 1972. F. The Discharge of Debra O'Neil 1. Testimony of William Coberly Coberly testified that he had sold liquor to Colonel Hotel- ing and had examined his driver 's license while cashing his checks . On Monday, July 31, at about 6 : 30 p.m . while Co- berly was at the camera department cash register: He pointed his finger at me and said , "I want to talk to you about one of your employees . . . . I want to talk to you about the blond haired witch on the front cash register . . . the one that was on there yesterday... . I don't know her name , but she was working yesterday, she was very rude to me , and what she said to me, I will never tolerate again. . . . I don 't believe in people ex- pressing themself to me in this way. . . . She called me a Son-of-a-Bitch." Coberly replied , "Sir, this is above me . Let me take you back to my manager ." Coberly escorted Hoteling to the pharma- cy, introduced him to Thornton , stating "This gentleman has a complaint against one of our employees," and left. 2. Testimony of Richard Wessels Wessels had an appointment on Wednesday, August 2, to present to the Board's Field Examiner evidence relating to objections and challenges . In preparation for this meeting, he met at James Thornton's home with James, Claude and June Thornton , Gregory Brandner, and Philip Johnson, on the evening of Tuesday, August 1. At this meeting, James Thornton told Wessels: ... he had a very serious customer complaint on Deb- bie O'Neil. . . . He said it was a Hoteling, who was a retired Army Colonel who had given him, the day be- fore , a very serious complaint on Debbie O'Neil. That she had committed some act of rudeness and the Colo- nel was very upset and had told Thornton that this young lady had been rude to him or to his wife in the past . . . and the Colonel had told Thornton that he wouldn't shop in the store any more. I told Mr. Thornton that . . . this is serious kind of stuff. . . . This is the kind of thing that we can't toler- ate and certainly the union situation doesn't insulate WA`LGREEN CO. 135 someone from discipline.... I explained to him that when she comes back to work, he should get Mr. John- son there and give her an opportunity to explain, and if he's not satisfied with the explanation, then he should fire her... . Wessels testified that Thornton in describing the incident did not repeat the words used by Hoteling nor did he use the euphemism, "SOB." All Thornton reported was that ,O'Neil had been discourteous. On cross-examination, Wes- sels testified: Q. (by Mr. Sprague) Did Mr. Thornton ever tell you what he told or said to Miss O'Neil on the discharge interview? A. He told me that he had talked to Miss O'Neil about the incident and that she didn't recall anything about it. Q. Did he tell you that he told her that the customer purportedly said that she called him a Son-of-a-Bitch? A. Yes. This was after-this was fairly recently that he told me that. Wessels did not speak to Colonel Hoteling until he tele- phoned him from Chicago in connection with his prepara- tion for the trial of this case. 3. Testimony of Col. Robert Hoteling On some Sunday in the summer of 1972, Mrs. Hoteling asked O'Neil at the only open checkstand whether a certain advertised item was in stock. O'Neil replied, "If it's not there it's not there." As they were leaving the store, Mrs. Hoteling remarked to her husband, "My aren't we pleasant and courteous in here this morning." A week or two later in early afternoon, Colonel Hoteling entered the store, picked up some radio batteries from an open bin near the camera counter and walked to the back of the store. Observing Thornton in the prescription depart- ment he rapped on the glass and described the incident between his wife and O'Neil, stating, "One of your clerks leaves a lot to be desired as far as courtesy is concerned". He told Thornton that the clerk was a blond, with the name badge "Debbie" or "Debra." Thornton asked for and re- ceived Hoteling's name and telephone number. Hoteling did not speak to Coberly. O'Neil did not address any improper language to either the colonel or to his lady. The colonel did not tell Thornton that O'Neil used any vulgar language. On this point Hoteling was very emphatic, "It did not occur. I think I would remember." In speaking to Thornton, the colonel was not angry and his tone was not loud. 4. Testimony of Richard Rogan Rogan was in charge of the store on Sunday, July 31. Rogan testified that on Friday, August 4: Mr. Thornton asked Mr. Johnson and myself to ac- company him to the back end of the stockroom... . Debbie . . . came back. Mr. Thornton . . . started talking to Debbie . . . he said he had a very serious customer complaint about her from the previous week- end . . . she had'been rude to a customer . . . I believe he mentioned the tardiness, her being late. Her attitude in general towards the public, I believe. Or rather her- not her attitude. I should say her politeness or her courtesy towards the public. But I think that the main point was that one-the one customer-Oh, I think he asked her about this customer. If there had been any kind of discussion or argument between them. You know, at the time this took place, between her and the customer. And she said "no," she didn't recall any- thing. At this time-let's see. I believe he said he would have to-I don't recall whether he said discharge her, or let her go. If she needed a job recommendation, to let him know and he would write her out one. On cross-examination, Rogan testified that he was pres- ent during the entire interview between Thornton and O'Neil, that O'Neil had tears in her eyes and was crying, and that the words "son of a bitch" were not spoken by Thorn- ton. Thornton's only accusation was that O'Neil had treated a customer "rudely." 5. Testimony of Debra O'Neil When O'Neil reported for work on Friday, August 4, Johnson escorted her to the stockroom where Thornton and Rogan were waiting. Thornton said, "Tell me what hap- pened Sunday." As O'Neil was reciting her activities, Thornton interrupted with, "What about the customer?" When O'Neil replied, "What customer?" Thornton ex- plained that she was supposed to have called a colonel a "son of a bitch." O'Neil denied knowledge of any such incident and denied that she had used any such language. Thornton then said that he was dismissing her on the grounds of "insubordination, excessive tardiness, and dis- courtesy to customers." O'Neil was in tears and Thornton ended the interview with the statement that if O'Neil needed a good reference he would write one up for her. 6. Testimony of James Thornton Thornton testified, on direct examination by Mr. Wes- sels: I was working the pharmacy on a Monday evening .. . the Monday before I relieved her of her duties ... and I had just completed filling a prescription and Mr. Coberly came around the end of the pharmacy and he said, "Mr. Thornton, that man out there has a very serious complaint" . . . and this elderly man said, "You're the manager?" I said, "Yes sir." He said, "Why don't you ever work here on Sunday and find out what is going on in this store?" I said, "Sir, I work seven days a week, what seems to be the problem?" He said, "I was in here yesterday and that blonde cashier up there got very sarcastic and nasty at me and called me a Son of a Bitch." My reply to him was, "sir, I'm trying everything in my power to correct this situa- tion in this store." And that was the end of the conver- 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sation.... I remember that just by instinct , I tore a piece of paper on the corner of a pad and said, "Sir, would you give me your name and telephone number?" He said "Colonel Hoteling ," and I wrote down "Colo- nel Hoteling" and the telephone number'. .. then he took off. The next evening in Thornton's apartment, while he, Guy ,Green, June Thornton, Stan Thornton, and Gregory Brand- ner were reading and signing affidavits which had been prepared by Wessels , and going over payroll records, Thornton spoke up and said: Mr. Wessels, I've had a very serious complaint about this Debbie O'Neil and I'm just at the end of-the line with her, I just can't put up with it anymore, and you asked me if I knew who it was, and I said "yes, I wrote down the name and telephone number on this little slip of paper" and I took it out of my wallet and gave it to you, and you wrote it down and gave it back to me I described the incident to you and you told me that this was a very serious complaint , and if I was positive in my mind , it was ground, really severe, and I said, "Yes, because he really blasted me at the pharmacy." Then you said, "Jim, I can't run the store for you, but what would you do if the union wasn't involved?" I said, "I would fire her." . . . then you proceeded to tell me, when Debbie came back to work to make certain that I discussed the incident with her , and to get her side of the story, and bring up the other problems, and if she didn't have a valid reason, that this would be grounds for dismissal , and then you added , make sure that some guy didn't grab her legs or go, up her dress or something of this nature. So I told you, "yes sir, I will", and that Friday I dismissed Debbie O'Neil after discussing it with her When Debbie came to work , Mr. Johnson brought her back . Mr. Rogan was present . We went to the stock room and I had these disciplinary notes with me. I asked Debbie, "What happened on Sunday? Some col- onel really blasted me about the mistreatment and about a name that you called him. Do you remember anything about it?" Debbie hesitated for a while , and she said, "No." Then I said , "Debbie, I had previously warned you about customer complaints, I had to warn you about tardiness , I have warned you about insubordination, I have warned you about taking excess time on your breaks, just that same 'day you took ten minutes extra on your break . Why did you donit?" She said that she had gone to a hamburger stand and she 'tripped in. a ditch or something of that nature... . Then I started reading'the disciplinary actions that I had against her and I said, "'Debbie, I have warned you many times tan these different occasions , and it's nothing toyou,andIhav doneeverythingthathcould possibly do to get your- mind squared away , so that whatever is bothering you, that you could become 'a good employee . In my personal opinion and yours and management, the retail business is just not cut out for you, you should get an office job where you don't have to deal directly with the public . If 'you need a recom- mendation or something in that nature , I'll be happy to give it to you." On cross-examination, Thornton repeated verbatim his recitation of the conversation with Hoteling , and added the following details, not incorporated in his direct examina- tion : The colonel was "loud , furious and upset" and could be heard over the entire store . The colonel also said he "would never shop at Walgreens ," he did not say that he would not shop at Walgreens so long as Debbie was there. Thornton's description of the exit interview was amplified on cross-examination by the following: I told her that I had a very serious customer complaint on her that last Sunday she worked and that this cus- tomer said she called him a name and that it was an S.O.B. and that if he didn 't like the service, or the way she waited on him that he could go to the other line or shop someplace else, something to that effect. Thornton further testified that O'Neil was very calm throughout the exit interview and did not cry at all. On the evening of July 31, Thornton wrote the following memorandum on a company form: DISCIPLINARY RECORD Employee's name : Debbie O'Neil Job Title: CA Date 7/31/72 Time: Monday Afternoon Store Address: Witnesses: Col Robert Hotaling Facts : Coln, told me I should work on Sundays. Debbie O'Neil insulted him & called him a name- Told him to go to other line if he was not satisfied with her. He told me he would never shop Walgreens again as long as she worked in store. On Friday. afternoon, August 4, Thornton added on the same memorandum the words: Friday-I dismissed Debbie in witness of Mr. Johnson and Mr. Rogan. I told her why-also that if she applied for office work or needed a reference I would be glad 'to help her. 7. Testimony of Philip Johnson Johnson, examined by Wessels as to statements made at Thornton's home on August 1, 1972, testified: He explained that Debbie was giving him some prob- leans, that he had a. customer complain about her call- inghim an,S.O.B.... and Mr. Thordton said, with this WALGREEN CO. 137 union and everything, that he's tied, and you said, "Well, she called him an S .O.B., that , of a clerk, is kind of rude , especially such words ." Mr. Thornton said, "Well, I can't fire her." You said, "Now, what would you do if there was no union election?" Mr. Thornton said, "I would have fired her ." Then, "Would you give her a chance to explain what happened with her and this customer and, if she did so, give her a chance. If she said this, fire her." But he says , "Make sure-I mean if he come up there and start grabbing at her legs, you know, and start pulling at her dress , of course, you know, she probably had a right to call him this name, but give her a chance to find out, to defend herself, find out what the problem was." . . . . Mr . Thornton also stated that she had been tardy and this is not the first time it's happened . He's had many complaints with her. Describing the exit interview, Johnson testified: Mr. Thornton explained to her, he said, "Well, isn't it true that you called some customer an S.O.B.?" And she denied it. And he said, "Well, this customer come up to me and he really blasted me." "He said, `That blondheaded girl up front gave me a real hard time. She called me an S.O.B.' And he said , `I'll never shop here again until she's gone ."' So Debbie says , "No. No incident happened whatsoever Sunday ." Then Mr. Thornton says, "Well , you know, Debbie, we're going to dismiss you for this tardiness and discourtesy to customers . It's' not the first time we have disciplinary action on different dates and were going to dismiss you." Debbie got very upset and she started screaming and crying. One thing I did note though-I would have to admit l didn't bear any cuss words from her, so she did not cuss, and .1 feel under the circumstances, under the pressure, if she was the type of person that was going to cuss somebody , it would be then, but she didn't say a word... . Johnson also testified that on Monday , August 1, I came in at one o 'clock and I immediately went to work and I believe I was working in the back room and I came out to the pharmacy where Mr . Thornton was working to go over some freight bills or something, and he told me, he said, "Man, some guy sure blasted me," and I says , "What for," and he says, "Well , apparently, Debbie called this guy an S.O.B." and he showed me a piece of paper. It had a name on it, and the name was Colonel Hoteling. It was printed and he said, "Man, this guy isvery upset," and I said, "Well, what happened?" He said, "Well, I don't know." He said, "Sunday, Debbie called him a name and he was very upset and he wanted to see the manager and he wasn't in, so he. came back the next day and he said he'll never come back to this store." 8. Reconciliation of the testimony of Thornton , Johnson, Wessels, O'Neil, Rogan , and Hoteling On Sunday , July 30, O'Neil said to Mrs. Hoteling , "If it's not there its not there." She did not speak to Colonel Hotel- ing. She did not address him as a "son of a bitch" or as an "S.O.B." Hoteling is a completely disinterested witness and must be credited on this portion of his testimony. He re- called this incident with utmost clarity, including his wife's' resentment. On Monday afternoon , early, as he was picking up batter- ies at the camera counter , he made a casual remark to Coberly about a "blond witch." He walked to the back of the store, followed by Coberly, whom he did not see. Hotel- ing told Thornton , "One of your clerks leaves a lot to be desired as far as courtesy is concerned," identified the clerk as a blonde with the name of "Debbie" or "Debra" and described the incident. Coberly then repeated to Thornton the remark which he had heard at the camera counter. Immediately thereafter , Thornton gave a dramatic and partly fictional account of his conversation with Hoteling to Johnson. On the evening of Tuesday, August 1, Thornton told Wessels that O'Neil had "committed some act of rudeness." Thornton did not use the words "son of a bitch" or "S.O.B." in reporting the incident to Wessels . Thornton would not have been inhibited by the presence of his sister-in-law. In speaking to women employees in the store , Thornton used the words "damn," "shit," and "Hell." Neither would Wes- sels have responded as he did, had Thornton told him that -a clerk had addressed an opprobrious epithet to a customer. Such conduct by any clerk to any customer for any reason would require immediate dismissal . If Wessels had heard that those words were used , his only response would have been. "Did she say that? If she did, fire her , and see that you -apologize personally to the colonel ." I credit Wessels as to what was said by him and by Thornton on the evening of August 1. Thornton did not, on August 4, tell O'Neil that she had been charged by the colonel with calling him either a "son of a bitch" or an "S.O.B." Rogan , who was present for the entire interview was-an outstandingly honest witness, and testified convincingly that those words were not used, al- though Thornton had told him, before the discharge, that O'Neil had addressed one of these epithets to the colonel. Johnson's testimony is explained by his confusion of what Thornton told him on Monday, with what Thornton told Wessels on Tuesday'and O'Neil on Friday. Thornton's testi- mony is explained by the need for self-justification. Coberly's testimony, a complete fabrication , is explained by fear. O'Neil's testimonyis explained by the 'fact4hat she was shocked and had no independent recollection. I specifically find that Thornton , when he discharged O'Neil. on Friday, August 4, 1972, did believe that O'Neil had been rude to a customer, but did not believe that she had used any -opprobrious epithet in speaking to the custom- er. His fictional account to Johnson,, suggested by the word "witch," supplied by Coberly, became fact in his mind after the discharge. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G. Alleged Interference, Restraint, Coercion The complaint, in its paragraph numbered VI, lists 20 acts alleged to be violative of Section 8(a)(1) of the Act. The earliest date alleged is "on or about April 15, 1972." Region- al Office records indicate that a copy of the Union's petition in Case 20-RC-10668 was mailed from San Francisco, ad- dressed to the Petaluma store on Friday, April 14. I stated on the record that, in the absence of other evidence, I would infer that it was received by Thornton on either Saturday, April 15, or Monday, April 17. I now find that Thornton received a copy of the petition on Saturday, April 15. This finding is predicated in part on the statement in Respondent's bulletin of April 19, 1972, that: "We learned over the week end that the Retail Clerks Union is trying again to bring you into the ranks of Dues paying members." Although testimony was received from Judith Whitney and Milligan as to statements made by Thornton before April 15 (within the 10(b) period), which would, if credited, be violative of Section 8(a)(1), and testimony was received from Thornton, denying that these statements were made, there was no motion to amend the complaint. 1. Thornton, Milligan, O'Neil, and Judith Whitney, Saturday, April 15 a. Testimony of Judith Whitney Mrs. Whitney testified that she was at home when she saw in the "Argus Courier" a feature article on Walgreens and telephoned Thornton to tell him about its Milligan an- swered the phone and said that Thornton was right there. Thornton, after receiving Whitney's intelligence, said: that he got some bad news in the mail, it was the thing about the Union to have an election. "I have Debbie in here right now, I'm talking to her about it," and he said she was afraid of him. I asked him "why," and he said he didn't know but would I please talk to her and tell her how good the Walgreen Company was to its employees . . . he said "I am getting her a raise, I told her that she would be getting a raise and the-rest of you are going to get one too." Whitney then spoke to O'Neil and "I told her that I thought the Walgreen Company was a good company and that it was usually fair to its employees." b. Testimony of Audrey Milligan Mrs. Milligan testified that on April 15, in the pharmacy, Thornton showed her papers from the National Labor Board, and asked, "How could you do this to me?" Milligan 8 "Argun Courier" is a daily afternoon newspaper published in Petaluma. With its April 15, 1972, edition was distributed a supplement describing in detail the business, manufacturing, and agricultural enterprises in the area In the half page devoted to Walgreens, Thornton is quoted as saying- `"Two of his prime assets are pharmacist Bob Levin and cosmetologist, Judy Whit- ney." replied, "I don't know what you're talking about." Later, Thornton told her that "we were all getting raises . . . he had put in raises for everybody." Still later Thornton had O'Neil relieved on the checkstand and called her to the office. O'Neil sat at Milligan's desk, and Milligan stood. The conversation lasted 50 minutes. ... then Mr. Thornton asked Debbie if she signed a card and why she wanted the union in. . . and Debbie ... said yes she did and she wanted the union because she was supporting herself and she needed the benefits that she thought they could get for us. . . . Well, Mr. Thornton said that the company would never sign a contract, we didn't need a union. He said, if you want- ed to you could always sign up with the Communist Party or the Nazi Party too. Just a general conversation about that we would strike and they could bring in scab labor. . . . Debbie said that she had been there for eight months . . . that she hadn't got a raise and how come all of a sudden she was going to get one, and he said I've been trying to get a raise for everybody and now I am going to put in for it.. . . Mr. Thornton did ask Debbie, why should poor Audrey go on nights or Sundays because of the union. Then he said to Debbie, and you know if you want a special day off you're not going to get it. She said, Why not, if I give you two weeks' notice and he said, because if the union comes in nobody will be getting any privileges. At some point in this conversation, Mrs. Whitney called, and Milligan heard Thornton tell Whitney on the tele- phone: that he was talking to Debbie about the union, and he wanted Judy to talk to Debbie on the phone and ex- plain to her why we didn't need a union, and he handed the phone to Debbie. c. Testimony of Debra ONeil O'Neil testified: Mr. Thornton called me off the register and I went into the office . . . the first thing he asked me was when I had seen the union representative and I told him three weeks ago,,and then he said, why did I want the union and I told him my mom was in the Retail Clerks Union and that the benefits were good and I told him that I am 20 years old and that I am more or less considered on my own . . . and then I told him that I had been there six months . . . that I thought I deserved a raise, ... then he told me he had only been there four months and he said raises were going into effect. Then he turned to Audrey and said, "Isn't that true" and Audrey said, "Yes", and he said he was putting in for a raise but he didn't say anything about how much WALGREEN CO. 139 * * * * B 1 if 'd th Th h d h dt t ... and we talked, like I said , at least 50 minutes .. . then he said he could really be an S.O.B: and have Audrey work the holidays and Sundays... . Judy did call on the telephone and he was telling her that he was talking to Audrey and me in the office... . Well she talked to me and I told her that I had told Mr. Thornton that I was a yes vote for the union and she said, "Well, don't let that worry you." she said, "Be cool" and we really didn't talk that long... . Later in the afternoon Thornton told O'Neil that her raise would be 50 cents an hour bringing her to $2.50. When she asked "how come not $2.65?" Thornton replied that she wasn't worth it. She had to "straighten out, couldn't get smart with the customers, and was to watch the ads careful- ly." O'Neil asked why she was kept on the register all the time and was not permitted to work on the floor as earlier promised. Thornton answered, "Things have changed now that the union has stepped in." d. Testimony of James Thornton Thornton testified that when he received a copy of the petition in the mail he telephoned Saunders, who chuckled and said "send it to Mr. Wessels." 'Thornton testified that he did not have a conversation with Milligan and O 'Neil on the day he received the petition, and that he did not have Whitney talk to O'Neil on the telephone on any occasion. Thornton never asked O'Neil why she wanted the Union or whether she had seen a union representative. Thornton did tell O'Neil during the first week in April, on a Saturday, in the employees' dining room, that he was going to ask Mr. Saunders if he could get a raise for her and several other employees. No amount was mentioned. 2. Promises of wage increases Brandner testified that a few days after the first of April Thornton told him that Respondent's law department had approved raises for several employees , that after the Union was decided, Brandner would receive $2.30 per hour from April 1, 1972. His pay was then $1.90 per hour. Davidson testified that during the first week in April Thornton told her that he was going to raise her salary to $3.12 per hour from $2.45 per hour. A few moments later, her son walked by and Thornton said to Stone: "Jim, in- stead of $1 .90 an hour, I am going to start you at $2.00 per hour." Stone testified that when he was hired Thornton told him that his pay would be $1.90 per hour. During the second week of his employment Thornton told him that his pay would be $2 per hour. His first paycheck was at the rate of $2 per hour. Ginger Johnson testified that `just before the election [Thornton] told all of us that he was going to be putting in raises for us . . . then later on just before the election .. . he said `Well I'm putting in your 35 cent raise now .' " Mrs. Johnson did not receive a raise. ar ow es ie at ornton, on t e ay a receive a communication from the Labor Board, told her that she would be raised from $2 to $2.80 per hour, but she should mention this to no one. Barlow received a raise in late October or early November 1972. Levin testified on direct examination that in mid-April Thornton told him that a 25-cent increase had been ap- proved, "however, we've got this union mess and we can't do anything about it until the NLRB elections' are over with." On cross-examination, Levin testified that Thornton, in the pharmacy on either April 14 or April 15, stated that Levin's 25-cent raise had been approved, retroactive to April 1, but could not be put into effect until after the election was over. Levin further testified that he heard Thornton tell O'Neil that no one would get any increase until the "mess with the union was over." O'Neil testified that when she received her first paycheck, I week after the April 15 interrogation by Thornton, she went back to the pharmacy and asked why it did not show the promised increase. Thornton replied that he could not give it to her because the Union had stepped in and a present raise would be considered a "bribe." He added that she would receive her raise "after the union deal was cleaned up." Thornton testified that when he hired Stone he told him that while he was paying the other "boys," Holstein and Brandner, $1.90, he was going to start Stone at $2. A few days later Thornton told Davidson that he was going to ask Saunders to approve a raise for several employees . On April 2,3, or 4, Thornton told Barlow that he was going to ask Saunders if he could get her a raise . Levin asked for a 25-cent raise almost daily. Thornton told Levin that he would discuss it with Saunders. Thornton did not recall any conversation with O'Neil in the prescription department with Levin present. On a Saturday in the first week in April, Thornton told O'Neil that he was going to ask Saunders for a raise for her and for several other employees . Thornton did not recall the mention of any amount. In early April, before he had any knowledge of any union activity, Thorn- ton telephoned Saunders and requested raises for six or seven employees. Saunders replied that the Company was not giving any raises, and reminded 'Thornton that Respondent's prices were frozen. Whitney testified that both Johnson and Thornton had told her that, under the Stabilization Act, any wage increas- es would be limited to 5 percent. 3. Thornton's private discussions with Judith Whitney Mrs. Whitney testified that she and Thornton in January 1972 talked about the Union at a restaurant in the shopping plaza . Thornton told her that there were three -reasons for his appointment as manager . One was to straighten the store up, the second reason was because new shopping centers were coming in, and the third reason was to keep the Union out. Stan and June Thornton and Guy Green were there to help clean up the' store, but if a union vote came up they would be able to vote and would vote "no." He could also assign disagreeable jobs to employees, such as having Milli- 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gan scrub down the washroom walls with a toothbrush. Mrs. Whitney testified that, a few days after her tele- phone call with reference to the "Argus Courier" article, Thornton asked her who had signed union cards, asked if O'Neil had signed one, told her that O'Neil had told him that she had signed a card, and stated: "We have to keep the Union out." Mrs. Whitney testified that, the day after Thornton met with Wessels, Thornton read aloud to her the entire "dos and don'ts book," and continued by saying that Walgreens would never sign a contract and employees would be out carrying picket signs, that if the Union did not come in employees would have, within 6 months, paid sick leave, paid prescriptions, paid dental care, paid eye care, a better medical plan and hospital plan, but if the Union came in the employees would receive none of these things. Mrs. Whitney testified that toward the end of April she telephoned Thornton at about 7 p.m. and asked him about crossing picket lines. Thornton told her in this conversation that Walgreens would bring in people from other stores, whom in his father's-day they would call, "scab labor," and stated several times that Walgreens would never sign a con- tract. Mrs. Whitney testified that in another telephone conver- sation Thornton told her that he had seen O'Neil in one of the plaza restaurants talking to the "Union lady," and had said to her, "Debbie, Don't get nervous and spill your cof- fee, go right ahead and talk to the Union lady." Mrs. Whitney testified after Thornton had been to San Francisco he told her that June and Stan Thornton could vote, and even he could vote because he was a pharmacist. Thornton added that if the store did go union, "While you are picketing, I will be sitting on those piles of, manure [in front of the store] shovelling bullshit on you." Mrs. Whitney testified that shortly before the election Thornton told her that Walgreens would never sign a con- tract, the employees would be out picketing, and it would be hard for Mrs. Whitney to get another job in Petaluma. When she asked'how could that be because "I don't even want a union," Thornton answered that the other stores would associate her with union activity and would not hire her. Mrs. Whitney testified that before the election Thornton told her that Milligan was an excellent bookkeeper, but if the Union came in Milligan would never become an audi- tor. Mrs. Whitney testified that, on the morning of the elec- tion; Thornton told her that "we really need your vote," and, that'Saunders was counting on-her for a "no" vote. Whitney answered, 'Yes, I would vote 'no."' Tliornton testified that, shortly after he becamemanager, Mrs. Whitney told`him that shewas responsible for the store not going union and was a very good friend of deg Can- ning, then regional:director, later vice president of Respon- dent. On at least two occasions in March or April, Mrs. Whitney told him that' the Union was coming in, and Thornton's reply was, "Well who gives a damn ... it doesn't make a shit to me one way or other,", Thornton testified^that, shortly after May 10, he read the "dos and don'ts" book to Mrs. Whitriey,'telling her that while it was eonfidenial`he was reading it to all the employ- ees so that there could be no misunderstanding. ' Thornton testified that he received i 1 or 12 telephone calls from Mrs. Whitney. One evening about 2 weeks before the election, she called and started out by saying, "Wal- greens going to win this overwhelmingly," and she started calling, off names. Sometimes Thornton would lay the phone down and wait on a customer and when he returned, "she would still be rattling at the mouth." In this conversa- tion, Mrs. Whitney told Thornton that the vote would be 19 to 1 in favor of Walgreens, that O'Neil would vote for the Union, that she was unsure about Milligan and Ginger Johnson. Thornton told her, "I don't give a damn. It doesn't matter to me one way or the other." Thornton testified that he did not discuss with Mrs. Whit- ney any of the Company's plans for improvements, that he never told her that the store would close, never told her that the Company would never sign a contract, and did•not talk to her at all on the day of the election. "She said something about a strike, I didn't." 4. Thornton's private conversations with Audrey Milligan Milligan testified that in January Thornton told her that he had heard that employees wanted a union and he could not, because he had been a fair boss, understand why. Milli- gan answered that it was unfair for him to be "threatening everybody every day" with discharge and "we felt if we had the union we would have a little bit of protection." " He said, "Give me a chance to show that I am a good boss." Milligan said,. "Fine, I'll give you a chance." Thornton said he could force people to quit by changing their hours, and that if it went to an election he could bring in people to flood the vote. Milligan said she would give Thornton 6 months and he said that was fair. Milligan testified that, "almost every day" after Thornton received a copy of the Union's petition, he said something about "striking, no contract, scab labor." During the same period, Thornton frequently said, "Debbie wasn't cut out to be a cashier, this was not the place for Debbie, Debbie ought to look for another job." Milligan testified that 2 weeks before the election Thorn- ton told her that he knew who had signed cards for the Union. When Milligan replied that he could not know, Thornton offered to prove his statement by writing down= the names and Milligan accepted the, offer: Thornton then wrote the names of Judy Whitney, Debbie O'Neil, Jo Da- vidson, Levin, Bill Coberly, and Melanie Davis. Thornton then asked Milligan to write down the names of those who had signed cards. After' protesting that she did not know, Milligan did make a list. It was the same as Thornton's except that she omitted the name of Whitney and added the name of Duncan. Milligan testified that, when she told Thornton about her ambition to become a travelling auditor, Thornton advised her that if the Union got in she would never become an auditor because the Company would think that she would try to organize other stores and would never trust her. Thornton testified that in January, when he heard Milli- gan using the intercom to talk to the cosmetic department, he called the office from the pharmacy and told her to "get WALGREEN CO. your work done and quit horsing around." Milligan imme- diately walked back to the pharmacy and said, "We've got to have a talk." They went to the liquor storeroom, where Milligan told him that she would give him 6 months to get the store squared around, or she would get the Union in and get rid of Thornton just like she did the other manager. Thornton's only reply was, "I don't give a shit." Thornton reported to Saunders that Milligan had put him on a 6- month probation, and Saunders laughed. ' Thornton testified that Milligan was always talking about the Union or about employees or about the Company. A few days before the election she told him that she did not know how she was going to vote. Thornton answered: "Au- drey, look, I could give a shit what happens. I have a store to run. I don't care one way or the other. Just don't bug me." Thornton testified that when Milligan told him that she wanted to become a travelling auditor he replied that it would be a good experience and she would really enjoy it. Thornton never said that if the Union came in this would interfere with her chances. Thornton testified that in April or May he overheard a conversation in the office between Milligan and Barbara Abreau, a visiting cosmetologist who was employed under a union contract at Respondent's Castro Valley store. Abreau told Milligan that she received no protection from the Union and that the business agent ignored her com- plaints. She had been forced by the manager to sweep the floor, vacuum the greeting card section, and throw out the trash. Other women in the store were compelled to unload freight. There were arbitrary changes in the schedule. Milli- gan told Abreau that she would refuse to do any of those things, "regardless." Thornton did not participate in the discussion. Thornton testified that he never had any discussion with Milligan about people who had signed union cards, and never wrote down names of persons who had signed cards. Thornton testified that about 2 weeks after the election, Milligan asked, "Who do you think voted for the union?" Thornton answered, "You will never be certain, because it was a secret ballot. But I'll write down the names who I thought voted for the union." Thornton wrote names down and Milligan wrote names down. On cross-examination, Thornton amended this testimony, stating that he did not write down the names of those who voted for the Union but did write down, at Milligan's request, the names of employ- ees whom Thornton thought had voted for the Company. These were: Mark Sage, Lowell Poole, Ginger Johnson, Darlene Barlow, Robert Celani, Jim Stone, Linda Duncan, and Rick Rogan. 5. Thornton's private conversations with Jo Davidson Davidson testified that, as she was returning from her break on the day that Thornton got a letter about the Union, Thornton asked her what was going on in the store and what did she know about the Union. Davidson an- swered that she had not been working there at the time of the first election and he would have to ask others. In a later conversation, Thornton told Davidson that if the Union came in he would not be able to give jobs to young boys 141 such as Jim Stone. (Stone was 17.) In either this or some other conversation, shortly before the election, Thornton told Davidson that Walgreens would never sign a contract, there would be a strike, Walgreens would close the store, employees would be walking the picket line, something about "scab labor," and Thornton felt sorry for people like Milligan and Davidson. On the day of the election, Thorn- ton told Davidson that he needed her support, asked her to not let him down, and made an implied promise of a,full- time job if she wanted it. Thornton testified that he read the "dos and don'ts book" to Davidson "so there will be no misunderstanding." He denied questioning any employee about the Union. He de- nied making the statement relative to not hiring young boys, stating that he had in fact hired young boys while working under a union contract. He testified that on election day Davidson asked him where her son was, that he answered, and that there was no other conversation. He did not offer her full-time work because, for one reason, he knew that she had a full-time job elsewhere. Thornton had no discussion with Davidson concerning the Union other than reading the "dos and don'ts book." Thornton did not recall making any comment concerning closing the store, signing or not sign- ing a union contract, a strike, or scab labor. 6. Thornton's private conversation with James Stone Stone testified that on the day Saunders visited the store he had a private conversation with Thornton in the break- room. Thornton told Stone that he was a bright boy and Thornton was confident that Stone would vote "the way you think is right." Thornton also said that, if the Union came in, young boys such as Stone would not be able to work in the store,'Waigreens would never sign a contract, would let the employees go on strike, would pull in scab labor, and would close the store. Stone further testified that Saunders told him on the same day (June 5, 1972) that the Union destroys initiative, that it is for the satisfied man, for the man who does not want to get ahead. Saunders complimented Stone and told him that if the Union did not go through Stone would probably have a good future with the store. Thornton testified that he read the "dos and don'ts book" to Stone. The Union was not mentioned in any other con- versation. The complaint does not allege any unfair labor practice by Saunders, and Saunders did not testify. 7. Thornton's private conversation with Robert Levin Levin testified that shortly after the mid-April conversa- tion concerning the delay in his 25-cent raise he had a second conversation in which Thornton said: Everything I am going to tell you is for your own good .... Walgreens would never let the store go union .... You're going to end up having to go on strike because the Union will declare a strike. . . . We'll call in scab labor. I know of an incident at White Front 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where the employees went on strike and it lasted five years . . . . besides, there's always ways of getting rid of people you don't want. . . . If you really want to work in a union store, we have union stores in San Francisco . . . . we can transfer you down there. Levin testified that he heard Thornton tell O'Neil that no one would get any wage increase until the "mess" with the Union was over, and also heard him tell O'Neil: Walgreens will never sign a contract, you're going to have to end up going out on strike and it could last a long time. It could be five years or more. Thornton testified that he read the "dos and don'ts book" to Levin, after which Levin asked what Thornton would do in his position. Thornton replied, "protect my family." Thornton never questioned Levin concerning his feelings about the Union. Thornton did not recall any discussion with Levin concerning the Union other than reading the "dos and don'ts," and Levin's claim for wages to meet the union scale. The portions of Levin's testimony above set forth are not specifically denied. 8. Thornton's conversations with Ginger Johnson Mrs. Johnson testified that Thornton read the "dos and don'ts" to her and said that if the Union came in the em- ployees would go on strike. He also said that there was a possibility of a strike. About 3 weeks before the election, Thornton asked if she had talked to any union representa- tive. Johnson replied that she had not and would not be interested. About a week before the election Thornton told her, "If any union representatives talk to you, refer them to Chicago." Thornton testified that he had two talks with Ginger Johnson concerning the Union. In the first, he read the "dos and don'ts book." The second was just before the election and all he said was "Don't let anyone influence you." Thornton had no recollection of asking her whether she had talked to a union representative, or of telling her that if the Union got in the store the store would close. 9. Thornton's conversations with Darlene Barlow Barlow testified that about a week after the promise of a raise Thornton asked her if she had been contacted by a union representative. When she answered in the affirmative, Thornton told her not to let them persuade her, and she said she would not. Barlow testified that about the first of May, [Thornton] came by and he told me not to let the union influence me, that the company would never sign a contract, and if we did vote union that the store might close, we would be picketing, there'd be a strike, they would bring in scab labor, and'I can't remember. Barlow testified that as Thornton was reading the, "dos and don'ts book" to her he made explanatory comments, one of which was that he "could fire Debbie awhile ago for selling briquettes cheaper than they really were." Thornton testified that when he read the "dos and don'ts book" to Barlow she said "all this doesn't make sense" and that she didn't understand the whole "mess." Thornton told Barlow not to let anyone influence her, that she should make up her own mind. 10. Thornton's conversations with Ronnie Morgan Morgan testified that about 2 months after he was hired, which would place the time in April 1972, Thornton asked if he was going to vote for the Union and "of course I said `no: " Morgan testified that a week or so later Thornton again asked him if he was going to vote union and received the same reply, and, He said at that time that if I did vote union, my chances of becoming an assistant manager would be cancelled. I'd have no chance in the training program. It would then be cancelled out. He also said at that time that if we did vote union and the umon came in, the store would be picketed. He would lay off all the workers in the store, bring in low wage workers and work them and so forth and so forth. Morgan testified that a month after the rumor of a union got around, "Mr. Thornton came over and asked me if the union lady had come and spoke with me at my house and what-not, and of course I denied it and said `No I haven't talked to her at all."' Thornton testified that when Morgan was hired Thornton told him that "The future in this company was wide open for young individuals, to become managers, district manag- ers, and to go right up on the ladder." Thornton did not recall any mention of umon in any conversation with Mor- gan, other than reading to him the "dos and don'ts book." 11. Thornton's general denials Q. (By Mr. Wessels) Mr. Thornton, do you recall interrogating any employees about the union, asking the questions about.the union? A. No, I never interrogated an employee about the union. Q. Do you recall threatening any employee that the company would not sign a contract with the union? A. I've never threatened an employee, no. Q. Do you recall threatening any employee that they'd be laid off or replaced if the union was selected? A. Absolutely not. Q. Do you recall threatening employees that they'd have worse conditions of employment if the union were selected? A. Absolutely not. Q. Do you recall threatening to withhold or to deny WALGREEN CO. promotions because of union activities? A. Absolutely not. Q. Do you recall promising any employees that the company would have better benefits if the union did not get in? A. Absolutely not. Q. Do you recall talking at all about improved bene- fits? A. Absolutely not. Q. Do you recall saying to employees that the com- pany would never allow the store to go union? A. Absolutely not. 12. Philip Johnson's conversations with Audrey Milligan Milligan testified that shortly before the election she was eating lunch in the breakroom when Johnson asked, "How was the dinner at Marge's house Sunday ?" and "How many were there?" Milligan replied that it was a good dinner and "it was none of your damn business who was there." John- son also told Milligan that she should not talk to O'Neil in the office, because O'Neil was for the Union and it made Milligan look bad. Milligan testified that after Thornton got the letter and before the election, at a coffee shop, we were just talking about the union and he was against it and then he said something about the company being better off lo,-king the doors because of this and that you know, just paying rent on an empty building. But he was always with his pencil showing you figures and things and I just c ft remember that much about it. Johnson testified that he had two conversations with Mil- ligan concerning the Union . Johnson and Milligan were having coffee in the lounge, when Milligan remarked that she wasn't feeling good. Johnson asked "why?" and Milli- gan answered that she had been at a union party the night before. Johnson asked how many were there and Milligan told him he should not ask that; Johnson apologized. Johnson testified that when he was having coffee with Milligan at a bakery in the plaza she asked, "Are they going to close the store?" Johnson answered , "I haven't the fog- giest," but relayed to her the figures which he had received from Thornton , and "explained to her generally how they could if they wanted to , but certainly no indication that they would." Johnson testified that on one occasion after the election he observed that O 'Neil had left her register unattended and was in the office talking to Milligan, and I asked them , "Please , you know . Number one , you're the cashier, front cashier, and you can 't watch the regis- ter from the office ; and, two, with this union, ev- erything the way its going, I'd just prefer you guys just be separated . You stay there and you stay here and do your job . I don't want Mr. Thornton , you know, run- ning around like a wild man , period." So they said, "Okay, fine," and she went back to her job and Debbie went back to the front register. 143 Johnson testified that after the election he told Milligan: we know who voted for the Company. We know who these votes are, and so Mr . Thornton assumes that the rest didn't. 13. Philip Johnson's conversations with James Stone Stone testified that, 3 weeks before the election in connec- tion with a discussion of the disorder in the stockroom, Johnson explained that the store was running at a loss, and it would be cheaper for Walgreens to pay rent on an empty building than to sign a union contract. Stone testified that after the election Johnson said, "I know how you voted, you voted for the Union ." Stone answered, "Yes. I wouldn 't have if Lowell Poole hadn't been pressuring me to vote against the Union." Johnson testified that he explained to Stone as he had to Milligan, that the store was running at a loss and could not, absorb extra costs. He also told Stone that Walgreens had pretty good benefits , and if the Union accepted a contract with existing conditions , Stone would be paying dues' for nothing. Johnson testified: I was shocked when I found out certain people were supposedly voting for this union , which was a process of elimination . I knew who voted for the company. Therefore the others voted for the union . Well I heard Jim's name was on it, and all I could think was, "Here, this guy was telling me this, and I know the opposite," and he was being a hypocrite, and I said, "Jim, please, I know how you voted . Please don't stand there telling me this and that. You have a right to vote any way you want to vote, and we don't care how you vote . That's your own prerogative ." And he agreed that he voted for the Union. 14.. Philip Johnson's conversation with Jo Davidson Davidson testified that after the election Johnson said to her, "I know how you voted. Mr. Thornton knows how everybody voted." Johnson testified that he did not recall saying anything to Jo Davidson. 15. Philip Johnson 's conversation •with Ginger Johnson Ginger Johnson testified that when, after the election, Philip Johnson told her that she would not have to work days as per the newly posted schedule but could continue on the night shift he said, "Oh , by the way, Mr. Thornton knows that you voted union . . . . he knows pretty much how everybody voted." 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 16. Wessels' conversation with Levin Levin testified that on May 10, 1972 , a date which he memorialized in a postevent memorandum, he had a con- versation with Wessels in the pharmacy . On direct examina- tion, Levin testified: He asked me what benefits I thought I could get from a Union contract that the company didn't already offer .... also I remember Mr. Wessels told me at that time that Walgreens would never sign a contract . He told me that as _a result, we would probably have to end up going out on strike , I interrupted him and argued the point that the Union wouldn't call a strike, that the employees would have to vote for this , and he said, "During negotiations , you won't have any choice." .. I asked him why Walgreens was fighting so hard to keep the Petaluma store from going union . He said, "Well, if Petaluma goes union , then the stores on the Peninsula might get the idea that they could go union, and then the stores in the East Bay, and presumably the whole state or the whole chain would go union because of the one store in Petaluma, the domino-theory type of thing. After that, Mr. Wessels started telling me how good the company was, how generous the fringe bene- fits were, and he cited two cases of some individuals who had unfortunate financial or health problems and the company generously had given them aid.... He also mentioned to me that rather than open the possi- bility of letting all the other stores go union, that Wal- greens would just as soon close the store , that they'd just as soon pay rent on an empty shell as let the store go union... . Cross-examined by Wessels , Levin testified that the con- versation was the evening before the stipulation for certifi- cation was signed in San Francisco , i.e., the conversation was on May 9, and You told me if the store went union , that we would end up having to go on strike. You told me that during the period of negotiations, the employees wouldn't have a choice as to whether they would vote to go on strike or not; that the store would get in scab labor.. . . you also said that, rather than open up the possibility of letting other stores go union , that Walgreens would just as soon close up the Petaluma store , pay rent on an empty shell .... you told me that Walgreens wouldn't sign a contract. Wessels, questioned by his cocourisel, testified that the conversation was on the evening of May 9, 1972. The subject of the union election had begun .... and he knew that no company, no management would give employees any more than they had to give them ... . that's when we got on the question of the benefits, and I said, You know Walgreen Company has done a lot of things for employees . I talked about the profit shar- ing plan and the major medical plan and I recall specif- ically talking about the benefit fund . And I said, "If that's true, Bobby, then why in the world do we have this benefit fund?"... . this is a funded kind of thing where we help people , who have been involved in hurri- canes, and in personal disasters , "and you know this doesn't square with what you are saying.", Wessels testified that Levin then stated that the union plan for dental care and paid prescriptions was better than Walgreens . Wessels answered that, even if that were true, it did not follow that Walgreens would agree to incorporate' the union plans in a contract , and pointed to the example of Chicago pharmacists . He reminded Levin that the Union had made those promises in Chicago but that the contract, when it was signed , "spelled out company policies right down the line ." Levin announced , "I know why you are fighting the Union so hard . It's because if your Petaluma store goes union , everyone else in California will go union." Wessels replied , "Well, Bob, that just isn't true." Wessels testified that he had no recollection of the word "strike" being mentioned by either participant . Wessels has never used the term "scab labor" in conversation with any- one. There was no mention of closing the store. Wessels testified: The whole conversation lasted about 10 minutes... . I would certainly never say anything that would even smell of violating the labor act to Mr. Levin because .... there's no question in my mind that Mr. Levin was for the union at that time and he's still for the union. He made it very clear as to what he thought. Mr. Ames then elicited the following specific denials: Q. Mr. Wessels, in your conversation with Mr. Lev- in, did you ever tell him that we would never let the employees of Walgreens be represented by a union? A. No, absolutely not. Q. Did you ever tell Mr. Levin that he would be laid off or replaced if the union were selected? A. No, I absolutely never made such a statement to him. -Q. Did you ever tell Mr. Levin that the company would close the store? A. Absolutely not. Never did or said any such thing. Q. Did you ever tell Mr. Levin that the company would never sign a contract? A. I never made such a statement. Q. Did you ever tell Mr. Levin that the company would close the store and that it would be easy to pay rent on an empty building? A. No, I never made such a statement. H. Conclusions In "The Sign of Four," chapter VI , Sherlock Holmes admonishes Doctor Watson, "How often have I said to you that when you have eliminated the impossible, whatever WALGREEN CO. remains, however improbable, must be the truth." In these conclusions, I have eliminated the impossible. I have considered and weighed the "background" testimony. I have considered the bias and the demeanor of the witness- es. I have considered and weighed the probable influence of postevent, pretrial suggestion. No witness was conscious of any deliberate prevarication. No witness had any clear, un- contaminated recollection of the original event described in his or her testimony. Wessels could not believe that Thornton, with his loyalty, intelligence, experience, and training, would have overstep- ped legal limits. Thornton was interviewed by a Board agent, who took notes. Wessels, using these notes and his own recollection of what Thornton had told him, prepared an affidavit. When Thornton read and signed the affidavit prepared by Wessels, all recollection of the original events was obliterated from his memory. The phraseology of Wes- sels' questions was neither stupid nor accidental. Thornton didnot remember what he had said to individual employees. Neither did witnesses called by the General Counsel have any clear recollection of the original events. They discussed among themselves the statements which they attributed to Thornton. At varying times after the events, they prepared handwritten notes- Bridge also prepared typewritten memo- randa based on these notes and oral reports. The Board agent who took pretrial statements from these witnesses had before her these notes and memoranda. Each witness, on the stand, attempted with varying success to conform his or her testimony to the final version incorporated in the pretri- al affidavit. The effect of this postevent, pretrial suggestion is apparent in the testimony of Judith Whitney. Much of her testimony was elicited through grossly leading and sugges- tive questions, the necessity for which is explained by her candid admissions: "The only reason I remember it is be- cause I wrote it down in the first place," and "Now that I am sitting here talking about it I remember one even better that happened in December, that is not even on there." (referring to an April 1972 memorandum describing a Janu- ary 1972 incident). The only testimony which I regard as generally reliable is that of Wessels, Hoteling, Johnson, and Rogan. Where the recollections of Johnson and Rogan differ, I have cred- ited Rogan. Johnson is completely free of bias. A compari- son of his description of the postunion party discussion with Milligan's description is illustrative of the distortion to which Milligan's testimony was subjected by postevent, pre- trial suggestion. There remains, however, grossly improbable, uncontra- dicted testimony, which on the admonition of Sherlock Holmes must be the truth. I therefore find: 1. Thornton did, on April 15, 1972, question (YNeiI about her union membership. Thornton did, in May 1972, ask Milligan to write down the names of persons who had signed authorization cards for the Union. Thornton did, on or after April 15, 1972, ask Davidson what she knew about the Union. Thornton did, on or after April 15, 1972, ask Barlow whether she had been visited by a union representa- tive. Thornton did, after April 15, 1972, ask Morgan wheth- er he intended to vote for the Union, and on another occasion did ask him whether he had been visited by a union representative. Thornton did, after April 15, 1972, ask Ju- 145 dith Whitney who had signed union cards. This interroga- tion, without any legitimate business, purpose, restrained and coerced employees in the exercise of Section 7 rights. Johnson's question of Milligan, "How many were at the party?" was a casual comment on a subject introduced by her, and was in no sense unlawful. Johnson did not interro- gate any other employee. 2. Thornton did, on April 15, 1972, promise wage in- creases to some employees. Stone was hired on the evening of Friday, April 7. He worked 8 hours Saturday, April 8, 8 hours Sunday April 9, and 4 hours, Friday, April 14. The payroll report to Chicago, covering the period April 1 through April 14, credits Stone with 20 hours. The report is signed by Milligan and Thornton. Stone was paid at the rate of $2 per hour on the basis of this report. Stone testified that it was during the second week of his employment, he was told by Thornton that his rate would be $2 per hour. The testimony of O'Neil, Milligan, and Barlow place the first promise of wage increase on April 15. Levin's testimony, that Thornton told him on either April 14 or April 15 that his increase had been approved but could not be put into effect until the election was over, is specifically discredited. Levin did not work on Saturday, April 15. On April 14, Thornton had no indication from any source that there would be an election. Brandner's testimony that the promise was made to him during the first week in April cannot be credited, since he, as did Levin, testified that the raise could not be implemented until "after the union was decided." Neither can I credit the testimony of Brandner, Davidson, Ginger Johnson, or Barlow as to the amounts promised. These are all intelligent literate persons, who must be charged with knowledge that both wages and prices were limited by Executive Order under the Wage Stabilization Act. I, nevertheless, base the above finding on Thornton's admission that he did tell some employees, including O'Neil, that he was recommending raises, on the fact that there is no corroboration of Thornton's testimony as to the date of his telephone call to Saunders, no credible corrobo- ration of Thornton's testimony that any of these promises were made before April 15, and the fact that there is no reason on this record, other than receipt of the Union's petition, for telling employees in April 1972 that they would receive raises. These promises of wage increases restrained and coerced employees in the exercise of Section 7 rights. 3. Thornton, on various dates between April 15 and June 14, 1972, did tell Milligan, Judith Whitney, Davidson, and Levin that Respondent would never sign a contract with the Union. 4. Respondent did not, on this record, "threaten employ- ees with layoff and replacement if employees selected the Union to represent them." Thornton's statements about "strike" and "picketing" and "scab labor" do not support this paragraph of the complaint. Wessels did not, in his conversation with Levin or at any other time, make any statement which could-be construed as a threat of layoff and replacement. 5. Thornton did not "threaten employees that they would suffer more onerous hours and conditions of employment if employees selected the Union to represent them." The testi- mony of O'Neil, Milligan, Judith Whitney, Levin, and Bar- low in support of, this paragraph of the complaint is a 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD distortion of Thornton's remarks, accurately reported by Philip Johnson, that even with a union contract employees were still required to do their work and obey the orders of the manager. 6. Thornton and Johnson did predict that in the event employees selected the Union to represent them the store could close. Johnson, in his explanations, did make it plain that the store was losing money, and if Walgreens was con- fronted with the choice between operating the store with increased expense under a union contract, or paying rent on an empty store, it might select the second alternative. Thornton, on the other hand, stated categorically that if employees selected the Union the store would close or could close. Wessels in his conversation with Levin made no state- ment relative to the closing of the store. 7. Thornton did tell Milligan that if the store went union her chances of becoming a travelling auditor would be im- paired, and did tell Morgan that if it became known that he was in favor of the Union his chances of becoming an assistant manager would be cancelled. This was good sound advice, tendered in the friendliest of spirit, but it did not violate Section 8(a)(1) of the Act. 8. Respondent did not "promise employees improved medical and dental benefits for the purpose of discouraging employee membership in or activities on behalf of the Union." No statement by Thornton to Warren Whitney, a stranger to the employment relationship, can be held to be violative of any right guaranteed to "employees." I credit Thornton's denial that on May 10, when he read the "dos and don'ts book" to Judith Whitney, he described improve- ments which would result only if the Union were defeated. Mrs. Whitney's testimony is a distortion of Thornton's de- scription of existing benefits. No testimony was offered, other than that of the two Whitneys, in support of this paragraph of the complaint. 9. Respondent did not, "at a coffee shop nearby Respondent's premises, engage in surveillance of employee membership in or activities on behalf of the Union." Mrs. Whitney's testimony that Thornton said he had seen O'Neil talking to the "Union lady" would not, if true, constitute evidence of surveillance. This was a public restaurant, in the same plaza as Respondent's store, frequented by Respondent's manager, assistant manager, and employees. No other evidence was tendered in support of this para- graph of the complaint. 10. When Thornton, 2 weeks before the election, wrote down the names of persons whom, he thought, had signed union cards, and when his list appeared to Milligan to be substantially accurate, this conveyed the distinct impression that Respondent had private sources of information and that the union activities of its employees were kept under surveillance. I credit in full Milligan's description of this incident. Thornton testified that it occurred after the elec- tion. This is simply incredible. At the time Thornton and Milligan wrote their list of names they were on cordial and friendly terms, though on opposite sides of a political cam- paign. Such a friendly exchange of information would have been impossible after Milligan had been abused and pun- ished by transfer to a lesser job and after Thornton had been punished and humiliated by being forced to revoke his disci- pline of Milligan. The credibility of Thornton's testimony is further weakened by the fact that on December 7, 1972, Thornton testified that he told Milligan: "I'll write down the names who I thought voted for the union." On December 8, Thornton testified that he wrote down the names of those he thought voted for the Company, and did not write down the names of those who voted for the Union. Thornton perceived no inconsistency. I conclude that Milligan's re- port of the incident is accurate, in part because of her testi- mony that Thornton's list contained the name of Judith Whitney as a union advocate. By late May, Thornton had reason to suspect that Mrs. Whitney was a double agent, and he selected this devious means to fortify or to allay his suspicion . Milligan deliberately lied to him when she omit- ted Whitney's name from her list. The statements of Philip Johnson, after the election, that Respondent knew how everyone voted conveyed the im- pression that Respondent had private sources of informa- tion and created the impression that the union activities of employees were kept under surveillance by Respondent. 11. Respondent did not "threaten employees that Re- spondent would never allow its store to go union." There is no credible evidence in support of this paragraph of the complaint. 12. Respondent did not "threaten employees that Re- spondent would force employees to quit if they selected the Union to represent them." No credible evidence was ten- dered in support of this paragraph of the complaint. 13. Respondent did not "threaten to blacklist an employ- ee if employees selected the Union to represent them." Thornton did tell Mrs. Whitney that if the Union was pick- eting Walgreens it would be hard for her to get another job in Petaluma. This again was good, sound, practical advice, offered in a friendly spirit, at a time when Thornton merely suspected that she was a double agent. Thornton' s remark did restrain and coerce an employee in the exercise of Sec- tion 7 rights, but it did not amount to a threat of blacklist- ing. 14. No statement of Wessels can be construed as viola- tive of Section 8(a)(1) of the Act. Levin honestly, but mis- takenly, attributed to Wessels words which he had heard spoken by Thornton. 15. Thornton's changes in the work schedules posted im- mediately after the election were intended as exemplary punishment of the individuals who were primarily responsi- ble for the substantial prounion vote. The size of this vote was convincing proof to Thornton that he had been receiv- ing false information from Judith Whitney. Transposing her hours with those of Ginger Johnson made no sense from a business standpoint. Both had indicated to Philip Johnson their complete satisfaction with the existing arrangement. Bookkeeping for an operation of the size'and complexity of Respondent's store is an essential, exacting, and responsible position commanding a relatively high rate of pay . It made no sense at all to put a semitrained clerk in charge of the books, and waste Milligan's experience and skill on the cigar counter. Levin was only incidentally punished. Thorn- ton was tired of working 7 days a week, had been exhausted by the strain of the election campaign, and needed a rest. On this record, however, there were only three employees who, before the election, were open and avowed union ad- vocates. These were Levin, Milligan, and O'Neil. Employ-' WALGREEN CO. ees, seeing Milligan assigned to the cigar counter , and Levin assigned to work alternate Saturdays and Sundays for the first time since Thornton entered the store, would be sure to get the message that swift and certain reprisal would follow open advocacy of the Union. 16. Debra O'Neil was discharged because she was a staunch and open advocate of the Union and as an example to other employees that the Union could give them no pro- tection. Thornton, prior to May 9, 1972, viewed the Union with indifference . His intelligence from Judith Whitney that the Union was resuming its organizing efforts was com- bined with assurances that it was getting nowhere . His own inquiries revealed that the only union supporters were Lev- in, Milligan, and O'Neil. On May 9, through two long conferences with Wessels he was made aware of the fact that he and he alone was being held responsible for the defeat of the Union in the then contemplated consent election. Thornton, for the next 5 weeks did everything in his power, within his understanding of the law, to ensure that there would be a decisive "no" vote on June 14. After the election, when he sought to punish the individuals primarily responsible for his failure, he suffered the humiliation of being forced by his superiors to revoke his published instructions and to apologize to the individual who had deceived and misled him. The very presence of Milligan and of O'Neil was a daily reminder of his failure, his disgrace, and his humiliation. After that experience, Thornton feared, rightly or wrong- ly, that if he discharged O'Neil, on Colonel Hoteling's re- port that she had told his wife "If it's not there -it's not there," he would be compelled by his superiors to take her back. This fear was expressed to Wessels in Thornton's statement, as reported by Johnson, "with this union and everything, his hands are tied" or as reported by Thornton, "If the Union wasn't involved, I would fire her." When Wessels returned to Chicago, without obtaining from Colo- nel Hoteling his version of the incident (Wessels thought to himself, "ah the heck with it"), Thornton proceeded with the discharge. After the charge (20-CA-7689) was filed, Thornton, fearful that he would again be overruled, recalled his fictional account to Johnson and, aided by Coberly, came to believe that O'Neil had addressed an opprobrious epithet at Colonel Hoteling himself. Thornton's motive in discharging O'Neil was the same as his motive in changing the job of Milligan and the hours of Whitney. It was to discourage membership in and activities on behalf of the Union. 1. The Unit Appropriate for Bargaining The parties stipulated on November 15, 1972, that the appropriate unit for bargaining is: All regular full-time and part-time selling and non- selling employees, including pharmacists and pharma- cy students employed by Respondent at its 105 N. McDowell Road, Petaluma, California, location, ex- cluding the store manager, executive assistant manag- ers (registered or non-registered)', guards and 147 supervisors as defined in the Act. _ Wessels' joinder in the above stipulation brings this case within the rule of Retail Clerks Union Local 324 (Vincent Drugs), 144 NLRB 1247. Levin's public votes in the elec- tions of January 20, 1971, and June 14, 1972 , serve to distin- guish this case from Thrift Drug Company of Pennsylvania, 167 NLRB 426, wherein the Board, by adopting the conclu- sions of the Trial Examiner, held: .... the Board may not, under Section 9(b)(1) of the Act, include a professional employee in any unit [with employees who are not professional employees] if he has not had the opportunity to decide whether he wishes to be joined with nonprofessional employees. I find, on the basis of the above stipulation, and the entire record, that the stipulated unit is appropriate for bargaining. J. The Union's Majority and the Propriety of a Bargaining Order It was further stipulated that the "Excelsior list" received in evidence on November 15, 1972, contained the maximum number of employees in the stipulated unit on April 28, 1972. The following names appear: R. Levin 11, Barlow D. Brandner R. Celani W. Coberly III J. Davidson M. Davis L. Dodd F. Duncan G. Green G. Hara J. Holstein G. Johnson A. Milligan R. Morgan D. O'Neil L. Poole R. Rogan M. Sage J. Stone C. Thornton J. J. Thornton D. Tobin J. Whitney The General Counsel reserved the right to challenge the inclusion in the appropriate unit of G. Green, G: Hara, C. Thornton, and J. J. Thornton. Counsel for the Union agreed with the General Counsel that the employees named by him should be excluded from the appropriate unit. The Union's counsel would also exclude Gregory Brandner. The record before me amply supports the Regional Director's determinations that G. Green, C. Thornton, and J. J. Thornton should be excluded from the unit for bar- gaining, and that Brandner should be included in the bar- gaining unit. Claude or Stan Thornton is the brother of Store Manager James Thornton and the husband of June Thornton. Claude Thornton lives in Mountain View and is steadily employed by the Brunswick Drug Company in San Jose . He was paid in cash, $182, for services performed at the Petaluma store prior to November 26, 1971, and worked 21 hours during the payroll period ending December 10, Thereafter, he worked 11 hours during the April28 payroll period, 4 hours 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the June 9 period , and 4 hours in the June 23 period. June Thornton was paid in cash , $ 130, for her services prior to November 26, 1970. She worked 80 hours in the December 10 period , 7 hours in the April 28 period, 4 hours in the June 9 period , and 4 hours in the June 23 period. Guy Green lives in Walnut Creek and is steadily em- ployed elsewhere . Prior to December 10, he performed services at the Petaluma store valued at $216 . He worked 72 hours during the December 24 payroll period, 10 hours in the April 28 period, 4 hours in the May 12 period, 8.75 hours in the May 26 period , and 4 hours in the June 4 period. Brandner was hired in October 1971 and resigned in Au- gust '1972. His rate of pay was $1 .90 per hour . Prior to Christmas 1971 he worked a regular schedule . He did not work in January 1972. Between February and June 1972, his name was not carried on the posted schedule , -but he was frequently called on to fill in for absent employees . During the 20-week period , February 5 through June 23 , he worked a total of 126 hours or an average of 6.3 hours per week. Ginger Hara when she came from New York to Califor- nia was given temporary employment at the Petaluma store while she sought a permanent position in San Francisco. She worked 96 hours during the payroll period ending April 28, 1972.0n the payroll report to Chicago , signed by Milli- gan and Thornton , she is designated "Temporary Emp." The report also shows that she was paid in cash (code 51), $187.26. She performed no further services in Petaluma and did not vote at the June 14 election. Payrolls received in evidence show that Elinda Dodd did not work at the Petaluma store between March 17, 1972, and June 23 , 1972, but this fact, unexplained, is not suffi- cient to overcome the stipulation of the parties. I find that as of March 28 , 1972, and through May 31, 1972, when Morgan resigned , there were 20 employees in the appropriate unit, including Brandner and Dodd, but excluding Claude Thornton, June Thornton, Guy Green, and Ginger Hara. I find that on April 20 , 1972, through May 31, 1972, the Union held authorization for representation cards executed by 11 of the employees in the appropriate unit. Each signer fully-understood the clear , language of the card . None was misled or coerced or subjected to undue influence. Each fully understood that by signing the card he or she was designating the Union to be his or her bargaining agent after a majority was obtained either on cards or following an election. I further find that from April 20, 1972, through at least June 9 , 1972,9 the Union was designated and selected by the majority of the employees in a unit appropriate for collec- tive bargaining , and was, by virtue of the provisions of Section 9(a) of the Act, the exclusive representative of all of the employees in said unit for such purposes. I further find that Respondent 's unfair labor practices are ,of such gravity and pervasiveness that the Union's card majority provides a more reliable test of the employees' desire than another election is likely to, and that, in order to protect the statutory rights and interests of the employ- ees, a bargaining order should issue . Joseph J. Lachniet 9 Between May 31, when Morgan resigned, and June It, when D. Davis was hired, the Union represented 10 of 19 employees in the appropriate unit. d/b/a Honda of Haslett, 201 NLRB No. 128. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, as set forth above , occur- ring in connection with the operations of Respondent de- scribed above , have a close , intimate , and substantial relation to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY In order to effectuate the policies of the Act, I find it is necessary that Respondent be ordered to cease and desist from the unfair labor practices found ; to take certain affir- mative action , including offering reinstatement to Debra O'Neil, with backpay computed on a quarterly basis plus interest at 6 percent per annum, including an undertaking to bargain in good faith with the Union upon request; and to post appropriate notices. Since the conduct of Respondent described herein re- flects an attitude of opposition to the self-organization of its employees , the commission of unfair labor practices in the future is reasonably to be anticipated from Respondent's past conduct . Accordingly, I shall recommend that Respon- dent cease and desist from in any manner infringing on the rights of employees guaranteed by the Act. CONCLUSIONS OF LAW 1. Waigreen Company, Respondent herein , is an employ- er within the meaning of Section 2(2) of the Act engaged in commerce and in a business affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Retail Clerks Union, Local 1532 , Retail Clerks Inter- national Association , AFL-CIO, the Union herein, is a la- bor organization within the meaning of Section 2 (5) of the Act. 3. All regular full-time and part-time selling and nonsell- ing employees , including pharmacists and pharmacy stu- dents employed by Respondent at its 105 N. McDowell Road, Petaluma, California, location, excluding the store manager, executive assistant managers (registered or nonre- gistered), guards, and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining with- in the meaning of Section 9(b) of the Act. 4. By coercive interrogation of its employees , by prom- ises of wage increases, by threats of refusal to sign any collective-bargaining agreement , by threats to close the Pe- taluma store, by threats to deny promotion to union adher- ents, by imposition of onerous hours and by creating the impression that the union activities of its employees were kept under surveillance, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Debra O'Neil, thereby discouraging mem- bership in the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(3) of the WALGREEN CO. Act. 6. By thus interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in unfair labor practic- es within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) .of the Act, I hereby issue the following recommended: ORDER10 Respondent, Walgreen Co ., Petaluma, California, its offi- cers, agents , successors , and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees concerning their union or other protected concerted activities. (b) Attempting to influence its employees ' choice of union representation by promises of wage increases, by threats of refusal to sign a collective-bargaining agreement, by threats to close its Petaluma, California, store, by threats to deny promotion to union adherents, by manipulation of hours of work and work assignments, or by creating the impression that surveillance is being maintained over the union activities of its employees. (c) Discouraging membership in or activities on behalf of Retail Clerks Union, Local 1532, Retail Clerks Internation- al Association, AFL-CIO, or any other labor organization, by discharging, or refusing to reinstate or otherwise discri- minating against, employees in regard to their hire or tenure of employment or any term or condition of employment. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer to Debra O'Neil immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority, or any other rights and privileges , and make her whole for any loss of earnings suffered as a result of the discrimination against her . Backpay shall be computed in 10 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec. 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. 149 the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing and Heating Co., 138 NLRB 716. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, personnel records and,reports, timecards, social security payment records, and all other records necessary to analyze the amount of backpay due under the terms of this Decision. (c) Upon request, bargain collectively with Retail Clerks Union, Local 1532, Retail Clerks International Association, AFL-CIO, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement. The appropriate unit is: All regular full-time and part-time selling and non- selling employees, including pharmacists and pharma- cy students employed by Respondent at its 105 N. McDowell Road, Petaluma, California, location, ex- cluding the store manager, executive assistant manag- ers (registered or non-registered), guards and supervisors as defined in the Act. (d) Post in the employees' breakroom in its Petaluma store, copies of the attached notice marked "Appendix." 11 Copies of said notice on forms provided by the Regional Director for Region 20, after being duly signed by an au- thorized representative of Respondent, shall be posted im- mediately upon receipt thereof, and be maintained by it in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. REPORT AS TO DISPOSITION OF OBJECTIONS Should the above findings, conclusions, and Order be adopted by the Board, it is recommended that the Board simultaneously dismiss the petition docketed as Case 20- RC-10668. 11 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Copy with citationCopy as parenthetical citation