Walgreen Co.

National Labor Relations Board - Board Decisions

Dec 9, 1975

221 N.L.R.B. 1096 (N.L.R.B. 1975)

1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walgreen Company and Retail Clerks Union, Local
775, Retail Clerks' International Association,
AFL-CIO. Case 20-CA-9619
December 9, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On July 22, 1975, Administrative Law Judge
George Christensen issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent filed cross-exceptions and an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge to
the extent consistent herewith and to adopt his
recommended Order as modified herein.
The Administrative Law Judge held that the
undisputed evidence established the authorization
cards secured from the employees by the Union were
obtained on the representation that they were for an
election, to be followed by bargaining were the
Union successful at the polls. Because of that
representation, the Administrative Law Judge con-
cluded that the cards did not indicate that a majority
of the employees desired to be represented by the
Union, only that they wished to participate in an
election to determine that question.
The authorization cards on their face clearly and
unequivocally authorize the Union to represent
employees for the purposes of collective bargaining.
With the exception of Skolnick, whose testimony was
elicited in a series of leading questions, none of the
employees was told that the cards were to be used
solely for the purpose of obtaining an election.
There is nothing inconsistent between obtaining
authorization cards in order to demonstrate, suffi-
cient employee interest in representation to warrant
an election and in using the cards to demonstrate a
union's majority. In fact, cards which demonstrate
only employee interest in an election do not
demonstrate support for a union and do not warrant
an election. There is nothing in the record to suggest
that the Union did not in good faith intend to secure
representational rights through an election.
The Board has consistently held since Cumberland
Shoe Corporation, 144 NLRB 1268 (1963), that
221 NLRB No. 181
unambiguous authorization cards will be invalidated
because of misrepresentations concerning their pur-
pose only if employees are told, or intentionally led
to believe, that the sole purpose of the card is to
secure an election. The Board's restatement and
clarification of that position in Levi Strauss & Co.,
172 NLRB 732 (1968), was substantially adopted by
the Supreme Court in N. L. R. B. v. Gissel Packing Co.
Inc., 395 U.S. 575, 584 (1969).
Nonetheless, we do not believe that a bargaining
order is warranted. The interrogation of employees
by a low-level supervisor whose exclusion from the
unit appears to have been in doubt originally does
not require a bargaining order to remedy it, nor does
the single unlawful reprimand flowing from an overly
broad application of an otherwise valid no-solicita-
tion rule. The wage increase, although found to have
been unlawfully motivated, was not specifically tied
to the organizing campaign by the Respondent.
Similar raises had been granted some 4 months
earlier at the Respondent's other stores and the
increases did no more than bring the employees up to
the prevailing rate. Indeed, the, latter point was relied
on by the Respondent to explain the increases to the
employees. We do not believe the increase, alone or
in conjunction with the Respondent's other unfair
labor - practices, ' had an irremediable effect on the
election process.
We do not discern a pattern of pervasive and
egregious unfair labor practices which cannot be
remedied by traditional means, nor can we say that
on balance the cards better reflect the employees'
desires than would a Board-conducted election.
Therefore, we shall not disturb the Administrative
Law Judge's Remedy and recommended Order in
that respect.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its -Order the recommend-
ed Order of the Administrative, Law Judge as
modified below and hereby orders that Respondent
Walgreen Company, San Mateo, California, its
officers, agents, successors, and assigns, shall take the
action set forth in the Administrative_ Law Judge's
recommended Order as so modified:
1. Insert the following as paragraph 1(e):
"(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
WALGREEN COMPANY 1097
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees con-
cerning their knowledge of, or feelings about,
Retail Clerks Union, Local 775, Retail Clerks
International Association, AFL-CIO, or any
other labor organization.
WE WILL NOT interrogate our employees con-
cerning the identity of other employees actively
aiding, supporting, or assisting the above or any
other labor organization.
WE WILL NOT grant wage increases to our
employees to discourage them from supporting
the above or any other labor organization.
WE WILL NOT reprimand or otherwise discipline
our employees for engaging in union activities on
their own time.
WE WILL retract and expunge from, our records
the written reprimand we issued to Phil Evans on
August 14, 1974, for engaging in a conversation
concerning union activities while he was on his
own time. -
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed by
Section 7 of the National Labor Relations Act.
WALGREEN COMPANY
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge: On
May 22 , 1975, I conducted a hearing at San Francisco,
California, to try issues raised by an amended complaint
issued on April 11, 1975.1
The complaint alleged that Walgreen Company2 violat-
ed Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended (hereinafter called the Act), by: (1)
interrogating employees concerning their and other em-
ployees' union membership , activities , and sympathies; (2)
promising an economic benefit to an employee to discour-
age him from supporting Retail Clerks Union , Local 775,
Retail Clerks ' International Association , AFL-CIO; 3 (3)
stating to an employee the Company would never sign a
contract with a union ; (4) granting wage increases to
employees to induce them to refrain from joining,
supporting, or assisting the Union; and (5) posting and
enforcing an unlawful no-solicitation rule. The complaint
also alleged the Company's violations of Section 8(a)(1)
and (3) adversely affected the Union's majority representa-
tive status within two separate appropriate units of the
Company's employees and made the conduct of a free and
fair election impossible, warranting the issuance of an
order requiring the Company to recognize and bargain
with the Union as the exclusive collective-bargaining
representative of the Company's employees within those
units.
The Company denied it committed the acts alleged as
violative of Section 8(a)(1) and (3) of the Act, denied the
Union's majority representative status among its employ-
ees within the two units, and denied it committed any
violation of the Act.
The issues created by the contentions of the parties are:
1. Whether the Company interrogated employees
concerning their and other employees' union membership,
activities, and sympathies.
2. Whether the Company promised economic benefits
to an employee to discourage him from supporting the
Union.
3. Whether the Company stated to an employee the
Company would never sign a contract with the Union.
4. Whether the Company granted wage increases to
employees to induce them to refrain from joining,
supporting, or assisting the Union.
5. Whether the Company posted and enforced an
unlawful no-solicitation rule.
6. Whether a bargaining order'should issue in this case.
The parties appeared by counsel at the hearing and were
afforded full opportunity to produce evidence, to examine
and cross-examine witnesses, and to argue and file briefs.
Briefs have been received from the General Counsel and
the Company.
Based-upon my review of the entire record, observation
of the witnesses, perusal of the briefs, and research, I enter
the following:
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged , the Company admitted, and I
find that the Company at all times pertinent was an
employer engaged' in commerce in a business affecting
commerce and the Union was a labor organization, as
those terms are defined in Section 2(2), (5), (6), and (7) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company is a national retailer selling drugs and
other products. This case concerns one of its retail stores at
the Hillsdale Mall, San Mateo, California. At times
I The original charge was filed by the Union on October 4, 1974; a first
amended charge was filed by the Union on November 19, 1974; the original
complaint issued on November 28, 1974.
2 Hereafter called the Company.
3 Hereafter called the Union.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pertinent the store employed pharmacists, sales and stock
clerks, cashiers , and managerial personneL4
B. Union Representation
Union activity among the Company's employees at the
store commenced with the Company's hire of Phil Evans as
a relief pharmacist 5 Evans was a member of the Union at
the time he was hired. Immediately after commencing
work at the store, Evans launched a campaign among the
employees to stir interest in'union representation. Several
employees expressed an interest, so Evans arranged to
meet with representatives of the Union at the mall. Two
union representatives met on July 23, 1974,6 with Evans
and company employee Leila Alexander in the Farmer's
Market, a restaurant area within the mall (which is
enclosed) immediately adjacent to the store. The, union
representatives told Evans and Alexander- that, if a
majority of the Company's employees would sign' union
authorization cards, the Union would seek an election
conducted by Region 20 and, if the Union won that
election, it would then seek to negotiate a contract with the
Company, containing substantial improvements over the
employees' current rates of pay and other benefits. Evans
and Alexander signed cards and gave them to Bob Russell,
one of the union representatives. While the four were
discussing the Union's standard area contract benefits,
employee Kevin Smyth walked past. Evans called him over
and the same explanation was made to Smyth. Smyth was
offered a card, signed it, and gave it'to Russell. The union
representatives 'then gave' a number of blank cards to
Evans and requested he solicit the signatures of the balance
of the employees. Evans agreed to do so.
Later the same day, Evans contacted employees Mary
Dulfer, Kiyoshi Takahara, Jack Skolnick, Lisa Andreini,
Ted Matsuda, and Robert Semla (the last two were
pharmacists; the balance were sales . employees). Evans
stated to each of them, if they signed a card, this would
enable the Union to secure an election and, if the Union
won that election, would further r enable the Union to
negotiate a contract with the Company containing im-
proved wages and other benefits. Evans furnished cards to
all the employees just named and they all signed and
returned them to Evans. Evans subsequently delivered the
cards to Russell.
On the next day, July 24, Evans contacted employee
Carol Chittenden, made the same explanation he made to
the other employees, and gave Chittenden a card. Chitten-
den signed the card and returned it to Evans. Evans
delivered that card to Russell.
On July 29, the Union filed a petition with Region 20
(Case 20-RC-12240) seeking certification as the exclusive
collective-bargaining representative of the Company's
pharmacists and selling employees in two separate units.
The petition was supported by the cards of the employees
named heretofore.?
4 The store manager was John Cox and the assistant manager was Ralph
Munoa. The Company conceded at all times pertinent Cox and Munoa
were supervisors and agents acting on its behalf within the meaning of the
Act.
5 Evans testified he understood at hire (in late July 1974) that he would
have the job for no more than 5 weeks as a vacation replacement for the
In early August, the Company and the Union executed
an agreement for a consent election. The agreement was
approved by the Regional Director for Region 20 on
August 19. The Region scheduled an election for October
9.
Under the terms of the consent agreement, the election
was scheduled to be held in: (1) Voting Group A - all
pharmacists employed by the.employer at its store located
at 62 Hillsdale Mall, San Mateo, California; excluding all
other employees, store manager, assistant store managers,
guards, and all other supervisors as defined in the Act; (2)
Voting Group B - all full-time and regular part-time selling
and nonselling employees employed by the employer at its
store located at 62 Hillsdale Mall, San Mateo, California;
excluding pharmacists, store manager, assistant store
managers, guards, and all other supervisors as defined in
the Act. It was specified that the employees in Voting
Group A (the pharmacists) would be polled on two
questions; (1) whether they desired to be included with
nonprofessional employees in a single unit for collective-
bargaining purposes; and (2) whether they wished to be
represented by the Union. It.was further stipulated that the
payroll period for eligibility to vote was the pay period
ending August 9.
The company employees eligible to vote in the subject
election consisted of the following: Voting Group A - R. L.
Fawzi, T. Matsuda, and R. J. Semla; Voting Group B'- L.
D. Alexander, J. M. Bickel, C. H. Chittenden, R. C. Dixon,
M. Dulfer, J. G. Oakley, D. L. Peterson, J. E. Skolnick, K.
G. Smyth, and K. Takahara.
The parties stipulated the two units heretofore specified
constituted units appropriate for the purpose of bargaining
collectively within the meaning of Section 9 of the Act and
Iso find.
I further find that by July 31 a majority of the employees
in each unit signed umon authorization cards at the
Union's behest for the purpose of securing an election to
determine whether or not a majority of the employees
within each unit desired to be represented by the Union.
C. The Alleged Unlawful Interrogations
1. Munoa - Skolnick
Skolnick testified that the day he received a union
authorization card from Evans (July 23) he had the card in
his hand when he saw Munoa; that he told Munoa cards
were being passed around.and everyone was signing them;,
that Munoa asked him who was passing out the cards; and
that he refused to. identify who was passing-out the cards.
Munoa testified that - on July 23 he saw a group of
employees congregated- behind the pharmacy counter; he
went behind the counter and asked what was going on; the
employees began to disperse; he, repeated his question; he
again received no answer and the employees dispersed to
their normal work stations; Skolnick followed him out of
regular pharmacists. His employment expired pursuant to its terms in late
August.
6 Read 1974 after all further date references omitting the year
7 Evans later (on July 29 and 31) secured additional authorization cards
from= employees Debi Peterson and Robert Dixon based upon the same
representations he made to the others. °
WALGREEN COMPANY
the pharmacy area and told him there were cards being
passed out and that he had signed one but was going to
tear it up, since he did not want to get into trouble; and
that he told Skolnick to ' do whatever he wanted. Munoa
categorically denied asking Skolnick who was passing out
cards.
In his testimony Skolnick - identified himself as the
"number 3 man"; that is, a management trainee : He was a
direct and forthright witness: His testimony that Munoa
asked him who was passing out the cards is credited.
I find and conclude that by Munoa asking Skolnick who
was passing out union authorization cards on July 23 the
Company violated Section 8(a) (1) of the Act.
2. Munoa - Smyth
Smyth testified that a day or two after he signed a union
authorization card (he signed a card on July 23), while he
was at the office at the rear of the store, Munoa asked him
if anything was wrong; ' he replied in the negative; Munoa
asked him if he knew anything about the Union; he replied
that union authorization -cards were being passed out; and
that Munoa closed the conversation by cautioning him not
to spread that information around since he didn't want it
to get back to the district office. Munoa denied asking
Smyth what he knew about the Union.
I credit Smyth's testimony. He was a convincing witness.
Munoa admittedly learned from Skolnick on July 23 that
an attempt was being made to secure employee signatures
to union authorization cards and it is not unreasonable
that he sought to learn thereafter from Smyth whether he
was one of the signatories.
I find and conclude that by Munoa's July 24 or July 25
interrogation of Smyth concerning what he knew about the
Union the Company violated Section 8(a)(1) of the Act.
3. Munoa Alexander
Leila Alexander testified that 2 days after she signed a
union authorization card (she signed a card on July 23)
Munoa called her to the rear of-the store and asked her
what bad thing was going on; she did not reply; Munoa
stated he hired her and she could trust him, to tell him
what she knew; and she then stated the employees were
attempting to secure union representation.
Munoa testified Alexander asked to see him and he
invited her to accompany him to the office in the rear of
the store; that on arriving there Alexander asked him if she
would be fired if she joined the Union; and that he replied
she would not be fired, she had a right to join the Union.
Munoa denied he asked Alexander what bad thing was
happening in the store or that he told her she could trust
him if she told him what it was.
I credit both Alexander and Munoa; that is, I find that,
in. the course of a conversation at the rear of the store on or
about July, 25, Munoa asked Alexander what `,`bad thing"
was happening in the store and assured her that she could
trust him; that she informed him the employees were
seeking union representation; that she asked him if she
s It is undisputed and I find that at all times pertinent Gaylord Helm was
the Company's district manager for western California and a supervisor and
1099
would be fired if she joined the Union; and that he assured
her she would not be fired if she joined.
I further find that Munoa's question-"What bad thing is
happening in the store" is too vague to be classified as an
interrogation concerning Alexander's -union activity. I
therefore find and conclude it was not violative of the Act
and will recommend dismissal of those portions of the
complaint so alleging.
4. Mlinoa - Chittenden
Carol Chittenden testified that, shortly after Cox became
manager (July 26), Munoa and she had-a conversation near
the timeclock; Munoa asked her how she felt about the
Union and she replied she didn't know.
On cross-examination, Chittenden stated she started the
conversation with Munoa at the timeclock by asking
Munoa if he would get mad if the employees went union.
Chittenden's testimony is uncontradictedand is -credited.
I find and conclude that by Munoa's asking Chittenden
around July 26 how she felt about the ' Union, after
Chittenden asked him'if he would get mad if the employees
joined the Union, Munoa continued his practice of seeking
to ascertain who among the employees were union
supporters and the Company thereby violated Section
8(a)(1) of the Act.
5. Cox and Helm - Dixon, Alexander, and
Smyth
It is alleged in the complaint that, in late September,
Helms' and Cox interrogated employees concerning their
union membership, activities, and sympathies and, in the
course of those interrogations, promised one an economic
benefit to discourage him from supporting the Union and
told another the Company would never sign a contract
with the Union.
Leila Alexander testified that not long before the
scheduled date for the election (October 9) Cox and Helm
called her to meet with them at the Farmer's Market; when
they sat down together, Cox and Helm asked Alexander
why she was interested in union representation; she replied
she was interested because several employees had been
working for over a year for the Company without receiving
any wage increase and she had been- told when shewas
hired that she would receive a 25-cent increase after 3
months, but did not receive it (the only increase she
received after, her hire was a 10-cent increase on or about
July 26, when Cox was hired as the new manager).
Robert Dixon testified he-also was called to a conference
with Cox and Helm at the Farmer's Market at about the
same time ; after he sat down, Helm asked him if he felt
strongly about the Union and he replied it did not matter,
he just wanted to do his job as best he could. Dixon also
testified that, in the course of the conversation, Cox and
Helm recited the Company's benefit package and asked
him if he had any questions; Dixon asked questions
concerning certain of the, Company's benefits and -the
union benefits program; and Helm commented he hoped
to see Dixon a manager someday.
agent acting upon its behalfwithin the meaning of the Act.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kevin - Smyth testified he was called to attend a
preelection conference with Cox and Helm shortly before
the scheduled election (October 9); that Helm explained
the Company's benefit :plans,' compared those plans with
the Union's benefit plans, and asked him, if he had any
'questions regarding those plans 'or the"election; he asked
questions concerning Talbert's discharge and what con-
tract might ensue if the Union won the election; either Cox
or Helm replied that, even if the Union won the election,
the Company did not have to sign any contract negotiated
with the Union.
Cox and Helm testified that they interviewed practically
all the employees, one at a time, immediately prior to the
scheduled date for the election (October 9); that they
followed a standard format in those conversations, begin-
ning by saying an election was coming up and they wanted
the employees to know the Company's wage policies and
benefit. package and the union benefit package, explained
and compared the two, asked the employee whether the
employee had any questions concerning the election or the
benefit programs, and then responded to any questions.
They testified they spoke to Alexander, Dixon, and Smyth;
testified they followed this format in those conversations;
and testified neither of them asked Alexander or Dixon
why they were interested in the Union, how they felt about
the Union, or questions of a like nature. They further
testified they were given a booklet (which was introduced
in evidence) prior to the employee conferences and
following a conference with company counsel, wherein
they were instructed concerning "do's and don'ts" con-
cerning conversations with' employees when a union
election petition is pending.
Helm and Cox impressed me as witnesses with a clear
recollection of what occurred in the employee interviews. I
credit their testimony that they developed the standard
format described heretofore and followed it in those
interviews. I further credit their testimony that they did not
question Alexander or Dixon concerning their union views
or sympathies.
I therefore find and conclude that, in the course of their
conversations with Alexander and Dixon, Helm and Cox
did not interrogate them concerning their union member-
ship activities and sympathies and will recommend that
those portions of the complaint so alleging be dismissed.
Cox testified he did not recall Helm telling Dixon he
hoped to see Dixon a manager some day, but stated they
did discuss with some of the employees their goals and
future with,, the Company; that they knew Dixon was
studying business administration, and that Helm may have
said to Dixon he might some day be a manager if he stayed
with the Company and completed his studies.
Helm categorically denied that he offered Dixon employ-
ment as a manager, but corroborated Cox's'testimony that
he discussed the employees' possible future with the
Company in ^ the course of the preelection conferences and
may have said in response to a statement that, if Dixon
intended to stay withthe Company, they hoped he would
achieve the status of a manager some day.
I find that Helm expressed the hope that Dixon might
achieve manager status some day if he pursued his studies
and stayed with the Company, but that this expression was
insufficient to be classified as a promise of a benefit. I
therefore shall recommend that those portions of the
complaint so alleging be dismissed.
Cox categorically denied that either he or Helm told
Smyth the Company would not sign whatever contract the
Company negotiated with the Union in the event the
Union won the election. He stated that Helm told Smyth
that, if the Union won the election, the Company and the
Union would have' to sit down and negotiate with the
Union concerning the differences between the company
and the union benefit plans, but the Company did not have
to agree to or sign `any contract not in its best interests.
Helm corroborated Cox's testimony.
I discredit Smyth's testimony that Cox or Helm stated
the Company would not have to sign any contract the
Company negotiated with the Union and find, rather, they
informed Smyth that, while the Company would have to
bargain with the Union over a contract and the differences
between the Union's benefit plans and the Company's
benefit plans, the Company did not have to agree to or sign
anything not in its best interests. I, therefore shall
recommend that those portions of the complaint alleging
that Cox or Helm threatened Smyth that the Company
would not sign a contract after negotiating it with the
Union be dismissed.
D. The Alleged Unlawful Wage Increases-
On March 21, Helm sent a memorandum under the
subject heading "salary rates" to the managers of all the
stores under his supervision - Burlingame, Millbrae,
Mountain View, Palo Alto, San Bruno, San Mateo,9 Santa
Clara, Belmont, South San Francisco, and all San Jose
stores.
In that memorandum, Helm set the following salary
rates: Clerks, first '3 months, $2.35; second 3 months,
$2.70; third 3 months, $2.95; fourth 3 months, $3.25;
experienced, $3.60. He set out a rate of $2.25 for Christmas
extra employees, and $5 for pharmacist interns; and for
registered pharmacists the following rates: effective imme-
diately, $8.30; 5/1/74, $8.45; 11/1/74, $8.75; 5/1/75,
$8.90; 11/1/75, $9.15, and 5/1/76, $9.30. He instructed the
managers to place those rates in effect in accordance with
the above-mentioned schedule.
Cox replaced Talbert as manager of the store on July 26,
3 days after Evans secured signed union authorization
cards from practically all the employees at,the store. It is
undisputed that Munoa learned of the union activity
almost from its outset (Munoa was solicited by Evans to
sign a card) and reported the early union organizational
activity to Talbert, who was then the manager at the store.
When Helm and Cox reviewed the rates of pay of the
employees at the store immediately prior to Cox's
assumption of his duties as Talbert's replacement, they
ascertained that the rates paid to the employees the Union
sought to represent (other than the pharmacists) were
lower than the rates set out in the above-noted memoran-
dum. Upon assumption of his duties, Cox immediately
9 The store involved in this case.
WALGREEN COMPANY
increased the rates of all employees other than pharmacists
to the rates set out in the March 21, 1974, memorandum.
Cox and Helm contend they did not know about any
union activity at the time they made the scheduled
increases ; they testified all they heard were "rumors"
which they discounted.
I am skeptical of Helm and Cox's testimony that they
were unaware of the union activity at the time they
instituted the aforesaid increases; it seems incredible that
neither Talbert nor Munoa, who were fully aware of the
scope of the union campaign and the identity of the
Union's chief proponent (Evans), would not inform Helm
and Cox of those matters. I therefore discredit Cox and
Helm's denial of any knowledge of the union campaign at
the time the increases were placed into effect and further
find that at least part of their reason for instituting the
increases at the time they were placed in effect was to dilute
or lessen union support among the employees.
I therefore find and conclude that the Company
instituted the July 26 increases to employees other than the
pharmacists in an attempt to discourage employee support
of the Union and thereby violated Section 8(a)(1) of the
Act.
E. The Alleged Publication and Enforcement of an
Unlawful No-Solicitation Rule
The complaint alleges that in August the Company
posted and enforced an unlawful no-solicitation rule.
1. The rule posting
It is undisputed that on August 1, shortly after
supplanting Talbert as manager at the store, Cox posted
two notices on the employee bulletin board, above the
timeclock. Both notices were handwritten on Walgreen
stationery.
One read: "solicitation by our employees for any
purpose is not permitted during working time." The other
read: "Walgreen's does not permit solicitation by nonem-
ployees for any purpose anywhere on the store premises."
Approximately 10 days later, Cox took down the
handwritten notices and substituted a typed notice. It was
headed "Walgreen Company No Solicitation Rules" and
stated : "Rules for nonemployees. Solicitation for any
purpose by non-Walgreen employees is prohibited at all
times in Walgreen's stores. Rules for Employees. Solicitation
for any purpose by Walgreen's employees is not permitted
during employees' working time."
The General Counsel does not contend posted rules,
either handwritten or typewritten, were violative of the
Act; rather, he contends the rules are unlawful because
they were posted to inhibit or hinder the Union's
organizational campaign among the employees during
10 There were no rules prior to August 1 against employee solicitation
during working hours
u The evidence discloses the Company did so pursue its campaign (see
findings under sec . II,C, above).
12 Helm's uncontradicted testimony to a July 31 complaint by pharma-
cist Semla is credited
13 Munoa's testimony to breaking up a July 23 meeting between Evans
and selling employees behind the pharmacy counter during working hours,
a place where selling employees were not supposed to enter, is uncontradict-
1101
working hours,10 while the Company freely pursued its
antiunion propagandizing of the employees during working
hours."
The Company argues it had a right to promulgate the
rules when it did in view of an employee complaint over
Evans' persistent harassment in the course of his organiza-
tional efforts 12 and because employees congregated during
working hours at the pharmacy, away from their work
stations and at other locations, to discuss the Union.13 The
Company contends it had a right to propagandize its
employees on time it was paying for, as the Union had like
opportunity on their free time.14
I find and conclude that Cox was prompted by valid
business considerations in posting the rules; i.e., to assure
that employees spent their paid time working for the
Company and to bung a stop to Evans' harassment of a
fellow pharmacist; I therefore further find that neither the
rules themselves nor their posting was violative of the Act.
2. The first alleged unlawful enforcement of the
rules
On August 14, following Munoa's conversation with
Evans concerning Munoa's eligibility to join the Union
(see sec. II,C,5 above) apparently based upon a report from
Munoa concerning the conversation, Cox issued a written
reprimand to Evans for violation of the employee solicita-
tion rule. Cox testified he was well aware Evans was the
inside organizer for the Union among the Company's
employees and he wanted to stop employee solicitation by
Evans during working hours.15
When he received the reprimand, Evans protested he was
on his break at the time he talked to Munoa and that he
thought Munoa was likewise taking a break , since Munoa
had no business' purpose for being in the pharmacy
speaking to hun.
I find that Cox's issuance of the August 14 reprimand to
Evans over a conversation initiated by Munoa, a supervi-
sor, while Evans was on his break 16 and ' Munoa was
exercising his prerogative as a management representative
to discuss the Union during working hours, interfered with
Evans' right to engage in union activity on his free time
and constituted discrimination in regard to Evans' employ-
ment to discourage his, union activity, thereby violating
Section 8(a)(1) and (3) of the Act.
3. The second alleged unlawful enforcement of
the rules
Evans testified that on another occasion in August, not
long after he had received his August 14 written reprimand
over the Munoa conversation, he was called to Cox's office
and asked whether he told Skolnick he would receive the
rate paid grocery clerks under the Union's area agreement;
ed and is credited. Cox's testimony to seeing employees gathering in groups
away from their work stations is also credited
14 Cox testified the employees had two 15-minute break periods and a
30-minute lunch period (plus time before and after work shifts) during
which the Union was free to contact them.
15 See fn 10.
16 Evans' testimony to this effect is uncontradicted since Munoa did not
testify concerning the incident , that testimony by Evans is credited
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that 'he denied so informing Skolnick; and that Cox
pointed to the no-solicitation rule posted over the employ-
ee timeclock and said, if Evans talked about the Union
again or tried to get Skolnick or any other employee to join
the Union, he would be discharged immediately. Evans
further testified this was his first awareness of the rule,
since he did not punch the timeclock (the pharmacists
entered their time in a logbook), and it was a handwritten
rule he was directed to look at.
Cox testified he knew that Evans was the Union's inside
organizer at the store at the time he posted the original
notices on August I and made a point of carrying the
notices to Evans and showing them to him prior to posting
them that date; and that at the time Evans claimed the
above conversation took place (August 16 or thereafter)
the typed notice had supplanted the handwritten notices on
the bulletin board. Cox denied that the conversation
reliied by Evans ever took'place.
I credit Cox's denial. Evans' testimony that he was
unaware of the rule before August 16 or 17, despite its
original posting from August 1 in the view of employees
with whom Evans was in constant contact and his receipt
of a written reprimand for alleged solicitation on August
14, is incredible, and casts doubt on his testimony
concerning the entire incident; Cox, on the other hand, was
generally corroborated, in his testimony concerning other
matters and appeared straightforward in his recitation of
events concerning this matter.
F. The Bargaining Order
Findings have been entered above ( sec. II .B.) that two of
the 3 pharmacists in the pharmaceutical unit and 9 of the
11 employees in the other unit signed union authorization
cards stating that each of them "authorize Retail Clerks
International Association, AFL-CIO, or its chartered local
union, to represent me for the purposes of collective
bargaining respecting rates of pay, wages, hours of
employment or other conditions of employment in accord-
ance with applicable law."
The General Counsel relies on the cases of N.L.R.B. v.
Gissel Packing Co.,'Inc., 395 U.S. 575 (1969), and Steel-
Fab, Inc., 212 NLRB 363, (1974), in contending that the
authorization cards cited heretofore should be considered
sufficient evidence of the majority representative status of
the Union within the two units upon which to predicate a
bargaining order, inasmuch as the Employer's unfair labor
practices hereinabove found destroyed the conditions
necessary for the conduct of a free and fair election. .
The General Counsel ignores undisputed,evidence, i.e.,
the testimony both of the solicitors of those cards and the
signatories, that in each case the signatory signed the card
after a representation was made to him the purpose of the
card was to secure an NLRB election, and, in the event a
majority of the employees cast ballots at that election
favoring representation by the Union, the Union would
then seek to bargain collectively with the Company
17 Fort Smith Outerwear, Inc, and H L Friedlen Company v NLR.B,
499 F 2d 223 (C A 8, 1974), enfg 205 NLRB 592 (1973), Nichols-Dover, S
E. Co v. N L R B, 380 F 2d 438 (C A 2, 1967), Engineers & Fabricators, Inc
v. N L R B, 376 F 2d 482 (C.A 5, 1967), Lake Butler Apparel Co v
N LRB, 392F2d76(CA 5,1968), Dayco Corp etc,v NLRB, 382F2d
concerning rates of pay, wages, hours, and working
conditions.
In view of those representations, I find and conclude that
the representation cards, standing alone, fail to establish
that by July 31 a majority of the employees in the two units
desired representation by the Union.17 I find, instead, that'
those cards simply establish that a majority of the
employees desired to participate in an election wherein, by
casting a secret ballot, they could indicate whether or not
they desired union representation.
I therefore conclude that a bargaining order is not`
warranted in this case, but, rather, a secret ballot election
should be conducted under the auspices of Region 20 when
the effects of the unfair labor practices set out heretofore
have been dissipated.
CONCLUSIONS OF LAW
1. At all times pertinent the Company was an employer,
engaged in commerce in a business affecting commerce
and the Union was a labor organization, as those terms are
defined in Section 2(2), (5), (6), and (7) of the Act.
2. At all times pertinent Helm, Cox, and Munoa were
supervisors of the Company acting on its behalf within the
meaning of Section 2 of the Act.
3. The following constitute units appropriate for
collective-bargaining purposes within the meaning of
Section 9(b) of the Act:
(a). All pharmacists employed by the Company at
its store located at 62 Hillsdale Mall, San Mateo,
California, excluding all other employees, store manag-
er, assistant store managers, guards and supervisors as
defined in the Act.
'(b). All full-time and regular part-time selling and
nonselling employees employed by the Company at its
store located at' 62 Hillsdale Mall, San Mateo,
California, excluding' store manager, assistant ' store
managers, pharmacists, guards and supervisors -as
defined in the Act.
4. It was not proven by preponderance, of valid
evidence that the Union represented a majority of the
employees within either of the aforesaid-units.
5. The Company violated Section 8(a)(1) of the Act:
(a). On July `23 by Munoa's interrogation of Skolnick
concerning the identity of the employee passing out union
authorization cards.
(b). On July 24 or July 25 by Munoa''s interrogation of
Smyth concerning what he knew'about the Union.
(c). On or about July 26 by Munoa's interrogation of
Chittenden concerning how she felt about the Union.
(d). On July 26 by instituting wage increases to
discourage employee support of the Umon.
6. The Company violated Section 8(a)(1) and (3) of the
Act by reprimanding Evans for participating in a 'conversa-
577 (C A 6, 1967); Swan Super Cleaners, Inc v. N LR B, 384 F.2d 609
(C A 6, 1967); Dan Howard Mfg Co v NLRB, 390 F 2d 304 (C A 7,
1968), J Taylor Mart, Inc, d/b/a Taylor's I GA Foodliner v. N L R B, 407
F.2d 644 (C A 7, 1969); South California Associated Newspapers, Inc , South
Bay Daily Breeze Div, v N L R B, 415 F 2d 360 (C A 9, 1969)
WALGREEN COMPANY 1103
tion concerning union representation with Munoa while
Evans was on a break.
7. The Company did not otherwise violate the Act.
8. In the absence of clear proof that a majority of the
company employees within each of the units heretofore
specified designated the Union as their collective-bargain-
ing representative, a bargaining order is not warranted:
9. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
THE REMEDY
Having found that the Company engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act, I
shall recommend that the Company be directed to cease
and desist therefrom and to take affirmative action
designed to effectuate the purposes of the Act.
Upon the basis of 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:
ORDER 18
Respondent°Walgreen Company, San Mateo, California,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from: -
(a) Interrogating its employees concerning the identity of
employees aiding, assisting, or supporting the Union.
18 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.
(b) Interrogating its employees concerning their knowl-
edge or feelings about the Union.
(c) Instituting wage increases to discourage. employee
support of the Union.
(d) Reprimanding or otherwise disciplining its employees
for engaging in union activities outside their working
hours.
2. Take the following affirmative action designed to
effectuate the purposes of the Act:
(a) Retract and expunge from its records the written
reprimand issued to Phil Evans on August 14, and so
advise Evans and the Union in writing.
(b) Post at its premises -at San Mateo, California, copies
of the attached notice marked "Appendix." 19 Copies of
said notice, on forms provided by the Regional Director
for Region 20, after being duly signed by a representative
of Respondent, shall be posted by it immediately upon
receipt thereof, and be maintained by it for a period of 60
consecutive days thereafter, in conspicuous places, includ-
ing 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.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps it his taken to comply herewith.
The complaint is dismissed insofar as it alleges violations
of the Act other than those found above.
19- In the event that the Board's Order'is enforced by a. Judgment of a
United States Court of Appeals, the words in the notice reading "Posted By
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."