Anchorage Businessmen's Association

National Labor Relations Board - Board Decisions

Aug 21, 1959

124 N.L.R.B. 662 (N.L.R.B. 1959)

662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board's usual policies, for wage losses incurred as a consequence of her discharge
during the period from June 28, 1958, to the date Reggie secured the employment
she held at the time of hearing.
As to Mary Wharton the Respondent offered at the hearing, and Wharton accepted,
reemployment. Whether that engagement was carried out, and to what extent, is
of course not presently apparent. Effectuation of the policies of the Act requires
an affirmative order of reinstatement. It will therefore be recommended that the
Respondent offer Mary Wharton immediate and full reinstatement to the position
of clerk in the Kennedy Avenue store with all customary rights and privileges, and
make her whole, in accordance with the Board's usual policies, for any wage losses
incurred as a result of the discrimination against her. Wharton was available for
work on October 20, and was originally directed by Suto to report on that day. The
back-pay period will therefore begin to run on October 20, 1958.
It having been found that the Respondent did not refuse to bargain collectively, it
will be recommended that that allegation of the complaint be dismissed.
Upon the basis of the foregoing findings of fact and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Retail Clerks International Association, AFL-CIO, Local 1460, is a labor
organization within the meaning of Section 2(5) of the Act.
2. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Julia
Reggie and Mary Wharton, thereby discouraging membership in a labor organiza-
tion, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
4. By discriminating against Mary Wharton because she had filed charges under
the Act, the Respondent has engaged in unfair labor practices within the meaning
of Section 8(a) (4) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not refused to bargain collectively within the meaning
of Section 8(a)(5) of the Act.
[Recommendations omitted from publication.]
Anchorage Businessmen 's Association, Drugstore Unit , and its
Member Employers : E. A. Johnson , d/b/a Vista Pharmacy;
Eastchester Drug, Inc., d/b/a Eastchester Drugs and d/b/a
Save More Drugs; Denali Drug Company, Inc.; Ulmar-Burgess,
Inc., d/b/a Rexall Drugs; Hewitt's Drugstore , Inc.; Bert's
Drugs, Inc., d/b/a Bert's Payless Drugs and d/b/a Bert's
Fifth Avenue Drugs; Bert's Spenard Drugs , Inc.; Francis
Jones, d/b/a Bi Rite Drugs; John Erickson , d/b/a Thrifty
Drugs and Anchorage Professional Pharmacists Association,
Inc. and Retail Clerks International Association , Local No.
1496. Cases Nos. 19-CA-1527 and 19-CB-498. August 921, 1959
DECISION AND ORDER
On September 30, 1958, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
124 NLRB No. 72.
ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 663
the Intermediate Report attached hereto. Thereafter, the Respond-
ents and the General Counsel filed exceptions to the Intermediate
Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations, except as modified herein.
1. Contrary to the Trial Examiner, we find that the Respondent
Association and its member employers did not, by the pharmacist
supervisors' participation in the activities leading to the withdrawal
of all pharmacists from the Charging Union and the formation of
the Independent, and by their participation in the intraunion activ-
ities of the Independent, dominate the formation and administration
of the Independent within the meaning of Section 8 (a) (2) of the Act.
In finding domination of the Independent, the Trial Examiner
proceeded on the theory that the activities of the pharmacist super-
visors were automatically attributable to the Respondent Employers.
We do not agree. It is well established that the participation of
supervisors in intraunion activities does not per se constitute evidence
of domination, where, as here, the supervisors were members of the
same bargaining unit and union as rank-and-file pharmacists, and
absent proof' that the employer encouraged, authorized, or ratified
their activities. In the Nassau and Suffolk case the Board ration-
alized the rule as follows :
There are many industries where for a very long time foremen
have been included in the same bargaining unit and union as
the rank and file. No doubt in many such cases the foremen are
active in the affairs of the union, serve on union committees, and
are even union officers. It has not heretofore been contended,
to the best of our knowledge, that where such conditions exist
the employer must necessarily be considered as dominating the
bargaining representative. We are not willing to hold that the
voluntary inclusion of foremen in a bargaining unit of non-
supervisory employees is per se proof of employer domination
and justifies disestablishment of the union representing such unit.
And to require the employer to exercise some sort of veto power
over the appointment of foremen to official positions within the
union to avoid the charge of domination would seem to involve
interference in the affairs of the union, which is precisely what
IIndianapolis Newspapers , Inc., 103 NLRB 1750, set aside on other grounds in 210
F. 2d 501 (C.A. 7) ; Wayside Press, Inc. v. N.L.R.B., 206 F. 2d 862 (C.A.9) setting aside
103 NLRB 11 ; Nassau and Suffolk Contractors ' Association, Inc., et at., 118 NLRB 174;
Geilich Tanning Company, 122 NLRB 1119.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a) (1) of the Act is designed to prevent. [Emphasis
supplied.]
In the instant case, all the pharmacist supervisors as well as the
pharmacist stockholders with 50 percent or less ownership in their
employer's store, whose conduct was attributed by the Trial Examiner
to the Respondent Employers, were, prior to the formation of the
Independent, required to be members of Local 1496 of the Retail
Clerks Union. Together with rank-and-file pharmacists they were
covered by the Union's contract with the association of drugstore
owners in the area, which required membership in the Union as a
condition of employment .2 As members of said Union, the pharmacist
supervisors enjoyed the same right to engage in intraunion activities
as rank-and-file pharmacists, except that because of their close rela-
tionship to the management they were not permitted at union meet-
ings to vote on wage demands. Some of the pharmacist supervisors,
including Rodgers and Rush, have on a number of occasions attempted
to withdraw from the Union because of the change in their employ-
ment status. On all such occasions their requests were denied by
Union Secretary Gibson in accordance with alleged union practice
and policy. Under these circumstances, the pharmacist supervisors
can be normally expected to have had some part in the administration
of union affairs.
Nor does the record show that the participation of the pharmacist
supervisors in the activities of rank-and-file pharmacists was inspired
by the Respondent Employers, or that, in participating in these
activities, the pharmacist supervisors acted in their employers' rather
than in their own professional interest as pharmacists. , Quite'to the
contrary, there is abundant testimony showing that the decision to
withdraw from the Retail Clerks Union was due to a long-standing
dissatisfaction of pharmacists with membership in a union which
admitted both professional and nonprofessional employees. As pro-
fessionals,' the pharmacists believed that they should have their own
organization dealing with their own professional problems. This
feeling of dissatisfaction with membership in the Union became
further aggravated by the Union's decision to call a strike in support
of its contractual demands-a strike which was opposed by rank-and-
file pharmacists. These were the reasons which prompted a group
of pharmacists to present to Union Secretary Gibson a "Petition"
2 The contract recognized the Union as the bargaining representative of all employees
who are within the jurisdiction of the Union engaged in handling, servicing , and the
selling of merchandise . It specially covered pharmacists , including pharmacist store
managers . It also provided for so-called nonactive membership in the Union , which was
defined as membership in the Union by a drugstore owner with less than 50 percent
interest in a store.
3It has been stipulated by the parties that the pharmacists, who withdrew from the
Union and joined the Independent , are professional employees within the meaning of
Section 2 ( 12) of the Act.
ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 665
for withdrawal from the Union and, after its rejetcion, to organize
their own union. This move was met with overwhelming support and
all the pharmacists in the area immediately joined the new
organization.
Also militating against the Trial Examiner's finding of domination
is the evidence showing that after its formation, the Independent func-
tioned as a bona fide labor organization. Membership meetings were
regularly held, and minutes of such meetings were properly kept.
Initiation fees of $15 and monthly dues of $5 were collected from
members. Respondent Employers and members of the Independent
unanimously denied that any financial assistance had been given to or
received by the Independent. In protecting professional interests of
members of the Independent, the Independent met with Federal and
Territorial authorities and processed grievances with management.
It also entered into a contract with the Employer Association provid-
ing for higher rates than those in the old union contract with the As-
sociation. Finally, when the Respondent Employers, in an attempt
to break an impasse in their bargaining negotiations for a new contract
and the termination of the strike, called at the Union's request upon
the pharmacists to reaiiliate with the Retail Clerks, the Independent
showed its independence of the Employers by unanimously rejecting
the request at its membership meeting of October 9. While the record
discloses that the Independent opposed the strike and even inserted a
notice in a local newspaper advising the public that "the pharmacists
do not support the Drug Clerks in their strike," the Independent's
position was taken in its membership's interests, as the major issues
of the strike were not wages, but the Union's attempt to limit the
pharmacists' functions in the store.
Upon the entire record, we find that the allegation of the complaint
that the Independent was an employer-dominated labor organization
incapable of functioning in the interests of its members is not sustained
by proof.
2. In agreement with the Trial Examiner, we find that the Associa-
tion and its member employers by their conduct herein described
interfered with the administration of the Independent and contributed
support and assistance within the meaning of Section 8 (a) (2) and
(1) of the Act.
Heretofore, we have found that, as the pharmacist supervisors were
members of the same union and unit as the rank-and-file pharmacists,
their participation in intraunion activities of rank-and-file pharma-
cists in the Retail Clerks Union and the Independent could not be at-
tributed to the Respondent Employers in the absence of proof that
such participation was encouraged or authorized by the Respondent
Employers, and, therefore, did not constitute evidence of domination
of or assistance to the Independent. However, by acquiescing in the
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voting by its supervisors at the Independent meetings and by dealing
with such supervisors in their capacity as representatives of the In-
dependent, the Association and its member employers violated their
statutory obligation to refrain from interference with their employees'
concerted and union activities. While it may not be inconsistent with
the purposes of the Act for supervisors to participate in intraunion
activities with the rank-and-file employees when they are members
of the same unit and the union as the rank-and-file employees, it is
clear that by serving as officers of the union or members of the com-
mittees in dealing with the employer, or by participating in voting at
union elections,' they would be in the position to influence the admin-
istration of the affairs of the union in their employer's interests and
thereby interfere with the administration of the union. In the instant
case, the record is clear that all pharmacist supervisors, including
Rodgers and Rush,' voted at the Independent elections, thereby af-
fecting the administration of Independent. Although aware of the
participation of the pharmacist supervisors in the affairs of Inde-
pendent, the Respondent Employers took no steps to have them dis-
continued. The record is also clear that the Respondent Employers
bargained with the negotiating committee of the Independent which
included two store managers, Potter and Carruthers. Despite their
membership in the same union and the unit, Potter and Carruthers
were also agents of their employers with the resulting divided loyalty
and interests. Although the supervisors were elected members of the
committee by the membership of the Independent, the Respondent
Employers, when confronted with the Independent's negotiating com-
mittee which included their own agents, were under duty to refrain
from dealing with the committee which did not have a single-minded
loyalty to their employees' interests. The Respondent Employers,
however, failed to do so and by actually dealing with the committee as
constituted, interfered with the employees' right to bargain free from
the employer's pressure.'
In addition, shortly after the formation of the Independent, the
Association and the Independent also entered into an agreement, which
at the insistence of the Association incorporated a union-security
clause making membership in the Independent a condition of em-
ployment with the Respondent Employers. As this contract was en-
tered into before the Independent complied with the filing require-
ments of Section 9 (f), (g), and (h), it was in violation of the proviso
4 Cf. Nassau and Suffolk Contractors ' Association, Inc., et al., 118 NLRB 174 at 183,
where the Board 'held that job superintendents , shops foremen , and master mechanic, who
were members of the same union as rank -and-file employees , although not in the same
bargaining unit , by merely voting at union elections engaged in unlawful interference.
5 Rodgers and Rush were supervisors with managerial functions.
6 Cf. Nassau and Suffolk Contractors ' Association , Inc., supra.
ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 667
to Section 8(a) (3), which makes such compliance a prerequisite to
the validity of the contract.?
Upon the entire record we find that by acquiescing in its supervisors'
participation in voting at Independent meetings affecting the admin-
istration of the Independent, dealing with the Independent's negotiat-
ing committee which included two store managers, and by entering
into a union-security agreement with the Independent before the latter
complied with the filing requirement of Section 9(f), (g), and (h),
the Association and its member employers interfered with the forma-
tion and administration of the Independent and contributed support
and assistance to it in violation of Section 8 (a) (2) and (1) of the Act.'
3. As the July-August 1957 contract between the Association and
the Independent requiring membership in the Independent as a con-
dition of employment did not conform to the proviso to Section
8(a) (3) of the Act by reason of the Independent's failure to comply
with the filing requirements of Section 9 (f), (g), and (h) of the Act,
we find that by its execution, the Respondent Association and its
member employers discriminated with respect to the terms and con-
ditions of employment of their pharmacist employees by encouraging
membership in the Independent, thereby engaging in conduct violative
of Section 8(a) (3) of the Act.
We also find that by having executed a union-security agreement
with the Association without complying with Section 9 (f), (g), and
(h) of the Act, the Independent has been and is causing the Associa-
tion and its member employers to discriminate against their pharma-
cist employees in a manner proscribed by Section 8 (a) (3), and thereby
has been and is engaged in conduct violative of Section 8 (b) (2) of the
Act, and has thereby also restrained and coerced the employees of the
Respondent Employers in the exercise of the rights guaranteed in
Section 7, in violation of Section 8(b) (1) (A) of the Act.9
4. We do not adopt the Trial Examiner's recommendation that the
Respondent Association and its member employers be required, it
accordance with the Brown-Olds remedy,10 to reimburse employees
for the initiation fees, dues, and assessments, if any, that they were
required to pay to the Independent in accordance with its agreement
with the Association. Unlike the Brown-Olds case, where the dues
and assessments were collected pursuant to an unlawful closed-shop
7 Member Jenkins, for the reasons stated in his concurring opinion in Local Lodge
No. 1424, International Association of Machinists, AFL-CIO (Bryan Manufacturing
Company), 119 NLRB 502, 510, would find that the execution of a union-security contract
before the Independent complied with the filing requirements of the Act, standing alone,
would constitute a violation of Section 8(a) (2) of the Act.
9 Nassau and Suffolk Contractors' Association, Inc., et at., supra.
"Charles Ostrowski et at ., d/b/a Philadelphia Woodwork Company, 121 NLRB 1642;
Union de Soldadores, Mecanicos, Montadores de Acero, Auxiliares y Ramas Anexas,
Local 1839, ILA-Ind., 122 NLRB 1603.
10 United Association of Journeymen & Apprentices of Plumbing & Pipefitting Industry,
etc., Local 231 (J. S. Brown-E. F. Olds Plumbing & Heating Corporation), 115 NLRB 594.
66S DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Agreement in open defiance of the statutory policy outlawing such
agreements, the contract here contains but a conventional union-
security clause which does not exceed the permissible limits of the
proviso to Section 8(a) (3) and is invalid merely because of the Inde-
pendent's failure to comply with the filing requirements of Section
9(f), (g), and (h) of the Act. Nor does the complaint, as in the
Brown-Olds case, allege the existence of a discriminatory hiring prac-
tice pursuant to which pharmacists were denied employment unless
they were members of the Independent. In these circumstances, and
as all the pharmacists in the area had joined the Independent before
the execution of the union-security contract and therefore must be
presumed to have paid the initial dues and fees voluntarily, rather
than under the compulsion of such contract, we find that it will not
effectuate the policies of the Act to require the Respondents to reim-
burse the employees for dues, fees, and assessments, if any, paid to
the Independent."
5. We agree with the Trial Examiner that, by locking out the union
members employed in the nonstruck stores while the strike against
three stores of the Respondent Employers was in progress, the Re-
spondent Association and its member employers violated Section
8(a) (3) of the Act.
The record shows that, while the strike by the Union against 3 out of
11 stores comprising the multiemployer unit was in progress, the
Association and its member employers laid off all sales clerks em-
ployed in the nonstruck stores who were members of the Union while
retaining in their employ the sales clerks who were not members of
the Union. In defense of the lockout, the Respondents rely on the
decision of the Supreme Court in the Buffalo Linen case.12 In agree-
ment with the Trial Examiner, we find reliance on that decision
misplaced. Although it is true that one of the reasons for the lockout
in the instant case was the Respondent Employers' fear for the in-
tegrity of the multiemployer unit threatened by the strike, it is also
clear that it was but one of the several reasons for the lockout. The
lockout, which followed the protracted efforts to come to some agree-
ment with the Union with respect to contract terms, was also intended
as means to exert pressure upon the Union to accept the Association's
bargaining proposals. Thus, in its letter of November 19, 1957, to
Union Secretary Gibson, the Association, after outlining its latest
proposal to the Union, stated :
In the event that you refuse to submit this proposal to a vote
of your membership or in the event that your membership votes
11 Charles Ostrowski et at ., d/b/a Philadelphia Woodwork Company, supra; Union de
Soldadores, Mecanicos, Montadores de Acero, Auxiliares y Ramas Anexas, Local 1839,
ILA-Ind., et al., supra; The Grand Union Company, 123 NLRB 1665.
1a N.L.R.B. v. Truck Drivers Local Union No. 449, et at. (Buffalo Linen Supply Co.),
353 U.S. 87.
ANCHORAGE BUSINESSMEN 'S ASSN., DRUGSTORE UNIT 669
against the acceptance of the proposal, the employer group feels
that the only alternative left them by your Union is to proceed
with the lay off action which will become effective at the close of
today's business day.
Also Respondent Employer Burston testified that the lockout, among
other things, was regarded as a means "of getting Retail Clerks to
come to an agreement . . . so everybody could go back to work."
Not only was the lockout motivated by a combination of reasons, some
of which were unlawful, but it was admittedly carried on in a discrimi-
natory manner.. Only union sales clerks were laid off. Sales clerks.
who were hired before the strike but did not at the time join the.
Union, and sales clerks who were hired during the strike against the
three stores, were retained. In this posture of the case, the Buffalo
Linen case is clearly distinguishable on the facts. In that case, the
Supreme Court was not confronted, as we are in the instant case, with
a mixed motivation for the lockout. The "narrow question" before
the Court was whether the lockout inspired by the employers' concern
for the integrity of the multiemployer unit could be used as a defense
to the charge of discrimination within the meaning of Section 8 (a) (3)...
The Court drew a sharp distinction between the lockout inspired by
the employers' concern for the destruction of the multiemployer unit
and "the cases in which the lockout has been held unlawful because
designed to frustrate organizational efforts, to destroy or undermine
bargaining representation, or to evade the duty to bargain."
We conclude that, as the lockout in this case was intended to exert
bargaining pressure upon the Union in support of the Employer's
proposals-a clearly unlawful motivation "-and was carried out in
a discriminatory manner, the lockout was in violation of Section
8(a) (3) of the Act, even though, in part, it was also motivated by a
legitimate concern of the employers for the integrity of the' multi-
employer unit.
THE REMEDY
Having found that the Respondents have engaged in certain unfair
labor practices, we shall order that they cease and desist therefrom
and take certain affirmative action designed to effectuate the policies
of the Act.
We have found that the Association and its employer members gave
support and assistance to, and interfered with, the administration of
the Independent. As we have concluded that these unfair labor prac-
tices did not amount to domination, no order directing the disestab-
lishment of the Independent shall be entered against the Respondent
13 Quaker State Oil Refining Corporation , 121 NLRB 334, enfd. 270 F. 2d 40 (C.A. 3),
where the Board said that "an employer may not during the bargaining negotiations
either threaten to lock out or lock out his employees in aid of his bargaining position";
American Brake Shoe Company, 116 NLRB 820, set aside on other grounds, 244 F. 2d
489 (C.A. 7).
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employers. However, we shall order that the Association and its
employer members withdraw recognition from the Independent and
refrain from recognizing or dealing with the Independent, unless and
until the Independent shall have demonstrated its exclusive majority
status pursuant to a Board-conducted election among the Respondent
Employers' employees. We shall also order that the Respondent Asso-
ciation and its employer members cease giving effect to their July-
August 1957 union-security contract with the Independent. However,
nothing herein shall be taken to require the said Respondents to vary
the wages, hours, seniority, and other substantive features of their
relations with the employees themselves, which the said Respondents
have established in performance of said contract or revision, extension,
renewal, or modification thereof.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. Anchorage Businessmen's Association, Drugstore Unit, and its
member employers, their respective officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Assisting, contributing support to, or interfering with, the
administration of the Anchorage Professional Pharmacists Associ-
ation, Inc., or with the formation or administration of any other labor
organization of their employees.
(b) Recognizing the Independent or any successor thereto as the
representative of any of the employees of the Association's member
employers for the purpose of dealing with the Association and its
member employers concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment, un-
less and until the said labor organization shall have demonstrated its
exclusive majority representative status pursuant to a Board-con-
ducted election among the Respondents' employees.
(c) Giving effect to the union-security contract, executed in July-
August 1957, between the Respondent Association and the Independ-
ent or to any extension, renewal, or modification thereof, or any other
agreement between the Respondent Association and the said labor
organization which may now be in force; provided nothing herein
shall be taken to require the said Respondents to vary the wages,
hours, seniority, and other substantive features of their relations with
the employees themselves, which the said Respondents have established
in the performance of said contract or revision, extension, renewal,
or modification thereof.
(d) Discouraging membership in Retail Clerks International As-
sociation, Local No. 1496 or in any labor organization of the employees
ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 671
here involved because of their union membership or activity, or in any
other manner discriminating in regard to their hire or tenure of
employment, or any term or condition of their employment.
(e) In any other manner interfering with, restraining, or coercing
the employees of the Association's drugstore employer-members in
the exercise of the right to self-organization, to form, join, or assist
Retail Clerks International Association, Local No. 1496, AFL-CIO,
or any labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Anchorage Pro-
fessional Pharmacists Association, Inc., as representative of their
employees for the purpose of dealing with the Respondents concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions, of employment, unless and until the said labor
organization shall have demonstrated its exclusive representative
status pursuant to a Board-conducted election among the Respondents'
employees.
(b) Make whole all the employees who were in the employ of the
Association's drugstore employer-members on November 20, 1957, and
who were locked out that day, in the manner and for the periods set
forth in the section of the Intermediate Report entitled "The Remedy."
(c) Post in all their establishments at Anchorage, Alaska, copies
of the notice attached hereto marked "Appendix A." " Copies of
said notice, to be furnished by the Regional Director for the Nine-
teenth Region, shall, after being duly signed by their authorized
representatives, be posted by them immediately upon receipt thereof
and maintained by them for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that the said notices are not
altered, defaced, or covered by any other material.
(d) Post at the same places and under the same conditions as set
forth in (c), above, and as soon as they are forwarded by the Regional
Director, copies of the Respondent Independent's notice, marked
"Appendix B."
(e) Notify the Regional Director for the Nineteenth Region in
writing, within 10 days from the date of this Order, what steps the
14In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association and each of its respective drugstore employer -members
have taken to comply therewith.
B. Respondent Anchorage Professional Pharmacists Association,
Inc., its officers, agents, successors , and assigns , shall :
1. Cease and desist from :
(a) Causing or attempting to cause Respondent Anchorage Busi-
nessmen's Association , Drugstore Unit, and its member employers
to discriminate against any person because of nonmembership in-An-
chorage Professional Pharmacists Association , Inc., or any other labor
organization.
(b) Enforcing or maintaining the union -security contract with
Anchorage Businessmen 's Association , Drugstore Unit, or any exten-
sion, renewal , or modification thereof, or any other contractual agree-
ment with the said Respondent Association, or its member employers
which may now be in force.
(c) In any like or related manner restraining or coercing employees
of member employers of Anchorage Businessmen's Association, Drug-
store Unit , in the exercise of the rights guaranteed in Section 7 of the:
Act, except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of
employment, as authorized by Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its business office and meeting hall in Anchorage,.
Alaska, copies of the notice attached hereto marked "Appendix B." 15
Copies of said notice , to be furnished by the Regional Director for
the Nineteenth Region, shall , after being duly signed by an official
representative of Anchorage Professional Pharmacists Association,
Inc., be posted by the said Association immediately upon receipt
thereof and be maintained by it for 60 consecutive days thereafter, in
conspicuous places , including all places where notices to members are
customarily posted. Reasonable steps shall be taken by the Associa-
tion to insure that said notices are not altered, defaced, or covered by
any other material.
(b) Mail to the Regional Director for the Nineteenth Region
signed copies of the notice attached hereto as Appendix B for posting
at the offices of Anchorage Businessmen's Association and its member
employers in places where notices to their employees are customarily
posted.
(c) Notify the Regional Director for the Nineteenth Region in
writing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges that Respondent Anchorage Busi-
15 See footnote 14.
ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 673
nessmen's Association and its member employers dominated Respond-
ent Anchorage Professional Pharmacists Association, Inc.
MEMBERS RODGERS and BEAN took no part in the consideration of
the above Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT give effect to our contract with Anchorage Pro-
fessional Pharmacists Association, Inc., executed in July-August
of 1957, requiring membership. in that organization as a condi-
tion of employment, or to any extension, renewal, or modification
thereof, or to any other contract which may be now in force.
WE WILL NOT interfere with the formation or administration of
any labor organization or give support or assistance to it.
WE WILL withdraw and withhold all recognition from Anchor-
age Professional Pharmacists Association, Inc., as representative
of any of our employees for the purpose of collective bargaining,
unless and until said organization shall have demonstrated its
exclusive majority bargaining status pursuant to a Board-
conducted election among our employees.
WE WILL make whole all the employees who were locked out
on November 20, 1957, for any loss of pay they may have suf-
fered as a result of the discrimination against them.
WE WILL NOT influence our employees in their choice of
collective-bargaining representatives, or in any other manner
interfere with, restrain, or coerce said employees in the exercise of
the right to self-organization, to form labor organizations, to join
or assist Retail Clerks International Association, Local No. 1496,
AFL-CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any and
all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in Section
8(a) (3) of the Act.
All our respective employees are free to become or remain members
of any labor organization or to refrain from such action except to
the extent that this right may be affected by an agreement in con-
formity with Section 8 (a) (3) of the amended Act. We will not dis-
criminate in regard to hire or tenure of employment or any term or
525543-60-vol. 124--44
,674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition of employment against any employee because of member-
ship in or activity on behalf of any labor organization.
ANCHORAGE BUSINESSMEN'S ASSO-
CIATION, DRUGSTORE UNIT
Dated---------------- By-------------------------------------
(Representative ) ( Title)
E. A. JOHNSON, D/B/A VISTA PHARMACY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
EASTCHESTER DRUG, INC., D/B/A EASTCHESTER DRUGS
AND D/B/A SAVE MORE DRUGS,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
DENALI DRUG 'COMPANY, INC.,
. Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
ULMAR-BURGESS, INC., D/B/A REXALL DRUGS,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
HEWITT'S DRUGSTORE, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
BERT'S DRUGS, INC., D/B/A BERT'S PAYLESS DRUGS AND
D/B/A BERT'S FIFTH AVENUE DRUGS,
Employer.
Dated----------------- By-------------------------------------
(Representative ) ( Title)
BERT'S SPENARD DRUGS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
FRANCIS JONES, D/B/A BI RITE DRUGS,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
JOAN ERICNSON, D/B/A TIIRIFTY DRUGS,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
iii-id must not be altered, defaced, or covered by any other material.
ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 675
APPENDIX B
NOTICE TO ALL MEMBERS OF ANCHORAGE PROFESSIONAL
PHARMACISTS. ASSOCIATION, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our members that :
WE WILL NOT maintain or enforce any union-security contract
with Anchorage Businessmen's Association, Drugstore Unit,
which requires as a condition of employment membership in our
:.organization, or-any contractual agreement with that Association
or its member employers which may now be in force.
WE WILL NOT cause or attempt to cause the said employer asso-
ciation or its member employers to discriminate against any per-
son because of nonmembership in our organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees of member employers of Anchorage Business-
men's Association, Drugstore Unit, in the exercise of rights guar-
anteed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized
.by Section 8 (a) (3) of the Act.
ANCHORAGE PROFESSIONAL PHARMA
CISTS ASSOCIATION INC.,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding is brought under Section 10 ( b) of the National Labor Relations
Act, as amended , 61 Stat . 136, herein called the Act, pursuant to a consolidated
complaint issued by the General Counsel of the National Labor Relations Board,
herein respectively called the General Counsel 1 and the Board , against Anchorage
Businessmen 's Association , Drugstore Unit, and its Member Employers herein re-
spectively called the Association and Drugstore Member-Employers , and against
Anchorage Professional Pharmacists Association , Inc., herein called the Independent.
The consolidated complaint , dated May 6, 1958 , as amended at the hearing , alleged
that the Association and its Drugstore Employer-Members violated Section 8(a) (1),
(2), and (3) of the Act and that the Independent violated Section 8(b)(1)(A)
and (2 ) thereof. Copies of the consolidated complaint, the charges upon which
it was based , the order of consolidation , and notice of hearing thereon, were duly
served upon the Association , the individual Drugstore Employer-Members, upon
the Independent, and upon the Union.
Specifically , the consolidated complaint, as amended, alleged that ( 1) the Asso-
ciation by engaging in certain acts and conduct, interfered with, restrained, and
1 This term specifically includes counsel for the General Counsel appearing at the hearing.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coerced the employees of its Drugstore Employer-Members in the exercise of the
rights guaranteed in Section 7 of the Act; (2) the Association formed the Inde-
pendent and thereafter (a) interfered with its administration, (b) contributed
financial and other support to it, and (c) gave it unlawful assistance by entering
into a collective-bargaining contract containing a provision violative of the Act;
(3) the Association threatened and coerced the employees of its Drugstore Em-
ployer-Members in an attempt, among other things, to have them withdraw from
the Union; (4) the Association, after the Union had announced the strike and had
begun picketing the drugstores of three of its Employer-Members, viz, Eastchester
Drugs, Denali Drugs, and Rexall Drugs, announced to the public that the strike
was a strike agai.,st all Employer-Members of its Drugstore Unit despite the fact
that it well knew that the Union did not intend to strike or picket the other drug-
stores; (5) the Association, after the strike had commenced, gave notice. to the
employees of its Drugstore Employer-Members that if the strike and picketing did
not cease by a certain stated date all clerical employees of said employers would
be laid off until said strike and picketing were discontinued; (6) the Association's
Drugstore Employer-Members laid off all their clerical employees on November 20,
1957, who were union members, while retaining in their employ all nonunion mem-
bers and with ' the help of those nonunion members, their pharmacists, and the
persons hired after the strike had commenced, continued to operate their stores,
including the struck ones; and (7) that of the 29 union members laid off on
November 20, 1957, because the strike. and the picketing had not been called off
as demanded by the Association and 'its Drugstore Employer-Members, only one
was rehired during the period of the strike and picketing which were discontinued
on November 30, 1957.
As to the Independent, the consolidated complaint, as amended, alleged that it
was existing in violation of the Act because, among other things, it had been formed
and was being dominated by the Association and since its inception has been receiv-
ing unlawful assistance and support.
The Association, Bert's, and the Independent each duly filed answers denying the
commission of the unfair labor practices alleged. At the opening of the hearing
the Independent's motion to amend its answer was granted without objection.
Pursuant to due notice, a hearing was held between May 18 and June 4, 1958, at
Anchorage, Alaska, before the duly designated Trial Examiner. All parties were
represented by counsel and participated in the hearing. Full opportunity was afforded
the parties to be heard, to examine and cross-examine witnesses, to introduce evidence
relevant and material to the issues, 'to argue orally at the conclusion of the taking
of the evidence, and to file briefs on or `before July 7, 1958.2 Briefs have been
received from the General Counsel, from counsel for the Union, from counsel for
Bert's, from counsel for the Association, and from counsel for the Independent,
which have been carefully considered. After the close of the hearing, the General
Counsel filed a motion to correct certain errors appearing in the stenographic re-
port of the hearing. The motion is hereby granted and the motion papers are
received in evidence and marked Trial Examiner's Exhibit No. I.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF THE EMPLOYER- MEMBERS OF THE ASSOCIATION'S
DRUGSTORE UNIT
. Anchorage Businessmen's Association is, and during all times material herein
has been, among other things, the representative of its Employer-Members for
the purpose of collective bargaining and in the adjustment of grievances with labor
organizations representing the employees of said Employer-Members. One of the
units of the Association is known as the Drugstore Unit, the employees of which
are the only ones involved in this proceeding. The annular out-of-territory purchases
of the stores comprising the Association's Drugstore Unit amount to more than
$2,000,000.
Contrary to Bert's contention that the Board lacks jurisdiction over its enterprises,
the Trial Examiner finds that during all times material the Drugstore Employer-
Members of the Association have been, and now are, engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and that it will effectuate the pur-
poses of the Act for the Board to assert jurisdiction in this proceeding.
2 At the request of counsel for the Respondents the time to file briefs was extended to
August 21, 1958.
ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 677
II. THE LABOR ORGANIZATIONS INVOLVED
Retail Clerks International Association, Local No. 1496, AFL-CIO, and Anchor-
age Professional Pharmacists Association, Inc., unaffiliated, are labor organizations
admitting to membership employees of the Employer-Members of the Association's
Drugstore Unit.
III. THE UNFAIR LABOR PRACTICES
A. Formation and domination of, interference with, and support of the Association;
the lockout; and interference, restraint, and coercion
1. The sequence of the pertinent facts
Since 1941 the Union has had collective-bargaining contracts with the owners
of the Anchorage, Alaska, drugstores covering their sales clerks and pharmacists.
More recently the Association has been the bargaining representative of these
employers.
At a Board-conducted election, held in January 1950, the Union won a union-
shop authorization election, in which the pharmacists and the sales clerks voted.
At a regular union membership meeting held on April 12, 1957,3 it was decided
to reopen the contract expiring on July 2, which covered not only the aforementioned
drugstore employees but also the employees of the Anchorage stationery stores.
At the above-referred-to meeting, which was attended by five pharmacists, Billy
G. Pitts, who just prior to April 12, had been appointed store manager of Bert's
Spenard drugstore,4 proposed that the five pharmacists in attendance compose the
committee to negotiate a new contract with the Association. This proposal was
adopted with the understanding that Pearl Gibson, the Union's executive secretary,
be permitted to name five sales clerks to the committee, which she did.5
Several days after April 12, Potter, the manager of the Denali drugstore, stated
to Gibson, during a telephone conversation, that, since he was a store manager,
he did not believe that he should serve on the negotiating committee nor should
Rodgers because of his close connection with the owners of Bert's stores.6 Potter
then suggested that he and Rodgers resign from said committee which they did.
They were replaced by L. G. McDonald and Bernie Gravel, nonsupervisory
pharmacists.
On April 29, a proposed agreement was submitted by the Union committee, headed
by McDonald, to the Association's negotiating committee which then consisted
of Wayne D. Calderwood, its attorney, Eldon Ulmer, one of the owners of Rexall
Drugs and Denali Drugs, and Volmey Grace, the majority stockholder of Eastchester
Drugs.
On May 17, McDonald, Gibson, and Elmer Jackson, the Unino's recently ap-
pointed business agent, met with Calderwood, Ulmer, and Grace. There, the
Union's proposal was discussed but no definite agreement was reached as to any
provision thereof.
On May 18 Calderwood wrote Gibson transmitting certain Association proposals.
These proposals were submitted to the union membership which, on June 5 and 6,
voted to reject.
On June 7, Gibson wrote Calderwood informing him of the membership's afore-
said action.
On June 20, McDonald, Gibson, and Jackson met with Calder-wood, Ulmer,
Grace, and Charles Rush.7 After a somewhat lengthy discussion regarding the
Association's May 18 proposals, which the union membership had rejected on
June 5-6, and after a further discussion with respect to the Union's proposed wage
increases for the pharmacists and for the sales clerks, Gibson suggested that in order
to bring the negotiations to a quick amicable conclusion the parties enter into a
8 Unless otherwise noted, all dates hereinafter refer to 1957.
4 Pitts' appointment as store manager was unknown to the officials of the Union at the
time of this meeting. Prior to this meeting no store managers had attended any union
meetings although, as members, It was their privilege to do so.
6 The pharmacist committee members were Pitts, William Rodgers, Sammie Potter,
Roger DeShazer, and Dennie Short.
'At that time Rodgers was, and still is, assistant general manager and a stockholder
In the two Bert's corporations which own and operate Bert's Payless, Bert's Fifth
Avenue, and Bert's Spenard stores.
Grace's assistant manager and on occasion the manager of Grace's Eastchester store.
Gibson testified that she believed Rush was acting as Grace's spokesman at this meeting
because Rush "understood the drug business."
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2-year nonopening contract embodying the Union's proposed wage increases thus
freezing for 2 years the wage question. Gibson added that, although she did not
have the membership's authorization to propose such a contract, she felt that the
membership would go along with her. Calderwood requested and received time
to study the proposed 2-year contract with his associates. The meeting concluded
with the understanding that the parties would meet again on June 27.
Instead of meeting on June 27, as planned, the parties met on June 28. This
meeting was attended by Gibson and Jackson representing the Union and by Calder-
wood, Ulmer, Grace, and Rush representing the Association.8 Calder-wood proposed
a 2-year contract providing for an immediate 10-cent per hour increase for the sales
clerks but no increase for them during the second year; the pharmacists were to
receive no increase the first year but would be given one the second year.
At about 6:30 p.m. on July 1, McDonald and two of the Union negotiating
committeemen, Gravel and DeShazer, met with Gibson at the union hall. After
discussing the Association's June 28 proposal, the three committeemen decided to
hold a meeting of the 5-man pharmacist negotiating committee. Later that evening,
the full pharmacist committee met at Pitts' apartment where it was decided to
request Gibson to immediately call a union, membership meeting. It was further
decided that at the meeting of the membership the negotiating committee would
recommend that the Association's June 28 counterproposal be rejected, and to inform
the members that such a rejection was tantamount to a strike vote.
On July 5, the union membership met to vote on the Association's June 28
proposal. Due to the difference in store hours, 16 members attended the morning
and 35 members attended the evening meeting.9
McDonald attended the July 5 morning meeting and informed those present that
the negotiating committee recommended rejection of the aforesaid Association's
proposal. Pitts then cautioned the members that they should carefully consider
the consequences of their action. because a vote to reject the proposal was a vole to
strike, adding that if a strike were called it might be of long duration.
Clayton C. Carruthers, the manager of Bert's Fifth Avenue store, attended the
July 5 morning meeting. In view of the Union's policy against managers being
permitted to vote on contract or strike issues, a question arose whether Carruthers
should be allowed to vote. Gibson referred the question to McDonald who said,
"Let him vote." Whereupon, Carruthers was permitted to vote.
At the July 5 evening meeting, DeShazer explained the Association's June 28
proposals and then informed the members that the negotiating committee recom-
mended the rejection -thereof, and that a rejection vote was in effect a vote to strike.
This meeting was also attended by Rush, Rodgers, and William H. Steidtmann, the
then manager of Bert's Payless store. Rodgers and Steidtmann were permitted to
vote merely because Carruthers had voted at the morning session. Gibson, however,
objected to Rush's right to vote and told him so. She based her objection on the fact
that Rush had attended the last two association-union negotiating meetings as a
member of the Association's committee and therefore she did not think he should
vote on the question of the acceptance or rejection of the Association's latest
proposals. Rush replied that he was. going to vote regardless of what Gibson said.
Gibson, on Jackson's advice, finally withdrew her objection and Rush was permitted
to vote. Before the voting began, Rush interrupted DeShazer who, as presiding offi-
cer, was addressing the meeting, and for about 10 minutes angrily denounced the
calling of a vote on the Association's proposals because, according to him, all the
pharmacists were in favor of accepting the wages offered by the Association.
Of the 51 secret ballots cast at July 5 meetings, 29 votes were cast to reject and
22 to accept the Association's latest proposals.
Under date of July 8 Gibson wrote Cal derwood as follows:
This is to inform you that on July 5, 1957, Employees of the Drug Store
Unit voted to reject recent proposal submitted 6/28/57, of the Employer Group,
and have instructed me to inform you, that they are standing firm on their
original demand of Wage Increase: which was incorporated in the tentative
proposal as of 5/2/57. The idea of a 2 year Contract, with a higher offer for
Pharmacists, and no increase for unlicensed employees for the second year
period; has definitely been rejected; and the one year contract, with the termi-
nation date of 6/2/58, plus the wage demand still stands.
9 McDonald did not attend this meeting because through some misunderstanding he was
not advised of the changed date.
9 Only drugstore employees attended these meetings because at about this date, July 5,
the stationery store employees were taken out of the bargaining unit.
ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 679'
If the Employer Group still insists on standing pat on their offer, and will
not come up on a higher offer; we will be forced to take action, on July 19,
1957 at 8 a.m.
On July 15, McDonald, DeShazer, Gravel, Gibson, and Jackson met. McDonald,
as chairman of the negotiating committee, proposed that, if a strike were called,
pickets be placed at Bert's three stores, Hewitt's Drugstore, and at the Vista Phar-
macy. Gravel and DeShazer were not in favor of picketing Bert's establishments.
Because of this difference of opinion no strike strategy was agreed upon at this
meeting.
At about 9 a.m. on July 17, about six pharmacists, including Rush, Rodgers, Pitts,.
and Steidtmann, appeared at the union hall and, according to the credited testimony
of Jackson, the following took place:
They immediately sat down and Pearl (Gibson) sat down at her desk and
they wanted to know why they couldn't be issued withdrawal cards. They made
the statement that they didn't want the retail clerks to bargain for them any
longer and they wanted to withdraw from the retail clerks and get out of it.
Charlie Rush said he was very well satisfied with the conditions and the wages
that they were getting and they wanted to getout of the retail clerks altogether,
they didn 't want them as a bargaining agent . . . Steidtmann made the remark
about that the retail clerks had no reason being the bargaining agent, that they
were exempt under the Act, being professional men . . . . Well, Pearl simply
told them that she would not issue them a withdrawal card at the present time
or in the future as long as they were performing the work of a clerk . . . but
any time that they performed the duties of a registered pharmacist and stayed
behind the pharmaceutical department of prescriptions then [she] would gladly
issue them a withdrawal card.
In the July 17 issue of the Anchorage News, a daily afternoon newspaper,
appeared an article quoting Gibson as stating that a strike would be called on July
19, by "almost 200 drug clerks, pharmacists and workers in ladies' apparel stores";
that there was a likelihood that an agreement might be reached before the strike
deadline with the apparel store owners and if an agreement were reached then those
employees would not be called out, but the chances of a settlement with the drugstore
owners were slim; and that in the event of a strike against the drugstores , the public
would not be left without prescription services because there was a pharmacy in
Anchorage under the "professional pharmacy" classification which was not involved
in the controversy.
The next morning, July 18, Pitts, accompanied by Potter and four other pharma-
cists, called at the union hall and proffered Gibson a petition containing the signa-
tures of 12 pharmacists and bearing the following legend:
THE UNDERSIGNED PHARMACISTS ALL OF WHOM ARE PRES-
ENTLY MEMBERS OF THE RETAIL CLERKS UNION LOCAL 1496
WISH TO NO LONGER BELONG OR BE REPRESENTED BY THIS
RETAIL CLERKS UNION. PHARMACISTS ARE PROFESSIONAL
PEOPLE AND WHILE PART OF OUR WORK IS CLERICAL WE PRE-
FER NOT TO BELONG TO A CLERKS UNION. THE N.L.R.B. HAS
A RULING WHICH STATES "PHARMACISTS ARE PROFESSIONAL
PEOPLE WHO CAN DECIDE FOR THEMSELVES WHETHER THEY
WISH TO BECOME PART OF A LABOR BARGAINING UNIT." io
Gibson refused to accept the petition. Thereupon, Pitts, who was the group's
spokesman, shook the petition under Gibson's nose and then pushed the chair in
which Gibson was sitting into the wall. Potter then took over as spokesman and
inquired of Gibson why she would not accept the petition and grant all the members
a re-vote on the strike issue. Gibson replied that she saw no reason for having an-
other strike vote because the members knew that they were voting to strike when
they voted on July 5 to reject the drugstore owners' latest offer.
That evening, July 18,11 after store hours, a meeting of all but two pharmacists in
the Anchorage area was held at one of the stores of which Rodgers is part owner and
assistant manager. Rodgers arranged for the use of the store and advised some of
the pharmacists of the meeting. Rodgers, as acting chairman, called the meeting to
order and then announced that the purpose of the meeting was to organize the Inde-
pendent. Rodgers then presented to the group for their approval incorporation
papers drawn up by Calderwood. After considerable discussion, and after some
lo This petition was typed and circulated by Rush.
21 This meeting ran over until the early hours of July 19,
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
revisions made therein, the papers received the group's approval. Thereupon said
papers were signed by Potter, Steidtmann, and Clayton C. Carruthers as
incorporators. la
After Pitts had been elected president, Steidtmann, vice president, McDonald,
recording secretary and business agent, DeShazer, secretary-treasurer, and Potter,
Rolland Dowler, and Clarence Warfield members of the board of trustees, Pitts
replaced Rodgers as presiding officer. A copy of the petition which was proffered
to Gibson earlier that day and containing the signatures of 12 pharmacists was then
presented. At the time of the presentation aforementioned, three additional pharma-
cists had already affixed their signatures. Two more pharmacists signed at the
meeting.13 The "next order of business," according to the Independent's minutes,
was the execution of a petition requesting the Board to decertify the Union as the
pharmacists' collective-bargaining representative.14 This petition was signed by all
present, including Rush, Rodgers, C. A. Johnson (part owner of Bert's), and other
managerial pharmacists.
Before the meeting concluded the set of bylaws which Calderwood had prepared
prior to the meeting and which Rodgers brought there, were, after certain revisions
therein had been made, approved and signed by each member in attendance.15
The Independent's decertification petition (19-RD-105) was filed with the Board
on July 22. Within a few days thereafter, a Board field examiner and Pitts conferred.
At the July 25 Independent membership meeting it was voted to delete from
McDonald's official title the words "business agent." The reason for such deletion is
disclosed by the the minutes of that meeting which reads, in part, as follows:
[Pitts] asked for some changes in the constitution and bylaws of [the Inde-
pendent]. These changes were made necessary on advice of Mr. Immel of
NLRB. It seems that when we filed petition with NLRB we did not realize that
because of professional standing, as defined by NLRB, they would not have
jurisdiction over only a small part of the membership of [the Independent]....
At some undisclosed date between the Independent's organizational meeting of
July 18-19 and its meeting of August 14, a collective-bargaining contract was en-
tered into between the Association and the Independent.is
While the record is not clear as to who represented the Independent in its bargain-
ing negotiations with the Association, it is clear that the proposed contract submitted
by. the Independent contained no union-security clause. In fact, before submitting
the proposed contract, all reference to a union-security clause was deleted therefrom
by the Independent. However, such a clause was inserted in the signed agreement
by the Association "for the protection of the contract," despite the fact that the
record in this case clearly discloses that many members of the Independent were op-
posed to all forms of union-shop conditions. In fact, some members resented having
the Independent classified as a labor organization.
On August 13, Gordon W. Hartlieb, the union attorney, Gibson, and Jackson met
with Calderwood, Rush, Grace, and Eldon Ulmer, and discussed a contract to cover
only the drug clerks.
13 On July 24, said incorporation papers were duly filed in the offices of the Director of
Finance of the Territory of Alaska. Calderwood paid the necessary filing fees for which
he has not been reimbursed. Nor has he been paid for drawing up said papers nor for the
other legal services he rendered the Independent.
13 The next morning the two pharmacists who did not attend the meeting signed the
petition.
14 A copy of said decertification petition was delivered to Gibson the following morning
by DeShazer in Pitts' presence.
15 The record discloses that Pitts signed the bylaws twice ; once as president of the
Independent and once, on September 23, as a member thereof. When Pitts signed as
president is not disclosed by the record but it is safe to assume, and the Trial Examiner
does, that he did so at the July 18-19 meeting.
10 At the hearing Calderwood, who signed the contract on b. half of the Association's
drugstore employer-members, stated that he could not recall when the agreement was
executed. Neither could the several witnesses who were questioned regarding the date of
the execution of the agreement fix a date. It is evident that the agreement was signed
prior to August 14, for the minutes of the Independent's August 14 minutes read in part
as follows :
The membership decided by motion to restore office of business agent. This was
almost manditory [sic] because of the new reading of the contract, which the
Management had inserted for the protection of the contract.
ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 681
Under date of August 14, Hartlieb wrote Calderwood as follows:
In confirmation of our telephone conversation of this date, I offer, on
behalf of Retail Clerks Local 1496; to negotiate with the employers for a
contract covering the drug clerks or non-registered employees and excluding
the pharmacists.
This offer is made upon the condition that the following clause or its
equivalent be written into any contract so negotiated.
"All work and services connected with, or incidental to, the handling or
selling of all merchandise offered for sale to the public in the employer's retail
establishment covered by this agreement, shall be performed only by em-
ployees of the employers within the unit referred to above. For which the
Union is recognized as the collective bargaining agent by the employer."
Stated more concisely; all work in the stores except the filling of prescrip-
tions be performed by non-registered employees who are members of Local
# 1496.
Please understand that by making this proposal we are not giving up
bargaining rights for the pharmacists, but agree only to delay negotiations
covering the pharmacists until such time as your group is ready to negotiate
a contract covering them.
While the Association's representatives and the Union's representative met on sev-
eral occasions during August, September, and October, no agreement was reached
with respect to a bargaining contract mainly because of the Association's adamant
refusal to agree that the pharmacists cease the handling and selling of merchandise
normally handled and sold by sales clerks and confine their activities to the prescrip-
tion end of the business.17
On October 10, the drug clerk members of the Union conducted a strike vote which
resulted in a tie vote; that is, 17 ballots were cast in favor of a strike and 17 against.
The next day, October 11, the said members took another strike vote which re-
sulted in a vote of 18 in favor of a strike and 19 against. Immediately after the
counting of these ballots, Earl Simon, an employee of Bert's, told Gibson that he did
not believe that Arthur W. Burston, the majority stockholder of the two Bert's cor-
porations, was cognizant of the negotiations going on between the Association and
the Union and Simon then suggested that all strike action be delayed for 7 days to
enable him to confer with Burston.
Not hearing from Simon, another strike vote was taken on October 22, which re-
sulted in 26 ballots being cast in favor of a strike and 7 against.
The strike commenced on October 23, and pickets were placed at Denali, Rexall,
and Eastchester stores, the employees of which were the only ones who went out on
strike.
That day, October 23, a special meeting of the Independent was called. The min-
utes of that meeting reveal that Rodgers was "present to tell the side of management"
and:
Rodgers suggests that [the Independent] and Management cooperate in
the advertising campaign that is planned to combat the strike.
Motion made and seconded that Bill [Rodgers], Sammie Potter and Bill
Steidtmann serve as corridinators [sic] of the Advertising campaign with
management , [The Independent] will if necessary allott [sic] 25.00 every
other day as advertising moneys.
Steidtmann is appointed as chairman of the National Publicity Committee
with help of [Rolland] Dowler.
On October 26, the Association and the Independent each inserted an advertise-
ment in Anchorage News. Rodgers helped prepare the Association's advertisement.
Commencing on October 26, the drugstore employer-members of the Association
placed pickets around their establishments and inserted advertisements in the Anchor-
age daily newspapers announcing that the Union had struck all the Association's
drugstores.
On November 4, the Union filed a charge with the Board against the Association
(19-CA-1527) alleging, among other things, that the Association caused Hewitt's
Drugstore 18 to discharge Bernard Gravel because of union membership and his non-
membership in the Independent.
17 Rush, as a management representative, attended all these meetings.
Is Partly owned by Arthur W. Burston, the majority stockholder of the two Bert's
corporations.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The minutes of the independent 's November 6 meeting reads , in part, as follows:
We received notice of suit against us by NLRB , Filed by Perl [sic] Gib-
son of the Union. Case involves Bernard Gravel's dismissal by Frances
Bowden, Hewitt Drug Co. We are called a Labor Union. We are an as-
sociation . Chuck Rush offered to take letter and information to a Lawyer for
advice on the proper way to answer the suit.
Ruby Marshon testified , and the Trial Examiner finds , that on October 23, she was
a union member and was then employed at Bert 's Fifth Avenue store, of which
Rodgers is part owner with C. A. Johnson 19 (an independent ), and Burston ; that on
October 24 ,20 she was called into the private office with Pat Carlson , another Bert's
sales clerk , and was asked by either Rodgers or Johnson , both of whom were present,
"to sign this paper [reading as follows] showing that we hadn 't voted for a strike for
their own personal use":
TO WHOM IT MAY CONCERN
The undersigned are members of Retail Clerks Union Local # 1496, em-
ployed in various drug stores in the Anchorage Area, and voted against the
calling of a strike at the strike vote of drug members taken on October 21st
and 22nd.
On or about October 26, the following document was circulated among the drug-
store sales members of the Union by La Demma Zuback:
TO WHOM IT MAY CONCERN
The undersigned are members of Retail Clerks Union Local # 1496, em-
ployed in various drug stores in the Anchorage Area, and voted AGAINST
the calling of a strike at the strike vote of drug members taken on October 21st
and 22nd, 1957.
We the undersigned make this statement of our own free will with out
influence from any person or persons , and are willing to have this statement
made public thru the press, and are willing to have this signed statement used
in any court action where it may be needed.
This statement is circulated for signature by members of Retail Clerks
Union Local # 1496.
Zuback testified that prior to testifying in this proceeding she never saw the document,
dated October 24, which Johnson and Rodgers had asked Marshon and others to
sign ; 21 that she , herself, prepared and typed the October 26 document; and that she
was the only one who circulated her document . The Trial Examiner has given no
credence whatsoever to any of Zubacks testimony . This finding is based mainly, but
not entirely , upon the following facts: The language of the first paragraph of the
October 24 and 26 documents is the same except that the word "against" is capitalized
in Zuback's purported document and the year is stated after the dates October 21st
and 22nd. Moreover , Mike Howard's name appears first on the October 26 document
and second on the October 24 one, Pat Carlson 's name appears first on the October
24 document an&second . on the October 26.ope,.and.Marshon 's name appears third
on each document . Under the circumstances, and upon the entire record , the Trial
Examiner finds that the union members were requested by management to sign both
the October 24 and 26 documents.
Under date of October 25, Gibson wrote Bert's Payless store as follows:
This letter is to request that you remove, or cause to be removed , from the
premises which are owned and occupied by you as a business establishment the
picket which you are maintaining in front of your establishment carrying a
placard with the wording:
"Drug Employees
are out on strike.
This establishment is
involved in a labor
dispute with Retail Clerks
Union Local # 1496"
11 Johnson died during the course of the hearing.
"The document referred to is dated October 24, and the Trial Examiner infers that
Diarshon signed it that day. The document bears the purported signatures of 14 employees,
only 5 of whom were then employed at Bert's Fifth Avenue store.
21 Rodgers testified that he believed Johnson prepared this document.
ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 683
In maintaining a picket carrying the above legend, you are creating confusion
in the minds of the general public and by the wording on the placard, you are
misleading the general public into believing that your establishment is being
picketed by members of Retail Clerks Local #1496. In addition, you are mis-
leading the public by using the official name and number of this union, thereby
,creating confusion in the minds of the public and leading the public to believe
that it is an official picket of Local #1496. This is especially true, as you
well know, in view of the fact that certain other drug establishments in this
city are being picketed by Local # 1496.
You are requested to forthwith discontinue this fraudulent practice of dis-
seminating an untruth to the public by use of these signs by you and your as-
sociates in front of the business establishment maintained and controlled by you.
Almost immediately after the Union's picketing started on October 23, the owners
of the stores which had not been picketed, placed pickets in front of their own stores
carrying placards reading, "Drug employees are out on strike, this establishment is
involved in a labor dispute with Retail Clerks' Union, Local 1496." 22 On one oc-
casion, Hewitt Drugs hired a picket to carry a sign reading, "This establishment is
not involved in labor dispute, all employees are good members of the Retail Clerks
Union, Local 1496."
Under date of November 15, Calderwood wrote Gibson as follows:
This is to advise you that at 5 p.m., Monday, November 18, 1957, all clerks
presently employed in Bert's Spenard Drug, Bert's Payless Drug, Bert's Fifth
Avenue Drug, Hewitt's Drug, Savemore Drug, Bi-Rite Drug, Thrifty Drug, and
Vista Drug will be laid off unless the pickets are removed from Rexall Drug,
Denali Drug, and Eastchester Drug, and the strike called by your Union against
the three firms last mentioned is brought to an end.
At any time your Union withdraws its pickets and ends the present strike,
all laid off clerks will be recalled and reemployed.
I should advise you further that all the above named firms will continue to
be ready to resume negotiations at any time requested by your Union.23
Under date of November 18, Gibson wrote the Association as follows:
Please be advised that Local 1496 requests a meeting with you on this date,
Monday, November 18, 1957, to discuss the present existing dispute.
In order to resolve our difficulties, Local 1496 offers the following proposal,
which, it is felt, is a compromise and a concession on the part of the Local.
The pharmaceutical employees will compound prescriptions and sell medicinal
.supplies from the floor, which medicinal supplies shall be on the counter im-
mediately adjacent to the pharmaceutical department. All other supplies and
merchandise shall be sold by non-registered members of Local 1496.
The lockout of all drugstores in the Anchorage area threatened in your letter
of November 15, 1957 would benefit no one and would be placing an unneces-
sary hardship on your buying public.
Please be assured that this offer of compromise is made in the utmost good
faith and in the hope that it will enable us to resolve our present difficulties.
The above proposal, unless acted on forthwith, shall automatically expire
at 5:00 P.M. Monday, November 18, 1957.
It is further urgently requested that the parties meet for discussion sometime
prior to 5:00 P.M. Monday, November 18, 1957 at a time and place to be named
by your group.
'On November 19, Calder-wood addressed a letter to Gibson reading as follows:
During our negotiations yesterday, due to the shortness of time before the
deadline of the lay-off set by the employer group, it was agreed to postpone the
employer lay-off action for 24 hours. This was done in order that the proposals
of both groups could receive the fullest consideration. As you know, the
negotiations were resumed this morning at 9:00 A.M.
2' The placards carried by the union pickets read, "Drug employees are out on strike,
please do not patronize, Retail Clerks, Local 1496."
23 Marshon credibly testified that on the date this letter bears, or shortly thereafter, a
copy thereof was posted "over the time clock in the prescription department" at Bert's
Fifth Avenue store ; that she was told by either Johnson or by Clayton Carruthers, the
store manager and a member of the Independent, to read the letter and then sign it;
and that Johnson told her and another female clerk, sometime prior to the lockout, re-
ferred to below, to quote Marshon, "We could either get out of the union and continue
working or that we would all be locked out."
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Your proposal that the activities of registered pharmacists be restricted to
compounding prescriptions and selling medicinal supplies only from the floor,
with the further proviso that all medicinal supplies be maintained on a counter
immediately adjacent to the prescription department, was given the fullest
consideration by the employer group during our afterhour meeting with you
this morning.
During the meeting, it was pointed out in detail to you by the various members
of the employer group that it would be virtually impossible to achieve the re-
strictions of the registered pharmacists' activities which you have demanded.
Among other things, it was pointed out to you that there are several thousand
different articles offered for sale in most drug establishments, that it would be
an enormous task to classify such articles as being medicinal or non-medicinal,
that the physical lay-out of many stores would prevent the segregation of
medicinal supplies adjacent to the prescription department, and that such an
attempted division of work assignments would result in endless confusion to
employees in both categories and would have a serious effect upon customer
relations. In short, we feel that it would be impossible to draft a meaningful
contract clause which the union, the employers and the employees would be
able to work with.
As we understand the position of your Union, your basic aim is to restrict
the activities of pharmacists to the compounding of prescriptions and the selling
of medicinal supplies. The employer group is willing to help your Union
reach this goal in any manner that is workable and is based on common sense.
Therefore, the employer group offers this proposal for consideration by your
Union. The employer group will consent to the inclusion of a clause in any
contract negotiated for the clerks which will state in substance that where there
is on duty in any establishment at any time, only one pharmacist, that pharma-
cist will not be subject to restrictions but shall be free to service customers if
the circumstances require; provided, however, that if there are at any time in
any establishment more than one pharmacist on duty, the activities of the second
pharmacist will be restricted absolutely to the prescription department.
The employer group feels that this proposal meets your Union's objection
that pharmacists not be permitted to encroach upon the normal selling activities
of your members and at the same time permits the employers to deal with
business conditions as they presently exist in their stores.
The employer group has faith that your members will recognize this proposal
as the only workable and common sense solution to the difficulty that exists. In
view of this, the employer group respectfully requests that you submit this pro-
posal to a vote of your membership forthwith. All employers will make im-
mediate arrangements for your members to visit your Union office for the
purpose of voting on this proposal.
In the event that you refuse to submit this proposal to a vote of your mem-
bership or in the event that your membership votes against the acceptance of
the proposal, the employer group feels that the only alternative left them by
your Union is to proceed with the lay-off action which will become effective at
the close of today's business day.
The parties met on November 19. At about 3 p.m. that day all the clerks in the
stores not being picketed by the Union were released by their respective employers
to permit them to go to the union hall and vote on the Association's latest offer, as
set forth in the above-quoted letter. The offer was rejected. On November 20, the
employers of the unstruck stores laid off all the clerks who were union members
and retained in their employ all the nonunion clerks and all other persons hired
since the commencement of the picketing. With this personnel and with the help of
the pharmacists the stores continued their regular business.
Negotiation sessions between the Association and the Union were held on No-
vember 26 and 27, as a result of which agreement with respect to a bargaining
contract was reached.
On November 27, Hartlieb, on behalf of the Union, sent Calderwood the follow-
ing letter:
In our negotiations yesterday, we attempted to draft a clause which would
delineate the duties of pharmacists and clerks. The following clause was mu-
tually suggested. "Employers agree not to assign duties to pharmacists which
would encroach upon duties which have traditionally been performed by clerks
in the employer's store."
As the matter covered by this clause formed the principal reason for the
present dispute, the interpretation of such clause becomes of primary importance.
ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 685
The interpretation given by the employer group to such clause and the intent
which the clause seeks to express is that the various employers signing the con-
tract would continue to recognize and preserve the work assignments performed
by clerks in each store during past years. That is to say that each employer
would be restrained from assigning work to any pharmacist which would in-
crease the over-all work assignment of pharmacists and decrease the over-all
work assignment of clerks. In short, we interpret the clause as maintaining
the status quo in each establishment with respect to the division of work assign-
ments between pharmacists and clerks.
We ask that you confirm in writing that this is the intent and purpose of the
clause mutually drafted by us.
On November 30, the Association and the Union entered into a 2-year contract
and the locked-out employees were recalled to work.
2. The concluding findings
The right of employees, under Section 7 of the Act, "to form, join, or assist labor
organization, to bargain collectively through representatives of their own choosing
[and] to refrain from any or all of such activities" is effectively implemented
by Section 8(a) (1) and (2). These provisions forbid employers to "interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed in Section
7," and likewise prohibit employers from dominating, interfering with, or support-
ing labor organizations of their employees. The employer's economic hold over his,
employees, which inheres in their relationship, is thereby neutralized in matters of
organization and representation, which are peculiarly the concern of the employees.
Interdictions against employer intrusion in such matters are essential if employees
are to be free from the coercive influence of their employers, for employees are,
as the courts have repeatedly found, not insensitive to the advantages in their em-
ployment that they consider are likely to flow from their choice of representative to
coincide with the wishes of their employer, nor the disadvantages which may attend
their choice of a representative opposed by their employer. And for the same rea-
son, employees cannot be expected to derive the full benefit from their protected right
of self-organization if they believe, from "circumstances which the employer created
or for which he was fairly responsible," 24 that their representative however chosen,
is subject to the employer's compulsive will. Consequently, the Act prohibits all
forms of employer assistance to, or domination of, his employees' labor organiza-
tions and interference in their organizing campaign which might operate to preclude
an uninhibited exercise by employees of their collective-bargaining rights.25
In open disregard of their duty of neutrality, the Association and its drugstore
employer-members foisted upon the employees here involved a labor organization
which met with their approval for not only did their attorney draw up the Inde-
pendent's incorporation papers and bylaws, for which he had nit been paid nor reim-
bursed for the filing fees paid for incorporating the Independent, but store owners,
store managers , and other supervisory personnel brought the Independent into being,
and attended to all matters incident to its organizational structure. For example,
Rodgers called the Independent's organizational meeting together, then he presented
it with Calderwood's ready-made organization. In addition, store managers and
other supervisory personnel became, and still are, officers of the Independent. Fur-
thermore, after the Independent was formed, the Association entered into a contract
with the Independent providing for a certain form of union security. The Inde-
pendent did not want such a clause in its contract but it had to accept it because the
Association suggested, recommended, and desired it. Admittedly, prior to the hear-
ing herein, the Independent never complied, with the provisions of Section 9(f),
(g), and (h) of the Act and hence, by entering into a contract containing a union-
security provision the Association lent further support to the Independent. More-
over, by forcing upon the Independent a union-security contract the Association
further violated the Act because such a contract, unless entered into in accordance
with Section 8(a) (3) of the Act, deprived the members of the Independent the right
to refrain from all or any union activities.
The evidence, as summarized above, leads to the inescapable conclusion that the
Independent was formed by the Association and its drugstore employer-members
24N.L.R.B. v. Link-Belt Company, 311 U.S. 584, 588.
2s See N.L.R.B. v. Link. Belt Company, 311 U.S. 584; International Association of
Machinists v. N.L.R.B., 311 U.S. 72; N.L.R.B. v. Electric Vacuum Cleaner Company, Inc.,
315 U.S. 685; N.L.R.B. v. Southern Bell Telephone and Telegraph Company, 319 U.S. 50;
N.L.R.B. v. S. H. Kress and Company, 194 F. 2d 444 (C.A. 6) ; Harrison Sheet Steel
Company v. N.L.R.B., 194 F. 2d 407 (C.A. 7).
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that it exists and functions through their control, participation, and sufferance.
In short, the Independent is being used by the Association and its drugstore employer-
members as a substitute for collective bargaining and, as such, is a device which
repeatedly has been held to be an outlawed form of labor organization.26
The Respondents contend that the Independent came into being only by persons
who were members of the Charging Party and that the Independent, since its incep-
tion, has been administered by only such persons and hence the Union, and thereafter
the Board, cannot now be heard to complain that the Independent is an outlawed
form of a labor organization. Whatever may be said of that contention, the fact
remains that the issue to be resolved here is whether the Respondents violated the
Act with respect, among other things, to their activities involving the Independent.
The question whether the Union, by admitting to membership store owners, store
managers, and other supervisory personnel, is likewise existing in violation of the_
Act contributes nothing to the resolution of the issues before us 27
Therefore, upon the entire record in the case, the Trial Examiner finds that the
Association and its drugstore employer-members formed, dominated, and interfered
with the administration of the Independent within the meaning of Section 8(a)(2)
and (1) of the Act, thereby interfering with, restraining, and coercing the employees
here involved in the exercise of the rights guaranteed in Section 7 thereof.
Counsel seek to defend Respondents' action in locking out the employees from
November 20 to 30,28 upon the United States Supreme Court decision in N.L.R.B. v.
Truck Drivers Local Union No. 449, etc., usually referred to as the Buffalo Linen
Supply Company case.
The facts in that case as stipulated by the parties are as follows: The employers,
linen supply companies, were members of an association which had bargained on
their behalf with the union representing their truckdriver employees for some 13
years. Sixty days before April 30, 1953, when the existing collective agreement,
which contained an automatic renewal clause, was to expire, the union notified the
association of its desire to open negotiations to change the agreement. Thereafter,
the parties negotiated for a new agreement without success, and on May 26, 1953,
the truckdrivers for one of the employers went out on strike. On May 27, the other
seven association members laid off their truckdrivers after notifying the union that
this action was the result of the strike and that the employees would be recalled if
the union ended the strike against the eighth member. Negotiations continued and
on June 3, the union and the association executed a new agreement, whereupon the
strike and the lockout were terminated and all employees returned to work.
The Board, one member dissenting, dismissed the complaint alleging that the
lockout was violative of Section 8(a),(1) and (3) of the Act. The majority's
opinion, in part, is as follows: 29
From these facts, and in the absence of specific evidence showing that
the strike was likely to spread to the nonstruck Employers, the Trial Examiner,
by reliance upon certain prior Board decisions, inferred that the Employers
who were not struck engaged in unfair retaliatory conduct. However, in these
circumstances, we think the more reasonable inference is that, although not
specifically announced by the Union, the strike against the one employer neces-
sarily carried with it an implicit threat of future strike action against any or
all of the other members of the Association. For, the Union's action represents
a similar technique of exerting economic pressure to atomize the employer.
solidarity which is the fundamental aim of the multiemployer bargaining rela-
tionship. The calculated purpose of maintaining a strike against one employer
and threatening to strike others in the employer group at future times is to
cause successive and individual employer capitulations. Therefore, and in the
absence of any independent evidence of anti-union motivation, we find that
the Respondents' action in shutting their plants until termination of the strike
at Frontier was defensive and privileged in nature, rather than retaliatory and
unlawful.
26 See, for example, N.L.R.B. v. Newport News Shipbuilding c& Dry Dock Co., 308 U.S.
241 ; N.L.R.B. v. Baldwin Locomotive Works, 128 F. 2d 30 (C.A. 3) ; Bethlehem Steel
Company v. N.L.R.B., 120 F. 2c1 641 ; Westinghouse Electric ct Manufacturing Company v.
N.L.R.B., 112 F. 2d 657 (C.A. 2) ; Edward G. Budd Manufacturing Co. v. N.L.R.13., 138
F. 2d 86 (C.A. 3) : and N.L.R.B. v. Rath Packing Company, 123 F. 2d 684 (C.A. 8).
2-, See Local Union No. 929, United Brotherhood of Carpenters, etc.. et al. (The Mengel
Company), 120 NLRB 1756; Communication Workers of America, AFL-CIO (Ohio
Consolidated Telephone Company), 120 NLRB 684 and cases cited in footnote 3 thereof.
-9 Except. Darlene Perry who was rehired on November 21.
109 NLRB 447, 448.
ANCHORAGE BUSINESSMEN'S ASSN., DRUGSTORE UNIT 687
The facts here are distinguishable from those in Buffalo Linen. In the first place,
in that case the Board apparently laid considerable stress upon the fact that the
record disclosed no independent evidence of antiunion motivation on the part of
the employers. Support for this conclusion is found at page 4 of the Board's brief
filed in the Second Circuit in opposition to the petition to set aside the Board's
order dismissing the complaint. There, the Board said, "'in the absence of any inde-
pendent evidence of antiunion motivation' the Board viewed the lockout herein as
'defensive and privileged in nature, rather retaliatory and unlawful."' In its
petition filed in the Supreme Court for a writ of certiorari the Board, at page 4
thereof, states that it "concluded that the employers, in order to defend their inter-
est in the multiemployer bargaining unit which the threat of successive strike en-
dangered, 'and in the absence of any independent evidence of antiunion motivation,'
were privileged to shut down their operations . . " At pages 4-5 of the Board's
brief in the Supreme Court there appears the following:
The Board concluded that the Act did not forbid the employers, in order to de-
fend their interest in the multi-employer bargaining unit against devisive pres-
sures engendered by the threat of successive strikes, "and in the absence of any
independent evidence of antiunion motivation," to make a common defense to
the strike against Frontier and accordingly shut down their operations during.
the strike 30
The credible evidence disclosed by this record clearly establishes that the employers
engaged in acts which seriously interfered with the rights guaranteed employees under
the Act, and hence the Buffalo Linen doctrine is not, as Respondents contend, ap-
plicable to this proceeding.
In the second place, the Board's holdings in Buffalo Linen that (1) the employers,
under the circumstances of that case, did not violate the Act because the "inference is
that . the strike against the one employer necessarily carried with it an implicit
threat of future strike action against any or all the other members of the Association"
or that the union's action was actually aimed at "exerting economic pressure to
atomize the employer solidarity" in bargaining with the Union can not be applied
here. In this case, the employers did not lock out any of their employees because
they feared the Union would strike the other members of the drugstore unit of the
Association nor did they believe that by striking the three stores in question the Union
was attempting "to atomize" their bargaining solidarity but locked out some of their
employees 31 so as to discourage membership in the Union,32 to discredit the Union
in the employees' eyes, and to compel the Union to accept an unfavorable bargaining
agreement.
Finally, here, unlike in Buffalo Linen, there was no total shutdown but merely a
layoff of all known union adherents.
Upon the record as a whole, the Trial Examiner is convinced, and finds, that the
employees mentioned in the consolidated complaint, as amended, were locked out on
November 20, for reasons proscribed by the Act. By engaging in such conduct, the
Trial Examiner finds that the Association and its drugstore employer-members vio-
lated Section 8(a) (1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Association and its drugstore employer-members set forth in
section 111, above, occurring in connection with the operations of said drugstore em-
ployer-members described in section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and such of them
31 It is significant to note that in the fore part of its opinion the Supreme Court stated„
"The Board therefore found that 'in the absence of any independent evidence of anti-
union motivation . . . the Respondent's action in shutting down their plants until termi-
nation of the strike at Frontier was defensive and privileged in nature, rather than
retaliatory and unlawful' " and ends its opinion by remarking "We hold in the circurn-
stances of this case the Board correctly balanced the conflicting interests in deciding that
a temporary lockout to preserve the nniltf-employer bargaining basis from the disintegra-
tion threatened by the Union's strike action was unlawful."
31 Certainly there is no basis in the record to support a finding that the strike created
an economic or operative problem at the nonstruck stores to warrant the owners thereof
to lock out or lay off any of their employees.
37 This finding finds support, among other credited evidence, in C. A. Johnson's con-
duct with respect to his October 24 letter or notice which he had Marshon and others
sign and Johnson's statements and conduct made on or about November 15 to Marshon
and others regarding Calderwood's November 15 letter to Gibson.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as have been found to constitute unfair labor practices, tend to lead, and have led,
to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Association and its drugstore employer-members have en-
gaged in unfair labor practices violative of Section 8(a)(1), (2), and ( 3) of the Act,
the Trial Examiner will recommend that they , and each of them, cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of the
Act.
As found above , the Association and its drugstore employer-members formed,
dominated , and interfered with the administration of the Independent and contributed"
support to it. Under the circumstances , the Trial Examiner finds that the present ex-
istence of the Independent and the Association 's and its drugstore employer-members'
continued recognition thereof as a bargaining representative constitute a continu-
ing obstacle to exercise by the employees here involved of the rights guaranteed them
under the Act. Therefore , in order to effectuate the policies of the Act and to free
said employees from the effects of the Association 's and its drugstore employer-mem-
bers' unfair labor practices , the Trial Examiner will recommend that the Association
and its drugstore employer-members withdraw all recognition from the Independent
as a representative of any of the employees of the Association 's drugstore employer-
members for the purpose of dealing with them concerning grievances , labor disputes,
wages, rates of pay, hours of employment , and other conditions of employment and
to completely disestablish it as such representative.
As previously found, the conduct of the Association and its drugstore employer-
members in executing the contract July 2, 1957, with the Independent constituted
unlawful assistance to the Independent . This contract has been a means whereby the
Association and its drugstore employer-members have utilized the unlawfully formed,
dominated , and supported Independent to frustrate self-organization and to defeat
genuine collective bargaining by the employees here involved . The Trial Examiner,
therefore , recommends that the Association and its drugstore employer-members
cease and desist from giving effect to said contract or to any renewal , extension,
modification , or supplement thereof. Nothing herein shall be taken to require the
Association or its drugstore employer-members to vary the wages, hours, seniority,
and other substantive features of their relations with the employees of the Associa-
tion's drugstore employer-members , themselves , which said employers have estab-
lished in performance of said contract or any revision , extension , renewal, or modi-
fication thereof.
In view of the nature and the extent of the unfair labor practices , as found herein,
the Trial Examiner is convinced , and finds, that it would not effectuate the policies
of the Act to permit the Independent to retain the payments which have been unlaw-
fully exacted from the employees here involved , nor would it effectuate the policies
of the Act to permit the Association or its drugstore employer-members to reap the
benefit of their unlawful domination and support of, and assistance to, the Inde-
pendent at the employees ' expense. In order , therefore , that the remedy may be
commensurate with the unfair labor practices found, and to restore to the employees
the rights which they have been denied, the Trial Examiner recommends that the
Association and its drugstore employer-members , and each of them, cease and desist
from in any manner interfering with, restraining , and coercing the employees of the
Association 's drugstore employer-members in their right to self-organization; the
Trial Examiner also recommends that the Association and its drugstore employer-
members jointly and severally reimburse the employees who have been unlawfully
required to pay dues , initiation fees , and assessments , if any, to the Independent; and
the Trial Examiner also recommends that the drugstore employers here involved
make whole their respective employees whom they locked out on November 20, 1957,
and whom they did not rehire until November 30, 1957, with the exception of Darlene
Perry who was rehired on November 21, 1957, for any loss of pay they may have
suffered by reason of said unlawful lockout against them, by payment to each of
them of a sum of money equal to the amount each would have normally earned as
wages during the periods aforesaid , less his or her net earnings during such periods.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Retail Clerks International Association, Local No. 1496, AFL-CIO, and
Anchorage Professional Pharmacists Association, Inc., unaffiliated , are labor organi-
zations within the meaning of Section 2(5) of the Act.
BOEING AIRPLANE COMPANY, SEATTLE DIVISION 689
2. By forming , dominating , and interfering with the administration of the Inde-
pendent and by contributing support to it, the Association and its drugstore employer-
members have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (a)(2) of the Act.
3. By entering into and giving effect to the contract effective July 2, 1957, with the
Independent , which contract was executed in violation of the Act, the Association and
its drugstore employer-members have engaged in and are engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
4. By discriminatorily locking out certain employees on November 20, 1957,
thereby discouraging membership in the Union, the Association's drugstore employer-
members have engaged in and are engaging in unfair labor practices within the
meaning of Section 8(a)(3) of the Act.
5. By interfering with, restraining , and coercing the employees here involved in
the exercise of the rights guaranteed in Section 7 of the Act, the Association and its
drugstore employer-members have engaged in, and are engaging in, unfair labor prac-
tices within the meaning of Section 8(a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Boeing Airplane Company, Seattle Division and National Union,
United Welders of America, Independent, Petitioner . Case No.
19-RC-9194. August p21, 1959
SUPPLEMENTAL DECISION AND CLARIFICATION
OF UNIT
On February 20, 1959, following a Decision and Direction of Elec-
tion 1 and an election held pursuant thereto, the Board issued a Cer-
tification of Representatives in the above-entitled proceeding in which
National Union, United Welders of America, Independent, was certi-
fied as the exclusive bargaining representative in an appropriate craft
unit of welding employees. Thereafter, on April 16, 1959, Aeronau-
tical Industrial District Lodge No. 751, International Association of
Machinists, AFL-CIO, the Intervenor and bargaining representa-
tive of the Employer's production and maintenance employees, filed
a motion in which it requested the Board to clarify the welding unit
to determine whether employees classified as automatic fusion welding
machine operator and sheet metal worker and welder maintenance C
should be included. The Petitioner filed a reply, and on April 28,
1959, the Board ordered a hearing for the purpose of receiving evi-
dence relating to the unit placement of the aforementioned classifica-
tions. Accordingly, on June 18 and 19, a hearing was held before
Hearing Officer Robert E. Tillman and, thereafter, the Petitioner and
the Employer filed briefs. The rulings of the hearing officer made at
the hearing are free from prejudicial error and are hereby affirmed .2
I Boeing Airplane Company , Seattle Division, Case No. 19-RC-2194 ( issued on Janu-
ary 13, 1959 , unpublished).
9 The requests of the Intervenor and the Employer for oral argument are denied, as the
record, including the briefs , adequately presents the issues and the positions of the parties.
124 NLRB No. 83.
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