NRTA-AARP Phamacy

National Labor Relations Board - Board Decisions

Apr 30, 1974

210 N.L.R.B. 443 (N.L.R.B. 1974)

RETIRED PERSONS PHARMACY
Retired Persons Pharmacy, t/a NRTA-AARP Phar-
macy and Metropolitan Guild of Pharmacists. Case
5-CA-6108
April 30, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On October 30, 1973, Administrative Law Judge
George J. Bott issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief,' and General Counsel filed a
memorandum in reply to Respondent's exceptions
and brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions 2 of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Retired Persons
Pharmacy, t/a NRTA-AARP Pharmacy, Washing-
ton, D .C., its officers, agents , successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
I The Respondent has requested oral argument . This request is hereby
denied as the record , the exceptions , and the briefs adequately present the
issues and the positions of the parties
2 We agree with the Administrative Law Judge that the nonsecret poll
conducted by the attorneys for Respondent violated Sec . 8(a)(1) of the Act,
whether conducted for the purpose of testing the Union's continued status
as ntaJonty representative of the employees herein or as part of Respon-
dent's preparation for trial . With respect to the latter aim, we agree with the
Administrative Law Judge for the reasons stated by him that the inquiries in
the questionnaire used by Respondent 's attorneys far exceeded the "area of
permissible inquiry." As for the use of the same questionnaire to determine
whether the Union continued to enjoy majority support, we find that, in the
circumstances of this case , the Respondent had no reasonable basis for
doubting the Union's continued majority status at the time it refused to
bargain with the Union and denied it further recognition, and therefore,
443
could not, after taking such action, rely on evidence of employee
dissatisfaction disclosed through the expediency of a poll of its employees,
whether or not such was conducted in accordance with Siruksnes standards
An employer may not withdraw from a bargaining relationship without
adequate objective evidence to justify its action , and thereafter utilize a poll,
the results of which may well have been skewed by the employer's own
unlawful withdrawal of recognition , to attempt to justify that self-same
unlawful withdrawal Such a "bootstrap" defense is not, in our view, well
founded.
DECISION
STATEMENT OF THE CASE
GEORGE J. BoTT, Administrative Law Judge: Upon a
charge and an amended charge of unfair labor practices
filed by the above-named Union on May 17 and 22, 1973,
respectively, against Retired Persons Pharmacy, herein
called Respondent or Employer, the General Counsel of
the National Labor Relations Board issued a complaint on
July 2, 1973, alleging that Respondent had engaged in
unfair labor practices in violation of Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended, herein
called the Act. Respondent filed an answer and a hearing
was held before me at Washington, D.C. on August 14 and
15, 1973, at which all parties were represented. Subsequent
to the hearing, the Respondent and the General Counsel
filed briefs which have been considered.'
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION OF THE BOARD
Respondent, a corporation located in the District of
Columbia and engaged in the sale and distribution of
drugs, received materials directly from places located
outside the District of Columbia valued in excess of
$50,000, and sold and shipped goods valued in excess of
$50,000 to points located outside the District of Columbia,
during the 12 months preceding the issuance of the
complaint.
Respondent is an employer engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Metropolitan Guild of Pharmacists, herein called the
Guild, is a labor organization within the meaning of the
Act.
i General Counsel 's unopposed motion to correct the transcript is
granted.
210 NLRB No. 65
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues are:
1. Whether Respondent's withdrawal of recognition
from the Guild on April 19, 1973, was in good faith, based
on objective considerations and a reasonably grounded
doubt that the Guild no longer represented a majority of
unit employees.
2. Whether Respondent violated the Act by interrogat-
ing unit employees on May 21 , 1973, allegedly for the
purpose of preparing a defense to the refusal to bargain
charge.
3. Whether Respondent violated the Act by unilaterally
changing the hours of unit employees.
4. Whether Respondent was deprived of due process
because of the Administrative Law Judge's rulings on
evidence and because of an asserted inability to prepare for
trial by reason of the issuance of the complaint attacking
its interviewing of unit employees.
B. Basic Findings of Fact
Respondent's pharmacists having chosen the Guild by a
vote of 20 to 10 in a Board election, the Board, on
November 29, 1971, certified the Guild as the collective-
bargaining representative of all registered and/or graduate
pharmacists of the Employer at its Washington, D.C.
location, but excluding supervisors and the other usual
exclusions.2
Respondent and the Guild commenced negotiations, but
a final agreement was not executed until September 1,
1972, effective from May 29, 1972, to May 29, 1973. The
contract contains no union-shop clause , and no dues-
checkoff provision.
Contrary to Respondent's contention, I find that there
were no substantial changes in the composition of the unit
during the life of the contract. This is evident from a
comparison of the Excelsior list, which the Employer
supplied the Board in connection with the election, and a
list of employees in the unit on April 19, 1973, when
Respondent ceased recognizing the Union. It appears that
24 employees out of 28 in the unit were employed when the
election was held and remained employed on April 19,
1973.
I also find, contrary to Respondent's contention, that the
Guild and its members remained active to Respondent's
knowledge during the life of the contract. Paul Woods, one
of the Guild's grievance committeemen, testified, without
contradiction, that he handled a number of grievances with
Supervisor Brault, and one with Manager Altman during
the life of the agreement. Two employees were members of
the board of directors of the Guild, and the credited
testimony is that they and unit employees participated in
many Guild meetings on and off Respondent's premises.
During the life of the contract, at least 6 meetings,
generally attended by approximately 20 unit employees,
s Four ballots were challenged in the election . The challenges were not
resolved smce they were not determinative of the results , but it now appears
that three of the persons challenged were supervisors.
were held on Respondent 's premises during lunch or break
periodS.3
On March 7, 1973, the Guild notified Respondent's
attorney of its intent to terminate the agreement at its
expiration date and to modify certain of its terms through
collective bargaining. After further correspondence a
meeting between Respondent 's attorney Lewis and Guild
attorney Lechner took place in Washington , D.C. on April
19, 1973. During the meeting , Lewis advised Lechner that
the Employer felt that the Guild no longer continued to
have the support of a majority of the pharmacists and
intended to file a petition with the Board for a new
election . Lechner opposed such a course and asked Lewis
what evidence the Employer had to support its belief. I
credit Lechner's testimony that he received no response to
his inquiry about what Respondent's belief was based on.
On April 20, 1973, Respondent filed a representation
petition with the Board, which was not accompanied by
any evidence to support its expressed belief that the Guild
no longer had majority support, and on May 2, 1973, the
petition was dismissed as untimely , since it was filed during
the insulated period of the contract . It was stipulated that
since April 19, 1973 , Respondent has refused to meet and
bargain with the Guild. The first charge of refusal to
bargain was filed by the Guild on May 14, 1973, and
served on Respondent on May 17.
On May 21, 1973, Attorneys Giovannetti , G. Harrison
Darby and Peggy L. Braden, from the law firm which has
represented Respondent throughout, interviewed all unit
employees at Respondent's premises , using the same
introductory statement and questions . The prefatory
statement and the questions used by the attorneys are in
evidence and are also attached hereto as "Appendix A."
The introductory statement, read to all unit employees at
the commencement of the interviews states, in part, that
the Employer does not feel that the Guild has the support
of the pharmacists and that the interviewer would "like to
ask you a few questions to assist in the preparation of a
defense to unfair labor practice charges filed by the
Guild." There are 46 questions in the questionnaire.
The employees were interviewed separately, in private
rooms away from the work area, after having been
summoned from their stations by a management represent-
ative. They were advised that they did not have to answer
any questions and were free to leave. In addition, they were
told there would be no reprisals if they did not cooperate.
It was stipulated that of the 27 unit employees called for
interviews , 16 answered most or all of the questions. It also
appears that the Guild's attorney, having quickly learned
that the employees were being questioned, counseled their
plant representative to advise them to refuse to cooperate if
they wished, but, if they feared reprisals , to comply, but to
lie.
Sometime in early May 1973, prior to the expiration of
the collective-bargaining contract, Respondent's officials
decided to reduce the workweek of unit employees by 2
hours. This decision was implemented on May 30, 1973,
the day after the contract expired, and it was stipulated
3 The findings on "viability" and Respondent 's awareness of it are based
on the credited testimony of employees Woods and Meszaros.
RETIRED PERSONS PHARMACY 445
that it was done without notice to and bargaining with the
Guild.
Respondent presented certain evidence in support of its
contention that its refusal to bargain with the Union since
April 19, 1973, was based on its good-faith belief that the
Union no longer had the support of a majority of
employees.
Manager Altman testified that his belief that the Guild
did not have majority support of the pharmacists was
based, in part, on his inability to observe any Guild activity
among the employees, but I have found that the Guild was
sufficiently active, and that Respondent knew it. Altman
also testified that certain employees expressed dissatisfac-
tion with the Guild to him. He said that "probably in the
fall of 1972" employee Avella stated to him that he could
not understand why the employees wanted the Guild
because it had done nothing for them, but, in fact, had lost
them money . He also had two talks with employee
Johnson, he said , one of which occurred before the
election . In the second conversation , which he said took
place in "the first part of this year," Johnson told him that
he should spend more time trying to get rid of the Guild
than in attempting to "pacify" it.
On or about April 1, employee Turner showed him a list
of employees divided into two columns, Altman said.
There were 14 names listed in each column, and Altman
said that Turner stated that one group were those whom
she "believed" were members of the Guild and the other
those who were not "in favor of the Guild."
Altman took employee Levy to dinner in October 1972
in appreciation for extra production, he said. He testified
that during dinner Levy commented that he did not need
the Guild to represent him, and preferred to represent
himself.
In addition to the four conversations he had with
employees , as just set out, Altman said that Supervisor
Brault told him that he had spoken to "many" employees
and that they were "unhappy with the Guild." These
conversations with employees, which Brault reported to
him, and his own , "indicated the Guild did not enjoy the
full support of the pharmacists," nor did they have
majority support of the pharmacists ," Altman stated.
Pharmacy Manager Brault testified that he had many
conversations with employees about the Guild after the
election but prior to April 19. There were 28 pharmacists
employed on April 19, and Brault testified , without
contradiction , that 14 of them expressed dissatisfaction
with the Guild to him. The names of the pharmacists and
the essence of their remarks, as Brault described them,
follow:
Avella: He was "quite outspoken , asking me on numer-
ous occasions why we didn't get rid of the Guild . . . why
don't you get rid of those bastards ......
Campbell: One conversation, in "early April," in which
she expressed strong displeasure with the treatment of a
fellow employee (Kim) by the Guild. This statement could
have been made "three or four months ago," according to
Brault.
Downward: More than one conversation in which he
would ask, "What are the Guild boys up to now?" On
other occasions he said he "had nothing personal against
the Guild, but he did not need it."
Garofalo: He also complained about the Guild treatment
of employee Kim around the same time employee
Campbell did, and he also stated that he had no use for the
Guild.
Griffen: Many conversations at unspecified times be-
tween the election and April 19, in one of which he stated
that although he had nothing personal against the Guild,
"he just couldn 't use them ." At other times he voiced
annoyance over the "noise" in the pharmacy and asked
Brault if he could not get the "Guild people" to quiet
down.
Goldman: At some unremembered time, "some time
ago," but "definitely" prior to April 19, Goldman replied
that he had "no use for them" when Brault asked him if the
Guild "was bothering him."
Johnson: Was in Brault's office frequently, before and
after the election, at one time complaining about Kim's
treatment by the Guild, and asking, something "to the
effect," if there was anything the Employer could do to get
the Guild "off her back."
Kim: During the first 3 months of the year many
conversations with her in which she complained about the
Guild people interfering with her work and trying to get
her to join the Guild.
. Levy: From shortly after the election to "early this year,"
he complained about the Guild interfering with his work
and stated that he wanted to be "left alone to do his own
work the way he wanted to."
Lewis: Having been told by his assistant that the Guild
was now "going after Lewis," Brault asked her if anyone
was bothering her, and she replied that "she didn 't bother
with the Guild at all."
Maciulla: Told Brault that he "didn't want any part of
the Guild." Also in early 1973, when he returned to work
after a severe illness, stated that he had never been
involved with the Guild before and so they were not "going
to bother him." This remark was triggered by Brault's
expressed concern over whether the Guild was "bothering"
the employees.
Testamark: Asked at time of Kim incident whether she
was being "bothered" by the Guild, she answered that she
"had no time for the Guild."
Turner: In latter part of 1972 she was disillusioned with
the Guild and did not want any part of it.
Wolf:: Three or four conversations prior to April 19,
complaining "about the noise and the meetings, the
gatherings that were going on (that ) he attributed to the
Guild people ." Once when Brault said he would speak with
the Guild about the problem, Wolf told him to forget the
grievance because the Guild would do nothing about it.
Brault testified that he frequently discussed the conversa-
tions he had with employees about the Guild with Altman,
at staff meetings or other times.
C. Analysis, Additional Findings and Conclusions
1. The claim of "good faith doubt" of the
Guild's majority status
The parties agree that it is well established that a
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certified union , upon expiration of the first year following
its certification, enjoys a presumption that its majority
representative status continues.4 Once the presumption is
shown to be operative, as here, a prima facie case is
established that an employer is obligated to bargain and
that its refusal to do so is unlawful. The prima facie case
may be rebutted if the employer affirmatively establishes
that its refusal was predicated upon a "good faith and
reasonably grounded doubt of the union's continued
majority status."5 The presumption may also be rebutted if
the employer can show by competent evidence that the
union in fact no longer enjoyed majority representative
status .6
With respect to the first of these methods of rebutting the
presumption, that is, "good faith doubt," no "simple
formula" exists for testing the issue, and the question "can
only be answered in the light of the totality of the
circumstances involved in a particular case." 7
Since I have discredited Altman's testimony that he had
reason to believe that the Guild was dormant,8 and
because there is no evidence of any substantial change in
the unit upon which Respondent can rely,9 there remains
for examination only the conversations that Altman and
Brault had with unit employees, sometime prior to
Respondent's refusal to continue recognition, in order to
determine whether that evidence is of such character that
Respondent could on the basis of it reasonably believe that
the Guild no longer maintained "majority representative
status ," which is defined as "a majority of employees in the
unit wish[ing] to have the union as their representative for
collective bargaining purposes." 10
Brault testified about conversations he had with 14 unit
employees, the content of which, Respondent contends, led
it to objectively and reasonably conclude that the Guild
had lost the support of a majority of the pharmacists." In
my opinion, the evidence found in the remarks of at least
six employees who spoke with Brault is not sufficient to
overturn the Guild's presumption of continued majority
support because the statements are not clear or firm
enough indications that the employee did not want the
Guild to repret ent him as to reasonably justify Respondent
believing that such was the case.
Not only was Brault unable to fix the time he spoke with
Campbell, but her comments amount to no more than a
criticism of what she apparently thought was unfair
treatment of employee Kim by Guild members. Similarly,
employee Johnson merely asked Brault, something "to the
effect," whether Respondent could get the Guild "off
Kim's back." In neither Campbell's nor Johnson' s state-
4 Automated Business Systems, A Division of Litton Business Systems, Inc,
205 NLRB No. 35; Emerson Manufacturing Company, Inc, 200 NLRB No.
33; Terrell Machine Company, 173 NLRB 1480, enfd. 427 F.2d 1088 (C.A 4,
1970). "Presumptions in the law are a procedural substitute for evidence
(and they are based upon ) the probability of fact . . " N.LR.B. v.
Tragniew, inc., 470 F.2d 669, 674 (C A. 9, 1972).
5 Terrell Machine Co., supra.
B Id at 1480-81.
1 Celanese Corporation of America, 95 NLRB 664, 671-673.
8 Not only were employees Meszaros and Woods persuasive on this
point, but Supervisor Brault, who Altman said briefed hun on conversations
he had with employees about their attitude toward the Guild, testified that
employees complained to him on numerous occasions about Guild activity
ments of disagreement with Guild member action is there a
clear indication that the speaker did not want to be
represented by the Guild. Disagreement with the policies
of a representative does not mean that one has abandoned
support of that representative.12
Supervisors having apparently reported to him that
Guild members were talking to fellow employees in the
unit , Brault approached some of these employees and
questioned them. He said he asked Lewis if anyone was
"bothering her," and that she replied that she "didn't
bother with the Guild at all." Testamark responded to his
inquiry by stating that "she had no time for the Guild."
Laying aside the possible impropriety of Brault's question-
ing of Lewis and Testamark, as well as Lewis' apparent
avoidance of the main thrust of Brault's question, I find
that their responses did not rise to the level of evidence
which would reasonably support a belief that they did not
desire Guild representation . Not "bothering with" or
having "no time" for the Guild are equivocal statements
which can be interpreted as meaning "no time" for active
support, such as, attendance at union meetings or payment
of dues rather than as not desiring representation at all.
Brault also asked employee Goldman if the Guild was
"bothering him," which is not the same as asking whether
he wanted to be represented by the Guild, and although
Brault said Goldman indicated no "use for the Guild,"
Brault's qualification of the response as being "basically"
what' the employee stated robs it of any probative value.
Employee Wolf complained to Brault a number of times
about "Guild people" making too much noise in the
pharmacy, apparently while holding Guild meetings.
Brault was unable to fix the time of these statements except
to say that they were both before and after the Board
election . In addition to the uncertainty about the dates of
Wolf's criticisms of Guild activity, I find that his remarks
do not constitute probative evidence fairly showing that
Wolf did not want the Guild to represent him for the
purpose of collective bargaining.13
I find that the evidence is insufficient to overcome the
presumption of continued majority support because in at
least six of the instances of conversations with employees
about the Guild the evidence does not meet the Board's
standards of objective considerations sufficient to support
a reasonable doubt of the Guild 's majority . I find,
therefore, that Respondent did not in good faith believe
that the Guild had lost its majority even if the other 8
employees in the unit of 28 who talked to Brault had
withdrawn their support from the Guild and clearly stated
such to Respondent's officials.14
in the pharmacy.
9 Cf. Convair Division of General Dynamics Corporation, 169 NLRB 131,
134-135.
i° Terrell Machine Co, supra at 1481, fn. 3.
11 Altman testified to conversations with four employees, but they were
among the 14 Brault heard from.
i2 Gulf Machinery Co, 175 NLRB 410, 413.
is Davis & Hemphill, Inc., 177 NLRB 282, 285.
i4 Altman testified that Brault had, or made, many "lists" of employees,
who were " for," "against," or "in between." Brault did not mention these
"lists" in his testimony, and they were not produced. Aside from the
question this raises about Altman's testimony , it is significant that even on
Brault's "lists," there were some persons "in between," and no majority
RETIRED PERSONS PHARMACY 447
2. Respondent's poll of employees to determine
whether the Guild in fact represented a majority
of employees
The prima facie case based upon the presumption that
majority status continues after the expiration of the
certification year may also be rebutted if the employer can
affirmatively establish by competent evidence that at the
time of the refusal to bargain the union "in fact no longer
enjoyed majority representative status." 15
Although its arguments in support thereof tend to
overlap or even merge , Respondent defends its interroga-
tion of unit employees on two grounds, the first being that
its attorneys, by speaking with employees, wanted, at the
hearing, "to be able to present [evidence of ] no majority [in
fact] on the date of the refusal ...." 16 Respondent
admittedly had no independent evidence that the Guild, in
fact, no longer enjoyed majority support, and it is clear to
me, therefore, despite some confusion engendered by
Respondent 's reliance on the principle that Respondent is
entitled to prepare a defense to an unfair labor practice
charge,-a matter to be handled next-that one thing at
least Respondent's attorneys were doing on May 21, when
they questioned unit employees about their membership
and activities in the Guild, was conducting a nonsecret poll
or survey intended to gather evidence to support an
alternative contention that the Guild no longer in fact
represented the employees, if its other position that it had a
good-faith doubt, based upon objective considerations,
that the Guild did not enjoy majority support was found
legally unsupportable.17
The Board has long been confronted with the problem of
how an employer may determine that union claims to
represent a majority of his employees are honest claims. In
Blue Flash Express, Inc.,18 the Board found systematic
interrogation of employees, accompanied by certain
safeguards , to determine whether in fact employees
supported the union, to be a lawful poll, although
nonsecret . In Struksnes Construction Co, Inc.,19 however,
the Board revised its Blue Flash criteria and held that the
following standards must be met when testing a union's
claim of majority:
Absent unusual circumstances, the polling of em-
ployees by an employer will be violative of Section
8(a)(1) of the Act unless the following safeguards are
observed: (1) the purpose of the poll is to determine the
truth of a union's claim of majority, (2) this purpose is
communicated to the employees, (3) assurances against
reprisal are given, (4) the employees are polled by
secret ballot, and (5) the employer has not engaged in
indicated as "against " In Taft Broadcasting, WDAF-TV, AM-FM, 201
NLRB 801, the Board noted that a secret poll of employees, which the
employer took, which showed the employees evenly split on the question of
union support, only weakened the presumption of majority support.
15 Terrell Machine Company, 173 NLRB 1480, 1481
16 Resp . br., p. 31, quoting Attorney Darby's testimony at the hearing.
17 At the hearing, Respondent's counsel stated that he "assumed" at the
time that Respondent "probably" had objective considerations to support
its refusal, but since he had not "investigated it thoroughly" or "at all," he
was preparing "an alternative defense" of no majority in fact. He testified
that the "purpose of (the interviews was not) to ascertain objective
considerations for the pharmacy's refusal to bargain "
is 109 NLRB 591
unfair labor practices or otherwise created a coercive
atmosphere.
Respondent's attorneys' poll of employees was defective
on two grounds. First of all, it was not secret because each
employee was asked to state his or her name before the
interview began. In addition, the true purpose of the poll
was not communicated to the employees. The only
legitimate purpose of such a poll is to determine whether
employees wish a union to continue as their representa-
tive.20 In their introductory remarks, the attorneys, reading
from a prepared statement, advised the employees that
they were advised by the management of NRTA that they
did not feel "that the Guild has the support of the
pharmacists [and] therefore would like to ask you a few
questions to assist in the preparation of a defense to unfair
labor practice charges filed by the Guild." This was far
from being a simple statement of the question, coupled as
it was to an equally unclear reference to "a defense to
unfair labor practices," and the numerous questions which
the interviewers then proceeded to ask could only serve to
blur the issue further. It would appear, therefore, that
under Struksnes the poll was coercive and a violation of
Section 8(axl) of the Act, unless it was excused on another
ground.
Starting from the premise that a refusal to continue
recognition of an incumbent is not an unfair labor practice
if an employer is able to show by clear evidence that a
union does not in fact enjoy the support of a majority of
employees, and then relying on certain cases which
recognize the right of employer to interview employees to
ascertain facts to assist it in preparation of its defense in
case a complaint is issued, Respondent contends that its
interrogation here was for that purpose and was permissi-
ble as a matter of law21 I find that the cases upon which
Respondent relies do not apply as a matter of principle or
are factually distinguishable.
In Johnnie's Poultry Co.,22 the Board noted that "Despite
the inherent danger of coercion therein," it and the courts
had held that "where an employer has a legitimate cause to
inquire," he may interrogate employees on matters involv-
ing their Section 7 rights without violating the Act. The
Board described the purpose which had been held to be
legitimate as being of two types: "the verification of a
union's claimed majority status to determine whether
recognition should be extended . . . and the investigation
of facts concerning issues raised in a complaint where such
interrogation is necessary in preparing the employer's
defense for trial of the case."
In its discussion of the first type of situation, that is,
19 165 NLRB 1062, 1063. In N.LR B. v. Gissel Pack,ng Co., 395 U.S. 575,
609 (1969), the Supreme Court cited the Struksnes standards with apparent
approval. In Taft Broadcasting, supra, the employers action in conducting a
secret poll of employees on the majority issue was not attacked as being in
violation of Struksnes standards.
20 Struksnes Construction Co., supra
21 N.LR.B v. Katz Drug Ca, 207 F.2d 168 (C.A. 8); Joy Silk Mills v.
N LR B., 185 F.2d 732 (C.A.D C); N LR B. v Neuhoff Brothers Packers,
Inc., 375 F.2d 372 (C.A. 5, 1967); Johntue's Poultry Co., 146 NLRB 770;
enforcement denied on other grounds 344 F.2d 617 (C.A. 8); May
Department Stores Co., 70 NLRB 94, 95.
22 Supra at 774-775.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testing a union 's claim of majority representation, the
Board, in summarizing its policy of permitting interviewing
of employees in order to determine whether recognition
should be granted, relied on Blue Flash Express, Inc.,23 a
situation involving polling of employees , but as pointed out
earlier, Blue Flash Express was modified in Struksnes to
preclude nonsecret polling of employees . The poll conduct-
ed by Respondent's attorney in this case was nonsecret,
and it cannot be made less of a poll by attempting to
squeeze it under the principle covering the second
situation , preparation for trial , because it does not fit there.
In my opinion , Respondent is attempting to improperly
blend principles designed to cover different kinds of cases
in order to legitimatize its nonsecret poll. If this can be
done then Struksnes is no longer viable , because all that an
employer need do to avoid its sanction is to label its
nonsecret interviews "preparation for trial" after it denies a
union's request for recognition or refuses to continue
bargaining with an incumbent.
But even if Respondent 's attorneys ' questioning of
employees is judged on the basis of the rule in Johnnie's
Poultry Co., it is clear that the questions in the question-
naire used by them , viewed in the light of the guides set
forth by the Board and the courts in the cases where the
issue was considered , all exceeded the "area of permissible
inquiry." The Board has held, with court approval, that in
such situations certain safeguards "designed to minimize
the coercive impact of such employer interrogation" must
be observed . Not only must the employer communicate the
purpose of the questioning to the employees , assure them
against reprisals, and obtain their cooperation on a
voluntary basis, but "the questions must not exceed the
necessities of the legitimate purpose by prying into other
union matters , eliciting information concerning an employ-
ee's subjective state of mind , or otherwise interfering with
the statutory rights of employees." 24
In Joy Silk Mills v. N.L.RB., the court described the
Board's standards in these cases as "reasonable . . . and
aptly designed to carry out the purposes of the Act." 25
Noting that "the fact that the fruits of the questioning are
to be used in preparation for a hearing does not make the
interrogation any less coercive," the court interpreted the
Board's rule to mean that despite the coercive nature of the
interrogation "a limited amount of such questioning" is
permitted in fairness to the employer despite the "possible
restraint which may result." 26 The employer, however, in
the court's view, "is restricted to questions relevant to the
charge of unfair labor practices and of sufficient probative
value to justify the risk of intimation which interrogation
as to union matters necessarily entails ." 27 It has also been
ss It at 773.
94 Ibid.
25 Supra at 743 . The court set forth the Board 's policy as the Board had
stated it in May Department Stores Ca, 70 NLRB 94, 95. In that case, the
Board, in addition to the restrictions laid down in Johnnie 's Poultry, held
that the interrogation must not "discuss the nature or extent of union
activity."
2e Ibid
27 Ibid
28 Texas Industries, Inc. v . NLRB., 336 F .2d 128, 133 (C.A. 5, 1964).
29 N.L.R.B. v. NeuhoffBrothers Packers, Inc., supra at 377.
so Terrell Machine Company, supra at 1481, In. 3.
31 Par. 8(b) was amended at the hearing to add the allegation that
observed that there is "a delicate balance between the
legitimate interests of the employer in preparing its case for
trial and the interest of the employees in being free from
unwarranted interrogation . . . for . . . any interrogation
by the employer relating to union matters presents an ever
present danger of coercing employees in violation of their
Section 7 rights." 28 "Consequently, the process of investi-
gation through interrogation of employees must be a
carefully conducted one lest that very activity--or the
prospect of it-inhibit employees ...: 1 29
Since , in seeking bargaining, the Guild was not relying
on authorization cards or other documentary evidence but
on the presumption that its Board certification entitled it
to, the only relevant inquiry in interviews designed to
determine whether it continued to have majority support in
fact was "do you wish the [Guild] to represent you for
purposes of collective bargaining ?" 30 But, as pointed out
earlier, this question was never posed , although the
questionnaire was designed and the interviewer attempted
to explore almost every other area of employee union
activity. Thus, all questions in the questionnaire fail the
test of relevancy.
The questionnaire is also defective because it delves into
the union activities of employees , their fellow employees,
and possible nonemployee members or officers of the
Guild.31 Employees were asked if they were members of
the Guild; what they did to become members; whether
they were paying union dues; whether and how often they
attended union meetings; who the officers of the Guild and
the shop steward were; whether they ever had a grievance
handled by the Guild, and, if so, whether it was handled
satisfactorily. These inquiries about employee union
activity and the activities of others, disregarding as they do
the "delicate balance" that must be observed in a
"carefully conducted" investigation , suggests an attempt to
undermine the Guild 's status as collective-bargaining
representative rather than a legitimate effort to prepare for
trial.32
Other questions are irrelevant as a matter of law even if
the right question had been asked. The questions about
membership and dues are irrelevant because there is no
necessary correlation between these items and the number
of union supporters.33
Some of the questions are improper because they probe
into matters which involve the subjective state of mind of
the employee. Examples are: Do you actively support the
Guild; was your grievance handled satisfactorily, if you
had one; and what provisions of the Guild's constitution
do you remember.
Finally, apart from the motive of their draftsmen,
Respondent illegally interrogated employees with regard to other employ-
ees' membership in and activities on behalf of the Guild , as well as with
respect to their own . As appears from the discussion of this subject, infra,
the amendment is factually supported by many of the questions in the
written questionnaire.
32 They also suggest , contrary to Respondent 's testimony at the hearing,
that the questionnaire was designed to discover support for Respondent's
position that it believed the Guild to be inactive and that this was an
"objective consideration" supporting its belief that the Guild did not
represent a majority.
33 Terrell Machine Co., supra at 1481; Barrington Plaza and Tragniew,
Inc., 185 NLRB %2,%3.
RETIRED PERSONS PHARMACY
practically every inquiry is so remote from the issue in the
can as to have no probative value in determining the
question of whether the Guild enjoyed continued majority
support . These inquiries , as indicated earlier, are directed
to such matters as membership , dues , attendance at
meetings , and the names of officers or stewards of the
Guild, but they also delve into such extraneous matters as
how and to whom an employee pays dues ; increases in
dues and imposition of assessments ; number and kind of
Guild communications to members ; address and telephone
number of the Guild ; and the employee 's awareness of the
provisions of the Guild's constitution and the labor
agreement's expiration date, "The evidence which could be
garnered from that questioning would be of so little
probative value as not to warrant the risk of infringing
upon employee rights." 84
Respondent 's interrogation was wide ranging , mostly
irrelevant, delving deeply not only into employee states of
mind but into their most intimate activities with respect to
the Guild. I find that it exceeded by far the limitations laid
down in the cases and therefore violated Section 8(a)(1) of
the Act.
3. The refusal to bargain by withdrawing
recognition and by the unilateral change in
working hours
Having found that Respondent's refusal to bargain with
the Guild was not predicated on a good-faith and
reasonably grounded doubt of the Guild's continued
majority status , and having also found that Respondent's
interrogation of employees was a violation of the Act and
not a permissible effort to prepare a defense to the refusal-
to-bargain charge , it follows that Respondent violated
Section 8(a)(1) and (5 ) of the Act by refusing to meet with
and recognize the Guild on and after April 19, 1973, and
by, on May 21, 1973, without notice or bargaining with the
Guild, interrogating its employees in the appropriate unit
with regard to their membership and activities and the
activities of others on behalf of the Guild.
I also find that by changing the hours of unit employees
from 42 hours to 40 hours unilaterally and without notice
to the Guild, Respondent also violated Section 8(aX5) and
(1) of the Act.
94 Joy Silk Mills v. N.L.R B., supra at 744. Respondent's counsel's
arguments that all questions were relevant because, in effect, an answer
given to one would throw light on the significance of answers to others,
allowing counsel to make a judgment as to whether the employee was a
member of or supported the Guild is not only unimpressive but, in my view,
makes the interrogation more offensive . Counsel was engaging in a form of
cross -examination, and, in effect , conducting a kind of a lie detector test,
using "control" questions to gauge the truth of employees' answers. For
example , counsel states that questions about the amount of dues and
method of payment were relevant because "the responses to these questions
would assist in weighing the accuracy of a pharmacist's statement that he
was paying dues." Counsel was not willing to accept evidence of employee
support for the Guild obtained from answers to some of its questions
without testing those responses with other questions, the significance of
which only counsel and not the subjects of the survey understood at the
time. The final determination then as to whether the Guild maintained
majority support would depend on counsel 's subjective evaluation of the
responses . This is not the kind of clear evidence that must be presented to
show that a union does not represent a majority in fact, and it was,
449
4. The due process contentions
Following the interviewing of pharmacists of May 21,
1973, the Guild filed an amended charge complaining
about the matter, and, on July 2, 1973, the General
Counsel issued the complaint in this case which included
an allegation that the interviews were violative of the Act.
Respondent argues that General Counsel interfered with
its right to interview employees by issuing the complaint
and subsequently indicating that the complaint would be
amended if Respondent continued to interrogate employ-
ees. Consequently, Respondent concludes, Respondent
was deprived of due process of law.U I find Respondent's
position to be completely without merit . General Counsel's
amended complaint did not allege that any legitimate
polling or interviewing of employees was illegal, and
Respondent was free, with the assistance of competent
counsel , to make an informed judgment with respect to
what interviewing would be proper under the cases.
Respondent cannot shift the responsibility for any failure
on its part to prepare its defense to the General Counsel
because he saw illegality in its past conduct . The General
Counsel, acting under the provisions of the Act, has a
responsibility for making legal judgments with respect to
conduct charged to be a violation of the Act equal at least
to counsel's obligation to adequately prepare a defense for
trial. If General Counsel errs in his view of the facts or the
law, the operations of the statute-hearing, appeal, Board
decision, and appellate review-provide a means for
correcting those errors , but the initial responsibility to
make the jud$fnent remains his and may not be "chilled"
or "inhibited' by counsel's fears that if he engages in
proper preparation for trial in his contacts with employees
General Counsel may erroneously complain about it .36
Respondent also argues that it was deprived of its
constitutional rights by not being permitted to introduce
testimony at the hearing from the pharmacists to prove
that on April 19 the Guild did not in fact represent the
pharmacists, and by the rejection of its offer to prove that
"if these people were called the majority of the employees
would indicate and would testify, would state under oath,
that on the 19th of April they did not support the Union
and they were not members of the Union.' s'r
Prior to making its offer of proof, Respondent had
moved to dismiss the allegation of the complaint alleging
illegal interrogation of employees on the grounds that the
moreover, a patently unfair advantage taking of employees who might have
in fact desired continued representation by the Guild.
35 On July 12, Respondent sought a "protective order or order of
severance" from an administrative law judge , requesting that General
Counsel be enjoined from further amending the complaint to allege
additional violations of the Act, if counsel for Respondent engaged in
additional interviews of employees in preparation for trial , or, in the
alternative , that the issue of interrogation be severed from the other issues
and immediately set for trial . The motion was denied , and the Board denied
Respondent 's request to appeal the ruling . In General Counsel's opposition
to Respondent's motion , General Counsel alluded to counsel's interrogation
of employees , which I have concluded violated the Act, and stated that such
conduct " if repeated would clearly warrant amendment of the complaint."
9e It is also not clear just what additional interviewing Respondent
claims it would have engaged in if General Counsel had not amended his
complaint . It had exhaustively interviewed all willing employees on May 21,
and if it repeated those interviews the employees presumably would respond
in the same fashion.
37 Counsel's offer of proof quoted in Resp . br., p. 7.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interrogation was in preparation for its defense and that its
preparation had been interrupted by the issuance of the
complaint. Counsel stated that if the motion to dismiss
were granted Respondent "would interview our employee
witnesses prior to calling them to the stand." It was further
explained that additional interviewing was necessary in
order for "us to ascertain whether the [original] employee's
answers that were given us were truthful and whether and
which employees we should call as witnesses." Another of
Respondent's attorneys explained, in support of the
motion, that since the employees were interviewed on May
21, interviews which I have found to be coercive, no one
had spoken to those persons. At another point in the
record counsel repeated that no one had spoken to or
discussed the issues with employees since the May 21
interviews and, because the employees had been advised
by the Guild to he in the interviews, it "is difficult for us to
ascertain, even at this time when calling them, whether in
fact what was ever said to us was true."
The Administrative Law Judge did not grant Respon-
dent's motion to dismiss, and counsel for Respondent then
stated that he would call as witnesses all unit employees
and ask them if they supported or were members of the
Guild on April 19, as bearing on the "majority in fact"
issue . The Administrative Law Judge advised counsel that
he would not permit those inquiries, but would permit
questions bearing on whether any employee had indicated
in anyway to any management representative, prior to
April 19, that he did not support the Guild. In the light of
my ruling counsel stated that he would not call any unit
employees as witnesses, repeating that he had not spoken
to employees since May 21.
It is obvious from counsel's statements that he had no
facts in his possession to support his offer of proof that a
"majority of the employees would indicate and would
testify . . . that on the 19th of April they did not support
the Union and were not members of the Union." This is so
because if "no one" had spoken with the employees since
the May 21 interviews, Respondent had no information on
the majority-in-fact issue other than that gathered in the
interviews . Aside from the fact that any data obtained
from Respondent's interrogation was tainted and unrelia-
ble because of its illegality, there is no evidence, and no
one suggests that there is, that a majority of employees
interviewed indicated that they did not want the Guild to
represent them; indeed, as has been stated before, they
were not even asked that question. Counsel had no factual
basis to support his offer, and this is one reason for
rejecting it.
It appears , therefore, to use the shop-wom phrase, that
counsel was proposing a fishing expedition, hoping to
gather some evidence to support Respondent's position.
Even if this were permissible under other circumstances,
the coercive nature of the investigation and the unreliabili-
ty of anything that could result from it are other reasons
for denying it.
Four months after Respondent had refused to bargain
38 This is not like asking an employee whether he signed a union card
and what was said to him by the solicitor , when a union relies on cards as
evidence of majority support . But even in those cases an examination of an
employee's subjective motivation is not permitted, and it is recognized that
with the Guild, employees would be examined and cross-
examined in open court, in the presence of Respondent's
officials and the attorneys who had previously interrogated
them, on how they felt about Guild representation before
the Respondent rejected the Guild . Even if Respondent
would be required to accept the first answers of the
witnesses, the,Guild and the General Counsel would not,
and cross -examination would then probe deeply into the
question of how the witness had manifested a desire not to
be represented , if that was his answer . Was it actually
before April 19, or not; did he inform anyone else about
his mental state? Attempts at impeachment might then
follow. This process obviously would, without justification,
infringe on employees' Section 7 rights. The fruits of it
would also be unreliable because credibility findings would
have to be made in many cases on whether or not the
witness really did or did not want the Guild to represent
him 4 months earlier.38
Respondent's due-process arguments here are also based
on a number of false premises . The first is that by issuing a
complaint charging Respondent with a violation of the Act
by interrogating employees, General Counsel "chilled"
Respondent's efforts to prepare its defense , but I have
found this position untenable. The Respondent also argues
that I should have granted its motion to dismiss that
allegation so that it could start interviewing employees
again , but because I did not , it was again prevented from
preparing its defense, another position which I find to be
logically unsupportable. On the basis of those premises,
Respondent contended at the hearing that it was "shack-
led" and that its last alternative was to call all the
employees as witnesses, for it had no other way of
defending itself. This is not the fact, because nothing
prevented Respondent from engaging in legal interviews
with employees, and the law, as we have seen, permits an
employer to poll his employees, if the poll is secret and
other standards are met.39 Respondent chose not to poll its
employees on the simple question of whether they wanted
the Guild to represent them, and it also declined to accept
my invitation to call any employee who could testify that
he gave any evidence of Guild unacceptability to manage-
ment prior to April 19.
It seems that what Respondent's due process contention
really comes down to is that it has been prevented from
coercively interrogating employees in an attempt to
buttress its initial and shaky position that Respondent had
reasonable grounds to believe that the Guild no longer
represented a majority of employees on April 19, when
recognition was withdrawn. I find that Respondent was
not deprived of due process of law in this proceeding.
IV. THE REMEDY
Having found that Respondent violated Section 8(axl)
and (5) of the Act, I shall recommend that Respondent
cease and desist from engaging in such unfair labor
practices and from like or related unfair labor practices
and to take certain affirmative actions which I find will
"employees are more likely than not, many months after a card drive and in
response to questions by company counsel, to give testimony damaging to
the union ..." N LR B v. Gissel Packing Co., 395 U .S. 575, 608.
39 Struksnes, supra, Taft Broadcasting, supra
RETIRED PERSONS PHARMACY
effectuate the policies of the Act. I shall also recommend
that Respondent bargain collectively, upon request, with
the Guild as the exclusive bargaining representative of
employees in the appropriate unit, and to embody any
understanding reached in a signed agreement.
Upon the basis of the foregoing findings of fact and on
the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Guild is a labor organization within the meaning
of the Act.
3. By refusing on or about April 19, 1973, and at all
times thereafter, to meet and bargain with the Guild as the
exclusive representative of employees in the appropriate
unit, Respondent violated Section 8(axl) and (5) of the
Act.
4. By coercively interrogating employees in the unit on
May 21, 1973, without notice to the Guild, Respondent
violated Section 8(a)(1) and (5) of the Act.
5. By unilaterally and without notice to and bargaining
with the Guild, reducing unit employees' working hours,
Respondent violated Section 8(a)(l) and (5) of the Act.
6 The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
Upon the foregoing findings of fact , conclusions of law,
upon the entire record , and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER40
Respondent , Retired Persons Pharmacy, t/a
NRTA-AARP Pharmacy, its officers, agents , successors,
and assigns , shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees with respect to
their union membership or activities or the membership or
activities of others.
(b) Unilaterally and without notice to the Guild,
changing hours of work of unit employees or any other
term or condition of employment.
(c) Refusing to bargain with the Guild, upon its request,
as the exclusive representative of the following appropriate
bargaining unit:
All registered and/or graduate pharmacists at the
Employer's Washington, D.C., location, excluding
office clerical employees, all other employees, guards
and supervisors as defined in the Act.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Guild as
the exclusive representative of the employees in the above-
described appropriate unit and embody in a signed
agreement any understanding reached.
(b) Post at its place of business in Washington, D.C.,
copies of the attached notice marked "Appendix B."41
451
Copies of said notice , on forms to be furnished by the
Regional Director for Region 5, shall, after being duly
signed by an authorized representative of Respondent, be
posted by Respondent immediately upon receipt thereof
and maintained by it for a period of at least 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
4° In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.
91 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX A
Statement Made by Attorney to Employees
I am one of the attorneys representing NRTA. As you
may recall, about 1 - 1/2 years ago there was an election
conducted by the NLRB. Following the election, NRTA
entered into a contract with the Guild of Pharmacists. I am
advised by the management of NRTA that they do not feel
that the Guild has the support of the pharmacists. I
therefore would like to ask you a few questions to assist in
the preparation of a defense to unfair labor practice
charges filed by the Guild.
I want you to know that you are under no obligation to
answer any of my questions or even to speak to me. I
assure you that anything you tell me will not affect your
job in any way, under any circumstances , and you are free
to leave now.
Name
How long have you been employed at NRTA?
Are you a member of the Guild?
When did you become a member?
What did you do to become a member?
Do you actively support the Guild?
Are you presently paying monthly dues?
How much are the dues?
How do you pay these dues?
To whom do you pay these dues?
Were you paying dues in April 1973?
Were you paying dues before April 1973?
Were the dues ever increased?
Have you ever received an assessment?
When?
What was the assessment for?
How much was the assessment?
Does the Guild hold regular meetings?
How often are these meetings held?
Have you ever attended any of these meetings?
451 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
How often do you attend?
Did you attend meetings in April 1973?
Did you attend meetings before April 1973?
Does the Guild send out regular communications to its
members?
What kind of communications are sent?
Have you ever received any communications from the
Guild?
How many times?
Did you receive communications before April 1973?
Who is the President of the Guild?
Who are the other officers?
Who is your shop steward?
Do you know where the Guild is located?
If so, what is the address?
What is the telephone number of the Guild?
Do you have a copy of the Guild's Constitution and By-
laws?
Where is this copy?
When did you get the copy?
Have you ever read the Constitution and By-laws?
When did you read it last?
What are the various provisions of the Constitution that
you remember?
Do you know the terms of your contract with NRTA?
Do you have a copy of the contract?
Did the Guild ever tell you about the contract?
If so, when?
Do you know when the contract expires?
Have you ever had a grievance handled by the Guild?
Was the grievance handled satisfactorily?
APPENDIX B
about their union activities or membership or about the
union activities or membership of other employees.
WE WILL NOT unilaterally and without notice to and
or bargaining with the Metropolitan Guild of Pharma-
cists reduce hours or change other terms or conditions
of employment.
WE WILL, upon request, bargain collectively in good
faith with the Guild as the bargaining representative of
all employees in the bargaining unit described below
with respect to wages, hours and other terms and
conditions of employment, and, if an understanding is
reached, embody it in a signed agreement. The
bargaining unit is:
All registered and/or graduate pharmacists at
our Washington, D.C., location, excluding office
clerical employees, all other employees, guards
and supervisors as defined in the National Labor
Relations Act, as amended.
RETIRED PERSONS
PHARMACY, T/A
NRTA-AARP PHARMACY
Dated By
This is
anyone.
an official
(Representative) (Title)
notice and must not be defaced by
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Federal Building, Room 1019, Charles Center , Baltimore,
Maryland 21201, Telephone 301-962-2822.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employees