Skaggs Drug Centers, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1969

176 N.L.R.B. 737 (N.L.R.B. 1969)

SKAGGS DRUG CENTERS , INC. 737
Skaggs Drug Centers, Inc. and Retail , Wholesale
and Department Store Union , AFL-CIO. Cases
16-CA-3333 and 16-CA-3247
June 17, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On December 4, 1968, Trial Examiner David
London issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions and
brief in support, and the General Counsel filed an
answering brief.
The Board' has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and briefs,
and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, as modified herein.2
The Trial Examiner found that on and after May
13, 1968, the Respondent refused to negotiate with
the Union for a collective-bargaining agreement to
become effective at the expiration of the old
contract assumed by it in October 1965, and he
recommended that the Respondent be ordered to
bargain upon request. Although this Respondent has
since December 1967 made certain unilateral
changes in its employees' conditions of employment
without consulting their bargaining representative,
actions as to which we are affirming the Trial
Examiner's findings of 8(a)(5) violations, we
construe this record as showing that, in general, and
particularly so far as a new contract was concerned,
the Respondent was negotiating in good faith.
As we analyze what occurred here, the
Respondent began negotiating for a new contract
shortly after the decertification petition was
dismissed. This was a petition supported by 12 in a
unit of approximately 15, filed at a time when
checkoff authorizations under the contract had
diminished to a low of 3 from a high of 14 in 1965,
when the contract was assumed. In the
'Pursuant to the provisions of Sec . 3(b) of the National Labor Relations
Act, as amended , the Board has delegated its powers in connection with
this case to a three-member panel.
'We agree with the Trial Examiner that the Respondent's unilateral
action in eliminating the ice cream department and precipitately
discharging the two employees who manned it by preparing and selling ice
cream cones , without discussion with the Union, constituted a violation of
Sec. 8(axl) and (5) of the Act . In so doing we rely upon WUn-Dixk. Inc.,
147 NLRB 788, enfd. as modified 361 F.2d (C.A. 5), art. denied 385 U.S.
935, where the cheese processing and packaging operation was terminated
unilaterally , rather than the cases cited by the Trial Examiner.
176 NLRB No. 102
circumstances, the petition necessarily raised some
doubt of continuing union majority. After the initial
negotiating session, the Respondent promptly
submitted a complete form of contract which was
largely acceptable to the Union. Then the
decertification petition was reinstated, a
development which we view as tending to reinforce
the Respondent's doubt concerning the Union's
continuing representative status. Respondent
immediately urged the Union to consent to an
election. Despite the Union's refusal, the
Respondent several days later agreed to extend the
terms of the expiring contract "until this matter is
settled" and accepted the Union's suggestion to
make its proffered wage raise retroactive to May 10.
In mid-June the Respondent again wrote to the
Union, advising it of certain companywide benefits
which would be applied to the Longview store in line
with the Union's assent to earlier extensions of such
benefits to Longview employees, and spoke of the
Union's right to negotiate about these changes in
the future.
Thus, as we view what occurred here, the
Respondent was prepared to and did negotiate for a
new contract when the decertification petition was
dismissed, but, when it was reinstated, became
concerned anew by the apparent desire of the Union
to thwart an employee election.3 We are not
prepared to say, as the Trial Examiner has, that the
fact that the Respondent negotiated at all is
inconsistent with a good-faith doubt of majority,
particularly when significant negotiations took place
while the decertification petition was dismissed and
the Respondent engaged in no activity intended to
dissipate the Union's strength.' Nor do we think
that the unilateral actions taken by the Respondent,
which were widely spaced, indicate any overall plan
or purpose to undercut the Union or diminish
employee support for it.
We conclude that the Respondent did in fact have
a good-faith doubt of majority and for that reason
alone ceased negotiating until the question of
majority could be determined by its employees in an
election procedure, or until its duty to bargain could
be determined through the charges filed. We believe
'The decertification petition was reinstated on May 7, and on May 21
the Union filed a charge which had the effect of blocking it.
The Trial Examiner viewed the Respondent's May 25 unilateral action
eliminating the ice cream department and terminating employees Axberg
and Sheehan, part-time employees, whose principal duties were the sale of
ice cream cones, as an especially significant antiunion activity because
similar to the action Respondent had agreed to forego in settling the
March charge based on reducing break periods to the minimum specified
in the contract. We note, however, that the store remodeling, which
necessitated removal of the ice cream cabinets, had been planned many
months before; that plans for the remodeling had been posted in the
manager's office; that the two employees dismissed were told that they
would be reemployed when the opportunity arose; and that although these
were the two employees interrogated by the store manager a month earlier,
no 8(aX3) discrimination was alleged as to them . We are requiring the
Respondent to remedy these independent violations, including the
recommended remedy of placing Axberg and Sheehan on a preferential
hiring list, but we are not persuaded that these actions are meaningfully
related to evasion of bargaining with the Union for a new contract.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that this doubt should be resolved before the
Respondent is required to engage in further
bargaining . Accordingly, we shall dismiss that part
of the complaint alleging refusal to negotiate for a
new contract, and we shall direct the Regional
Director to reinstate and process the aforesaid
decertification petition.
ORDER
The hearing herein was conducted at Longview, Texas,
on August 28, 1968, at which the General Counsel,
Respondent and the Union appeared and were afforded
full opportunity to examine and cross-examine witnesses
and to introduce evidence upon the issues of the case.
Briefs subsequently filed by the General Counsel and
Respondent have been fully considered.
Upon the entire record in the case and my observation
of the demeanor of the witnesses who testified, I make the
following:
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, with
the omissions indicated below, and hereby orders
that the Respondent, Skaggs Drug Centers, Inc.,
Longview, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in the
Recommended Order, as amended herein:
Omit from paragraph 1(a) reference to "the
Union" and substitute therefor "any labor
organization that is the exclusive bargaining
representative of our employees."
Omit paragraphs 1(b) and 2(d), and renumber the
remaining paragraphs consecutively.
In the first indented paragraph of the Appendix
delete reference to "Retail, Wholesale and
Department Store Union, AFL-CIO, Local No.
587" and substitute therefor "any labor organization
that is the exclusive bargaining representative of our
employees."
Omit the second and the last indented paragraphs
of the Appendix.
IT IS FURTHER ORDERED that the decertification
petition in Case 16-RD-430 shall be reinstated by
the Regional Director, and duly processed, and an
election held after expiration of the posting period
for the violations found herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID LONDON, Trial Examiner: Upon a charge filed
in Case 16-CA-3247 on March 12, 1968, and a charge in
Case 16-CA-3333 filed May 21, 1968, by Retail,
Wholesale and Department Store Union, AFL-CIO, the
Board's Regional Director, on July 24, 1968, consolidated
the two proceedings and issued the complaint herein
alleging that Skaggs Drug Centers, Inc. (Respondent)
violated Section 8(axl) and (5) of the National Labor
Relations Act, as amended (the Act). In substance, the
complaint alleges that Respondent (a) unlawfully
interrogated its employees concerning their union
membership, activities and desires, (b) unilaterally, and
without prior notification to, or consultation with, the
collective-bargaining representative of its employees,
changed the working conditions of said employees and
similarly abolished the ice cream department in its store
and discharged its employees therein. By its answer,
Respondent denied the commission of any unfair labor
practice.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under and existing by
virtue of the laws of the State of Utah, having its
principal offices in Salt Lake City, Utah. It operates a
chain of retail drugstores in several States of the United
States, including the State of Texas. The only store
involved in this proceeding is located in Longview, Texas.
During the year preceding the issuance of the complaint
herein, Respondent, in the course and conduct of its
business operations, purchased goods and materials valued
in excess of $50,000 from outside the State of Texas
which were transferred to its stores in Texas directly from
other States of the United States. During this same
period, Respondent's gross volume of retail business
exceeded $500,000. The complaint alleges, and
Respondent admits, that at all times material herein it
was an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail , Wholesale and Department Store Union,
AFL-CIO, Local 587 (the Union ), is a labor organization
within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Status of the Union
On or about May 12, 1965, Safeway Super "S"
Division of Safeway Stores, Inc., hereinafter referred to as
Super S, then the owner of the store in Longview, Texas,
with which we are now concerned, entered into an
agreement with, and recognized, the Union as
collective-bargaining representative of the following
employees: All regular full-time and all regular part-time
registered pharmacists and nonregistered employees
employed by Super S in its store in Longview, Texas,
excluding the store manager , assistant store managers,
trainees , office clericals, and supervisors within the
meaning of the Act. That agreement was to remain in
effect to May 12, 1968, and from year to year thereafter
unless either party gave written notice to the contrary to
the other party 60 days prior to May 12, 1968, or any
subsequent anniversary date. It also prescribed the wages,
hours and other terms and conditions of employment for
the aforedescribed employees and contained a checkoff
clause of union dues.
The complaint alleges , and Respondent by its answer
admits, that on or about October 15, 1965, Respondent
purchased from Super S the physical assets, goodwill,
name, accounts receivable and other trade assets of Super
SKAGGS DRUG CENTERS , INC. 739
S including the Longview , Texas , store and assumed the
liability theretofore incurred by Super S. Respondent's
answer also admits that since on or about October 15,
1965, Respondent has operated said Longview store and
has been engaged in substantially the same business
operations formerly engaged in by Super S and has
employed substantially the same employees as were
employed by Super S. The answer further admits that at
all times since on or about October 15, 1965, Respondent,
as the successor to Super S , has assumed the duties and
obligations of the collective- bargaining agreement
described above.
Though Respondent , in its answer , admitted that on or
about May 12, 1965, a majority of the employees in the
above-described unit had designated the Union as their
collective-bargaining representative , at the opening of the
hearing herein it amended its answer to deny that the
Union had achieved this majority status on May 12, 1965.
It admitted , however, that Respondent had granted
recognition to the Union by adopting the aforedescribed
contract with that organization . In any event, employee
Bobbie Purvis testified , without contradiction , that in
February or March 1965, she secured the signatures of a
majority of the employees in the Super S store to cards
designating the Union as their collective -bargaining
representative . By reason of all the foregoing I find that,
at the time of the execution and during the terms of the
collective-bargaining agreement aforementioned, the
Union was the duly designated collective-bargaining
representative of the employees described in that contract.
Shamrock Dairy, Inc., 124 NLRB 494, citing Hextron
Furniture, 111 NLRB 342.
B. The Change in the Rest Period
Purvis also testified without contradiction, and
Respondent in its brief admits , that for a long time prior
to December 1, 1967, the employees had two daily rest
periods of 15 minutes each . On December 1, 1967,
however, a notice was posted on the bulletin board, signed
by Don Sellars, Respondent's manager , reducing the
break periods to 10 minutes each . Respondent having
imposed this change without consultation or negotiation
with the Union, the latter, on March 12, 1968 filed its
charge in Case l6-CA-3247 alleging that this change was
unlawfully made . On April 9, 1968, the Board 's Regional
Director approved of a settlement of that proceeding by
the terms of which Respondent agreed to post a notice
notifying its employees that it would not thereafter
"unilaterally institute changes impairing the terms and
conditions of employment" of any of its employees in the
heretofore described unit , and to reinstate two rest periods
of 15 minutes each workday.
On July 15, 1968, following an investigation of the
second charge filed against Respondent, Case
16-CA-3333, the Board ' s Regional Director set aside this
settlement agreement entered in Case 16-CA-3247. It
being hereafter found that Respondent engaged in further
violations of the Act subsequent to the date of the
aforementioned settlement , the action of the Regional
Director rescinding and setting said agreement aside is
hereby approved. Larrance Tank Corporation, 94 NLRB
352, as modified in Joseph's Landscaping Service, 154
NLRB 1384, sub. nom . Northern California Hodcarriers,
389 F.2d 721 (C.A. 9). Accordingly, I find and conclude
that by reducing the rest periods on December 1, 1967, to
10 minutes without consulting or negotiating with the
Union with respect thereto, Respondent violated Section
8(a)(1) and (5) of the Act.
C. The Change in the Check Rule
On February 12, 1968, Respondent, through Store
Manager Don Sellars, posted the following notice:
NOTICE
Any employee who takes a second party personal check
that is returned by the bank will pay for said check the
same day it is received by the store. This will be in
cash. There will be no exceptions including
management.
D. L. Sellars
Respondent, in its brief, contends that the "so-called
change in the check rules would seem to be something far
different from a work rule," and that the change was in
the exercise of a valid management prerogative in the
conduct of its own affairs. I do not agree. By thereafter
requiring its employees to pay for all returned second
party checks taken by them, without prior notice to, or
negotiation with, the Union, Respondent changed the
wages , terms and conditions of employment of its
employees thereby violating Section 8(a)(5) and (1) of the
Act.
Interrogation
On April 26, 1968, at a meeting in Dallas between the
parties, concerning which more will be said later, James
Stewart, the union, reprensentative, told Sellars that an
undisclosed number of employees who, on February 16,
1968 had filed a petition with the Board in Case
16-RD-430 seeking decertification of the Union, had again
joined the Union.' Sellars testified that upon his return to
Longview he asked his assistants if they were aware of
this and was told that John Axberg and Daniel Sheehan,
employed in Respondent's ice cream department and
discharged about a month later as will hereafter appear,
had again signed up with the Union. Sellars admitted that
he thereupon asked both men if it was true that they had
again signed up with the Union and they acknowledged
that it was. On the entire record I find that by this
interrogation of Axberg and Sheehan Respondent violated
Section 8(axl) of the Act.
E. The Elimination of a Department
As part of its drugstore operations, Respondent
maintained an ice cream department manned by
employees John Axberg and Daniel Sheehan, whose
principal task was to prepare and sell ice cream cones.
Sellars testified that in November 1967 he received the
original plans for remodeling the store which involved
elimination of the ice cream department. Modified plans
were submitted in January 1968 and again in March 1968.
On Friday, May 24 or Saturday, May 25, he was notified
that new fixtures for the space occupied by the ice cream
department would arrive on May 26 and that remodeling
of the store would begin on May 27. On May 25, Sellars
notified Axberg and Sheehan that the ice cream
department was being removed and that their jobs were
being terminated that day. He told Axberg that as soon as
'Because of the pendency of unfair labor practice charges against
Respondent , the decertification petition was subsequently dismissed by the
Regional Director.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was an opening, he would be rehired.' Respondent
admits that the Union was never notified or consulted
with respect to either the elimination of the department or
the termination of Axberg or Sheehan.
The General Counsel contends that this unilateral
action was violative of Respondent's duty to bargain with
the Union with respect thereto thereby violating Section
8(aX5) of the Act. I agree . Though there was no
contention that the change of operations and terminations
were discriminatorily motivated, the fact remains that the
action was unilaterally imposed and without prior
negotiation with the collective- bargaining representative of
the employees involved. Dixie Ohio Express Company,
167 NLRB No. 172; Northwestern Publishing Company,
144 NLRB 1069, enfd. 343 F.2d 521 (C.A. 7). This
violation takes on additional significance because it is the
type of violation which Respondent, less than two months
before, specifically agreed, under the terms of the
settlement agreement of April 9, not to engage in
thereafter.
F. The Refusal to Negotiate a Contract
In addition to the foregoing specific violations of
Section 8(a)(5) of the Act heretofore found, the General
Counsel contends that Respondent, since on or about May
11, 1968, has refused to bargain collectively with the
Union for a collective-bargaining agreement concerning
wages, rates of pay, hours of employment and other terms
and conditions of employment for the term beginning
May 12, 1968.
In support thereof, the record establishes that on
February 20, 1968, the Union gave Respondent timely
notice of its desire to modify and amend the
collective-bargaining agreement then in effect between the
parties and suggested several specified dates for
negotiations . Failing to receive a reply, the Union, on
April 11, repeated that request suggesting three other
specified dates for a meeting . In accordance with that
demand, the parties met in a negotiation session on April
26. At that meeting , Ross Thoresen, Respondent's labor
relations consultant, stated that Respondent "had reason
to believe that the Union did not represent a majority of
the employees" and that Respondent "should not be
negotiating with the Union if it did not represent a
majority of the employees." Notwithstanding this protest,
Respondent gave consideration to the Union's proposal, a
part of which met with Respondent's qualified approval.
With respect to the remainder, Respondent agreed to
submit its counterproposal, in writing, by mail.
Respondent did so on May 3 by Thoresen's letter in
which there was enclosed a complete draft of
Respondent's proposed terms and covered practically all
the terms generally found in collective-bargaining
agreements . It specifically recognized the Union as the
sole collective- bargaining agent of the same employees
that were covered by the expiring contract and accepted
much of what the Union had proposed. The Union
replied to Thoresen on May 6 accepting unconditionally
nine of the twelve articles in Respondent's proposal of
May 3. The only article requiring further discussion or
negotiation was classification and wages which the Union
wished to discuss further when Respondent made its
proposal in respect to the length of the contract. In sum,
the Union and Respondent were close to reaching
agreement on a new collective-bargaining agreement.
'Sheehan did not testify.
On June 19, Kent White, Respondent's vice president,
wrote the Union as follows:
REGISTERED - Return Receipt Requested
Mr. James Stewart, Jr.
Retail, Wholesale and Department
Store Employees Union
1602 North Haskell
Dallas, Texas 84204
Dear Mr. Stewart:
We are planning to make improvements in some of the
programs in effect at our store in Longview. The
enclosed booklets will detail these improvements.
In prior bargaining with your union, these company
benefit programs have been accepted under our
contract, and recent bargaining did not propose a
change in this arrangement. The changes would be
companywide and we plan to make them effective July
1, 1968. The employees will benefit by these
improvements.
If you have any questions concerning this matter, we
will be happy to try to answer them for you. The
changes will not affect or alter your right to negotiate
concerning any of these programs in the future.
Yours very truly,
/s/ Kent T. White
KENT T. WHITE
Vice President
Stewart answered White on June 27, expressing a desire
to discuss Respondent's proposal of June 19 and "other
matters pertaining to wages and other terms and
conditions of employment" and specified three alternate
dates for that purpose. On July 8, Thoresen, in behalf of
White, wrote Stewart stating that in Respondent's belief
"it would not be appropriate to meet and discuss these
matters" until after the Board had taken final action on
the decertification petition. There have been no further
negotiations between the parties.
The decertification petition, in which 12 of
Respondent's 14-15 employees joined, filed on February
16, 1968, was originally dismissed by the Board's
Regional Director on April 2, presumably because of the
filing of the charge in Case 16-CA-3247 on March 12. It
was reinstated on May 7, but again dismissed by the
Regional Director on July 25 following the charge in Case
16-CA-3333,' filed on May 21. On July 29, the Union
notified Respondent of this dismissal and asked that
negotiations be resumed. Insofar as the record discloses,
Respondent made no reply thereto nor have any further
negotiations occurred.
It is of course well established that, following the
expiration of a collective-bargaining agreement with a
union , if an employer has a good-faith doubt of a union's
continuing majority status, he may decline to further
recognize that organization as collective-bargaining
representative of its employees. Guidelines for determining
whether -or not such a good-faith doubt existed are
prescribed by the Board's decision in Celanese
Corporation of America, 95 NLRB 664, 673, as follows:
By its very nature, the issue of whether an employer
has questioned a union's majority in good faith cannot
be resolved by resort to any simple formula. It can only
be answered in the light of the totality of all the
circumstances involved in a particular case. But among
SKAGGS DRUG CENTERS, INC. 741
such circumstances, two factors which seem to be
essential prerequisites to any finding that the employer
raised the majority issue in good faith in cases in which
a union had been certified. There must , first of all, have
been some reasonable grounds for believing that the
union had lost its majority status since its certification.
And, secondly , the majority issue must not have been
raised by the employer in a context of illegal antiunion
activities , or other conduct by the employer aimed at
causing disaffection from the union or indicating that in
raising the majority issue the employer was merely
seeking to gain time in which to undermine the union.'
Here, the only ground suggested for that required
good-faith doubt was the filing and service upon
Respondent on or about February 16, 1968, of the
decertification petition to which was attached a similar
petition purporting to be signed by 12 of Respondent's
14-15 employees . I have not been cited to a single
authority holding that the mere filing of the decertification
petition is, per se, sufficient to justify a good-faith belief
that the Union no longer enjoys the majority status and
recognition it achieved by the execution of the 1965
contract . Here, no testimony was offered pertaining to the
circumstances under which that petition was initiated and
procured . Here , it stands undisputed that the petition was
subsequently dismissed.
In any event , and assuming , arguendo , that the filing of
the decertification petition gave Respondent a reasonable,
good-faith belief that the Union had been rejected by the
employees, Celanese requires more before Respondent
may be absolved of the duty to bargain with the Union. It
commands that the issue "can only be answered in the
light of the totality of all the circumstances involved in the
particular case."
Among those circumstances are the events of April 26,
more than two months after the decertification petition
was filed, at which time the parties engaged in actual
negotiation . Though Thoresen , during the course of that
meeting , voiced a doubt of the Union ' s majority status,
Sellars' own testimony establishes that Stewart, the
Union ' s representative , then informed Respondent that
"some of the employees [who] had signed a decertification
petition were [again ] members of the Union ." Almost
immediately thereafter , Sellars, as has previously been
found , admittedly questioned an employee as to whether
this was true and learned that at least two employees had
again "signed up with the Union ." Without speculating
whether similar inquiries were made of, and answers
received from , other employees , Sellars' conduct found
above is a circumstance that must be considered in
determining whether Respondent thereafter reasonably
and in good faith believed that a majority of its employees
no longer desired representation by the Union.
Related to the circumstance just discussed is
Respondent ' s most incongruous conduct in continuing
thereafter to negotiate with the Union if it in good faith
and reasonably believed that the Union was no longer
authorized to negotiate in behalf of its employees. Thus,
as has heretofore been found , Thoresen , on May 3, only a
week after he had voiced his doubt concerning the Union's
majority status, submitted a complete draft of a contract
proposal for Respondent. The two-page single space letter
which accompanied the draft is devoted exclusively to a
discussion of Respondent ' s proposal . It contains not a
'Though Celanese involved a certified union, it is now well settled that
the same rule applies to a noncertified , incumbent union . C & P Plaza
Department Store, 163 NLRB No. 97.
word , or suggestion , that either he or Respondent adhered
to, or entertained , the doubt expressed by him at the
meeting of a week before . All of Thoresen's
correspondence was on the stationary of the "Industrial
Relations Council ," engaged in the business of "Service to
Management - for better employee relations," an
organization presumably well versed in employer rights
and wrongs , as Thoresen also appeared to be in his
conduct of the hearing herein . Also inconsistent with
Respondent's present claim is the June 19 letter of Kent
White, its vice president, specifically recognizing the
Union ' s right "to negotiate concerning - benefits" to its
employees then proposed by Respondent. I find it
incredible to believe that Respondent would engage in the
protracted negotiations heretofore described if it , in good
faith, on and after April 26, believed that the Union no
longer had any right to bargain for its successor contract.
The Board found similar incredulity on facts closely
resembling those found here, in Bally Case and Cooler,
Inc., 172 NLRB No. 106 (July 10, 1968).
The Celanese case also dictates that the good faith
belief in question "must not have been raised by the
employer in a context of illegal antiunion activity, or
other conduct by the employer aimed at causing
disaffection from the union ." Here, Respondent
unlawfully interrogated its employees concerning their
union membership and activities . It also unlawfully
changed the terms and conditions of their employment by
reason of which the employees could reasonably be led to
believe that there was no advantage in maintaining their
adherence to, and representation by, the Union. The
unilateral termination of the ice cream department on
May 25 is especially significant because it is the same type
of violation that Respondent, less than two months before,
specifically agreed under the terms of the settlement
agreement of April 9, not to engage in thereafter. Also
worthy of note, is a prior similar violation by Respondent
found by the Board in Skaggs Drug Centers, Inc., 150
NLRB 518, of which I have taken official notice. By
reason of all the foregoing I find and conclude that by
refusing to negotiate with the Union for a
collective-bargaining agreement to become effective on
and after May 13, 1968, Respondent violated Section
8(aX5) and (1) of the Act. Having concluded that
Respondent had no good-faith doubt of the Union's
continuing majority status, I further find that Respondent
on May 25 violated Section 8(a)(5) and (1) of the Act by
unilaterally terminating its ice cream department and
discharging its two employees.
Upon the basis of the foregoing findings of fact and 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 Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All regular full-time and part-time registered
pharmacists , and all nonregistered employees , employed
by Respondent at its store in Longview , Texas , exclusive
of the store manager, assistant store manager , trainees,
office clericals, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times material herein , the Union was the
exclusive representative of Respondent's employees in the
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit described immediately above for the purpose of
collective bargaining with respect to wages , hours, and
other terms and conditions of employment.
5. By changing the terms and conditions of employment
of the employees in the above-described unit without
notifying or negotiating therefore with the Union,
Respondent violated Section 8 (ax5) and (1) of the Act.
6. By refusing to bargain with the Union for a contract
for the term beginning May 12, 1968, Respondent violated
Section 8(a)(5) and (1) of the Act.
7. By interrogating its employees concerning their union
membership or activities Respondent violated Section
8(a)(l) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I recommend that it be required to
cease and desist therefrom and that it take certain
affirmative action outlined below which I find necessary to
remedy and to remove the effects of the unfair labor
practices , and to effectuate the policies of the Act.
With respect to the unilateral termination of the ice
cream department and its two employees , while there is no
allegation or contention that this was discriminatorily
imposed , it was nevertheless a violation of the Act. To
remedy that violation , I recommend that Respondent be
required to place the two employees on a preferential
hiring list requiring that they be employed at the first
opportunity when work which they are capable of
performing is available.
Upon the foregoing findings of fact , conclusions of law
and the entire record , pursuant to Section 10(c) of the
Act, I hereby issue the following:
RECOMMENDED ORDER
Skaggs Drug Centers, Inc., its officers , agents,
representatives , and assigns , shall:
1. Cease and desist from:
(a) Changing the wages , terms and conditions of
employment of the employees in the unit described above
without notifying or negotiating therefore with the Union.
(b) Refusing to recognize or bargain with the Union for
a new contract for the employees in the above-described
unit covering wages, hours, and other terms and
conditions of employment.
(c) Interrogating its employees concerning their union
membership or activities.
(d) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of
their rights to self-organization , to form labor
organizations, to join or assist the Union or any other
labor organization , to bargain collectively through
representatives of their own choosing and to engage in
concerted activities for the purposes of collective
bargaining or other mutual aid or protection , or to refrain
from any or all such activities.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
(a) Restore the two daily rest periods to a duration of
15 minutes each.
(b) Rescind its February 12, 1968, second -party check
rule.
(c) Place John Axberg and Daniel Sheehan on a
preferential hiring list requiring that they be employed at
the first opportunity when work which they are capable of
performing is available and notify them , at their last
known address, that they have been so placed.
(d) Upon request , bargain collectively with the Union
as the exclusive representative of all employees in the
following described appropriate unit, with respect to rates
of pay , wages, hours of employment and other terms and
conditions of employment and, if agreement is reached,
embody such agreement in a signed contract. The
bargaining unit is:
All regular full-time and part-time registered
pharmacists, and all nonregistered employees, employed
by Respondent at its store in Longview , Texas,
exclusive of the store manager, assistant store manager,
trainees , office clericals , and supervisors as defined in
the Act, as amended.
(e) Post at its premises in Longview, Texas , copies of
the attached notice marked "Appendix."' Copies of such
notice, on forms to be provided by the Regional Director
for Region 16, after being duly signed by an authorized
representative of Respondent, shall be posted immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter , in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced , or covered by any other material.
(f) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Decision,
what steps Respondent has taken to comply herewith.'
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board ' s Order is enforced by a decree of the United States
Court of Appeals the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to coeiply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT change the wages or other terms and
conditions of employment of our employees in the
appropriate bargaining unit described below without
prior consultation , or bargaining with, Retail,
Wholesale and Department Store Union, AFL-CIO,
Local No. 587.
WE WILL NOT refuse, upon request , to bargain
collectively with the above-named Union, as the
exclusive representative of all employees in the
appropriate unit with respect to rates of pay, wages,
hours of employment , or other terms and conditions of
employment.
WE WILL NOT coercively interrogate our employees
concerning their union membership or activities.
•SKAGGS DRUG CENTERS, INC. 743
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form labor
organizations, to join or assist the above-named labor
organization or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
WE WILL restore the two daily rest periods to a
duration of 15 minutes each.
WE WILL rescind our February 12, 1968,
second-party check rule.
WE WILL place John Axberg, and Daniel Sheehan
upon a preferential hiring list requiring that they be
employed at the first opportunity when work which
they are capable of performing is available, and notify
them that we have done so.
WE WILL, upon request, bargain collectively with the
above-named union, as the exclusive representative of
all employees in the following described appropriate
unit,, with respect to rates of pay, wages, hours of
employment and other terms and conditions of
employment and, if agreement is reached, embody such
agreement in a signed contract. The bargaining unit is:
All registered pharmacists and all nonregistered
employees employed by us at our store in Longview,
Texas, exclusive of the store manager, assistant store
manager, trainees, office clericals, and supervisors as
defined in the Act.
Dated By
SKAGGS DRUG CENTERS,
INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 8A24 Federal
Office Building, 819 Taylor Street, Fort Worth, Texas
76102, Telephone 817-334-2941.