Suburban Drugs, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1962

138 N.L.R.B. 787 (N.L.R.B. 1962)

SUBURBAN DRUGS, INC., ETC. 787
In short, it is clear to me that my colleagues are making the Unions'
extent of organization the controlling factor in this case-contrary to
the specific prohibition of Section 9(c) (5) of the Act.
Accordingly, as there is no legal basis upon which the mailroom
employees may be found to constitute an appropriate unit, I would
affirm the Regional Director's dismissal of the petition."
placement had been determined by "arbitrary and vague" criteria, and that, accordingly,
such units were not appropriate . See also Newport News Forms Company , Inc., 110
NLRB 471 ; Owens -Illfnoss Glass Company, 112 NLRB 172
10 My colleagues have also excluded from the unit, on various irrelevant grounds, part-
time employees who work as carriers, inserters , and loaders . The carriers and inserters
work in the same room , doing exactly the same "kind " of work, under the same super-
vision, as the other employees in the unit my colleagues have established . They carry
the papers to and from the various tables and insert the Sunday supplements and maga-
zine sections into the paper The loaders work on the loading dock with the other distribu-
tion employees . These employees work on Saturday for about 8 to 12 hours Of the
approximately 39 part-time employees , approximately 30 have worked every Saturday
for the past 6 months.
Accordingly , as these employees are performing the same work as the employees in the
unit, on a regular , as opposed to a casual , basis, I would find they are regular part-time
employees and would include them in the unit. V LP Radio Inc, 128 NLRB 113, 116
(students who worked on weekends , and part-time employees who worked on Sunday, and
had full-time jobs elsewhere , held regular part-time employees ). Giordano Lumber Co,
Inc, 133 NLRB 307 (students who worked only on Saturdays , 9 months of the year, held
regular part- time employees ). Brown Cigar Co, 124 NLRB 1435, 1437 ( part-time em-
ployees who worked at least 8 hours per week held regular part-tune employees).
Suburban Drugs, Inc., and La Grange Highland Drugs, Inc. and
Building Service Employees International Union , Local 189,
AFL-CIO
Hometown Drugs, Inc. and Building Service Employees Inter-
national Union, Local 189, AFL-CIO
New Lawrence Drugs, Inc. and Building Service Employees
International Union, Local 189, AFL-CIO. Cases Nos. 13-CA-
4536, 13-CA-4639, and 13-CA-4640. September 24, 1962
DECISION AND ORDER
On June 11, 1962, Trial Examiner Harold X. Summers issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report together with a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
'Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers in connection with this case to a three-member panel [ Members Rodgers, Fanning,
and Brown].
138 NLRB No. 96.
662353-63-vol 138-51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
2 We find it unnecessary at this time to pass on the Trial Examiner's finding that the
Union represented a majority of the Respondent' s employees on September 28, 1962.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Unfair labor practice charges having been filed by Building Service Employees
International Union, Local 189, AFL-CIO, against Suburban Drugs, Inc., on No-
vember 9, 1961, against Hometown Drugs, Inc., on January 9, 1962, and against
New Lawrence Drugs, Inc., on January 9, 1962, the General Counsel of the National
Labor Relations Board issued a consolidated complaint on January 12, 1962, alleg-
ing that Respondents had engaged in unfair labor practices in violation of Section
8(a)(1) and (5) of the National Labor Relations Act, herein called the Act. Re-
spondents' answer admitted some allegations of the complaint, denied others, and
denied the commission of any unfair labor practices. Pursuant to notice, a hear-
ing was held before Trial Examiner Harold X. Summers at Chicago, Illinois, on Feb-
ruary 20, 21, 22, and 23 and on March 27 and 28, 1962. At the hearing, the charge
in Case No. 13-CA-4536 was amended to add La Grange Highland Drugs, Inc.,
as charged party and the consolidated complaint was amended, inter alia, to add La
Grange Highland Drugs, Inc., as a Respondent; and Respondents answered the com-
plaint as amended. All parties were afforded full opportunity to present evidence,
to examine and cross-examine witnesses, to argue orally, and to submit briefs.
Briefs have been filed by the General Counsel and by Respondents, which briefs have
been fully considered.
Upon the entire record in the case,' including my evaluation of the credibility of
the witnesses based upon the evidence and upon my observation of their demeanor,
I make the following:
FINDINGS OF FACT
1. COMMERCE
At all times relevant hereto, Suburban Drugs, Inc., hereinafter called Suburban,
and Hometown Drugs, Inc., hereinafter called Hometown, were and are each cor-
porations organized under and existing by virtue of the laws of the State of Illinois.
At all times relevant hereto prior to November 1, 1961, New Lawrence Drugs, Inc.,
hereinafter called New Lawrence, and La Grange Highland Drugs, Inc., herein-
after called La Grange Highland, were corporations organized under and existing
by virtue of the laws of the State of Illinois. At all times relevant hereto, Jacob
Shapiro, Sol Shapiro, and Sol Mirskey, doing business as Shopping Center Drugs,2
hereinafter called Shopping Center, was a partnership doing business in the State of
Illinois.
At all times relevant hereto, prior to November 1, 1961, Suburban owned and
operated three retail drugstores, hereinafter called the Westchester store, the Chicago
i On April 24, 1962, the parties submitted a joint request (which is hereby received in
evidence as Trial Examiner's Exhibit No. 2-A) for permission to withdraw the original
copies of specified exhibits and substitute exact copies therefor ; by telegraphic order
( hereby received as Trial Examiner 's Exhibit No . 2-B), I granted the request.
On April 26, 1962 , I issued an order to show cause why the transcript of the hearing
should not be corrected in specified respects . No good cause to the contrary having been
shown , the corrections indicated in the order to show cause, which is received in evidence
as Trial Examiner 's Exhibit No. 3, are hereby ordered made.
On April 30, 1962, the parties submitted a Stipulation of Fact containing a description
of General Counsel's Exhibits Nos . 2-A and 2-B, which, after diligent search , could not
be found The stipulation is received in evidence as Trial Examiner 's Exhibit No. 4.
2 Shopping Center is not a party herein . Suburban , Hometown , New Lawrence, and
La Grange Highland will sometimes be referred to collectively as Respondents.
SUBURBAN DRUGS, INC., ETC. 789
Heights store, and the Elk Grove store, in suburbs of the city of Chicago, Illinois;
Hometown owned and operated a retail drugstore, hereinafter called the Hometown
store, in a suburb of the city of Chicago, Illinois; New Lawrence owned and operated
a retail drugstore, hereinafter called the Chicago store, in the city of Chicago,
Illinois; and La Grange Highland owned and operated two retail drugstores, herein-
after called the Arlington Heights store and the La Grange store, in suburbs of
the city of Chicago, Illinois. The Westchester, Chicago Heights, Elk Grove, Arl-
ington Heights, and La Grange stores bore the trade name "Suburban Drugs"; the
Hometown store was called "Hometown Drugs, Inc."; and the Chicago store was
called "Sol's Jeffery Manor."
During this period-prior to November 1, 1961-Suburban's president, vice presi-
dent, and secretary-treasurer were, respectively, Jacob Shapiro, Sol Mirskey, and
Sol Shapiro,3 and its board of directors consisted of the same three individuals;
Home own's president and secretary-treasurer were, respectively, Jacob Shapiro and
Sol Shapiro,4 and its board of directors consisted of the same two individuals; New
Lawrence's president, vice president, and secretary-treasurer were, respectively, Jacob
Shapiro, Sol Mirskey, and Sol Shapiro, and its board of directors consisted of the
same three individuals; and La Grange Highland's president, vice president, and
secretary-treasurer were, respectively, Jacob Shapiro, Sol Mirskey, and Sol Shapiro,
and its board of directors consisted of the same three individuals. The ownership
of the 865 shares of capital stock in Suburban was divided as follows: 575' shares
were owned jointly-and in equal division-by Jacob Shapiro and Sol Shapiro; 250
shares were owned by Sol Mirskey; and 40 shares were owned by Gayle Bantner,
pharmacist-manager of the Elk Grove store. Fifty percent of the shares of capital
stock in Hometown was owned by Jacob Shapiro, and the remaining 50 percent was
owned by Sol Shapiro. All 80 shares of the capital stock of New Lawrence and
all 80 shares of the capital stock of La Grange Highland were owned by Suburban.
During the same period, all major policy decisions, including those on labor rela-
tions matters, for the seven stores owned and operated by the four corporations were
made by Jacob Shapiro, by Sol Shapiro, or by both acting jointly. Sal Mirskey's
role was basically that of an investor rather than an administrator. Jacob and Sol
Shapiro, on a more or less regular basis, and Sol Mirskey on a casual or emergency
basis, "filled in" at 5 or made inspections of one or another of the stores. The
Shapiros, who spent most of their time at the office of Shopping Center, in mid-
Chicago, controlled the selection of the pharmacist-managers of the seven stores and
could, if they wished, hire or discharge all rank-and-file employees at these stores.
The office of Shopping Center served as the main office of the seven stores; there,
the books were kept-a separate set for each store.6 Shopping Center, from which
Jacob and Sol Shapiro drew salaries, served as a purchasing agent for the seven
stores, acting on orders normally emanating from the individual stores but confirmed
by Jacob and/or Sol Shapiro?
The seven stores (then owned by four corporations) were each under the im-
mediate supervision of a pharmacist-manager. Working under a "bonus" system,
he exercised considerable latitude with respect to the needs of his store. He-
subject only to eventual control by the Shapiros-decided what and how much mer-
chandise to order for his store; and he hired and discharged employees in his store.
In addition, he had the authority, where he deemed it necessary, to deviate from
personnel policies established by the central office .8 Out of the income of his store,
he met his expenses and his share of the expense of maintaining the central office.9
He had his own (store's) bank checking account which he used for paying salaries,
reimbursing others of the seven stores for goods interchanged between them,ii and
for remitting funds to the Shopping Center office for the expenses of the main
a Jacob and Sol Shapiro are brothers ; Mirskey is not related to them.
' There was no vice president.
S All three were registered pharmacists.
8 The books of the Hometown store were audited by one accounting firm ; those of the
rest of the stores by another.
7 Shopping Center also did some buying for other drug concerns. I find that such buy-
ing was done on a "favor" basis and was incidental to its main operation.
8 The record contains no examples of deviation, however.
8 The Hometown store paid a flat fee for the use of the office ; the other stores con-
tributed pro rata shares of its expenses.
10 Records were kept of merchandise passing between the stores, balances being struck
monthly. I find, on this record, that the interchange of merchandise between the seven
stores was no greater than the interchanges of merchandise between any of the seven
stores and retail drugstores outside the "system."
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office and for the payment of bills for merchandise. On the other hand, he submitted
daily, weekly, and trimonthly reports of his operations to the central office and checks
for payment to jobbers for merchandise were drawn-by central office personnel-
on a second bank account in his name."
On November 1, 1961, two liquidation/mergers took place. New Lawrence and
La Grange Highland went out of existence; their assets (basically, their three stores)
were taken over by Suburban, and their capital stock (80 shares each, theretofore
owned by Suburban) was canceled. None of the stores lost a day's operation; the
personnel remained unchanged; even the former trade names remained intact. On
and at all times since November 1, 1961, the operations of the seven stores, including
their relationship to the central office and Shopping Center, and the authority and
responsibility of the Shapiro brothers, have continued to function as described above.
The only difference: where, before November 1, 1961, four corporations owned
seven stores, now, and since, two corporations have owned and do own the same
seven stores.
On this record, I find that Suburban, Hometown, New Lawrence, and La Grange
Highland prior to November 1, 1961, and that Suburban and Hometown subsequent
to that date, were and are an integrated enterprise and constituted and constitute a
single employer for the purpose of determining jurisdiction. 12
It is stipulated and I find, that the seven stores owned and operated by Suburban,
Hometown, New Lawrence, and La Grange Highland prior to November 1, 1961,
and by Suburban and Hometown subsequent to that date, in the course and conduct
of their operations during the year ending February 20, 1962, received a gross in-
come from the retail sale of drugs and related products in excess of $500,000. It is
stipulated, and I find, that, during the calendar year 1961, one of the seven stores-
the Chicago Heights store-received patent medicines, pharmaceuticals, and drug
sundries of a value in excess of $15,000 directly from a point outside the State of
Illinois.
I find that Suburban, Hometown, New Lawrence, and La Grange Highland prior
to November 1, 1961, and that Suburban and Hometown subsequent to that date,
constituted and constitute an employer engaged in commerce within the meaning
of the Act.
II. THE UNION
Building Service Employees International Union, Local 1S9, AFL-CIO, herein-
after called the Union, admits porters to membership for the purpose of bettering
their conditions of employment . I find it to be a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES 13
A. Background and chronology of events
1. In mid-September 1961,14 the Union conducted an organizing campaign among
porters employed at the seven drugstores here involved.
2. By letter of September 28, the Union informed Suburban that it represented
a majority of its porters and, expressing its wish to negotiate a contract covering
working conditions, stated that a representative would call on the Company on
October 2.
3. The "scheduled" meeting of October 2 was not held. Instead, it was arranged
that representatives would meet on October 19.
4. On October 19, Daniel Starck, the Union's recording secretary and business
representative, met with Jacob and Sol Shapiro. He stated that he was there to
discuss a contract, reiterating that a majority of Respondents' 15 porters had signed
application cards. When Jacob Shapiro asked to see the cards, Starck said that they
11 In other words, each store had a "local " bank account drawn upon by the manager
and a "central" bank account drawn upon by the central office.
12 East Detroit Stevedore Co., Nicholson Terminal and Dock Co., 110 NLRB 929.
13 Although the hearing in this matter was a heated one, the facts are substantially un-
disputed . Under close examination , the clashes in testimony devolve into arguments over
Irrelevant details or differences in interpretation. In arriving at the findings enumerated
below, I rely on credible, uncontradicted testimony (except where indicated otherwise),
and I make no attempt to resolve contradictions which would have no bearing one way
or the other.
14 Unless the contrary is indicated , all dates mentioned hereinafter are for the year 1961
15 At that time Starck was unaware of the existence of Hometown, New Lawrence, and
La Grange Highland ; he knew only of Suburban . He was referring, however, to the
porters employed in the seven stores involved herein.
SUBURBAN DRUGS, INC., ETC. 791
were at the Union's office-he could see them at a time to be arranged. The meeting
ended with the understanding that Jacob Shapiro would find a convenient time and
would give Starck or James Kemp (union president) advance notice.
5. On or about October 28, Jacob Shapiro, through his secretary, communicated
with the Union. It was arranged that he visit the Union's offices on October 30
to see the cards.
6 The visit of October 30 was never made. On that day, because he was occupied
elsewhere, Shapiro's secretary canceled the appointment , saying he would call to
set a new date.
7. On November 9, the original charge herein (Case No. 13-CA-4536) was filed.
8. Between December 4 and 6, Leonard R. Kofkin, then counsel for the Union,
called Jacob Shapiro Introducing himself, he stated that he did not feel that the
pending Labor Board charges should be an impediment toward some settlement.
When Shapiro asked what he had in mind, Kofkm suggested a meeting December 8
was agreed upon as the date for a meeting.
9 On September 8, Kofkin and Starck met with the Shapiro brothers. When
Kofkin suggested that they might make some progress toward reaching an agree-
ment, Jacob Shapiro expressed doubt that the Union in fact represented a majority
of his porters. Kofkin asserted that the Union represented "seven of the porters
at the eight" stores; Shapiro said there were only seven stores.is Then Kofkin said
the Union represented the seven porters at the seven stores, to which Shapiro replied
that they did not have seven porters 17 Then Kofkin, looking at the cards, asked
if they had a porter named John Jones.18 Shapiro looked at his files and said no
such person was employed there. Kofkin then read off the name LeRoy Brown.
Shapiro said that LeRoy Brown was a porter at one of the stores but that, if the
Union had his name, it had been procured under a subterfuge.19 He then related
a conversation which he had with Brown; the gist-details will be given later-was
that Brown told him a unionman had asked for his signature "merely to show he
had spoken to him." Kofkin then read off the names of Melvin Walker and Harry
Malone, and he was told that they were porters. The enumeration ended 20 when
Shapiro asked to see the cards. Kofkin refused, expressing fear of recriminations,
but suggested that an alternative method, such as the use of a third party, might
be acceptable. When Shapiro showed no interest in this suggestion , Kofkin asked
Starck if he had given Shapiro any idea of the Union's demands, receiving a negative
reply, he said, in effect, that Shapiro might not offer so much resistance if he knew
what the Union wanted in the way of a contract. The meeting broke up with the
understanding that Starck would send a model contract to Shapiro and that Kofkin
would again call Shapiro.
10. On or about December 11, a copy or copies,21 of a contract was sent by the
Union to Jacob Shapiro Shapiro was upset because, he testified, this was not a
"model" or "standard form" contract but, rather, a finished product calling for his
signature without further negotiations. Although the contract contained terms and
conditions of work, and although the name of Respondent Suburban was inserted as
one of the parties, I find, contrary to his asertion, that Jacob Shapiro was aware
it was being submitted to him as a basis for discussion.
11. On a date between December 15 and 28, Jacob Shapiro, for "Shopping Center
Drugs," signed a contract with Retail Food and Drug Clerks Union, Local 1550,
AFL-CIO, herein called the Retail Clerks, covering the working conditions of the
clerks at the seven stores.
ie Kofkin had a list of eight stores , presumably , one was included which had been sold
prior to any of the events relevant hereto.
17 As will be seen, there were five porters in the seven stores.
"There is conflict as to the exact order in which the names mentioned above were given
by Kofkin . A resolution of the conflict is unnecessary for purposes of this case
ie In this respect I credit Shapiro as against Kofkin, who said that Shapiro did not give
the name of the porter to whom he spoke. Starek who testified for the General Counsel,
"believed" Shapiro spoke about a bus incident involving a porter 'I find that Kofkin
mentioned the name , at which Shapiro made the natural response about his prior con-
versation with Brown.
2O Thus , I find that Kofkin did not mention the name of Anthony Sama. In so finding,
I credit Shapiro , as impliedly corroborated by Daniel Starck, who thought that only three
names were mentioned altogether . In my opinion , Kofkin, having named what he be-
lieved was a majority of the five porters , did not persist; otherwise , why did he not name
all for whom he had cards?
21 The parties , at the hearing , devoted undue time and energy in arguing about the
number of copies sent . In my opinion , a resolution of the issue is unnecessary.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
12. Pursuant to a number of interim telephone contacts-in the course of which
Jacob Shapiro reiterated his doubts as to the Union's majority status-a meeting
was held on December 28. Present were Jacob Shapiro, Leonard Kofkin, and
Daniel Starck. Shapiro and Kofkin went over most of the Union's proposed con-
tract, so that Shapiro could voice specific objections. Among other things, he
noted the absence of store addresses 22 and the use of the term "employees" without
qualification as to number of hours worked per week. He asked some questions
about the health and welfare plan-one of his own was then in effect-but the
subject was not fully explored. Shapiro also asked what the Union's initiation fees
and dues were, and whether they should not appear in the contract. Cause for
discharge was alluded to, and reference was made to the Retail Clerks' contract. A
number of items were not discussed.
13. I find that at the December 28 meeting Shapiro again expressed doubts as
to the Union's majority status and he suggested the holding of a Board election, a
procedure of which he had become aware during the course of the investigation of
the instant charges. He also expressed the view that he was "getting in deeper" than
he had expected and would have to seek the services of an attorney.23
14. The meeting of December 28 ended with the union representatives' statement
that they would submit a document embodying the discussion of that day and
Shapiro's statement that he would seek legal advice.
15. On or about January 3, 1962, Shapiro engaged the services of Attorney Hymen
S. Gratch.
16. Having been apprised by the Board agent of the existence of corporate entities
other than Suburban, the Union, on January 9, 1962, filed (1) an amended charge
in Case No. 13-CA-4536, which duplicated the original charge, (2) a charge (Case
No. 13-CA-4639) alleging that Hometown had engaged in unfair labor practices,
and (3) a charge (Case No. 13-CA-4640) alleging that New Lawrence had engaged
in unfair labor practices.
17. On January 12, 1962, the instant consolidated complaint was issued.
18. On January 15, 1962, Kofkin called Shapiro and expressed regrets that the
complaint had been issued before he had had an opportunity to transmit the contract
"agreed upon on December 28," which was now ready. Referred to Attorney
Gratch, Kofkin repeated the message; Gratch, in effect, said that now that the
complaint had been issued Respondents were ready to defend against it. Never-
theless, Kofkin sent Gratch the contract. The contract has neither been executed
nor returned.
B. Independent interference, restraint, or coercion
The consolidated complaint, as amended at the hearing, alleges that Respondent,
(1) by its president, Jacob Shapiro, on or about October 19, 1961, interrogated
employees about their union membership and desires, and (2) by Lee Shipley, on or
about September 19, 1961, interrogated employees about their union membership,
activities, and desires. Respondent denies these allegations and further denies that
Shipley is a supervisor.
On a date uncertain, but between September 28, when he first heard from the
Union, and October 19, when he first met with a union representative, Jacob
Shapiro 24 spoke to LeRoy Brown, porter at the Hometown store. The occasion
was a routine morning visit by Shapiro. As Brown walked by, Shapiro called him
and asked if a union had contacted him. Brown asked, "What union?" Shapiro
mentioned the "porters and janitors" union, and Brown said, ".No." Then Shapiro
asked if Brown were sure, telling him not to be afraid "because if you want to join
a union you can join a union." Again, Brown said there had been no such contact
but suddenly reminded himself-as he then related to Shapiro-that some time back,
as he was leaving a bus, a man did speak to him about a union; he had asked where
Brown worked and then asked if he would join a union; upon receiving a negative
reply, the man had asked for Brown's signature "to show that he spoke to Brown,"
upon which Brown had signed a card.25
22Presumably on the basis of this fact, Respondents contend that the unit sought by
the Union was questioned at this meeting. I reject this contention, finding that the
subject of single-store units was not brought up, either here or in Shapiro 's earlier con-
tacts with union representatives.
23The findings in this paragraph, although contradicted, are based on Shapiro 's credited
testimony . I was not only impressed by his demeanor ; the statements in question ac-
corded with his course of conduct throughout.
u Stipulated and here found to be a supervisor.
m This is the conversation about which Shapiro told Kofkin on December 8. See
section III, A, paragraph numbered 9, supra.
SUBURBAN DRUGS, INC., ETC. 793
Later the same day, at the Elk Grove store, Shapiro asked Louis Anthony, porter
there, if the Union had contacted him. Anthony said it had not. Shapiro then told
Anthony that a local of the janitor's union had claimed to represent a majority of
the porters; that he had earlier asked the same question of LeRoy Brown and had
received the same answer; and that if Anthony wanted a union it was all right with
him, but if the Union did not represent him (Anthony), he did not know who it
represented 26
I find that Shapiro's interrogations of Brown and Anthony were motivated by a
desire to ascertain the accuracy of the Union's claim of majority representation; were
accompanied by an explanation of their purposes and by assurances of no recrimina-
tions; contained no threats or promises, either expressed or implied; and, in context,
did not interfere with, restrain, or coerce employees in their exercise of rights guaran-
teed under Section 727
On the afternoon of September 18, Harry Malone, porter at the Elk Grove store,
was engaged in conversation by two representatives of the Union for the purpose
of soliciting his signature to an authorization card. The conversation, which took
place toward the rear of the store during Malone's working hours, consumed between
10 and 20 minutes. During this period, Lee Shipley, manager of the store,28 rang
a service bell seeking to summon Malone several times without success. After the
conversation ended,29 he asked Malone what the conversation had been about.
Malone said that some unionmen had been talking to him about signing up with a
union . Shipley asked if Malone had signed up, and Malone said that he had39
I find Shipley's questions to have been occasioned by his impatience at Malone's
failure to heed his call. Nor, under the circumstances, do I find that Shipley's
specific query as to whether Malone "signed up" to be motivated by other than idle
curiosity.
Shipley engaged in a subsequent conversation with Malone which, while not
recited in the complaint, was nevertheless fully litigated at the hearing. In February
1962,31 Malone received a subpena to appear and testify at the instant hearing. He
showed it to Shipley and asked what it was all about. Shipley read it and told
Malone that he was being called to testify about the Union. When Malone con-
tinued to express bewilderment, Shipley said that if the Union got in, it would cost
the porters a $40 initiation fee and $4 per month in dues32 Although I find no
warrant for the introduction of this subject by Shipley, I am unable to read into
his remark the coercive thrust which calls for a remedy.
C. The refusal to bargain
1. The appropriate unit
The consolidated complaint describes the unit appropriate for bargaining purposes
as "all porters and maintenance employees of the Respondent employed at its various
"My findings as to Shapiro 's conversations with Brown and Anthony, as recited above,
are based upon the credited testimony of Shapiro. Neither Brown nor Anthony testified.
27 Blue Flash Empress, Inc., 109 NLRB 591. The instant case is relevantly distinguish-
able from more recent cases setting forth limitations on the Blue Flash principle; Burke
Golf Equipment Corporation, 127 NLRB 241 ; Murray Envelope Corporation of Mississippi,
130 NLRB 1574 ; Frank Sullivan and Company , 133 NLRB 726; and Spink Arms Hotel
Corporation, d/b/a Continental Hotel, 134 NLRB 1060.
29 Managers , Including Shipley, had the authority to hire and to discharge . Contrary to
the contention of Respondents , I find Shipley to be a supervisor within the meaning of
the Act.
21There is irrelevant conflict as to whether the following exchange took place on the
same or the next day.
sa In this respect, I credit Malone . Shipley testified that , after Malone told him some
unionmen had been talking to him, be (Shipley) merely said , "Whatever you do on your
own time is fine, but in the store I want you to work." He did not specifically deny ask-
ing Malone if he had signed a card . I was impressed by Malone 's answers ; they came
naturally , without overpainting. Shipley, particularly on cross-examination , displayed an
undue wariness.
81 In his brief, General Counsel states that this conversation took place on or about
October 19 or November 19, 1961 , in accordance with testimony given by Malone . Shipley
testified that it took place on the date indicated above. I credit Shipley , basically be-
cause, on this point , he gave the more plausible explanation of the occasion for, the
conversation.
sa These were, in fact , - the initiation fee and dues . Shipley had learned of them from
Jacob Shapiro.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stores in metropolitan Chicago, Illinois, and Hometown, Illinois, excluding office
clerical employees, guards, professional employees, and supervisors as defined in the
Act"; at the hearing, the General Counsel made it clear that he believed the appro-
priate unit to consist of all porters employed at any of the seven stores involved
herein. Respondents deny the appropriateness of any unit so composed, because
(1) porters should not be separated from other store employees, and (2) in any event,
the seven storewide unit is inappropriate.
The porters employed at the seven stores-which are all of the self-service type-
spend part of their time in the store proper, the rest in the rear utility space. During
a majority of their working hours, they check in, unpack, and store away merchandise,
and they replenish the stock in beverage boxes. In addition, they are expected to
maintain order and cleanliness: they sweep, mop, and dust and they wash windows
and wipe showcases. When they are available, they make outside deliveries. Occa-
sionally-but I find this to be incidental to their regular work-they hand a customer
an article of merchandise.
Most of the clerks-with whom Respondents compare and the General Counsel
contrast the porters 33-are women, a substantial portion of whom work part time.
They shelve merchandise, bring it to customers, and ring up sales.
Both porters and clerks receive similar privileges with respect to holidays, vaca-
tions, discount privileges, and health insurance. On the other hand, they are not
in the same line of progression; a porter may not be promoted or transferred to the
position of clerk.
The clerks are covered by a collective-bargaining contract with the Retail Clerks
Union, which contract does not apply to porters.
On this record, I find that porters could comprise a separate appropriate bargaining
unit.
There are five porters presently employed at the seven stores. Each is regularly
assigned at this time to a particular store-the Westchester store, the Elk Grove
store, the Hometown store, the Chicago store, and the Arlington Heights store.
Since no porter has been regularly employed at the La Grange store since August
1961, the Westchester store porter will, when necessary, perform porter work for the
La Grange store, compensation for such services being paid from that store's funds.
There is no porter at the Chicago Heights store.
The contract with the Retail Clerks-which excludes porters from its coverage-
covers the clerks in all seven stores. The same working conditions apply to the
clerks of all seven stores. Except that in-store seniority is applied and that the
individual stores check off and remit the dues of members employed by them, I see
no indication that the unit covered is other than,a seven-store unit.
Upon this record, taking into consideration the facts (outlined under section I,
supra) which persuaded me that this was and is an integrated enterprise-partic-
ularly the locus of labor relations decisions-I find that all porters employed at any
of the seven stores involved herein constitute a unit appropriate for bargaining
purposes.
2. The Union's majority status
On September 28, 1961, the five porters employed in Respondents' seven stores
were Melvin Walker (Westchester store and, occasionally, La Grange), Louis
Anthony (Elk Grove), LeRoy Brown (Hometown), Anthony Sama (Chicago), and
Harry Malone (Arlington Heights). I find that on that date the Union, by virtue
of signed authorization cards,34 represented four of the five-Walker, Anthony,
Malone, and Sama.35
"Each store also has pharmacists , but there is no claimed similarity between pharma-
cists and porters
34 Respondents , at the hearing , voiced the objection that various blanks on the authoriza-
tion cards were not filled in prior to the affixing of signatures The credible testimony
establishes , and I find, that all relevant blanks were filled in either before the affixing of
each signature or, based upon questions asked and answers given on the occasion of the
signing, were filled in immediately afterward in the presence of and were adopted by
the signer.
$ The General Counsel introduced credible evidence of signing by Louis Anthony, who
had told Shapiro that he had not been contacted He did not introduce a card for LeRoy
Brown, who had told Shapiro that he signed something to show that a unionman had
spoken to him. Neither Anthony nor Brown testified.
SUBURBAN DRUGS, INC., ETC. 795
3. The Employer's doubt as to majority
It is well settled that an employer, when confronted with a union's demand for
recognition or negotiation, has no absolute right to an election under Board supervi-
sion to determine whether or not a majority of his employees have designated the
umon as their bargaining representative.36 On the other hand, if he has a good-
faith doubt that the union has been so designated, he may resist the demand and
insist upon a Board election 37 The existence or nonexistence of good faith in the
employer's doubt must be determined by allusion to all the circumstances.
In the instant case, the Union's claim was made on September 28, 1961, and was
received by Respondent at or about that date. Between then and October 19', his
first contact with a union representative, Respondents' president, Jacob Shapiro, under
circumstances which I have found to be not violative of the law, was informed by
two of the five employees involved that they had not been approached by a union or,
having been approached, had not signed,an authorization as bargaining representative.
On October 19, he expressed his doubt to a umon representative, and it was ar-
ranged that he might see the Union's cards. The "viewing" never came off, origi-
nally because he was unable to keep an appointment 38 and, subsequently, because
union representatives refused to show them. On December 8, union representatives
demonstrated confusion (see section III, A, paragraph numbered 9, supra) as to
just which and how many employees were involved, 39 and their revelation of some of
the names in their possession did not clarify the doubt.
At all ,times relevant, as I have found, Shapiro voiced his doubts as to the Union's
majority status. I reject the contention, implicit in the General Counsel's arguments,
that his acquiescence in the Union's suggestion that he examine and discuss their
demands, in some way constituted a waiver of his doubt as to majority 40 At no
,time, either' privately or publicly, did he withdraw from his position; his "bargain-
ing" was conditioned upon a showing of majority by the Union.
Finally, I take note of the absence of evidence of conduct demonstrating union
animus, let alone of unfair labor practices.
I find, under all the circumstances, that Respondents, in good faith, entertained a
doubt as to the Union's majority and were therefore entitled to insist, as they did
insist, upon a Board-supervised election.
On the basis of the foregoing factual findings and conclusions, and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Prior to November 1, 1961, Suburban Drugs, Inc., Hometown Drugs, Inc., New
Lawrence Drugs, Inc., and La Grange Highland Drugs, Inc., were a single employer
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. On and after November 1, 1961, Suburban Drugs, Inc., and Hometown Drugs,
Inc., were and are a single employer engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
3. Building Service Employees International Union, Local 189, AFL-CIO, is a
labor organization within the meaning of the Act.
4. Respondents Suburban Drugs, Inc., Hometown Drugs, Inc., New Lawrence
Drugs, Inc., and La Grange Highland Drugs, Inc, have not engaged in unfair labor
practices within the meaning of Section 8(2), (1), and (5) and Section 2(6) and
(7) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the consolidated complaint be dis-
missed in its entirety.
36 Joy Silk Mills, Inc, 85 NLRB 1263, enfd . 185 F. 2d 732 (C A.D C ).
87 N L R B v. Chicago Apparatus Company, 116 F. 2d 753 ( CA 7), cited at Joy Silk
Mills, Inc. v. N .L.R B., 185 F. 2d 732, 741 (C.A D.C.)
es There is no evidence that his cancellation of the appointment was designed to avoid
his seeing the cards
MI am well aware that their confusion was largely bottomed upon a lack of informa-
tion peculiarly within Shapiro 's possession But, whether justified or not, the confusion,
I find, increased Shapiro's doubts.
41 See Branch Motors, Inc., 129 NLRB 906; cf. Porter County Farm Bureau Co-operative
Association, Incorporated, 133 NLRB 1019.