The Red Cross Drug Co.

National Labor Relations Board - Board Decisions

Feb 2, 1968

169 N.L.R.B. 610 (N.L.R.B. 1968)

610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Red Cross Drug Company* and Retail Clerks
Union Local # 1403 , AFL-CIO, Retail Clerks In-
ternational Association , AFL-CIO. Case
30-CA-539
February 2, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On October 19, 1967, Trial Examiner John H.
Eadie issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged 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 to the
Decision, together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 Respondent's ex-
ceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, as supple-
mented herein.'
1967, on the complaint of the General Counsel and the
answer of Red Cross Rexall Drug Stores, Inc., herein
called the Respondent.' The issue litigated was whether
the Respondent violated Section 8(a)(1), (3), and (5) of
the Act. After the hearing the parties filed a combined
stipulation and motion to close the hearing. The motion
was granted. The stipulation and ruling on the motion are
received in evidence as Trial Examiner's Exhibits I and
2, respectively. The Respondent filed a brief with the
Trial Examiner.
Upon the entire record in the case, and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Wisconsin corporation, is engaged
in the operation of several retail drug stores in Racine,
Wisconsin, including a store located at 5415 Washington
Avenue, which is the only store involved herein. During
1966, the Respondent's sales in all of its retail stores were
in excess of $500,000. During the same period, the
Respondent purchased goods and materials, valued in ex-
cess of $50,000, from points outside the State of Wiscon-
sin.
The complaint alleges, the Respondent's answer ad-
mits, and the Trial Examiner finds that the Respondent is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union Local #1403, AFL-CIO, Retail
Clerks International Association, AFL-CIO, herein
called the Union, is a labor organization which admits to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, The Red Cross Drug
Company, Racine, Wisconsin, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
*[By Order dated April 25, 1968, the name of the Respondent was
changed from Red Cross Rexall Drug Stores, Inc., to The Red Cross
Drug Company.]
' The Respondent excepts to the Trial Examiner's failure to consider in
his Decision the effect on the Union's card showing of a petition, signed
by a number of employees and purporting to constitute a withdrawal of
their union authorization cards. We find this petition of no effect on the
Union's card showing in view of the evidence in the record that a super-
visor solicited the signatures thereto, and in view of the other unlawful
conduct of the Respondent set forth in the Trial Examiner's Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN H . EADIE, Trial Examiner : This proceeding was
held before me in Racine , Wisconsin , on May 9 and 10,
A. Background
Starting on January 19, 1967, Richard Eiden and Paul
Whiteside , representatives of the Union , solicited the
Respondent ' s employees to sign union authorization
cards. By letter dated January 20, 1967, the Union
notified the Respondent that it represented a majority of
employees in a stated , unit , suggested a certain date for
meeting in order to negotiate a contract , and stated that at
the meeting it was prepared to prove its majority by sub-
mission of authorization cards for a card check . Gilbert
Brach , the Respondent 's attorney , answered the Union's
letter by letter dated January 24, 1967, stating that the
Respondent would not meet with the Union on the sug-
gested date "because we have no knowledge of any union
organization and no evidence that any of our people are
members of your union."
On January 31, 1967, the Union sense mllwing letter
to Brach:
In your letter of January 24th, you claim to have
no evidence of Union organization at the store.
We have enclosed true and accurate copies of
authorization cards voluntarily signed by an
overwhelming majority of the Unit employees. In ad-
dition , other unit employees have authorized the
' A charge and an amended charge were filed on March 8 and April 5,
1967. The complaint issued on April 11, 1967.
169 NLRB No. 89
THE RED CROSS DRUG COMPANY
Union to bargain on their behalf but, perhaps
because of the Company's continued campaign of
anti-union coercion , now prefer to keep their identity
confidential.
Since you have now been furnished with conclu-
sive proof of our majority, we trust you will respond
by return mail advising as to when your client will be
available to meet for purposes of negotiation.
Enclosed with the Union's letter were copies of nine
authorization cards. The Union did not receive any reply
from the Respondent.
The Union filed a petition for certification on February
13, 1967.2 At a subsequent conference held on February
23 the parties entered into a stipulation for certification
upon consent election. The election was scheduled for
March 9, 1967. At this conference the Union again of-
fered to prove its majority through authorization cards.
The Respondent refused the offer and insisted upon an
election.
As related above, the Union filed a charge on March 8,
1967. Due to the filing of this charge, the election was
postponed indefinitely. On April 5, 1967, the petition was
withdrawn with the approval of the Regional Director.
B. The Status ofMinnie Mo desti
The General Counsel contends that Modesti is a super-
visory employee within the meaning of the Act. The
Respondent contends otherwise.
Modesti was employed by the Respondent for approxi-
mately 1 year and 4 months before her employment was
terminated about April 1967. Her job title was manager
of the lunch counter. She testified that she ordered the
food for the Washington store and for three other stores
of the Respondent ; that, if a large food order was in-
volved, she first got the approval of Jack Donovan, the
manager of the Washington store; that she assigned work
to the employees in the lunch counter; that she and
Donovan "together" made up the work schedules for the
employees ; that prospective employees were first inter-
viewed by her; that she made recommendations to
Donovan for the hiring of employees; that, before em-
ployees were hired, Donovan always talked to them; that
she and Donovan "together" hired the employees; and
that all employees whom she recommended to Donovan
were hired.
Employee Mae Fragale was hired as a waitress for the
lunch counter in November 1966. She testified that
Modesti asked her if she would like to work for the
Respondent; that Modesti at the time told her what her
wages and hours of work would be; that, when she stated
that she would take the job, Modesti told her that she
would give her a definite answer the following day; that
Modesti explained that she had promised the job to
another girl but that she was not sure if that girl wanted
the job; that Modesti called and told her to report for
work the following Monday; and that she first met
Donovan about 8:30 a.m. on that Monday as she was per-
forming "little chores" getting the lunch counter ready.
Pauline Fazzari was hired by the Respondent in Sep-
tember 1966 , as a waitress and dishwasher . She testified
that Modesti asked her if she wanted a job with the
Respondent; that when she accepted the offer; Modesti
told her that she would ' give her an answer after she
(Modesti) spoke to Donovan and that she (Frazzari)
2 Case 30-RC-585.
611
should go to "6th Street and make an application"; and
that she was not introduced to Donovan until the morning
when she first reported for work.
Donovan testified that he was "in complete charge of
hiring and scheduling" and denied that Modesti had hired
any employees . Concerning her duties , Donovan
testified , "Minnie Modesti is the leader of the ladies, to
make sure that the laws as to neatness and to hairnets and
the general health code is maintained. She assists me in
buying food for our fountain , as well as warehousing
some food for other fountains . In case of a scheduling [of
work] conflict , she consults me as to whom I think is best
to put on at certain times. In case if a problem would arise
as to who is to clean the grill tonight, or who is to sweep
the floor , she would delegate the routine maintenance du-
ties .... The title of fountain manager would, in the
absence of Minnie , fall to the next one in line, who would
be Rose [Anzalone], and right straight down the line. It
would be the oldest and most mature person on duty at
the time that could be the leader."
The above uncontradicted testimony of Fragale and
Fazzari shows that Modesti in effect had the authority to
hire employees. Donovan did not meet these two em-
ployees until the morning that they reported for work. In
any event, the evidence discloses that M odesti effectively
recommended the employment of most, if not all, of the
lunch counter employees. Accordingly, I find that
Modesti was a supervisory employee within the meaning
of the Act.
C. Interference, Restraint, and Coercion
As related above, Eiden and Whiteside commenced the
union campaign on January 19, 1967. That night Eiden,
accompanied by employees Sue Reber and Judith Stan-
ton, went to the homes of several employees , including
that of Modesti. Reber and Stanton spoke to Modesti.
Modesti signed a union card at the time . By January 26,
11 other employees had signed union cards.
Modesti testified without contradiction that, at some
time after the employees had signed union cards, she
"figured" that they no longer wanted the Union; that,
after consulting with her attorney, she drafted a petition
to withdraw from the Union; that after she, Rose An-
zalone, her mother , and Fragale had signed the petition,
she told Donovan what she planned to do; that he told her
that it was "up to" her if she "wanted to do it or not"; that
in the next 2 or 3 days she solicited all of the employees
to sign the petition ; that after the employees had signed
the petition , she presented it to Donovan ; and that she
told him at the time that, if it would help him, she was giv-
ing it to him "whatever he needed it for."
I find that the above conduct of Modesti in drafting and
circulating a petition among the employees for the pur-
pose of having them reject the Union was violative of
Section 8(a)(1) of the Act.
Elizabeth Mehalic worked as a waitress. She had a con-
versation with Donovan on or about January 28, 1967. In
this connection Mehalic testified as follows:
I asked him ... if we would get our discounts, and
he just said why should we. . . "you'd be just taking
more money of the company, if the union got in." .. .
He said that the had the right to open the store and
close it anytime that he wanted. And he said people
were talking about having ... split hours, and I
350-212 0-70-40
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked him if I could be made [to work] split hours,
and he said no, he wouldn't do it but he could if he
wanted to, he can make it hard for u s to work.... he
could change the schedule and make us work split
hours. . . . He said he could make it hell for us to
work, if he wanted to.... That we wouldn't be gain-
ing anything more than we had, if the Union got in.
... That we would lose our discounts .. . . We
would have a store meeting with Mr. Gates,3 and
we'd discuss our grievances and things like that but
they'd be done in writing, and that he'd answer them
as best he could.
Donovan did not deny categorically the statements at-
tributed to him by Mehalic. Generally, he testified that he
did not make any promises or threats to employees. I
credit the above testimony of Mehalic. Her testimony dis-
closes that Donovan threatened employees with split
hours and loss of discount privileges if they adhered to
the Union, impliedly promised that Gates would permit
employees to submit written grievances at a store meeting
if they renounced the Union,' and stated, in substance,
that the selection of the Union by the employees would
be a futile act. I find such conduct to be violative of Sec-
tion 8 (a)(1) of the Act.
Sue Reber worked for the Respondent. as a clerk. She
had a conversation with Donovan on or about January
28. Concerning this conversation, Reber testified without
contradiction as follows:
Mr. Donovan called me back to show me where
our work schedule had been changed .... So after
I got my hours straight I asked him why this was
going into effect. And he said that when all this busi-
ness was forgotten about - everything would go back
to normal ... I said "What business?" And he said
that he wasn't allowed to bring it up, that I would
have to bring it up . .
On or about January 30, Reber had several telephonic
conversations with Donovan. She testified without con-
tradiction to the following:
Well, he called up to tell me that the work schedule
is going into effect that week .... S o after I hung up,
I called him back to find out if I was to come into
work that night or not. And Jack said no, I was to
come in Tuesday night, as usual. . . . He said that
Mr. Gates had told him to tell us that we would have
a meeting when everything was forgotten about the
union. And that we would discuss all our grievances.
And I asked Jack how we would do this, and he said
that we would write down our grievances on a piece
of paper which we wouldn't have to sign, and then
Mr. Gates would discuss it with us. 5 And I told Jack
that one of the things that we wanted the union in for
. was that we thought we deserved more pay on
Sundays and holidays. And he said that if I thought
I needed more money for Sundays, then he could al-
ways find someone cheaper to work.
As was found in connection with the testimony of
Mehalic and Kime, I find that the above statement of
Donovan about a meeting with Gates was violative of the
Act. I do not find that his remark about Sunday work was
a threat of reprisal, as alleged in the complaint.
Reber had a conversation with Donovan on Sunday,
February 26. Concerning this conversation, she testified
to the following:
. Well Jack came up to the front where I was and
he told me that he had talked with five women in the
store, he knew that they were going to vote no. And
he asked me what I was going to do when the elec-
tion came. And I said I was I was going to vote no,
too.
And so Jack told me that he thought it was the
part-time girls at the lunch counter that were pushing
the union. And he said that I should go back and I
should tell the girls that if they voted yes he would
lay them off and hire the women from Elmwood
Plaza in their place.
. Well, I didn't quite understand how he could do
this, and he said that if we wanted a union in we
would have to go by seniority and the women from
Elmwood Plaza had more seniority than the girls at
our lunch counter.
Donovan admitted having a conversation with Reber
on the Sunday in question, but denied any discussion with
her "in regard to the layoff of anybody" or about "union
3 The record discloses that Gates was either the owner or an officer of
the Respondent.
4 The parties stipulated that if employee Eleanor M. Kime was called as
a witness the following, taken from her affidavit, would constitute her
testimony:
On or about 1-25-67, 1 went back to the pharmacy and was talking
with Jack Donovan, Store Manager. We are talking and by some re-
mark, which I do not recall , we started to talk about unions . I think I
was probably griping about something about the store . There was
conversation about unions in a general sense . I asked if he knew
about or was closely associated with a union. He said he was not. I
told him that unions had done a lot for people and he had a lot to
learn . Then he asked what I wanted from a union . I told him that I
was looking for more security . He asked what I meant by that. I an-
swered that being a full time employee I should have sick leave, paid
holidays, and overtime if available . I also said that I was not expect-
ing the union to get me a monumental raise, because I do feel that my
hourly pay is close to union scale . He said it was not company policy
to grant those benefits . I said it should be; this is why unions are a
benefit because they can do things for people . He repeated it was
company policy . He said he had been a good boss and reminded me
of the benefits I do receive such as receiving personal calls, running
over to Sears , smoking on the job and pleasant working conditions.
He then asked if we could not work this out by ourselves . I said that
would be lovely. He said that all the employees should turn in, un-
signed , list of what they wanted improved at the store and that there
would be a meeting with Mr . Gates & he would answer or explain
why the request could or could not be granted. I suggested that the
list should be signed so that Mr. Gates would know whose complaints
they were, and I also said that I would pass this along . He had not
asked me to do so. Jack said the employees did not have to sign. I said
I would sure sign mine.
The parties also stipulated to further testimony of Donovan. This
testimony, in part, is as follows:
Sometime during the latter part of January I recall having had a
conversation with Eleanor M. Kime . ... The conversation con-
cerned methods of improved benefits and the discussion led to the
store meetings with Mr . Gates. This was a normal discussion because
we have had store meetings in the past and Mr. Gates would be
present and methods of improving the store , improving benefits, etc.
would be normally a matter to be taken up at these meetings. I told
Ellie that I couldn't say yes or no concerning such things as paid
holidays, sick leave, etc. but that at the present time it was not com-
pany policy to grant these and that I couldn 't do anything to change
it .... I didn't promise - Ellie that there would be a meeting held but
stated that such a meeting would be up to Mr. Gates.
Except to . state that he did not "promise" that there would be a meeting,
it is to be noted that Donovan did not deny the statements attributed to
him by Kime. Accordingly, I credit the testimony of Kime. This testimony
shows an implied promise of a meeting with Gates if the employees would
reject the Union and supports the testimony of Mehalic in this connection.
I do not find that Donovan's statements to Kime were violative of the Act
in any other respect.
I Reber testified that before the above time she had attended two store
meetings and that Gates was not present at either meeting.
THE RED CROSS DRUG COMPANY
activities." ,I credit the above testimony of Reber and find
that Donovan's interrogation as to her vote in the election
and his threat to lay off the counter employees if they
voted for the Union were violative of Section 8(a)(1) of
the Act.
Reber had another conversation with Donovan on or
about March 11. In this connection Reber testified
credibly, "Jack came back and told me that he had been
talking to Mr. Gates, and Mr. Gates said that when
everything was settled that we would get paid for ...
holidays. And I asked him what he meant .... And he
said that if the store were going to be shut on a holiday,
and we were scheduled to work but we wouldn't because
the store was shut, we would get paid for that day, or for
the hours we would work ... he said if we forgot about
the union that this would go into effect."
I find that Donovan's promise of benefit if the em-
ployees rejected the Union was violative of Section
8(a)(1) ofthe Act.
D. Discrimination Against Doris Hougan
During 1964 Hougan worked at several of the Respond-
ent's stores. She was hired by Gates. During the early
part of 1965 she quit her job because she did not want to
work on alternate weekends. She told Gates the reason
why she quit. During November 1965 Gates called Hou-
gan and asked her to work at the Washington store. She
said that she did not want to work for the Respondent
again because she did not want to work on weekends.
Gates said that there had been "a misunderstanding"
over her former employment and said that she would not
have to work "any weekends" if she would come back to
work for him. Hougan accepted the job offer.
During the summer of 1966 Hougan's hours per week
were cut from 36 to 26 because she did not want to work
on Saturday. She discussed this with both Gates and
Donovan. At sometime during November 1966 Hougan
told Donovan about a job offer from another company
which would,give her more hours of work. She said that
she would accept the job if her "schedule was changed
once more. 116 Donovan replied that he would try to get
her "more hours" and said, "Well, don't worry about the
Saturdays."
On January 19, 1967, at the lunch counter, Hougan
solicited Fazzari and Anzalone to sign union cards. Hou-
gan herself signed aunion card on January 20.,Eiden gave
her the card while they were in the parking lot in front of
the Respondent's store.
On or about January 25 Hougan learned from Kime
that her; work schedule was being changed. The new
schedule called for Hougan to work on alternate Satur-
days and Friday nights. About 11 a. m. on Saturday,
January ',28, Donovan called Hougan at her home and
told her that the new work schedule would go into effect
the following Monday. He asked her if she had studied
the schedule. She replied that she had seen it on the previ-
ous Wednesday and said, "You know I can't work these
hours, and I told you before, if I ever had to work on a
Saturday I would have to quit." Donovan said, "Well,
you knoiw why this new schedule is going into effect."
Hougan answered, "Well, I won't be in on Monday."
6 Hougap testified that her work schedule was changed "at least eight
times in ten months."
° The schedule was received in evidence. It contains a number of era-
sures and in the upper comer shows the date January 9, 1967.
8 Reber testified without contradiction that after Hougan quit her,
613
Donovan closed the conversation by saying, "Well, I'll
talk to you later." Donovan did not call Hougan again.
Hougan did not report for work on Monday, January
30. On February 4, Hougan sent the following letter to
gates:
I agreed to come and work at your new store at
5415 Wash. Ave in Oct. 1965. My hours were to be
Mon. thru Fri including Wed night 36 hours a week.
It was also agreed no Fri, night, Sat or Sun.
After the schedule was changed 10 times in 15
months I still worked the hours I was told, even tho
my hours were cut to 26 hours a week.
I am ready, willing, and able to work the above
hours.
However a week after I signed with the Union (Jan
28, 1967) Mr. Donovan called on Sat and informed
me the new schedule would go into effect Mon. Jan
30th that would include Fri night and Sat. knowing
it was impossible for me to work those days. That is
why I said I would not be able to come to work last
week.
However I am still available for original hours I
was hired for. Please advise.
Hougan did not receive any answer from the Respondent.
Concerning the new work schedule,' Donovan
testified, in substance, that he had it on his desk since
January 9, that he did not recall if he showed it to any em-
ployees before he put it into effect, that it was "first
discussed" with employees during November 1965, that
it was put into effect "at the fountain" on January 9, and
that it became effective for the other employees on Janua-
ry 28.
The Respondent did not present any evidence to show
the necessity for changing the work schedules of the em-
ployees. On the other hand, Donovan's statement to
Mehalic indicates that the new work schedule was put
into effect in order to "make it hard" on the employees
because of their union activity. He told Reber, "When all
this business was forgotten about- everything would go
back to normal."" It is clear from his statements to Reber
that he was referring to the union campaign.
The Respondent knew that Hougan could not work on
Saturdays. She had made this known to both Gates and
Donovan. Gates told her that she would not have to work
on weekends when he rehired her in 196 5. Before the ad-
vent of the Union, Hougan had not been required to work
on Saturdays while she was employed at the Washington
store.9 Nevertheless, 5 days after the Union notified the
Respondent that it represented a majority of the em-
ployees, the Respondent scheduled Hougan for Saturday
work.
Accordingly, from all of the evidence I find that the
new work schedule was instituted in reprisal for the union
activities of the employees, that because of Hougan's
union activity the Respondent scheduled her for Saturday
work in order to force her to terminate her employment,
and that by 1 such conduct the Respondent violated Sec-
tion 8 (a)(3) and (1) of the Act. In making the above find-
ing as to Hougan I infer that the Respondent knew or
suspected that Hougan was engaged in activities on be-
half of the Union. The evidence shows that there were
only 12 employees in the appropriate unit and that
"hours went right back to normal, so there was no change."
' Hougan testified without contradiction that on occasion "as a per-
sonal favor" she worked on weekends when another employee "called in
sick."
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Modesti, a supervisor, was involved in the union activity.
E. The Refusal To Bargain
The complaint alleges the appropriate unit to be "All
full-time and regular part-time employees at Respond-
ent's store located at 5415 Washington Avenue, Racine,
Wisconsin, excluding one store manager, professional
employees, guards and supervisors as defined in the
Act." The Respondent's answer admits this allegation of
the complaint. Accordingly, I findthe above unit to be ap-
propriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
The parties stipulated that there were 12 employees in
the appropriate unit, including Hougan but excluding
Modesti, on January 21, 1967. The General Counsel
presented in evidence the cards of 11 employees, exclud-
ing that of Modesti. The evidence discloses that all of
these employees made valid designations of the Union as
their collective-bargaining agent. 10 Nine of the cards were
signed on or before January 20. The cards of Fragale and
Mary Ricchio were signed on January 2 1 and 26, respec-
tively. Accordingly, I find that at all times on and after
January 20, 1967, a majority of the employees in the
above-appropriate unit designated or selected the Union
as their exclusive collective-bargaining representative.
As related above, on January 20, 1967, the Union
requested the Respondent to meet with it in order to
negotiate a contract and offered to prove its majority by
a card check. In its answer of January 24 the Respondent
refused to meet with the Union, claiming that it had "no
evidence" that any of its employees were members of the
Union. The Union sent a second demand letter on Janua-
ry 31 and enclosed photostats of nine authorization
cards. The Respondent did not answer this letter.
Since the Union submitted photostats of cards of well
over a majority of the employees in the unit, it would not
appear that the Respondent was insisting upon an elec-
tion because it had a good-faith doubt of the Union's
majority status. Further, it has been found above that the
Respondent violated Section 8(a)(1) and (3) of the Act.
This conduct began shortly after the Union's first demand
for recognition. It shows that the Respondent completely
rejected the collective-bargaining principle and that it
merely sought an election in order to gain time within
which to undermine the Union and dissipate its majority.
Accordingly, I find that the Respondent's refusal to bar-
gain on and after January 24, 1967, was violative of Sec-
tion 8(a)(5) of the Act.
It is undisputed that on January 22, 1967, six em-
ployees received wage increases; that on February 5 An-/
zalone's hourly rate was increased from $1.50 to $1.65;
and that the Respondent took this action without prior
notice to or bargaining with the Union. Concerning the
reason for the wage increases, Donovan testified, "An-
ticipation of the minimum fair wage being increased
February 1st to $1.40. It had been decided in December
10 In its brief the Respondent states, ". . . Sue Reber obtained cards by
unlawful acts, by coercive acts by telling Rose Anzalone, Mary Ricchio,
Mae Fragale, Pauline Fazzari and Allan J. Mollerskov that their signa-
tures were needed to obtain 100%. This puts pressure on the individual
because the real intent is to have this individual feel that he stands alone
and such was not true."
Fragale testified that Kime solicited her to sign a card, telling her that
she would "like the store to be 100 percent union." Fazzari testified that
Hougan solicited her and Anzalone to sign cards and that I-Iougan said
or so by the management that everyone, irregardless [sic]
of what position they occupied at any store, that they
would all be raised to meet the minimum of $1.40. The
date of the 22nd was decided upon, because the 21st
ended a pay period and the 22nd started a pay period. So
we started at the start of a pay period, which would be be-
fore the 1st, and thereby comply with the Federal regula-
tion."
There is no showing, other than its belief, that the
Respondent was subject to the minimum wage require-
ments of the Fair Labor Standards Act. In any event, the
Respondent increased the rates of six employees to the
new minimum before the required time ; and Anzalone's
hourly rate before her wage increase was above the new
minimum wage . Since the Union was the bargaining
representative of the employees involved, I find that the
Respondent's unilateral action was violative of Section
8(a)(5) of the Act.
It has been found above that on or about January 28
the Respondent in violation of Section 8(a)(3) and (1) of
the Act enforced a new work schedule. I find that this
conduct also constitutes a separate violation of Section
8(a)(5) since it is undisputed that the Respondent did not
notify or bargain with the Union in this respect.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the Respond-
ent's operations described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , it will be recommended that it
cease and desist therefrom and that it take certain affir-
mative action designed to effectuate the policies of the
Act.
Having found that the Respondent has refused to bar-
gain with the Union in violation of Section 8(a)(5) and (1)
of the Act , I shall recommend that the Respondent be or-
dered to bargain with the Union upon request as the ex-
clusive representative of all its employees in the ap-
propriate unit concerning rates of pay, wages, hours, and
other terms and conditions of employment, and, if un-
derstandings are reached , embody such understandings
in a signed agreement.
It has also been found that the Respondent dis-
criminated against Doris Hougan . Under the circum-
stances found herein , the Respondent's conduct was in
the nature of a constructive discharge . Accordingly, it
will be recommended that the Respondent offer Hougan
that she thought "it would be nice for all of us to be in the union ." Moller-
skov was the only employee in the unit who did not sign a card. He
testified that on January 19 Reber asked him to sign a card and that she
told him at the time that he was "the only one that hadn't sign a card yet."
The Respondent's contention is rejected . The uneontradicted testimony
of Fragale and Fazzari shows that Kime and Hougan did not make any er-
roneous representations . As for Mollerskov, there is no issue since he did
not sign a card.
THE RED CROSS DRUG COMPANY 615
immediate and full reinstatement to her former or sub-
stantially equivalent position without prejudice to her
seniority or other rights or privileges, and make her whole
for any loss of pay suffered by reason of the discrimina-
tion by payment to her of a sum of money equal to that
which she would have earned as wages from the date of
the discrimination to the date of reinstatement, less her
net earnings during such period in accordance with the
formula prescribed in F. W. Woolworth Company, 90
NLRB 289, together with interest on such sum, such in-
terest to be computed in accordance with the formula
prescribed by the Board in Isis Plumbing & Heating Co.,
138NLRB 716.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section
7 of the Act, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
3. By scheduling Doris Hougan's working hours for
times it knew she would be unable to work, thereby forc-
ing her to terminate her employment, the Respondent dis-
criminated against her and engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the
Act.
4. All full-time and regular part-time employees at
Respondent's store located at 5415 Washington Avenue,
Racine, Wisconsin, excluding one store manager, profes-
sional employees, guards 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.
5. The Union has been at all times on and afterJanua-
ry 20, 1967, the exclusive representative of all employees
in the aforesaid appropriate unit for the purposes of col-
lective bargaining within the meaning of Section 9(a) of
the Act.
6. By refusing at all times on and after January 24,
1967, to recognize and bargain collectively with the
Union as the exclusive representative of its employees in
the aforestated appropriate unit, the Respondent has' en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
7. By unilaterally changing and enforcing a new work
schedule, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1), (3), and
(5) of the Act.
8. By unilaterally granting wage increases, the
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, I
recommend that the Respondent, its officers, agents, suc-
cessors, and assigns, shall be ordered to:
1. Cease and desist from:
(a) Discouraging membership in the Union, or in any
other labor organization of its employees, by changing the
work schedules of employees or by otherwise dis-
criminating against them in regard to their hire and tenure
of employment or any term or condition of employment.
(b) Interrogating its employees concerning their mem-
bership in or activities on behalf of the Union, or making
promises of benefits or threats of reprisal because of such
activity.
(c) Refusing to bargain collectively with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment with the Union as
the exclusive representative of its employees in the ap-
propriate unit found above.
(d) Unilaterally granting wage increases or changing
and enforcing new work schedules without prior notice to
or bargaining with the Union.
(e) In any other manner interfering with, restraining,
or coercing their employees in the exercise of the right to
self-organization, to form labor organizations, to join or
assist the Union or any other labor organization, to bar-
gain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection, or to refrain fromany or all such activities,
except to the extent that such rights may be affected by
an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Sec-
tion 8(a)(3) of the Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer Doris Hougan immediate and full reinstate-
ment to her former or substantially equivalent position
without prejudice to her seniority or other rights or
privileges, and make her whole in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Upon request, bargain collectively with the Union
as the exclusive representative, of the employees in the
above-described appropriate unit with respect to rates of
pay, wages, hours of work, and other terms and condi-
tions of employment, and embody in signed agreements
any understandings reached.
(c) Preserve and, upon request, make available to the
National Labor Relations Board or its agents, for ex-
amination and copying all records necessary for the deter-
mination of the amount of backpay due under these
recommendations.
(d) Post at its store in Racine, Wisconsin, copies of the
attached notice marked "Appendix."" Copies of said
notice, to be furnished by the Regional Director for Re-
gion 30, after being duly signed by the Respondent or its
authorized representative, shall be posted by Respondent
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,
I I 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 a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 30, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.12
12 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 Re-
spondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT discourage membership in Retail
Clerks Union Local #1403, AFL-CIO, Retail
Clerks International Association, AFL-CIO, or in
any other labor organization of our employees, by
changing the work schedules of employees or by
otherwise discriminating against them in regard to
their hire and tenure of employment or any term or
condition of employment.
WE WILL NOT interrogate our employees concern-
ing their membership in or activities on behalf of the
above-named labor organization, or make promises
of benefit or threats of reprisal because of such ac-
tivity.
WE WILL NOT unilaterally grant wage increases or
change and enforce new work schedules without
prior notice to or bargaining with the above-named
labor organization.
WE WILL, upon request, bargain collectively with
the above-named labor organization as the exclusive
representative of all employees in the following unit
with respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment, and, if
understandings are reached, embody such un-
derstandings in a signed agreement. The bargaining
unit is:
All full-time and regular part-time employees
at our store located at 5415 Washington
Avenue, Racine, Wisconsin , excluding one store
manager , professional employees , guards and
supervisors as defined in the Act.
WE WILL offer Doris Hougan immediate and full
reinstatement to her former or substantially
equivalent position , without prejudice to her seniori-
ty or other rights and privileges , and make her whole
for any loss of pay suffered as a result of the dis-
crimination against her.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization , to form labor or-
ganizations , to join or assist Retail Clerks Union
Local #1403, AFL-CIO, Retail Clerks Interna-
tional Association , AFL-CIO, or any other labor or-
ganization , to bargain collectively through represent-
atives of their own choosing , to engage in concerted
activities for the purposes of collective bargaining or
mutual aid or protection, or to refrain from any or all
such activities , except to the extent that such rights
may be affected by an agreement requiring member-
ship in a labor organization as a condition of employ-
ment as authorized in Section 8(a)(3) of the Act, as
modified by the Labor- Management Reporting and
Disclosure Act of 1959.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of any
labor organization except to the extent that this right may
be affected by an agreement requiring membership in a
labor organization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
Dated By
RED CROSS REXALL DRUG
STORES, 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, 2nd Floor,
Commerce Building, 744 North 4th Street, Milwaukee,
Wisconsin 53203, Telephone 272-3879.