Walgreen Co.

National Labor Relations Board - Board Decisions

Aug 12, 1976

225 N.L.R.B. 896 (N.L.R.B. 1976)

896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walgreen Company and Retail Clerks Union, Local
775 Retail Clerks International Association, AFL-
CIO. Cases 20-CA-10665 and 20-CA-10752
August 12, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On April 28, 1976, Administrative Law Judge Rog-
er B. Holmes issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge ' s resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 ( 1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
dated complaint alleges that Walgreen Company, herein
called the Respondent, has engaged in unfair labor practic-
es within the meaning of Section 8(a)(1), (3), and (4) of the
National Labor Relations Act, as amended, herein called
the Act. Respondent filed an answer to the consolidated
complaint and denied the commission of the alleged unfair
labor practices.
The hearing was held before me on March 2 and 3, 1976,
at San Francisco, California. Briefs were filed by the Gen-
eral Counsel and by the Respondent and have been duly
considered.'
Upon the entire record and based on my observation of
the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is an Illinois corporation with places of
business located at San Mateo, California, and at other
locations throughout the United States, where it is engaged
in the retail sale of drugs and sundries. During the 12-
month period preceding the issuance of the consolidated
complaint, the Respondent, in the course and conduct of
its business operations, had gross sales in excess of
$500,000, and during the same period the Respondent pur-
chased and received at its facilities in the State of Califor-
nia goods and materials valued in excess of $50,000 direct-
ly from suppliers located outside the State of California.
Upon these admitted facts, I find that the Respondent
has been at all times material herein an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act
11. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is, and has been at all times
material herein , a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
DECISION
STATEMENT OF THE CASE
ROGER B . HOLMES, Administrative Law Judge' The
charge in Case 20-CA-10665 was filed on September 25,
1975, by Retail Clerks Union, Local 775, Retail Clerks In-
ternational Association, AFL-CIO, herein called the
Union The original charge in Case 20-CA-10752 was filed
on October 23, 1975, by the Union, and the first amended
charge in that case was filed on December 9, 1975, by the
Union. An order consolidating cases, consolidated com-
plaint and notice of hearing was issued on December 16,
1975, on behalf of the General Counsel of the National
Labor Relations Board, herein called the Board, by the
Regional Director of Region 20 of the Board. The consoh-
The principal issues raised by the pleadings are:
1. Whether the Respondent discharged Robert Dixon
on July 1, 1975, and thereafter failed to reinstate him, be-
cause of his past union activity, and/or because he had
previously given testimony in a prior Board proceeding,
and thereby violated Section 8(a)(1), (3), and (4) of the Act.
2. Whether the Respondent discharged Richard Semla
on July 25, 1975, because of his past union activity, and
thereby violated Section 8(a)(1) and (3) of the Act.
In his brief counsel for the General Counsel moved to correct the tran-
script with regard to six words It appears to me that these were inadvertent
clerical errors in transcription Accordingly, without opposition, the Gener-
al Counsel's motion is hereby granted
225 NLRB No. 132
WALGREEN COMPANY 897
B. Background
Pursuant to the request made by counsel for the General
Counsel at the hearing, I stated that I would take judicial
notice of the earlier Board proceeding which involves the
same Respondent at the same location and the same
Charging Party. The Board's Decision and Order in the
prior case is cited as 221 NLRB 1096 (1975). It is clear that
the Board may take judicial notice of its own proceedings.
Plant City Welding and Tank Company, 123 NLRB 1146
(1959); West Point Manufacturing Company, Wellington
Mill Division, 142 NLRB 1161 (1963); Seine and Line
Fishermen's Union of San Pedro, affiliated with Seafarers'
International Union, AFL-CIO, (William J. Horner, et al)
136 NLRB 1 (1962); Airlines Parking, Inc., 197 NLRB 762
(1972).
The hearing in the earlier case was held on May 22,
1975, before Administrative Law Judge George Christen-
sen. His decision was issued on July 22, 1975, and the
Board's decision was issued on December 9, 1975. In sum-
mary, the Board found: (1) the interrogation of three em-
ployees about union activities by Ralph Munoa, assistant
manager of the San Mateo store, during the period of July
23 through 26, 1974; (2) the granting of a wage increase to
employees on July 26, 1974, to discourage union activities,
by Gaylord Helm, District Manager for Western Califor-
nia, and by John Cox, manager of the San Mateo store;
and (3) the reprimanding of one employee on August 14,
1974, by Cox for participating in a conversation concern-
ing union representation during his break period. The un-
fair labor practices found in the prior case occurred ap-
proximately 11 months before the alleged unfair labor
practices in the present case.
Robert Dixon, who is one of the alleged discriminatees
in the present case, was one of several employee witnesses
called by the General Counsel to testify in the prior pro-
ceeding. Dixon testified with regard to a conversation
which he had in July 1974 with District Manager Helm and
Store Manager Cox. Administrative Law Judge Christen-
sen, whose findings were subsequently adopted by the
Board, stated:
Helm and Cox impressed me as witnesses with a
clear recollection of what occurred in the employee
interviews. I credit their testimony they developed the
standard format described heretofore and followed it
in those interviews. I further credit their testimony
that they did not question Alexander or Dixon con-
cerning their union views or sympathies.
I therefore find and conclude that in the course of
their conversations with Alexander and Dixon, Helm
and Cox did not interrogate them concerning their
union membership activities and sympathies and will
recommend that those portions of the complaint so
alleging be dismissed.
Cox testified he did not recall Helm telling Dixon
he hoped to see Dixon a manager some day, but stated
they did discuss with some of the employees their
goals and future with the Company; that they knew
Dixon was studying business administration, and that
Helm may have said to Dixon he might some day be a
manager if he stayed with the Company and complet-
ed his studies.
Helm categorically denied that he offered Dixon
employment as a manager, but corroborated Cox's
testimony that he discussed the employees' possible
future with the Company in the course of the pre-
election conferences and may have said in response to
a statement that if Dixon intended to stay with the
Company, they hoped he would achieve the status of a
manager some day.
I find that Helm expressed the hope that Dixon
might achieve manager status some day if he pursued
his studies and stayed with the Company, but that this
expression was insufficient to be classified as a prom-
ise of a benefit. I therefore shall recommend that those
portions of the complaint so alleging be dismissed.
In the prior proceeding the General Counsel sought a
bargaining order as a remedy under the rationale of the
Supreme Court's decision in N.L.R B. v. Gissel Packing
Co., Inc., 395 U.S. 575 (1969). In support of his request for
a bargaining order, the General Counsel, at the hearing of
May 22, 1975, introduced a total of 12 union authorization
cards. Of those 12 cards, 2 were signed by the alleged dis-
criminatees in this proceeding. The card of Dixon is dated
July 31, 1974, and the card of Semla is dated "July 23,
1974." In denying the request for a bargaining order in the
earlier case the Board stated-
Nonetheless, we do not believe that a bargaining
order is warranted. The interrogation of employees by
a low-level supervisor whose exclusion from the unit
appears to have been in doubt originally does not re-
quire a bargaining order to remedy it, nor does the
single unlawful reprimand flowing from an overly
broad application of an otherwise valid no-solicitation
rule. The wage increase, although found to have been
unlawfully motivated, was not specifically tied to the
organizing campaign by the Respondent. Similar rais-
es had been granted some 4 months earlier at the Re-
spondent's other stores and the increases did no more
than bring the employees up to the prevailing rate.
Indeed, the latter point was relied on by the Respon-
dent to explain the increases to the employees. We do
not believe the increase, alone or in conjunction with
the Respondent's other unfair labor practices, had an
irremediable effect on the election process.
We do not discern a pattern of pervasive and egre-
gious unfair labor practices which cannot be remedied
by traditional means, nor can we say that on balance
the cards better reflect the employees' desires than
would a Board-conducted election. Therefore, we shall
not disturb the Administrative Law Judge's Remedy
and recommended Order in that respect.
C. Robert Dixon
Robert Dixon was hired on May 31, 1973, by the Re-
spondent at its San Mateo store. He began work as a stock-
man and clerk at $2.25 an hour. He was subsequently pro-
moted to receiving clerk and was being paid $4 an hour by
April 1975. John Cox, who has been manager of the San
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mateo store since July 26, 1974, said that Dixon worked as
a cashier , marked merchandise , swept the floors , received
merchandise off of trucks, and performed general stock-
man functions . Cox described Dixon as being a good work-
er.2
Beginning in early 1975 Dixon started missing work at
the store because of a previously injured shoulder. He
would work a couple of days and then be off for a day or
so. The condition seemed to be getting progressively worse.
On or about April 1, 1975, Dixon told Cox that he was
going to have to have surgery on his shoulder. Cox recom-
mended to Dixon that he take a leave of absence for the
surgery and, after Dixon had recovered, for him to come
back to work. Cox told Dixon that he would have his job
for him . Dixon agreed to that suggestion . Cox promised
Dixon that he would hold open his job for him until Dixon
got better and came back.
Dixon testified that he stopped working at the store on
April 11, 1975, and that the operation on his shoulder took
place on April 27, 1975. Dixon did not continue to receive
paychecks from the Company, but instead, he received dis-
ability benefits from the State.
As previously indicated, Dixon was one of several wit-
nesses who testified at the hearing on May 22, 1975, in the
prior case .3 Dixon 's union authorization card was 1 of the
2 John Cox impressed me as being a truthful witness who was conscien-
tiously relating numerous events which had occurred many months before
the hearing In my view, Cox 's testimony is reliable and I have credited him
throughout this proceeding I have based the findings of fact in this section
of the decision largely upon the testimony given by Cox While I have noted
some conflicting testimony given by Robert Dixon , I believe that Cox has
given the complete and truthful account and I credit Cox's testimony and
do not credit the testimony of Dixon
With regard to this particular credibility resolution and the other credibil-
ity resolutions in this case , I have arrived at them without being bound to
accept in this proceeding the credibility resolutions made by Administrative
Law Judge George Christensen regarding these witnesses in the prior case
it so happens that Administrative Law Judge Christensen also credited John
Cox and Gaylord Helm over Dixon and two other witnesses with regard to
sec C, 5, 221 NLRB at 1099 Administrative Law Judge Christensen also
credited Cox's testimony over that of Phil Evans as to sec E , 3 (221 NLRB
at 1101), although he did find that Cox gave a reprimand to Evans while
Evans was discussing union representation on his break (sec E, 2, ibid) He
found that Cox was prompted by valid business considerations in posting a
no-solicitation rule (sec E , 1, ibid ) He did not credit the testimony of Cox
and Helm , however , that they did not have knowledge of the union cam-
paign at the time of the wage increase on July 26 , 1974 (221 NLRB at i 100-
01) In any event , the determinations with regard to the credibility of the
witnesses in this proceeding have been based on my observation of the
witnesses in this case and upon their record testimony at this hearing The
fact that Administrative Law Judge Christensen similarly credited the testi-
mony of Cox and Helm over that of Dixon would not have precluded me
from reaching a different result if such a result had been warranted
3 It was during the lunch recess at the hearing that Raphael Munoa, who
held the supervisory position of assistant store manager at that time,
claimed he warned Dixon to be careful because they were going to fire
Dixon Munoa testified that , later the same evening , he again spoke with
Dixon and said "I told him to watch out and tell our good employees who
I thought were good workers to watch out , just to keep on doing their jobs
the way they should, because they were going to be fired As long as they
did their job right, I didn't see why anybody should be fired " He testified
that he also spoke with Richard Semla that same evening and warned him,
"They were going to get rid of the people who signed Union cards " Munoa
said that earlier in the day during a recess at the hearing , Gaylord Helm,
who is the California North District Manager of the Respondent, said that
they were in trouble and that as soon as this thing was over to get rid of the
"sob's" , that it was a good thing that Mary Dulfer , a cosmetician , was not
there or else they would be in jail , and that Helm was surprised that Matsu-
12 cards which were introduced in evidence in that pro-
ceeding.
About the last week of June 1975, Dixon contacted Store
Manager Cox and informed Cox that he was fully re-
covered; that his doctor was going to release him on the
first of July; and that he was ready to come back to work
on a full-time, permanent basis. Cox replied "great," and
told Dixon that he would put him on the schedule. Cox
then scheduled Dixon to work 4 days that week beginning
July 1.4 Cox told Dixon to bring a doctor' s release with him
when he returned because he would have to have one. Cox
explained at the hearing that the company policy was to
require an employee to have a release from his doctor after
any prolonged leave of absence due to an illness or injury.
Cox further explained that the release must be a complete
release so that the employee may resume performing his
job functions. Cox said that he would not take an employee
back to work who was partially recovered for light duty or
something on that order.
On July 1, 1975, Dixon returned to work for the Respon-
dent. He punched in about 8 o'clock in the morning. He
worked on the floor for awhile, worked at the cash register,
and marked warehouse merchandise. Store Manager Cox
noticed that Dixon was having difficulty doing some of the
work . He observed that Dixon was having trouble lifting
boxes up on the table. This occurred about 2 or 3 p.m., and
Cox decided that he would talk with Dixon about this be-
fore Dixon went home that day. However, Cox was unable
to do so because Dixon had left work early that afternoon.'
Although Dixon was scheduled to work the next day,
da, a pharmacist, had signed a union card and said , "Don't forget Pearl
Harbor "
Helm denied the statements about getting rid of employees and about
Mary Duller which were attributed to him by Munoa I found Helm's testi-
mony on this and other matters to be convincing and credible I have relied
on his testimony throughout this case because his demeanor on the witness
stand and a review of the record persuades me that he has told the truth in
this case For that reason , I credit Helm 's testimony I reach the opposite
conclusion with respect to the testimony offered by former Supervisor Mu-
noa based on his demeanor on the witness stand and a review of the entire
record I do not find his testimony to be credible , and I do not predicate any
findings on it except that he testified that he was fired by the Respondent on
July 20, 1975, and that he has charges pending under investigation by an-
other agency concerning his termination In the earlier proceeding , Admin-
istrative Law Judge Christensen credited the testimony of Skolnick over that
given by Munoa as to the incident referred to in sec C, 1, 221 NLRB at
1098, and the testimony of Smyth over Munoa as to the incident referred to
in sec C , 2, 221 NLRB at 1099 He credited both Alexander and Munoa as
to the incident sec C, 3, 221 NLRB at 1099, and credited Munoa where he
was not contradicted concerning the July 23 meeting behind the pharmacy
counter (221 NLRB at 1101, In 13)
Dixon 's version is at odds with this He claimed that he was going back
to work merely on a trial basis to see if he could perform the job even
though his shoulder was still hurting him He asserted that he told his physi-
cian, "I'll try to go to work and find out how it is ," so his doctor permitted
him to do so He also claimed that he told Cox "I'm going to try to do my
best the first day here , but if I can ' t hack it , then my doctor will put me back
on disability " As indicated above, I credit the testimony of Cox
5 Dixon conceded that the Job he performed in July was no different than
the job he had performed when he left in April Nevertheless, Dixon testi-
fied that he told Cox about his having to lift heavy boxes while his shoulder
was hurting that first day Dixon said that Cox told him to try to do his best,
"but he still had me lifting heavy boxes" I credit Cox's testimony that Cox
planned to discuss the matter with Dixon , but he was unable to do so
because Dixon left early that afternoon Apparently, it was unknown to Cox
at that point in time that Dixon had planned to leave early that day to visit
his doctor
WALGREEN COMPANY
Dixon did not show up for work.' Therefore, Cox tele-
phoned Dixon's house and spoke with Dixon's mother. She
informed Cox that Dixon had been to see the doctor and
that he was taking some drugs, was very sleepy, and was in
bed. She said that she would have Dixon call Cox. Cox
asked that she have Dixon come in to see him the following
day. She said that she would do so.
Dixon did not return to the store until the following
Monday, July 7, 1975 At that time Dixon and Cox had a
conversation in the office of the store. Cox asked what was
happening and told Dixon that he thought that Dixon had
recovered. Dixon stated that his arm was worse than ever
and that he had been to see the doctor who said that Dixon
might have to have surgery again. Dixon told Cox that he
might be out for another 6 months.
Cox responded that he did not know what to do. He told
Dixon that he had held open his job for about 3 months,
and he could not keep it open indefinitely. Cox said that
they were running short of men in the store. Cox explained
that there were only three men, including himself, to work
on the entire floor at that time Cox told Dixon that he had
to hire another man to take his place and that he could not
wait any longer Dixon replied that he understood, that he
knew they were short, and that he appreciated Cox's hold-
ing the job open as long as he did Cox said for Dixon to
do whatever was necessary to get his arm fixed up; that he
was going to have to hire somebody in the store; and that
when Dixon had fully recovered from the surgery, Dixon
should come back and see him Cox stated that if he had a
job available for him, he would hire him. Cox said that if
he did not have a job available, then he would try to find a
job for Dixon at one of the nearby stores. Dixon replied
"fine" and left the store.
About 2 weeks later in July 1975, Cox and Dixon had a
telephone conversation about vacation pay. They next
spoke about the end of July or the first of August 1975
when Dixon came in the store Cox asked Dixon how he
was doing, and Dixon replied that it was ternble; that they
were not doing anything; and that it was really worse. Cox
suggested that Dixon ought to change doctors because he
was not getting good results They laughed and joked a
bit-apparently at the term used by Cox to characterize
Dixon's doctor-but this is not clear. However, Dixon said
that he was hurting worse than ever. Dixon left the store
and that was the last time that Cox spoke with Dixon or
saw Dixon in the store.'
6 At one point in his testimony Dixon contradicted this He said that he
did go to the store the next day on July 2 and told Cox that his doctor was
putting him back on disability until September 1 At that time, Dixon testi-
fied, Cox told him that he would have to lay off Dixon and hire someone
else, but that when Dixon returned on September 1 Cox would take him
back, if he had an opening, or he would telephone other stores and find out
if they had an opening for Dixon At a later point in his testimony, Dixon
changed his version and said that he did not go to the store on July 2 He
said, "1 couldn ' t contact him at all because I was completely out, I was in
bed, I took a whole bunch of medicine " He said that he first contacted Cox
a few days later and explained "my doctor might have to cut my shoulder
open again, and I might have to be out for maybe a couple of months, two
or three months , that's the longest I'll be out" For the reasons previously
stated, I credit Cox's testimony
Dixon claimed that he did return to the store September 1, 1975. and
spoke with Cox briefly He said that he had a doctor's release by this point
in time, but he did not show it to Cox or tell Cox about it Dixon said that
899
Cox stated that he was prepared to rehire Dixon just as
Cox had previously done on July 1. However, Dixon never
did ask Cox for his job back. Cox said that if Dixon had
come back and asked Cox for a job, and if a position were
open, Cox would probably have hired him back. He said
that there were openings at the store after September 1,
1975, which Dixon probably could have performed. He
said that he did not attempt to contact Dixon regarding his
availability. Cox explained-
Well, there was an adequate supply of people com-
ing into the store looking for jobs and people that were
qualified, and one ex-employee who worked for us
that I rehired on a fulltime basis. And by Mr. Dixon
not contacting me like he said he would do when he
was better, or like I asked him to do when he was fully
recovered, I just took that as a sign that the gentleman
wasn't ready to go back to work, or possibly he was
and had found a position somewhere else.
I didn't feel it was my responsibility to go out and
track him down to see if he wanted to come back and
go to work. I felt if he needed a job and was ready to
go back to work, he would come to me
Cox pointed out that he had not contacted Joan Oakley,
the bookkeeper, about her availability for work while she
was out on disability for several months. Cox said that
when Ms. Oakley was available, she returned to the store
and has been back at work since then 8
With regard to former employees generally, Cox said
that he would give preference to them in filling a position if
they were qualified for the position. If they were neither
qualified nor any more qualified for the position than an-
other person, he might not give the former employee pref-
erence.
D. Analysis and Conclusion Regarding Dixon
After having gained knowledge that Dixon had previous-
ly signed a union authorization card, which was introduced
in evidence at the hearing in the prior case on May 22,
1975, and after knowing that Dixon had testified at that
same heanng, Respondent promptly reinstated Dixon in
his former job when Dixon asked to come back to work.
Respondent was willing to reinstate Dixon before the time
of the hearing in the prior case and it was willing to do so
after the hearing in the prior case. Respondent did not
treat Dixon any differently because of his having testified
as one of the witnesses called by the General Counsel in
the earlier proceeding or because Respondent learned that
Dixon had signed a union card
When Dixon indicated that he would be able to return to
he asked Cox if he had an opening for him and that Cox said that he did
not, but that he would try to find something for Dixon Dixon said that he
subsequently returned to the store one day and spoke with the cosmetician,
but that Cox was not at the store on that particular day He said that he had
not spoken with Cox since the first of September I find credible the version
given by Cox for the reasons set forth previously
8 Ms Oakley testified that she underwent surgery during the last week of
January 1975 and was away from work on disability for 9 weeks before
returning to work in April 1975 She said that she and Dixon were the only
two employees at the store who had been away from work on disability
since she began working at the San Mateo store in October 1973
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work on July 1, 1975, Respondent immediately complied
with Dixon's request for reinstatement on July 1 In
Respondent's view this was to be a permanent full-time
reinstatement. It should be noted that Respondent did not
pressure Dixon to return on July 1. It was Dixon's decision
to do so. Respondent had previously promised to hold
open his former job, and Respondent had done so. Re-
spondent made that commitment prior to the time of the
heanng on May 22, and Respondent continued to honor
that commitment after the hearing on May 22.
It is significant that Respondent did not discharge Dixon
on July 1. It was Dixon's decision to stop working at the
store because of his physical condition at the time Respon-
dent did not criticize Dixon's performance at work on July
I nor in any way indicate to him any possibility of being
terminated. It was Dixon's decision that he was unable to
continue to work. He conceded that his Job duties on July
I were no different than they had been when he left work
in April 1975
It was only after Dixon told Respondent on July 7 that
his arm was worse than ever and that he might have to be
out for another 6 months that Respondent informed Dixon
that it could not keep his Job open indefinitely Up to that
time Respondent had held open Dixon's job for almost 3
months. Adding another 6 months absence would have
meant that Respondent would have been forced to leave
vacant the position for about 9 months. Respondent ex-
plained that there were only three persons, including the
store manager, to cover the sales floor Dixon said that he
understood this fact While Respondent told Dixon that it
would have to fill his position and not keep it open indefi-
nitely, Respondent once again told Dixon that he should
return to the store when he was fully recovered. Respon-
dent promised to reinstate Dixon if a job was available at
that time or, if a job was not available, to try to find a job
for him. Thus, with full knowledge of his having testified in
the prior case and of his having signed a union card, Re-
spondent continued to treat Dixon the same as it had be-
fore Respondent gained such knowledge. Respondent was
still willing to reinstate him to work when he was physically
able to return to work. The only thing Respondent was not
willing to do was to leave his Job vacant for possibly anoth-
er 6 months time, added to the 3 months that Dixon's job
had already gone unfilled. Respondent's explanation for its
need to fill the job is credible and also apparently was
understood by Dixon The record shows only one other
employee as having been absent from work at the store
because of disability That employee was the bookkeeper,
Ms. Oakley She was absent for only 9 weeks as compared
to the 9 months period which Dixon indicated that he
might be absent.
After advising Dixon that Respondent would reinstate
him if a job were available when Dixon was able to return
to work, Respondent did not thereafter seek out Dixon.
The credible explanation for not doing so was set forth by
Store Manager Cox It is noteworthy that Respondent
treated Dixon the same as it had done previously when Ms
Oakley was absent on disability Respondent did not seek
her out, but instead she returned to work when she was
able to do so.
I have considered the unfair labor practice violations in
July and August 1974 which were found by the Board in
the prior case as background evidence in this proceeding.
However, after considering the entire record in this case, I
find and conclude that a preponderance of the evidence
does not establish that Respondent has discriminated
against Robert Dixon in violation of Section 8(a)(1), (3), or
(4) of the Act
E Richard Semla
Richard Semla began working for the Respondent in
February 1972. About a month later he was transferred to
Respondent's drug store in San Mateo where he continued
to work until his termination on July 25, 1975. Semla was
one of three pharmacists at the San Mateo store. The other
two pharmacists were Matsuda and Fawzi. As of July 1975
Matsuda had been employed by Respondent for nearly 25
years; Semla for approximately 3-1/2 years, and Fawzi for
slightly over 2 years At that time in July 1975, the rate of
pay for both Respondent's regular pharmacists and relief
pharmacists was $9.50 an hour. Sometime in the past, the
pharmacists themselves had elected to work 8-hour shifts
straight through without a lunch period. That practice con-
tinued in effect at the time relevant to this case Thus, one
shift would be from 9 a.m. to 5 p in without a lunch peri-
od, and a second shift would partially overlap the first shift
and be from I p in. to 9 p in. without a lunch period. On
certain days there would be two pharmacists working the
same shift and, therefore, during the 4-hour overlap period,
there would actually be three pharmacists on duty at the
store during that period
The only union activity of Semla was signing a union
authorization card on July 23, 1974.
There were several events, however, which led manage-
ment to believe that Semla was opposed to the Union. On
July 31, 1974, there was a meeting among District Manager
Helm and all the store managers in his district. The meet-
ing was held at the Company's store in Daly City, Califor-
nia During that meeting Store Manager Cox was called by
Assistant Store Manager Munoa who advised him of a
problem between Semla and a vacation relief pharmacist,
Phil Evans. Evans' leading role in organizing the employ-
ees at the San Mateo store is described in the prior case
and also in this proceeding he is described as the prime
union organizer of the employees. Cox spoke first with
Semla on the telephone and then Helm spoke with Semla.
Cox described Semla as being very upset and furious with
Evans because Evans was attempting to call the pharmacy
board to report that a prescription had been filled although
the doctor had not written the pharmacy's name and the
customer's address on the prescription. Semla felt that Ev-
ans was trying to get Semla in trouble and maybe cause
Semla to lose his license.
Cox talked with Helm who then telephoned the store
and talked with Semla Semla told Helm that Evans "was
making a tremendous scene there." Semla said that Evans
was talking about the Union and was not paying attention
to business Semla stated that Evans was ridiculing the
pharmacists at the store Helm advised Semla not to let
Evans run him away from the store and to do the best he
could.
WALGREEN COMPANY 901
According to Semla, his conflict with Evans "was a per-
sonality dispute between him and myself." Semla testified
that Evans was "making fun of the three pharmacists who
were there" and that was what Semla had objected to, rath-
er than Evans' union activities.9
Prior to the representation election scheduled to be held
on October 9, 1974, Semla told Cox and Helm that he was
against the Union.
On October 25, 1974, Semla signed a letter to the Union
which purports to have 13 employee signatures on it. The
letter refers to the union cards which had been previously
signed and requested the Union to "delete our application
to join the Union" for the various reasons set forth in the
letter. Semla stated that the letter was prepared by Fawzi
who showed the letter to him. Cox said that Munoa had
told him that Fawzi had typed the letter, and Helm said
that Munoa had told him that Fawzi was circulating the
letter. In his testimony Munoa said that Fawzi had pre-
pared the letter.1°
Twice a year in June and November the Respondent
holds what are called "figure review" meetings which are
held for the purpose of reviewing the performance of the
stores for the previous 6 months. All 37 districts of the
Respondent participate. In June 1975 District Manager
Helm attended such a review meeting in Chicago. At that
time he had figures which revealed the daily average num-
ber of prescriptions filled by each of the 23 drug stores in
the California North District for the period from January
through May 1975. (Helm testified that the Respondent
has maintained figures on the average daily number of pre-
scriptions filled for the past 60 years.) Helm felt that the
figures for the San Mateo store were bad in many respects.
After he returned from the figure review meeting in Chica-
go, he decided to correct the situation by reducing the
9 For the reasons previously stated, I have credited the testimony of Cox
and Helm throughout this proceeding Where there are conflicts between
the testimony given by Semla and that given by Cox or Helm, I have found
the version stated by Cox or Helm to be reliable and have accepted it
10 Ms Oakley testified that Carol Chrttenden was "the only person that I
had any dealings with on this letter She brought it to me, she asked me to
step into the back office with her one day as I was leaving for home, and
asked me to read what she thought should go to the Labor Board " Ms
Oakley described two drafts of the letter which Ms Chittenden had shown
her
Ms Chittenden did not testify at the hearing What purports to be
Chittenden's signature appears first among the 13 names at the bottom of
the October 25, 1974, letter to the Union The writing of her name on the
letter resembles very closely the signature on the union authorization card,
which was introduced in evidence in the prior case Ms Chittenden was
called as a witness by the General Counsel in the prior case and identified
her signature on that union authorization card
It appears that Semla's dealings with the letter were with Fawzi, a fellow
pharmacist, whereas Ms Oakley's dealings were with Ms Chittenden, a
clerk in the store Their versions are not necessarily inconsistent since no
one testified that Semla and Ms Oakley were together when they signed the
letter The letter apparently was given to each one at separate times While
Semla believed that Fawzi prepared the letter, Ms Oakley's testimony indi-
cates that Ms Chittenden was writing some drafts The record does not
disclose whether there was any collaboration between the two persons Nei-
ther Fawzi nor Ms Chittenden was called as a witness at the hearing It may
be that Fawzi only typed the letter as Munoa stated to Cox, or that Fawzi
just circulated the letter, as Munoa told Helm In any event, it is unneces-
sary to decide who actually prepared the letter since both Cox and Helm,
based on information received from Munoa, believed that Fawzi was in-
volved in the typing and circulation of the letter
number of hours worked by pharmacists in the San Mateo
store.
Of the 23 stores in the California North District, 5 stores
consistently had an average of a total of 120 hours of work
by pharmacists each week for the period of January
through May 1975. One of these five stores with its phar-
macists working a total of 120 hours per week was the San
Mateo store. During that period the San Mateo store con-
sistently filled the lowest number of prescriptions on an
average daily basis. The record shows the following:
Store Jan. Feb . Mar. Apr. May
Burlingame 232 207 196 207 203
Daly City 252 245 234 246 229
San Francisco
135 Powell 255 239 216 241 220
San Francisco
245 Winston 279 275 261 268 247
San Mateo 168 153 157 156 161
The San Mateo store was not only filling the fewest
number of prescriptions on an average among the stores
with 120 hours of work by pharmacists, but also the San
Mateo store was filling fewer prescriptions on a daily aver-
age than three other stores in the District which had phar-
macists working fewer hours. For example, the Palo Alto
store had a consistent 96 hours of work by pharmacists in
its store, yet it surpassed the number of prescriptions filled
in 120 hours at the San Mateo store. The monthly figures
for Palo Alto for January through May 1975 were 236, 222,
213, 211, and 200. The Mountain View store had a consis-
tent 104 hours of work by pharmacists each week, and also
surpassed the San Mateo store which had 120 pharmacist
hours each week. The Mountain View daily average of pre-
scriptions filled for the same period of time was 198, 197,
177, 196, and 185. The San Francisco store on Polk Street
had 96 pharmacists' hours in both January and February
1975 and 104 pharmacists' hours in March, April, and
May, 1975. That store with less pharmacists' hours than
San Mateo also filled more prescriptions than San Mateo
on a daily average basis. The figures for the Polk Street
store for the period are 181, 181, 166, 179, and 168.
Notwithstanding the foregoing comparisons, the San
Mateo store was not the only store where the pharmacist
hours were reduced subsequent to the June 1975 figure
meeting. Between that time and December 1975, Helm
made reductions in the number of pharmacy hours in vari-
ous amounts at four other stores in the District. The four
other stores where pharmacist hours were reduced were the
San Bruno store, the San Francisco store on Geary Street,
the Burlingame store, and the Belmont store.
In the first or second week of July 1975, District Manag-
er Helm met with Store Manager Cox at the San Mateo
store At that time they discussed the charts as to the num-
ber of prescriptions being filled by the other stores as com-
pared to the San Mateo store. Helm told Cox that the num-
ber of hours worked in the pharmacy would have to be
reduced at the store. They discussed making a reduction of
16 to 24 hours per week in the pharmacy. Helm left the
implementation of the decision to reduce hours up to Cox.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Helm told him, "You think it over, let me know how you're
going to work it out, and get back to me."
Cox was in complete agreement with Helm's decision to
reduce the pharmacy hours at his store. Cox explained at
the hearing:
Well, I was in complete agreement with Mr. Helm
that we should reduce hours in the pharmacy. I had
felt all along that we were spending too much money
in the pharmacy as compared to the rest of the store,
and I looked at the pharmacists that I had, and decid-
ed to keep Mr. Matsuda, who does an excellant job,
and Mr. Fawzi also, and to terminate Mr. Semla. And
by terminating Mr. Semla and replacing him with an-
other pharmacist who I hoped to work in the store
only 16 to 24 hours a week, I hoped to cut my hours in
the store, and also get a pharmacist in the store that I
thought would do a better job than Mr. Semla was
doing and get my customers better service in the store.
After Cox decided to reduce the hours worked in the
pharmacy by terminating Semla, Cox telephoned Helm
and advised him of his decision. Helm brought up the fact
that Semla had more seniority than Fawzi, so Cox ex-
plained to him why he had chosen Semla. Cox then tele-
phoned H. Allan Stark, who is director of employee rela-
tions for the Respondent, and advised him of his decision
to terminate Semla. Cox said that he called Stark in accor-
dance with instructions that he had received many months
before, probably in June or July 1974, to contact Stark
when any employee was to be terminated. Stark instructed
Cox to review the reasons for termination with Semla and
to give Semla a week's severance pay.
Semla was discharged on Friday, July 25, 1975, which
was the end of a biweekly pay period. Cox talked with
Semla for about 15 minutes to explain the reasons for ter-
minating him. Cox told Semla that he had received numer-
ous customer complaints about Semla's actions in the store
and that Cox felt that Semla was giving the customers very
poor service. Cox also told Semla about his leaving the
store during working hours-"not giving me eight hours
work for eight hours pay, basically." Cox also mentioned
Semla's listening to the radio on company time, specifically
"standing around listening to the results of a horse race."
Cox said at the hearing, "you can't listen to the stretch call
on a horse race and count tablets out for prescriptions."
Additionally, Cox mentioned an earlier incident when Cox
had discovered bottles of vitamins having been opened in
the pharmacy. Cox further explained that he was retaining
Fawzi, even though Fawzi had less time with the Respon-
dent, because Cox thought that Fawzi was a better phar-
macist. Cox related to Semla his view that there was more
to being a pharmacist than dust being able to count tablets
accurately, type labels, and perform the mechanics of
being behind the counter. Cox gave his opinion to Semla
that being a pharmacist involved getting in touch with the
customers, ringing up the merchandise, and taking their
prescriptions. Cox told Semla that he was not terminating
him because of his inability to perform the functions of a
pharmacist because he had no problem with counting tab-
lets or typing labels, but the customer service and the re-
mainder of his activities in the store left a lot to be desired.
Cox explained to Semla that , since he was being terminated
without notice, Cox was paying him a week 's severance pay
in the hope that the money would assist him while he
looked for another job . During their conversation, Semla
told Cox that " I expected it." Cox asked him what he
meant and Semla repeated his comment , but also asked
Cox if he could go to work for any of the stores in San
Francisco . Cox replied that he did not know."
Among the reasons given by Cox to Semla to explain his
selection of Semla for termination were complaints made
by customers against Semla . One of the customer com-
plaints which Cox had reference to involved an incident in
March 1975. At that time there was a relief pharmacist
working in the store . A customer had to wait for a long
time before her prescription would be filled , so the custom-
er gave the relief pharmacist "a bad time ." Cox walked
back to the pharmacy and found that the relief pharmacist
was crying and unable to continue her work . Cox asked her
to get as much done as she could , but he also telephoned
two employees to come in early that day to assist . One was
to help outside the pharmacy . The other employee was
Semla who came in around noon . Later that afternoon, the
customer complained to Cox about Semla. Cox said:
Well, later in the afternoon , the customer came up
and she said that she was back to pick up her prescrip-
tion in the back and that Mr. Semla had told her to get
the hell out of the store if she didn 't like the service
that she received in the store, and to never come in the
store and hassle any of the pharmacists in the back,
that they didn't have to put up with this nonsense, and
if she didn 't like the way we ran the store , to get out,
to take her business elsewhere.
Cox apologized to the woman for the incident and then
went back to the pharmacy to ask Semla what was going
on and what had caused this. Cox asked Semla if he had
said these words to the customer. Semla said that he had.
Semla told Cox that the woman had been in earlier and
given the other pharmacist a bad time that morning, so
Semla was "straightening this customer up" for giving the
other pharmacist a bad time. Cox told Semla that Semla
did not have the authority to tell customers to take their
business elsewhere. Cox pointed out the customers might
be sick, tired, or upset, but that they had to take this off of
11 In sharp contrast with the detailed explanation to which Cox testified,
Semla testified
He said that he was cutting back hours in the pharmacy and there-
fore he was going to have to let me go And I stated to him, "Well, I
know the reason, but I wouldn't like to go into it" We didn't discuss
any more about that, but he said that he knew that I lived in the City
and therefore they would try to find a job in the City for me
In San Francisco, right
He said that he realized that I had had more time in than Mr Fawzi,
but since I lived in the City they would try to get me a job in the City
Semla also said that he was given I week's severance pay at that time The
next day, however, he said that he received a message at his residence that
there was a job for him at Respondent's store on Mission Street in San
Francisco On Monday he telephoned and was told that the job at the
Mission Street store had been filled
For the reasons previously stated, I credit the testimony of Cox rather
than the version given by Semla
WALGREEN COMPANY 903
the customers and be nice to customers because the cus-
tomers had the money in their pockets, and the store want-
ed their money. Cox said that they were there to serve
people and that people are not all nice and not all bad, but
they had to take it from the customers when the customers
dished it out.
Semla began shouting at Cox that he did not have to put
up with any kind of hassle from the customers. Cox said
that Semla was shouting so loudly that customers on the
floor were turning back towards the pharmacy. Cox closed
the windows and door to the pharmacy.
Cox told Semla to keep quiet; that he did not have to
shout and for them to discuss the situation. Semla said that
he was not discussing anything and that he did not have to
take this from any of the customers. Semla said that no one
was going to come into the store and hassle him and that
he got enough hassling without the customers coming in
and hassling him. Cox told him that Semla had to take the
hassling; that everybody takes it; and that Cox did not like
it, but he took it because it was a part of his job to do so.
Semla replied that he was not going to do it and that there
were a lot of things going on around the store that he did
not like. Cox responded that Semla was dust going to have
to put up with them. Semla said that he was going to call
the NLRB and maybe they could help him out. Semla also
said something about quitting. Cox answered for Semla not
to threaten him with the NLRB or anybody else. Cox said
that if Semla wanted to quit, to make up his mind right
then. Cox further said that if Semla wanted to go to the
NLRB, and if he thought the NLRB would solve his prob-
lems, "go right on ahead and be my guest. But you're not
going to treat the customers the way you treated this wom-
an." Cox then told Semla to keep his voice down and get
back to work.
Semla gave two different versions concerning his state-
ment to Cox about going to NLRB. On the first day of the
hearing, he said that this occurred during a meeting in the
pharmacy among Cox, Munoa, Matsuda, Oakley, and
Semla. Semla said that this took place between the time of
the hearing in the prior case, which was held on May 22,
1975, and the time of his discharge, which was on July 25,
1975. Semla said that he told Cox that they were not get-
ting time off for a break or for a lunch hour and, therefore,
some help was needed in the pharmacy. Cox responded,
according to Semla, that they had all the help that they
could get. Semla's first version is that he then said, "Well,
maybe I should go to the NLRB concerning this matter."
Semla testified that Cox replied, "Don't you threaten me
with the NLRB." Whereupon Semla stated, "I don't threat-
en anybody, but I do have to look out for myself."
On the second day of the hearing, after having heard
Cox's testimony, Semla changed his story to state that it
was during the conversation with Cox about the customer
complaint referred to above that he told Cox that he was
going to the NLRB. Semla's version was that the conversa-
tion with Cox took place over a 2-day period. Semla said
that he did raise his voice and that Cox asked him to please
quiet down. Semla testified, "My terminology in that par-
ticular thing was that I didn't think that she should use
profanity towards the young lady who was working, and
that if she did not like it, I did tell her to take her business
elsewhere, because I didn't think that the young lady
should take that kind of abuse."
As previously indicated, I have credited Cox's testimony
throughout this proceeding as being the complete and
credible account of these events. In this respect also, I
credit Cox's testimony regarding the customer complaint in
March 1975 and do not credit the versions given by Semla.
While Semla claimed that the foregoing was the only
time that Cox spoke with him about customer complaints,
Cox credibly testified that he had talked with Semla on
several occasions about customer complaints. Cox ac-
knowledged that there were complaints with regard to the
other two pharmacists, Matsuda and Fawzi, on the average
of about one a week. However, these involved such things
as mislaying a prescription, taking too long in the
customer's view to get the prescription filled, the doctor
not calling in the pharmacy, or the pharmacist's not being
able to contact the doctor for approval before filling a pre-
scription. In contrast to these types of complaints, Cox tes-
tified that Semla was ignoring customers and that com-
plaints were averaging about two a week against Semla.
Cox said that he talked with Semla on several occasions
about coming out from behind the pharmacy and taking
care of customers at the pharmacy counter. He said that
Semla's response was that he was too busy to come out and
wait on customers. However, Cox said that on several oc-
casions he walked by the pharmacy when Semla was not
busy at that time, and Cox asked Semla to come out and
take care of the customers. Cox acknowledged that this
had occurred during the period of a year before Semla's
termination. Cox explained:
Now, every time a customer came to me with a
complaint about Mr. Semla, I didn't dust automatical-
ly run and nail Mr. Semla on it. I didn't think that Mr.
Semla, being a well-trained, well-educated profession-
al man, needed to have somebody come back every
day, twice a day, and remind him to take care of his
customers. I thought that over a period of time that
Mr. Semla would work this problem out and start giv-
ing the customers better service. And it didn't materi-
alize So, this, combined with many other things, led
up to my decision to terminate Mr. Semla
Cox described pharmacist Matsuda as "probably the fin-
est pharmacist that I've ever seen." Cox said that Matsuda
was a hard worker and got along well with the employees
and with the customers. Cox said that Matsuda did an ex-
cellent job.
Cox said that pharmacist Fawzi did a tremendous
amount of communication with the customers. He said
that Fawzi likes to think of himself as somewhat of a doc-
tor in addition to being a pharmacist and that he becomes
involved in the customers' problems.
Ms. Oakley, the bookkeeper at the store, also testified
that "Matsuda accommodates the customers a hundred
percent. Fawzi does likewise. All our relief pharmacists
would accommodate a customer." Some remodeling took
place while Ms. Oakley was away on disability, and when
she returned to work in April 1975 her office was located
next to the pharmacy. When the cashier at the pharmacy
counter was off duty, Ms. Oakley took the cashier's place.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ms. Oakley said that Semla ignored customers and very
rarely attended to customers when they had questions re-
garding their drugs. She said that Semla refused to go out
and talk to the customers while he was working in the
pharmacy. On many occasions, she observed that Semla
did not come from behind the pharmacy wall, but instead
told the customers to talk to him through the wall because
he could hear them. In his testimony, Semla did not recall
that happening, but he said he might have been on the
telephone at the time and told a customer to speak up and
that Semla could hear them. Additionally, Semla indicated
that Ms. Oakley asked the pharmacists to wait on custom-
ers so that she would avoid getting up and leaving her
books. In a similar vein, Munoa claimed that Ms. Oakley
was reluctant to wait on customers and was upset at being
called away from her books. Munoa asserted that pharma-
cist Fawzi was new in the store, was "sort of nervous,"
made mistakes, and that customers came to Munoa to
complain about Fawzi. On the other hand, Munoa asserted
that he received calls from people "to say how happy they
were to have a pharmacist like Semla."
Ms. Oakley has been an employee of the Respondent for
about 23 years. She did not appear to be the reluctant
worker which Munoa and Semla described as trying to
avoid her duties at the cash register. Instead, her testimony
and her manner indicate that just the opposite is true with
regard to her attitude towards her work and customers of
the Company. I credit the testimony of Ms. Oakley and do
not credit the testimony of Munoa and Semla.
A second reason stated by Cox to Semla at the time of
his termination involved Semla's leaving the store during
working hours. In late 1974 or early 1975, Cox became
aware that Semla was leaving the store for about 45 min-
utes or an hour and returning with paramutual tickets in
his hand. Cox estimated that he discovered this about 6
months after Cox became store manager, which was on
July 26, 1974. Cox talked with Semla about this. Cox said,
"I told him to knock it off, that a guy making as much
money an hour as he's making should spend eight hours in
the store working." A couple of weeks later, Cox discov-
ered that Munoa had left the store late one afternoon to
make a deposit in the bank, but had gone to the race track
to place bets. Cox said that Munoa was gone for about an
hour and a half. Cox found out that Munoa had gone to
the track to place bets for himself and Semla. Cox told
both of them and also Matsuda that Cox would terminate
any person, without further warning or notice, who went to
the race track while they were supposed to be on duty at
the store. Cox said that after that occurred there were no
further incidents that were brought to his attention of em-
ployees going to the race track on company time. Cox said
that he had no knowledge of Matsuda or Fawzi ever leav-
ing the store for any appreciable length of time either to go
to the races or to go shopping. He had heard that Matsuda
had gone to the races on his own time after Matsuda left
work. District Manager Helm also testified that he had
never heard of Fawzi going to the races and heard that
Matsuda did so only on his own time. Helm said that he
had heard once in 1973 and a couple of times in 1974 that
Semla was going to the races on company time.
Semla acknowledged that he went to the race track dur-
ing working hours, but he claimed that he was never gone
more than 30 minutes, and he claimed that Matsuda and
Fawzi went also. Semla said that he occasionally went by
himself, but that generally two of them went and one phar-
macist would stay and work. He said that the Bay Mead-
ows Race Track was located about a block from the San
Mateo store. Semla said that he could leave the store, place
a bet, and return to the store within 15 minutes. Semla said
that he was never warned about doing so and that Cox just
told him once in the fall of 1974, "Well, if you keep going
over there, you're going to lose all your money," or some-
thing to that effect. Semla said that he usually went to-
wards the end of the work shift and usually only left once
a day although he could not say that it never happened
that he left twice in one day. Semla also acknowledged that
he left the store during working hours to purchase groceries
at another store in the mall. Semla asserted that Matsuda
and Fawzi were gone as much as he was and that Fawzi
picked up his children each day.
Ms. Oakley said that Fawzi worked an extra half hour to
5:30 p.m., but that Semla did not and did not deduct from
his timesheet the amount of time that he was absent from
the store. Munoa claimed that Matsuda and Fawzi went to
the races as much as Semla did. As already pointed out, I
credit the versions given by Cox, Helm, and Ms. Oakley
and do not credit Munoa or Semla.
Another reason given by Cox to Semla regarding his ter-
mination concerned Semla's listening to the race results on
the radio at work. Cox said that the majority of the time
that the radio was playing there was music on, and no one
in particular would be listening. However, when the final
stretch of the races would be called on the radio, "Semla
would normally ease right down to the radio and listen to
the stretch run." Cox said:
Well, I don't know how many races are run over
there. I don't know how long they last or how much
broadcast they do about the races, because I don't
listen to that.
My objection to the radio being tuned to the races
was, that's not the kind of function you perform in a
pharmacy.
Semla testified that he generally was the one who turned
the radio on, but that occasionally the other pharmacists
did. He said that Fawzi listened to music on his tape re-
corder , but Cox said that he was not aware of that. Ms.
Oakley said that the radio in the pharmacy was never
turned on when Semla was not there. She said that Semla
turned the radio on when he came in and that it played all
day. She said that the station broadcasts soap operas and
the race results.
Still another reason stated by Cox to Semla with regard
to his termination involved the opening of bottles of vita-
mins in the pharmacy. Cox testified with regard to an inci-
dent in February 1975:
Well, Mr . Skolnick had brought it to my attention
that some vitamins had been opened in back of the
pharmacy that had not been paid for.
WALGREEN COMPANY 905
Now, this was shortly after we had had a problem
with security in our store with employee theft, and I
was very concerned about it.
I went back to the pharmacy, and I found, like I
think $27 retail value worth of vitamins of various
types that had been opened, and some of the vitamins
had been taken out of the bottles. They were set on the
back of the shelf in the pharmacy.
Well, I think Mr. Matsuda was in the pharmacy at
that time, and maybe Mr. Fawzi, and I asked both of
them, "What are these doing back here9"
And they said, "I don't know, I haven't been taking
them. I don't know anything about it."
I said, "Well, fine. You make sure if anybody is
coming back here taking vitamins, you tell them that I
will terminate them on the spot if I find anybody tak-
ing merchandise without paying for it." Because, re-
gardless of how you look at it, it's theft. It's not honest
at all. And if I didn't terminate somebody for this type
of activity, if our loss prevention people came in, they
certainly would themselves.
And I took this merchandise out, and I put it back
in my office in the back of the store.
The following day, I came into the store, and I think
there were three more bottles of vitamins that had
been opened and put back in the back of the pharma-
cy. And I questioned Mr. Semla on this, because I
believe he was working that morning.
And he said, "Yes," he had taken them and opened
them up. And he and Mary Dulfer had taken, I think,
a couple of the vitamins that day.
And I told Mr. Semla at that time that I didn't want
this to ever happen again, that he could be terminated,
and he would be terminated if I ever found merchan-
dise taken that wasn't paid for.
Semla traced the practice of taking vitamins in the store
back to the former store manager. He said that he stopped
after the present manager, Cox, told him to stop Semla
said that the bottles of vitamins were usually given to the
pharmacists by salesmen to entice the pharmacist to sell
their vitamins.
One of Semla's job duties involved talking on the tele-
phone at the pharmacy. There were three telephones there
for incoming calls and for outgoing calls to doctors and
patients. Semla said that he spent more than half of his
work day on the telephone. He denied that he averaged
spending 10 minutes an hour on his own personal tele-
phone calls, as indicated by Ms Oakley who heard his part
of the conversation. Semla said that he was aware of the
rule against making personal telephone calls, but that he
possibly made one personal telephone call a day. Semla
said that Matsuda and Fawzi made personal telephone
calls as did other employees. Ms. Oakley did not observe
the others making such calls. She did bring it to the atten-
tion of Store Manager Cox that Semla was making person-
al telephone calls. I credit Ms. Oakley's testimony.
Following the termination of Semla, the number of
hours worked by pharmacists at the San Mateo store have
varied on a weekly basis from a high of 112 hours to a low
of 80 hours. However, since his termination the total never
reached 120 hours of pharmacists work a week through
February 20, 1976. The company records show the follow-
ing:
Week Ending Hours
8-1-75 107
8-8-75 107
8-15-75 104
8-22-75 104
8-29-75 90
9-5-75 90
9-12-75 107
9-19-75 107
9-26-75 110
10-3-75 110
10-10-75 112
10-17-75 112
10-24-75 104
10-31-75 104
11-7-75 112
11-14-75 112
11-21-75 100
11-28-75 100
12-5-75 92
12-12-75 92
12-19-75 80
12-26-75 80
1-2-76 81
1-9-76 81
1-16-76 89
1-23-76 89
1-30-76 95
2-6-76 95
2-13-76 92
2-20-76 92
The parties stipulated that there had been three pharma-
cists employed at all times at the San Mateo store since
July 1975. However, that does not mean three full-time
pharmacists. As the records clearly demonstrate, there
have not been three full-time pharmacists working in any
week from July 1975 through February 20, 1976. For ex-
ample, the first part-time pharmacist who worked at San
Mateo after Semla was discharged was named Arbeed.
Over a 2-week period, a full-time pharmacist would have
worked 80 hours, but Arbeed worked only 48 hours during
the 2-week period immediately following the termination
of Semla. Arbeed had been a part-time pharmacist working
at the Respondent's store in Millbrae, California. Cox said
that he tried four or five pharmacists before he found the
person with whom he was satisfied. He said that with the
amount of salary which was saved in the pharmacy, he was
able to hire a pharmacist technician on a full-time basis
who would take care of the pharmacy customers and also
to hire another person for 20 hours a week who works on
the sales floor.
It has been previously pointed out that there were 12
union authorization cards introduced at the hearing on
May 22, 1975, in the prior case. Three out of the 12 card
signers were still employed by the Respondent at its San
Mateo store at the time of the hearing in this case on
March 2 and 3, 1976. Three other card signers had volun-
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tarily quit work for various personal reasons. Three other
card signers had been discharged prior to May 22, 1975,
for admitted theft. One of the card signers, Evans, was a
vacation relief pharmacist. The remaining 2 card signers
are Dixon and Semla.
F. Analysis and Conclusion Regarding Semla
The San Mateo store was but one of several stores in
Respondent's California North District where the hours
worked by pharmacists were reduced during the period
from June to December 1975 Thus, the San Mateo store
where union organizational activity had taken place in the
summer of 1974, was not singled out for disparate treat-
ment by the Respondent. The various reductions in the
total number of hours to be worked by pharmacists were
being carried out during that period at several stores. Fur-
thermore, the records showing the average number of pre-
scriptions filled a day and the average number of hours
worked by pharmacists at each store reveal that the San
Mateo store was consistently filling fewer prescriptions
than other stores in the district with 120 hours of pharma-
cist's work. Some stores with pharmacists working less
hours than San Mateo regularly surpassed the number of
prescriptions being filled at San Mateo even though San
Mateo had three full-time pharmacists during that period.
District Manager Helm had those figures for the January-
May 1975 period when he attended the national review
meeting in Chicago in June 1975. It was after that review
meeting was held that Helm began instructing certain store
managers in his district to reduce the number of hours
worked by pharmacists in the store. The timing of the deci-
sion to reduce the pharmacists' hours was explained by the
time that the meeting was held in June 1975 on a national
basis for all districts of the Company. In view of the fore-
going and the entire record, I find that the decision to
reduce the hours to be worked by the pharmacists at the
San Mateo store was based on valid economic and nondis-
criminatory considerations.
It was the decision to reduce the pharmacist hours which
precipitated the termination of Semla. While Cox had
thought about terminating Semla on previous occasions, he
took no action It was only after Cox was faced with the
necessity of reducing the number of hours to be worked in
the pharmacy in his store that Cox made the decision to
terminate Semla.
In order to reduce the number of hours worked in the
pharmacy, Cox had few alternatives There were only three
pharmacists working there and all of them were full-time
employees. He had to make a choice among the three of
them. He chose Semla.
The reasons given by Cox for selecting Semla for termi-
nation are convincing and persuasive His decision was
based on a combination of factors. Of course, the reasons
for discharge concerned past events. Semla did not do any-
thing on July 25 or immediately prior thereto which caused
Cox to terminate him at that particular time. As previously
pointed out, the timing of the termination is explained by
the timing of the decision to reduce the pharmacists' hours.
Cox gave detailed reasons for his choice of Semla based on
these past events. In Cox's view, Semla did not deal with
customers as Cox felt he should. Cox pointed out the num-
ber of customer complaints which he continually received
regarding Semla's and Cox's unsuccessful efforts to per-
suade Semla to change. Cox pointed to the March 1975
incident where Semla told the customer to take her busi-
ness elsewhere and shouted at Cox when Cox reproached
him about his conduct towards a customer of the store.
That incident and the conversation between Cox and Sem-
la clearly demonstrate the difference in the attitudes of the
two persons towards customers. Cox's attitude was to pla-
cate the customer, while Semla's attitude was to tell the
customer to take her business elsewhere for what Semla felt
was abusive conduct towards another pharmacist. The
conflict in the attitudes between the two is apparent.
Going to the race track to place bets during working
hours was one of the factors which led Cox to believe that
Semla was not giving him 8 hours of work for 8 hours' pay.
Cox warned Semla and others regarding their absences
from the store during working hours to go to the race track.
The playing of the radio in the pharmacy with the race
results being announced was still another matter which
Cox felt was inappropriate for the pharmacy. Additionally,
the incident concerning the opening of bottles of vitamins
was viewed seriously by Cox particularly in light of em-
ployee thefts which had resulted in the discharge of other
employees. In view of the foregoing and the other matters
attributed to Semla, Cox decided that he would not simply
reduce the hours worked by Semla, but instead Cox decid-
ed to discharge him. It was Cox's view that this action
would improve his customer service.
The question of why Cox waited until July 25 to termi-
nate Semla in view of these past incidents is answered by
the fact that Cox had not previously been required to re-
duce the hours worked by pharmacists. Cox became man-
ager of the San Mateo store on July 26, 1974, and thus
Semla had worked there under Cox for 1 year. However,
prior to July 1975 Cox had not been required to reduce the
pharmacy hours, and it was only after he had been told to
do so that Cox was compelled to choose among the three
pharmacists. The fact that Semla's conduct and attitude
had not pleased Cox for many months would not preclude
Cox from choosing Semla to terminate when Cox was
faced with the necessity for making a choice. As the Board
has observed: "A determination of discriminatory motiva-
tion must necessarily be based on an evaluation of all the
circumstances surrounding the conduct alleged to be dis-
criminatory. In this regard the record herein supports
Respondent's contention that during Hawkins' entire ten-
ure as service area manager, his performance left much to
be desired " The Goodyear Tire & Rubber Company, 188
NLRB 563, 564 (1971). It is also noteworthy that, at the
time Cox warned Semla regarding the customer com-
plaints, the March 1975 incident, going to the race track,
and the vitamins, Cox had reason to believe that Semla was
opposed to the Union. Thus, these prior warnings and criti-
cism of Semla were not made in retaliation against an em-
ployee for engaging in union activity. At the time, the Re-
spondent believed that Semla was opposed to the Union.
The only activity by Semla in support of the Union was
signing a union authorization card on July 23, 1974. His
card was 1 of 12 such cards which were later introduced in
WALGREEN COMPANY 907
evidence at the hearing on May 22, 1975. Thus, Semla's
union activity was very limited . Three other employees
who similarly signed union authorization cards were still
employed by the Respondent at the time of the hearing in
this proceeding . Three others had been discharged for ad-
mitted theft , and three others had voluntarily quit. One
other was a vacation relief pharmacist whose limited tenure
had expired. The remaining card signer was Robert Dixon
who has been previously discussed in this decision. It is
significant that Respondent did not discriminate against
Dixon for signing a union authorization card or for testify-
ing against Respondent in the prior case . In fact , there are
no concurrent unfair labor practices in connection with the
termination of Semla. The only credible evidence of union
animus is contained in the prior case. In that case the un-
fair labor practices occurred in July and August 1974,
which was almost a year before the termination of Semla.
The fact that Respondent had committed unfair labor
practices in the past and had exhibited animus towards the
Union in the past does not necessarily prove that Respon-
dent discharged Semla for disciminatory reasons. Leslie
Metal Arts Company, Inc., 202 NLRB 547 (1973).
While Cox was criticizing Semla for his remarks to a
customer in March 1975, Semla said that he was going to
call the NLRB about things which he did not like in the
store. Aside from this isolated statement by Semla, there is
no evidence that he ever did so or ever led Respondent to
believe that he did. Semla did not appear at the NLRB
hearing 2 months later in May 1975, and there is no basis
for finding that Respondent discriminated against Semla
for making that statement.
With regard to seniority, Matsuda had about 25 years of
service with the Company as of July 1975, Semla had about
3-1/2 years, and Fawzi had about 2 years. Respondent
gives consideration to the seniority standing of employees,
but the evidence does not show that Respondent gives it
controlling weight. As pointed out by the Administrative
Law Judge in Metzger Machine & Engineering Company,
209 NLRB 905, 913 (1974). "The General Counsel's ulti-
mate contention is not strengthened by the further argu-
ment that the Respondent did not choose on the basis of
seniority. There was no obligation upon it to do so." Simi-
larly in this case it has not been shown that Respondent
was obligated to follow seniority , or that its past practice
had been to let seniority prevail. In this proceeding Cox
has given convincing reasons why he chose Semla , rather
than Matsuda or Fawzi, to accomplish the reduction in
pharmacy hours at the San Mateo store.
After considering the foregoing and the entire record, I
find and conclude that a preponderance of the evidence
does not establish that Respondent has discriminated
against Richard Semla in violation of Section 8(a)(1) or (3)
of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. Walgreen Company is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Retail Clerks Union, Local 775, Retail Clerks Inter-
national Association, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in the unfair labor
practices alleged in the complaint in this proceeding.
Upon the basis of the foregoing findings of fact , conclu-
sions of law , and the entire record in this proceeding, and
pursuant to the provisions of Section 10(c) of the Act, I
hereby issue the following recommended:
ORDERIZ
It is hereby ordered that the complaint in this proceeding
be, and it hereby is, dismissed in its entirety.
12 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes