Crown Drug Co.Download PDFNational Labor Relations Board - Board DecisionsApr 6, 1962136 N.L.R.B. 865 (N.L.R.B. 1962) Copy Citation CROWN DRUG COMPANY 865 the Board speaks again , I am bound , as I see it, to find a violation of the Act in the instant case. By reason of the facts set forth above, it is found that the picketing of Vestaglas, Inc., by Respondent is intended to force or require it to recognize or bargain with Respondent as the representative of its employees at a time when Respondent is not currently certified as the collective -bargaining representative of the employees of Vestaglas , Inc., in an appropriate bargaining unit , and that such picketing consti- tutes a violation of Section 8(b) (7) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in con- nection with the operations of Vestaglas , Inc., as set forth in section 1 , above, have a close, intimate , and substantial relation to trade, traffic, 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 Respondent has engaged in and is engaging in certain unfair labor practices , I shall recommend that it cease and desist therefrom and take certain affirmative action found to be necessary to effectuate the policies of the Act. 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. Vestaglas, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Carpenters District Council of St. Louis, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing Vestaglas, Inc., from July 27, 1961, with an object of forcing and requiring Vestaglas , Inc., to recognize and bargain collectively with Respondent notwithstanding that Respondent does not represent a majority of the Vestaglas em- ployees in a unit appropriate for such purposes , Respondent has restrained and coerced, and is restraining and coercing , Vestaglas' employees in the exercise of their rights guaranteed in Section 7 of the Act, and by such picketing , with an object of forcing and requiring Vestaglas , Inc., to recognize and bargain with Respondent as the collective -bargaining representative of its employees and forcing and requir- ing employees to accept and select Respondent as their bargaining representative, although more than a reasonable period has elapsed after July 27, 1961, without a petition under Section 9(c) of the Act being filed, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(7) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and 7 ) of the Act. [Recommendations omitted from publication.] Paul Robey, an individual d/b/a Crown Drug Company and Retail Clerks Union Local 775, Retail Clerks International Association , AFL-CIO. Case No. 9O-CA-fl046. April 6, 1962 DECISION AND ORDER On December 5, 1961, Trial Examiner Eugene K. Kennedy issued his Intermediate Report herein, finding that Respondent had not en- gaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the 136 NLRB No. 86. 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel and the Charging Party filed exceptions to the Inter- mediate Report together with supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Fanning]. The Board has reviewed the Trial Examiner's rulings and finds that no prejudicial error was committed. The rulings are affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and adopts the findings, con- clusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed by Local 775 of the Retail Clerks Union, AFL-CIO, herein called the Union, a complaint was issued against Paul Robey, an Individual d/b/a Crown Drug Company, herein called Respondent , alleging that Respondent had on April 11, 1961, and at all times since that date, refused and continued to refuse to sign a written agreement regarding rates of pay, wages, hours of employment, and other conditions of employment agreed upon by the Respondent and the Union, thereby violating Section 8(a)(5) and (1) of the National Labor Relations Act, herein called the Act. The complaint also alleged that on March 25, 1959, the majority of the employees of Respondent selected the Union as their representative . The Respondent denies this allegation although admitting that it recognized the Union as the representative of its employees and that it has continued to recognize the Union as such. The question of majority representation as well as the issue as to whether a contract was agreed upon but not signed are the two issues presented by the pleadings in this matter which was tried in San Francisco , on August 1, 1961. Upon the entire record in the case and upon my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE EVENTS The Respondent is engaged in the retail drug business .' The location of its store involved in the dispute with the Union 2 is located in Daly City , California. Sometime prior to March 25, 1959, the Union picketed the Respondent's Daly City store located in San Mateo County. The pickets were removed and the dispute was adjusted between Respondent and the Union by the execution of a document, entitled "Stipulation ," on March 25, 1959. Certain portions of this document will be adverted to herein , and the entire document is attached hereto as Appendix A. It is in effect a collective -bargaining agreement of indefinite duration , by its terms contemplating a further written agreement. In summary , it provides that (1) the Union will remove its pickets; (2) Respondent will recognize the Union as having a right to negotiate "on the behalf of the regular parties concerned"; ( 3) that there shall be a Union shop; (4) that the parties will agree to negotiate a contract for Respondent 's Daly City store based upon the San Mateo area contract ; ( 5) seven employees will be offered reinstatement ; ( 6) Re- spondent agrees to pay scales currently in effect for other drugstores in San Mateo County within the jurisdiction of the Union ; ( 7) Respondent agrees to certain seniority principles in hiring or laying off employees ; ( 8) the area contract provisions 1 Respondent has retail drugstores at various locations in California Its annual gross volume exceeds $ 500,000, and it annually receives goods valued in excess of $5,000 de- livered directly to it from points outside the State of California Respondent at all times material herein has been engaged in commerce and operations affecting commerce within the meaning of the Act. 2 Retail Clerks Union Local 775, Retail Clerks International Association , AFL-CIO, is a labor organization within the meaning of the Act. CROWN DRUG COMPANY 867" relating to adjustments and arbitration are incorporated by reference in the- "Stipulation." Following the execution of this "Stipulation," there were three formal negotiating meetings, the first taking place on October 12, 1959. At this meeting, representing the Respondent was a Mr. Robert Norton and Mr. Raymond Amrhein, Respondent's attorney. Representing the Union was Robert Cowell, an attorney for the Union, and the Union's secretary-treasurer, Carl E. Cohenour. At the first meeting it was made clear that Respondent did not want to execute another agreement with the pro- vision relating to arbitrating concerning discharge of employees. In this connection it is noted that the "Stipulation" incorporates by reference provisions for arbitration contained in the Union's area contract. The record indicates that the Union had brought to arbitration two or three complaints on behalf of discharged employees. The other two formal negotiating meetings were held in November 1959 and January 1960. Unresolved issues at these meetings included the provision for arbitration of discharges and the health and welfare plan provision. Before the negotiations commenced, Cowell in a letter to Norton inquired whether or not he was authorized to negotiate and conclude an agreement. Norton responded' saying that Cowell's letter had been reviewed and that he would be hearing soon. Cowell received a letter of similar import from Respondent's attorney, Amrhein, and a Mr. Nixon, one of Respondent's officials. Cowell continued to discuss the execution of a new contract with Norton although he never did receive any written advice as to who was authorized to conclude a settlement for Respondent. In this connection it is noted Amrhein agreed to the "Stipulation" of March 25, 1959, on. behalf of Respondent although the document was signed by Norton. In January 1961, Norton informed Cowell that no agreement could be signed without the approval of Paul Robey, Respondent owner. A letter to the union representative from Norton in May 1960, reflects that Norton required Robey's approval in dealing with the Union and he (Norton) did not have independent authority, and so informed the Union: CARL E. COHENOUR, MAY 24, 1960. Secretary-Treasurer, Retail Clerks #775, San Mateo, Calif. DEAR MR. COHENOUR: In reply to your letter of May 17: Mr. Robey has taken the matter of your stipulation under advisement, and will inform this office at his earliest convenience. Very truly yours, (S) R. W. Norton, R. W. NORTON. In September 1960, Cowell advised Norton that the Union would not insist on, having the arbitration of discharges included in the proposed collective-bargaining contract. Norton then informed Cowell that he would discuss the matter with Amrhein, Respondent's attorney, and then would contact Robey and recommend a, settlement of the matter. Norton for some reason did not get Robey's approval. Whether it was because of Robey's illness, his absence from the country, or some other reason cannot be ascertained from the record. On January 16, 1961, the Union filed an unfair labor practice charge against Re- spondent alleging that on or about September 6, 1960, it reached an agreement with Respondent and that Respondent was refusing to bargain in good faith by failing to execute this agreement in writing. This charge was withdrawn and subsequently the Union submitted its proposed contract along with the following letter on March 16, 1961: Re: Crown Drug , Daly City. Mr. ROBERT W. NORTON, California Association of Employers, 260 Stockton Street, San Francisco 8, California. MARCH 16, 1961. DEAR MR. NORTON: Enclosed please find my compilation of the Union's position on the contract, which has been gathered from my notes on the ne- gotiating meetings, previous correspondence between your office and mine, and from Carl Cohenour to you. I believe that this sets forth the true and correct picture of our discussions. 641795-63-vol. 136-56 ,868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Will you kindly review same and indicate the employer 's position as promptly as possible. I regret the delay in sending this to you. However, my recent illness has caused a backlog to develop here. Very truly yours, ROBERT P. COWELL. This letter of March 16, 1961, together with the Union's proposed contract was in answer to the letter of January 25, 1961, addressed to Cowell from Norton as follows: JANUARY 25, 1961. Re: Crown Drug, Daly City, Case No. 20-CA-1979. ROBERT COWELL, Esq. Attorney and Counselor at Law 900 Balfour Building 351 California St. San Francisco 4, California DEAR MR. COWELL: Confirming a telephone conversation with you as of Tuesday, January 24, 1961, at about four o'clock of the afternoon; please be advised it is thought to be expedient and proper for the union to draw up what it considers to be the understanding entered into and to do so in the general form of a tentative contract. It would not appear necessary to do any more than list by paragraph and sub- paragraph those sections believed to be accepted in toto. Very truly yours, (S) Robert W. Norton. Norton's attempt to have the proposed contract approved by Robey is indicated by a letter of April 21, 1961, which he sent to Robey with a copy to Cowell: APRIL 21, 1961. Re: Crown Drug Co., Daly City, Calif. Mr. PAUL RoBEY, Mayway Pharmacy, 139 E. Lake Ave., Watsonville, California DEAR MR. ROBEY: It has been impossible to get you on the telephone these past several days or to find you in the office. Mr. Cowell, counsel for the Retail Clerks has probably been quite bothered likewise since my continued absence from the office has caused his telephone calls to go unanswered. However, sometime ago Mr. Cowell presented a copy of a contract draft, which draft is pretty much in line with past understandings. Consequently the time has come to close the matter at Crown Drug by means of an agreement in writing. This office is advised by counsel that the Union may (and probably will) formulate refusal to bargain charges against Crown Drug. May we have your OK to go ahead and execute a proper written agreement. Very truly yours, (S) Robert W. Norton. cc: Robert Cowell, Esq. Raymond Amrhein, Esq. The next event reflected by the record was the filing of an unfair labor practice charge by the Union on April 25, 1961. This time the charge alleged that Respond- ent committed an unfair labor practice by reason of the fact that Norton informed Cowell, the Union's attorney, that the contract was satisfactory but that although he (Norton) was authorized to execute the same he would not until checking with his employer The charge goes on to recite that Respondent refused to bargain in good faith by failing to execute a negotiated agreement. A prerequisite to a finding that Respondent failed to bargain in violation of Section 8(a)(5) of the Act requires establishment of the appropriate bargaining unit of employees and the majority representation of them by the Union. IT. THE APPROPRIATE UNIT The parties agree and it is found that: All employees of Respondent employed in its Daly City, California, store, exclusive of guards and all 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. CROWN DRUG COMPANY III. MAJORITY STATUS OF THE UNION 869 In his complaint the General Counsel alleges as follows: On or about March 25, 1959, a majority of the employees of Respondent, in the unit described in paragraph V above, designated or selected the Union as their representative for the purposes of collective bargaining with Respondent, and at all times material herein, subsequent to that date, the Union has con- tinued to represent a majority of Respondent's employees. Presumably, the General Counsel is relying on the execution of the "Stipulation" ,of March 25, 1959, between the Union and Respondent as establishing majority rep- resentation as of that date and subsequent thereto. Assuming this is the basis of the claim that the majority of the employees selected the Union as their representative ,on March 25, 1959, this claim finds support in Shamrock Dairy, Inc., 119 NLRB 998; 124 NLRB 494, 280 F. 2d 665 (C.A.D.C.); certification denied 364 U S. 892. In the case at hand, Respondent, in its answer, denied the designation of the ma- jority on March 25, 1959, thereby requiring the General Counsel to prove this designation of majority. According to the Shamrock case, this proof is supplied by establishing the execution of the agreement extending recognition by Respondent Jo the Union. As the Board said in its Shamrock Decision, 124 NLRB 494-495: A majority of the Board, consisting of the Chairman and Members Jenkins and Fanning, find that the Union had majority status and was at all times ma- terial the exclusive representative of the employees involved here. The Re- spondent granted exclusive recognition to the Union as the representative of the Respondent's employees in the 2-year contract, executed on October 1, 1953. Such recognition raises a presumption of regularity, namely, that the Union was the majority representative of the employees at the time of the execution of the contract; for, otherwise, it would have been unlawful for the Respondent to have extended such recognition. There is no evidence to rebut this presumption. Nor is there any evidence that the Union lost such majority status at any time after execution of the contract. By virtue of the existence of the contract, the Union was entitled to exclusive recognition for at least the term of the contract.3 IV. ALLEGED REFUSAL TO SIGN A NEGOTIATED AGREEMENT It is uncontroverted that Norton, Respondent's negotiator, on April 11, 1961, indicated to the Union's attorney, Cowell, that the agreement forwarded to Norton on March 16, 1961, was satisfactory. The only area of conflict in testimony arises from Cowell's testimony that Norton on this occasion told Cowell that he had the authority to sign the contract but that it was against his policy and he wanted Robey to see it. Norton admitted that he had the authority to negotiate, as he had been doing, but insisted that at all times, particularly after January of 1961, the Union was on notice that Robey, owner Respondent, had to approve any collective- 3 Assuming that the Shamrock Decision is controlling with respect to this method of establishing majority, several reasons suggest themselves for reexamination of this precedent It appears to be based on the proposition that an employer will be presumed to have executed a collective-bargaining contract only when the union represents a majority of the employees involved. The Shamrock Decision is silent as to whether the same presumption applies to a union The Board has been exposed to a not uncommon practice of a union and an employer executing agreements when the union represents none or a minority of the employees involved. The interest of a union in having an employer execute an agreement with a union-shop provision is obvious. In the case at hand the interest of Respondent in executing the "Stipulation" was obviously to obtain the removal of the pickets The indifference of Respondent to the Union's majority status on March 25, 1959, is reflected in its answer wherein it admits recognizing the Union but disclaim- ing any knowledge of majority status. Proof of majority status is peculiarly available to a union and substituting for this proof a presumption that the employer would sign an agreement only under lawful conditions is a unique and, to the Trial Examiner, an un- persuasive method of establishing majority status In a case such as this, Respondent, after recognizing the Union for 2 years can deny majority status with ill grace. However, holding the Respondent bound by its recogni- tion of the Union ignores the question as to whether the employees involved have had their rights guaranteed under Section 7 of the Act adequately protected To say they may have a legal remedy does not take into account that many employees v onld as a practical matter be unaware of, or be reluctant to assert them In short, why should not the Board in this most important area of Its responsibility require a union to supply proof of majority that it would be in a position to readily supply? 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agreement . In this case the Union chose to negotiate with Norton on terms that where known to it and since the record lacks any evidence of Robey's agreement to the Union's proposed contract, it follows that it has not been estab- lished that there was a negotiated and agreed-upon contract. Norton's version is consistent with the correspondence commencing with his letter of May 24, 1960, to Cohenour, in which it was indicated that his action was subject to Robey's approval. Further, it is consistent with Cowell's letter of March 16, 1961, in which he recognized Norton could not execute an agreement without ascertaining the "employer's position." Moreover, it is uncontroverted that in January 1961, Norton informed Cowell that he had an agreement with Amrhein and Robey that they must approve any negotiated agreement. There is nothing in the record to indicate any reason why Robey's approval would not be necessary in April 1961. It is accordingly found that Norton's recollection of his conversation with Cowell on April 11, 1961, is correct and Cowell's, incorrect. The record is abundantly clear that Norton did have authority to negotiate but not to conclude an agreement , and that the Union chose to deal with Respondent on these terms. Since the Respondent did not agree, it may not be held to have failed to sign a negotiated agreement. Another basis for finding that the General Counsel's proof falls short of estab- lishing that Respondent failed to sign a negotiated agreement is that the proposal forwarded to Norton on March 16, 1961, contained wage scales and provisions re- garding health and welfare payments that had not been a subject of discussion. It seems obvious that the Respondent cannot be regarded as having agreed to some- thing that had not been discussed. Although the record reflects that the proposed agreement was agreeable to Norton and Amrhein , the same assumption can not be- made in the case of Robey. In view of the foregoing it is found that Respondent did not agree to a contract that it refused to sign. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and' (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the- Act. 3. Respondent has not engaged in unfair labor practices as alleged in the com- plaint , within the meaning of Section 8 (a) (1) and (5) of the Act. RECOMMENDATION Upon the basis of the foregoing findings and conclusions , and upon the entire- record , it is recommended that the complaint be dismissed. APPENDIX A STIPULATION It is hereby stipulated and agreed by and between the Crown Drug Company at Daly City, California, called the "Company," and the Retail Clerks Union, Local No. 775, called the "Union ," that: 1. They have the right to negotiate for and on the behalf of the regular parties con- cerned with the labor dispute at the Company's store at Daly City, California. if. Lorraine Jennings, one of the persons who left their jobs in the original dispute, shall be entitled to exercise an option of either being rehired for a period of two (2) weeks and after said two weeks' period to resign without penalty or prejudice to the Company, or to accept a terminal leave from the Company. In any event, the Company agrees to furnish a letter of recommendation to Lorraine Jennings which' shall, among other items, state that her employment was under such conditions as to warrant her recommendations elsewhere. Further, the Company stipulates and agrees that any inquiries relative to her shall be referred to Mr. Murray Nixon. III. Any person employed by the Company who is a member of the Union shall" remain a member of the Union in good standing during the employment term. Any CROWN DRUG COMPANY 871 other person who is or may become an employee shall after 30 days become and remain a member of the Union in good standing during the employment term. IV. Subsequent to the current negotiations for the San Mateo area contracts the parties hereto agree to negotiate a contract for the Company's Daly City store based upon the aforementioned contract. V. The employment of bona fide managers and pharmacy students who are sub- sidized by the Company shall not be subject to Union membership. VI. It is understood that the word "Sunday," as the word may appear in any contract negotiated by and between the Company and the Union , shall be construed to mean the particular day of the week on which any employee observes his religious rites in accordance with the practices of his religion. VII. Reinstatement to employment of the following named persons who left their jobs in the original dispute shall occur as follows: ,(a) Lorraine Jennings shall be extended the option as aforesaid. ,(b) Ellen Stockolager, Frieda Huess, and Ila Meyers shall be reinstated to their positions on the day next following the execution of this stipulation. (c) Ruth Alpers and Joan Storni shall be reinstated to their original positions no later than twenty calendar days next following the execution of this stipulation. (d) Don Parrish and Don Rose shall be reinstated to their original positions as stock boy and under the same conditions as existing at the time of the dispute, twenty calendar days next following the execution of this stipulation. It is understood and agreed that all of the above-named persons shall have twenty days to signify to the Company that they accept and are available for reinstatement. However, it is understood that the Company is not obligated to pay such persons until the date they are reinstated. VIII. The Company agrees that upon the signing of this stipulation or upon the first day of the pay period first commencing after the signing of this agreement, the scale of pay currently in effect in San Mateo County for drugstores within the jurisdiction of the Union shall be put into effect by the Company. Specifically, the scale of pay shall be in accordance with Sections 3(a), (b), (c), (d), (e), and (f) of the current area contract. Further, the Company agrees that the principle of seniority shall apply in the laying off or rehiring of employees. For the purpose of this section, seniority shall mean the date the employee was originally hired, notwithstanding any subsequent absence from the employment. The Adjustment and Arbitration provisions, specifically Sections 29 and 30, con- tained in, the current area contract are hereby incorporated by reference and made a part of this stipulation as though fully set forth herein. IX. It is stipulated that any and all court actions, any complaint before the National Labor Relations Board, or any complaint before the State Labor Enforcement Divi- sion. arising by reason of the labor dispute at the Company's Daly City store, shall be withdrawn and dismissed with prejudice upon the execution of this stipulation. X. Further, upon the execution of this stipulation the picket lines at the Company's Daly City store shall be immediately removed. and the Company will join the San Mateo Drug trade in contract negotiations. Dated March 25, 1959. -------- --------------------------------------- (C9RL CorrecouR, for Local 775) ------------------------------------------- (ROBERT W. Noarox, for the Calif Association of Employers and for the Company) It is understood by and between the parties hereto that the stipulation set forth above constitutes a full and complete settlement of all disputes and claims arising 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from and by reason of the labor dispute at the Company's Daly City store , and the parties represented by the persons signatory hereto are hereby released , one from the other , from all sums of money, actions , accounts , claims and demands up to the date and execution of the above stipulation. ------------------------------------------------ (CARL COHENOUR) ------------------------------------------------ (ROBERT W. NORTON) Parkhurst Manufacturing Company, Inc. and General Drivers, Warehousemen & Helpers Local Union 534, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Ware- housemen & Helpers of America. Cases Nos. 17-CA-1781 and 17-RC-3469. April 6, 1962 DECISION AND ORDER On November 15, 1961, Trial Examiner John C, Fischer issued his Intermediate Report, finding that the Respondent engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take affirmative action, as set forth in the Intermediate Report attached hereto. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended dismissal as to them. Thereafter, the Re- spondent and the General Counsel each filed exceptions with a supporting brief.' The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record. The Board affirms the Trial Ex- aminer's rulings and adopts his findings and conclusions. ORDER The Board adopts, with the addition set forth below, the Recom- mended Order of the Trial Examiner as its Order.2 1 Respondent's request for oral argument is denied because in our opinion the record, exceptions, and briefs adequately set forth the position of the parties. 2 Paragraph 2 of the Recommendations is supplemented by adding the following para. graph between paragraphs (a) and (b): (aa) Upon request, bargain collectively with General Drivers, Warehousemen & Help- ers Local Union 534, affiliated with the International Brotherhood of Teamsters, Chauf- feurs , Warehousemen & Helpers of America as the exclusive bargaining representative of employees it is certified to represent. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges duly filed by General Drivers , Warehousemen & Helpers Local Union 534 , affiliated with the International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America , herein called the Union , the General Counsel 1.36 NLRB No. 81. 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