Federal Prescription Service, Inc.

National Labor Relations Board - Board Decisions

May 31, 1973

203 N.L.R.B. 975 (N.L.R.B. 1973)

FEDERAL PRESCRIPTION SERVICE, INC. 975
Federal Prescription Service , Inc., and Drivex Co. and
Amalgamated Meat Cutters and Butcher Workmen
of North America , AFL-CIO
Federal Prescription Service , Inc., and Drivex Co. and
Local P-1149, Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO.
Cases 18-CA-3199 and 18-RC-8603
May 31, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On April 28,1972, Administrative Law Judge ' Paul
E. Weil issued the attached Decision in this proceed-
ing. Thereafter, the Respondent filed exceptions, a
supporting brief, and a request for oral argument; the
Charging Party filed exceptions and a supporting
brief; and the General Counsel filed limited excep-
tions. Later, the Respondent filed a brief in answer to
exceptions filed by the Charging Party and the Gener-
al Counsel and a motion to reject the brief of the
Charging Party in support of exceptions; and the
Charging Party filed a statement in opposition to
Respondent's request for oral argument and a brief in
opposition to Respondent's 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 briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
We agree with the Administrative Law Judge that
the discharge of 10 employees on April 2 violated
Section 8(a)(3) and (1) of the Act. In its exceptions,
Respondent asserts that it did not know who the
union adherents were and that the Administrative
Law Judge confused its departmental structure and
misconceived the economic reasons advanced for the
termination of the 10 employees.
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 The Respondent and the Charging Party have excepted to certain credi-
bility 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 credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions were incorrect . Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings
3 The request by the Respondent for oral argument is hereby denied as the
record , including the briefs , adequately presents the issues and the positions
of the parties.
There is substantial evidence to establish that the
Respondent actively sought information about the
concerted and union activity of its employees and that
it was materially assisted in this search by various
employees. In particular, the credible evidence reveals
that Charlotte Simons attended several union meet-
ings (including the March 9 meeting at which nine of
the dischargees signed authorization cards), that she
took notes on who attended, and that she was seen
entering the office of Craig Sandahl, Respondent's
president, with a notepad in her hand similar to that
on which she had been seen taking notes at the meet-
ing. Further, Mildred Knox testified that she attended
several union meetings and that she reported her at-
tendance at those meetings to Richard Johann,
Respondent's vice president. Given the entire record,
the inference that Respondent knew who the union
adherents were cannot be gainsaid.
Similarly, we are persuaded that the record evi-
dence contradicts the Respondent's contention that
the 10 employees were selected for termination on the
basis of departmental seniority. In its exceptions, Re-
spondent contends that Steve Hansen and Charlotte
Simons were assigned to the U.S. Mailers Division of
Drivex Co., rather than the promotion department of
Federal Prescription Service, Inc., and, accordingly,
that the Administrative Law Judge erred in finding
that dischargee Beverly Storey was senior to both
Hansen and Simons in Respondent's promotion de-
partment. As suggested by the Respondent, it would
appear that the Administrative Law Judge predicated
his finding on Respondent's Exhibit 91. The record
reveals that this exhibit was prepared under the super-
vision and direction of Respondent's vice president,
T. R. Rasmusen. Rasmusen testified that this exhibit
was a date of hire list of the employees by department
of Federal Prescription Service, Inc., on April 2, and
that it was the list used by the Respondent to select
the 10 employees to be terminated on April 2. This
exhibit shows that dischargees Storey and Lois Genes-
er were senior to Hansen and Simons and that dis-
chargee Doris Novy was senior to Hansen in
Respondent's promotion department. Accordingly,
while there is some testimony to show that Hansen
and Simons worked in the U.S. Mailers Division of
Drivex Co., we find that the record evidence is insuffi-
cient to overcome the direct and uncontroverted testi-
mony by Vice President Rasmusen that this list was
used by the Respondent to select the 10 employees to
be terminated on April 2.
Even assuming arguendo that the Respondent had
selected the employees for termination on the basis of
departmental seniority, we would affirm the finding
by the Administrative Law Judge. The record reveals
that all the employees involved in this proceeding
203 NLRB No. 145
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were paid through Federal Prescription Service, Inc.,
and that the Respondent did not separately identify
its employees by company designations on the various
exhibits which it prepared and introduced. Moreover,
whichever company the employees performed work
for, the record reveals that the great majority of
Respondent's employees appear to perform work
which does not require special skills. Further, the
"seniority" applied here by the Respondent was based
on the date of hire of each employee and took no
account of time served in a given department. Indeed,
this may be explained by the fact that seniority, prior
to the terminations here, appears to have been of little
significance in Respondent's operation. Respondent
did not utilize seniority in any of the traditional ways,
in that it did not have established wage or promotion
progressions, nor did it grant holidays or vacations on
the basis of seniority. Thus, given the nature of the
work engaged in by a majority of Respondent's em-
ployees and the fact that Respondent did not take into
account the time served in a particular department,
the Respondent's use of departmental seniority is
highly suspect, particularly in view of the fact that
only 3 of the 10 dischargees would have been terminat-
ed if plantwide seniority had been applied.
Finally, we have considered the Respondent's con-
tention that the principal reason for the terminations
was a declining profit margin in 1970, followed by
substantial losses in the first quarter of 1971. Con-
versely, Respondent does not contend that a reduc-
tion in business necessitated the terminations. On the
basis of the entire record, we are not persuaded that
the Respondent has adequately established the eco-
nomic necessity for a cut of approximately 12.5 per-
cent or more of its work force at a time when the
record shows that sales increased by nearly 7 percent
in 1970 and by more than 10 percent in the first quar-
ter of 1971. Accordingly, as found by the Administra-
tive Law Judge, and also for the additional reasons
stated herein, we find that the record evidence estab-
lishes that the Respondent violated Section 8(a)(3)
and (1) of the Act by discharging the 10 employees on
April 2.
The Administrative Law Judge found that a remark
made to Eve Wisecup by Betty Peterson constituted
a threat to Mrs. Wisecup with regard to her son and
that it was of such an aggravated nature that Mrs.
Peterson may be denied reinstatement by the Respon-
dent. Contrary to the Administrative Law Judge, we
find that the Respondent's refusal to reinstate Betty
Peterson was motivated by her union activity and that
the remark to Mrs. Wisecup was only a pretext seized
upon to obscure the real motive for Respondent's
action.
According to the credited evidence, the Union's
agent, Danny Gettler, asked Eve Wisecup, as she was
crossing the picket line on the first day of the strike,
whether her son worked at another plant at which the
Union represented the employees. Wisecup said,
"Pardon me," and Betty Peterson said in-effect, "Yes,
and he just may have an accident." Assuming arguen-
do that the remark constituted a threat, the issue re-
mains , whether the Respondent in fact discharged
Mrs. Peterson for making the threat or whether Re-
spondent seized upon the threat as a pretext for rid-
ding itself of one of the Union's most vigorous
adherents.
The record reveals that the remark was made on
April 5. Later, on May 25, the Union offered to end
the strike and requested immediate unconditional re-
instatement for its members. After some weeks of
deliberations Respondent started sending out letters
recalling some of the strikers. In a letter dated June
16, Craig W. Sandahl, Respondent's president, told
Mrs. Peterson that her job had been eliminated, that
Respondent did not anticipate reactivating it, and,
accordingly, that Respondent could not recall her at
that time. Sandahl added that because of "your seri-
ous misconduct in connection with the strike and
picketing particularly, we cannot consider continuing
your employment."4
Our reasons for finding that the refusal to reinstate
Mrs. Peterson by the Respondent was discriminatori-
ly motivated are predicated on compelling evidence in
the record. The record amply establishes that the Re-
spondent entertained a strong union animus. It is
clear that Peterson was among the most prounion, if
not the most prounion, of the employees in
Respondent's employ. Further, there is no evidence
that the Respondent made an investigation to de-
termine if a threat was actually made to Wisecup by
Peterson and the Respondent never gave Peterson
any opportunity to relate her version of the incident
before denying her reinstatement. Moreover, the Re-
spondent has discriminatorily discharged and refused
to reinstate other supporters of the Union. Finally, the
Administrative Law Judge found, and the record evi-
dence establishes, that Peterson had been a primary
target of Respondent's earlier unfair labor practices,
i.e.,
1. Peterson was interrogated by Sandahl on March
4 about the petition being circulated among the em-
ployees in violation of Section 8(a)(1) of the Act.
2. Peterson was present at the street corner meeting
4 Respondent used this same language in the letters it sent to employees
Helen McCormick and Terry Edwards, both of whom , along with Peterson,
were found guilty of contempt of court and fined $25 for participation in
car-following incidents which occurred during the strike. The Administrative
Law Judge found that the car-following incidents were not of such an outra-
geous nature that they render the three employees unfit for further employ-
ment by the Respondent We agree.
FEDERAL PRESCRIPTION SERVICE, INC. 977
on March 5 at which time Sandahl interfered with
protected concerted activities of its employees in vio-
lation of Section 8(a)(1) of the Act.
3. Peterson had her hours of work changed by Re-
spondent on March 8 in violation of Section 8(a)(1)
of the Act.
4. Peterson was the employee who first met San-
dahl and Richard Johann, an officer of the Respon-
dent, at the door of the first union meeting on March
9, and told them they should not be there, which
conduct by Sandahl and Johann violated Section
8(a)(1) of the Act.
5. Peterson was one of the two employees that Mrs.
Richard Johann, a supervisor, was referring to when
she threatened to have two employees discharged if
she could prove the employees released certain data
about Respondent's business, which threat constitut-
ed a violation of Section 8(a)(1) of the Act.
6. Peterson was the subject of the Respondent's
single effort to enforce its no-nonsense rule on March
25, the disparate enforcement of which violated Sec-
tion 8(a)(1) of the Act.
While we do not condone the remark made to
Wisecup by Peterson, it must be viewed in the context
in which it was made, as an isolated remark made on
the first day of the strike, following the discriminatory
discharge of 10 employees, including 9 union adher-
ents, when the feelings and emotions of all concerned
were at their peak. Under all the circumstances here,
we conclude that the Respondent's refusal to reinstate
Betty Peterson was motivated by her union activity
and that Respondent thereby violated Section 8(a)(3)
and (1) of the Act.
The Administrative Law Judge found that the unit
consisted of 63 employees at the time the Union's
demand for recognition was perfected on March 15.5
The parties have filed exceptions to certain employees
being included in or excluded from the unit by the
Administrative Law Judge. Inasmuch as we find merit
in certain of these exceptions, we shall revise that
figure and hereby find that there were 65 employees
in the unit on March 15.
Specifically, we find merit in the Union's exception
relative to Gloria Rasmusen, the wife of Vice Presi-
dent Rasmusen, and we exclude her from the unit
based on her relationship to a stockholder and one of
the three primary officers of the Respondent .6
The Administrative Law Judge found that Ray-
mond and Kenneth Lansing were independent con-
5 See Appendix A of the Administrative Law Judge's Decision.
6 So too , we find that Merritt Hansen , the daughter of Vice President
Johann , and Gary Rasmusen , the son of Vice President Rasmusen, both
excluded from the unit as casual employees by the Administrative Law
Judge , would also be excluded on the basis of their family relationship.
Caravelle Wood Products , Inc., 200 NLRB No. 118; Parisoff Drive-In Market,
Inc., 201 NLRB No. 102.
tractors and excluded them from the unit. To the
contrary, we find that the record evidence is insuffi-
cient to establish an independent contractor relation-
ship between the Respondent and the Lansing
brothers. Moreover, the record evidence clearly estab-
lishes that both Raymond and Kenneth Lansing are
regular part-time employees. Accordingly, we would
include the Lansing brothers among the unit employ-
ees on March 15.
Finally, we find that the Administrative Law Judge
inadvertently omitted employee Karen Burke when
he compiled the list of unit employees. Accordingly,
we have arrived at a figure of 65 employees in the unit
on March 15, by deleting Gloria Rasmusen from, and
adding Raymond Lansing, Kenneth Lansing, and
Karen Burke to, the list of employees set forth in
Appendix A of the Administrative Law Judge's Deci-
sion.
Based on the entire record, including the
Respondent's conduct violative of Section 8(a)(1) of
the Act before and after the filing of the petition, and
particularly the Respondent's discriminatory dis-
charge of 10 employees on April 2 and its refusal to
reinstate 3 employees after the strike in violation of
Section 8(a)(3) of the Act, we find that the
Respondent's violations of the Act not only precluded
a fair election, but were of such a pervasive and aggra-
vated character as to warrant the finding which we
now make, that an order directing the Respondent to
bargain with the Union is necessary to repair the un-
lawful effects. The aforementioned conduct has un-
dermined the Union's majority and caused an
election to be a less reliable guide to the employee's
free choice than the signed authorization cards by
which they designated the Union to represent them.
We find, accordingly, that, by refusing the Union's
request and engaging in the aforesaid unfair labor
practices, the Respondent violated Section 8(a)(5) of
the Act and an order requiring the Respondent to
recognize and bargain with the Union is appropriate
to remedy its violation of that section, as well as to
remedy the other unfair labor practices found?
AMENDED CONCLUSION OF Law
The Conclusions of Law are amended by substitut-
ing the following for paragraph 6 of the Administra-
tive Law Judge's Decision:
"6. By discharging Judy Allen, Evelyn Burke, Ge-
neva Battani, Lois Geneser, Marilyn Udorvich Gohn,
Marjorie Huser, John McCormick, Doris Novy, Jo
Ellyn Rathbun, Beverly Storey, Terry Edwards, Helen
McCormick, and Betty Peterson, Respondent dis-
couraged membership of its employees in Amalgam-
ated Meat Cutters and Butcher Workmen of North
7 N L.R B. v. Gissel Packing Co. Inc., 395 U.S. 575 (1969).
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, AFL-CIO, and its Local P-1149, by dis-
crimination with regard to tenure of employment or
terms and conditions of employment of the above-
named persons."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent , Federal
Prescription Service , Inc., and Drivex Co., Madrid,
Iowa, its officers, agents, successors, and assigns, shall
take the action set forth in the Administrative Law
Judge 's recommended Order, as herein modified:
1. Substitute the following for paragraph 2(b) of
the recommended Order:
"(b) Notify Helen L . McCormick , Terry Edwards,
and Betty Peterson that they are not discharged and
upon their application to return to Respondent's em-
ploy they will be employed in their former jobs or, if
those jobs no longer exist, to substantially equivalent
ones, without prejudice to their seniority and other
rights and privileges previously enjoyed by them."
2. Substitute the attached notice for the Adminis-
trative Law Judge 's notice.
CHAIRMAN MILLER, dissenting in part:
Contrary to my colleagues, I am persuaded by the
record as a whole that the Respondent terminated 10
employees on April 2, 1971, for economic rather than
discriminatory reasons.
Federal Prescription Service , after a less-than-satis-
factory profit year in 1970, suffered a loss in the first
quarter of 1971 equal to 60 percent of its total 1970
net profit . Sales, it is true , were rising, as the majority
opinion points out. But it takes little business acumen
to realize that , when increased sales are accompanied
by red ink in the profit column , some corrective action
is badly needed . The faster one increases sales at a
loss, the faster one is progressing to economic suicide.
Drivex Co . was also in financial trouble, having
experienced a substantial drop in net income (the Ad-
ministrative Law Judge found its annual profit to
have dropped to $14,000, but the record shows that
the correct figure was $4,000), and in March it was
required to stop shipments to its principal customer.
Quite naturally , Respondent therefore sought areas
in which indirect labor costs could be reduced. The
promotion department was eliminated entirely (four
employees), advertising work was eliminated in the
shipping department (three employees ), one employee
assigned to cleaning out files was terminated, one
part-time janitor was terminated, and only one direct
labor employee was terminated. The latter was an
employee whose work was affected by the shutoff of
orders from the principal customer of Drivex.
The work eliminated in this cost-saving process has
never been resumed, and no employees have been
hired to replace any of those who were terminated.
Selection for termination was made in departmen-
tal seniority order. (I disagree with my colleagues'
analysis of the record which leads them to a contrary
conclusion in this regard, and find their explanation
for the Administrative Law Judge's erroneous find-
ings rather lame.) My colleagues seem to find it odd
that departmental seniority was measured by the total
length of service of each employee, rather than by his
or her departmental experience. Any experienced per-
son in the industrial relations field knows that this is
not unusual at all and, indeed, most collective agree-
ments which call for an application of departmental
seniority utilize precisely this kind of measurement.
My colleagues also seem to prefer a plantwide seniori-
ty system. That is interesting, but in the absence of a
showing that Respondent had a practice of using
plantwide seniority, not very relevant.
The union activity of the terminated employees was
minimal . None was a leading activist. None had solic-
ited other employees to join the Union or to engage
in other concerted activity.
On the totality of this record, therefore, I do not
believe General Counsel has met the burden of prov-
ing that the discharges were for discriminatory rather
than economic reasons.
I would therefore dismiss the 8(a)(3) allegations of
the complaint relating to these terminations.
The record is, however, sufficient to establish viola-
tions as to Respondent's refusal to reinstate three
strikers. Although the questions presented as to the
seriousness of their strike misconduct appear to me to
be close, I would not dissent from my colleagues'
findings. Because of the closeness of this issue, howev-
er, I do not believe the refusal to reinstate them indi-
cates a likelihood of recurrent conduct which would
make a fair rerun election improbable of
achievement.
The 8(a)(1) violations found by the Administrative
Law Judge and my colleagues are also adequately
supported by the record. They are sufficient to justify
setting aside the election. But because I do not regard
either the 8(a)(1) conduct or the refusal to reinstate
the strikers, each of whom had engaged in some de-
gree of undesirable conduct, to render the conduct of
a new and fair election unlikely, I would rerun the
election rather than enter a Gissel bargaining order.
FEDERAL PRESCRIPTION SERVICE, INC. 979
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT do anything that interferes with,
restrains , or coerces employees with respect to
these rights.
WE WILL NOT coercively interrogate our em-
ployees concerning their or other employees'
concerted or union activities.
WE WILL NOT discriminate against our employ-
ees by discharging them in order to discourage
activities on behalf of Amalgamated Meat Cut-
ters and Butcher Workmen of North America,
AFL-CIO, Local P-1149, or any other Union.
WE WILL NOT promise our employees benefits if
they reject the Union or threaten them with dis-
charge for engaging in activities on behalf of the
Union.
WE WILL bargain collectively with Amalgamat-
ed Meat Cutters and Butcher Workmen of North
America, AFL-CIO, Local P-1149, as the exclu-
sive collective-bargaining representative of our
employees in the unit spelled out below:
All full-time and regular part-time employees
of Federal Prescription Service, Inc., and Dri-
vex Co., at their Madrid, Iowa, operation, in-
cluding customer correspondence, follow-up,
janitor , maintenance , Massey-Ferguson office,
order preparation, printing and shipping, but
excluding pharmacists, all employees of Hood
Hair Products , Inc., guards and supervisors as
defined in the National Labor Relations Act,
as amended.
WE WILL reinstate with backpay
Judy Allen Marjorie Huser
Geneva Battani John McCormick
Marilyn Udorvich Gohn Doris Novy
Lois Geneser Beverly Storey
Evelyn Burke Jo Ellyn Rathbun
WE WILL withdraw our action of discharge of
Helen McCormick, Betty Peterson, and Terry
Edwards and, on their request, reinstate them to
their former jobs or, if those jobs are no longer
available, to other jobs of a like nature.
Dated By
FEDERAL PRESCRIPTION
SERVICE, INC., AND DRIVEX CO.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 316 Federal Building, 110 South
Fourth Street, Minneapolis, Minnesota 55401, Tele-
phone 612-725-2611.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WELL, Trial Examiner: On March 221 the Amal-
gamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, Local P-1149, filed with the Regional
Director for Region 18 (Minneapolis, Minn.) of the Nation-
al Labor Relations Board, hereinafter called the Board, a
petition seeking an election among the production and ship-
ping employees of Federal Prescription Service, Inc., here-
inafter called Respondent or Federal Prescription. On April
15 the Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO, hereinafter called the Union,
the International union of which Local P-1149 is a consti-
tuent, filed a charge with the said Regional Director alleging
violations of Section 8(a)(1) and (3) of the Act by Respon-
dent by the termination of 10 employees allegedly because
of their union membership and activities. On April 20, 1971,
the parties to the election petition (18-RC-8603) stipulated
that an election which was conducted on May 13, 1971,
resulted in 35 votes cast for the Petitioner and 32 votes cast
against the Petitioner. Twenty-three ballots were chal-
lenged , a sufficient number to affect the results of the elec-
tion. Thereafter, on May 18 the Union filed objections to
the election and to conduct affecting the results of the elec-
tion. On September 1, the Union filed an amended charge,
naming Federal Prescription Service, Inc., and Drivex Co.
as Respondent, adding specific allegations of violations of
1 All dates herein are in the year 1971 unless otherwise noted.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (axl) of the Act and alleging the unlawful termina-
tion of three additional employees . On September 24, the
Regional Director issued a complaint , an order consolidat-
ing the representation matter with the complaint and a no-
tice of hearing . In the notice of hearing the Regional
Director ordered that a hearing be conducted on both the
challenges and the objections in the representation matter,
as well as on the allegations of the complaint that Respon-
dent had violated Section 8(a)(1) and (3) of the Act. The
General Counsel in addition pleads in the complaint that
the election should be set aside and the Respondent appro-
priately should be required to bargain collectively with the
Union because of its dissipation and destruction of the
Union's majority by unfair labor practices . The Respondent
duly answered the complaint admitting jurisdictional facts
and the status of the Union as a labor organization, but
denying the commission of any unfair labor practices.
Thereafter the complaint was amended and the answer of
Respondent was extended to deny the additional allegations
in the amendment . On the issues thus joined , the matter
came on for hearing before me at Boone , Iowa, on Decem-
ber 7, 8, and 9, and on Jazluary 11, 12, 13, and 14, 1972. All
parties were represented at the hearing and had an opportu-
nity to adduce relevant and material evidence , examine and
cross-examine witnesses , argue orally on the record , and file
briefs. Briefs have been received from the General Counsel,
the Charging Party and the Respondent.
Upon the entire record in the case 2 and in consideration
of the briefs, I make the following:
FINDINGS OF FACT
I BUSINESS OF THE EMPLOYER
Federal Prescription Service , Inc., is an Iowa corporation
selling drugs and related products from its principal place
of business at Madrid , Iowa , by mail order.
Drivex Co. is an Iowa corporation which primarily mails
film for other enterprises . Drivex has two divisions, Elmo,
which is a mail order drug enterprise , and U.S. Mailers,
which conducts the film mailing service . In December 1970
another corporation , Federal Vitamin Service, was organ-
ized for the purpose of establishing a national mail order
vitamin sales organization . All the work of Federal Prescrip-
tion Service , Inc., Drivex's U.S. Mail Orders Division, and
Federal Vitamin Service is conducted by the same group of
employees who appear as employees of Federal Prescription
Service, Inc .3
Craig Sandahl is the principal stockholder and president
of Federal Prescription Service , Inc., and Urivex Co. T. R.
Rasmusen is a minor stockholder and officer of Federal
Prescription and Federal Vitamin Service and Richard Jo-
hann is a minor stockholder of Federal Prescription Service,
Inc., Federal Vitamin Service , and Drivex Co., and an offi-
cer of each . There is no other ownership of any of the
enterprises . The General Counsel alleges and Respondent
asserts that Federal Prescription and Drivex Co., each sell
products or services respectively valued in excess of
$500,000 annually, and each import into the State of Iowa
from other States of the Union products valued in excess of
$50,000 annually. I find that each of them is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act. I find also that with the exception of Elmo, all of the
concerns named above comprise a common employer and
constitute a single-integrated operation. Accordingly here-
inafter all together are called the Respondent.
11 THE LABOR ORGANIZATIONS INVOLVED
Amalgamated Meat Cutters and Butcher Workmen of
North America , AFL-CIO, and its Local P-1149 are, each
of them , labor organizations within the meaning of Section
2(5) of the Act.
III BACKGROUND
The enterprises which constitute Respondent all occupy
a location in Madrid, Iowa, in two buildings. In one of the
buildings is located the portions of the enterprise that deal
with the sales and distribution of drugs and related prod-
ucts. This building I shall refer to as the main building. In
the other building is located the mailing service portion of
the enterprise and it is called throughout the proceeding the
Massey-Ferguson Building, after the name of the major
client of the mailing service . In the two buildings Respon-
dent has up to 80 employees, including supervisory and
professional employees (pharmicists) °
Respondent's work force is made up of full- and part-time
workers, apparently largely housewives and schoolgirls.
Special arrangements are made to permit some of the wom-
en to work only during the winter months and remain at
home during the summer school vacations. Other arrange-
ments permit the use of students at local high schools and
colleges to work during their school breaks and, on occa-
sion, after school.
A group of Respondent's employees known as contract
employees are paid $1.60 for each hour worked with no
deductions for withholding tax, social security, or any other
type of deductions. The line of demarcation between the
contract employees and the regular employees is not very
clear, but generally speaking, the contract employees in-
clude casual employees, such as boys hired to shovel snow,
or school children who work on a very casual basis. Howev-
er, some of the contract employees appear to work as regu-
larly as many of the regular employees. With regard to that
group, Respondent contends that they were paid on a con-
tract basis in response to their own request therefor.
Most of the remaining employees, i.e., the regular em-
ployees, are also paid at the rate of $1.60 an hour, but the
normal deductions from their paychecks are made by the
Employer.
On March 3 two of the female employees who had be-
come dissatisfied with their wages decided to formulate a
petition asking the Respondent for increased wages, paid
2 The Respondent 's unopposed motion to correct the transcript in 549
particulars is granted.
3 The Elmo Company has but one employee who is paid separately such an employee existed and is paid separately.
The record is silent with regard to the single employee of Elmo other than
FEDERAL PRESCRIPTION SERVICE, INC.
holidays and vacations.5 The petition was signed by almost
every employee of Respondent on March 3.
On the afternoon of March 3, Eve Wisecup, the personal
secretary of President Craig Sandahl, informed him of the
existence of the petition. Sandahl at this time was in his
office with Richard Johann and T. R. (Moose) Rasmusen.
Sandahl's immediate reaction was to call Betty Peterson,
who sat outside his door, into the office and ask her about
the petition. Although she admitted signing it Peterson de-
nied having formulated the petition or passing it around.
She was dismissed from the office and returned to her job.
On March 4, in the afternoon, Sandahl called all the
employees of Respondent into the meeting at which he men-
tioned that he knew of the petition, but had not seen it."
Sandahl sat on a desk in the midst of the employees and told
them generally that he was not able to improve their wages
at that time, but pointed out that certain improvements in
the working conditions, including the installation of air-
conditioning in the main building, had taken place in the
preceding year. One of the girls asked him if he could not
give them a raise of 5 cents an hour. He stated that under
the then existing circumstances Respondent could not af-
ford such a raise, and another girl said "how about I cent
an hour?" His reaction to that was equally negative. The
meeting continued until the end of the shift and the employ-
ees were dismissed to go home.
On the following day, March 5, the girls, who were not
satisfied with the results of the meeting which had followed
on the petition, agreed to meet on the street across from the
plant at quitting time . There is no evidence that this meeting
was anything but spontaneous. The record does not reveal
how the decision to hold it came to occur, but at 4:30 p.m.
when the day shift ended, from 25 to 40 employees gathered
on the street across from the plant. Again Wisecup informed
Sandahl that the girls were meeting across the street from
the plant. Without putting his coat on, he walked out of the
plant and across to the group of girls and suggested that
they hold their meeting inside the plant and he would be
glad to talk to them about the working conditions. One of
the girls apparently said that was not what they were meet-
ing for, and the girls broke up and walked away, leaving
Sandahl standing alone on the sidewalk. Before Sandahl's
arrival or as they walked away from the meeting, a number
of the girls decided that they would call in a labor organiza-
tion for assistance . Inasmuch as the Union represents em-
ployees of other plants in the locale, it was contacted by one
of the employees and a meeting was set up to be held in a
public room in Madrid on March 8 in the early evening.
On March 8 Betty Peterson, together with another em-
ployee, Helen McCormick, went to the hall early to unlock
it, turn on the lights and set up chairs for the meeting. They
were met there by another employee Evelyn Burke and by
Ben Detweiler, an International representative of the
Union.
As the girls were readying the hall for the meeting, San-
dahl and Johann came to the door and made as if to take
5 Respondent offered neither vacations nor any paid holidays at all. Em-
ployees are paid only for the hours worked, usually at the legal minimum
wye
Betty Peterson by this time had possession of the petition She took it
home and left it there . It was never sent to Respondent
981
off their coats. Miss Peterson went to the door and asked
them what they wanted and Sandahl told her that he under-
stood this was an open meeting for the employees of Federal
Prescription, and that he proposed to attend. Betty Peterson
answered that it was a meeting for the employees only, and
not for the employers, and she did not think that the officers
of the Company should be there. Sandahl responded that he
did not think that the girls could do much discussion or have
their questions answered unless he was there, and suggested
that he be allowed to remain. Detweiler introduced himself
to Sandahl and told him that he should not be there and was
breaking the law by doing so. Either Detweiler or Peterson
told Sandahl to leave. He did so stating that he would be at
the plant if the girls needed him. Johann left with him.
After the departure of Sandahl and Johann some 35 to 40
employees arrived at the meeting. At the meeting about 34
or 35 employees signed cards designating the Union as their
collective-bargaining representative.
On March 10 Respondent commenced making certain
changes in the employees' work. It discontinued certain of
the tasks that several employees had been performing, as-
signed different tasks to some of them, and moved some
desks from one place to another. The General Counsel con-
tends that these changed working conditions resulted from
the concerted and union activities of the employees and
violates Section 8(a)(1) of the Act. In addition Respondent
commenced a campaign against the union organization,
holding meetings with employees, speaking with them indi-
vidually, and mailing letters to all of the employees. On
March 12, the Union requested recognition, claiming to
represent a majority of the employees. On March 22 Re-
spondent, by letter, declined to recognize the Union without
an election . On March 22 the petition for an election was
filed by the Union with the Regional Office.
On April 2 at the close of business, Respondent laid off
eight employees in a group and a ninth employee, a part-
time janitor, Howard McCormick. On April 3 a strike com-
menced ; approximately 35 employees respected the picket
line. Within a few days a petition for a temporary re-
straining order against mass picketing was filed by Respon-
dent, and a restraining order was issued on April 8.
Thereafter on one occasion mass picketing occurred, largely
conducted by husbands of employees and by employees of
other plants represented by the Union. Thereafter on 2
separate days later in April a number of incidents of non-
striking employees being followed by either striking em-
ployees or employees of employers other than Respondent
took place. A contempt hearing was held and the local court
held in contempt two groups of employees, the first for the
mass picketing incident, and the second, the group consist-
ing of Danny Gettler, a business agent of the Union, Dean
McCoy, Evelyn Burke, Betty Peterson, Terry Edwards and
Helen McCormick, all employees of Respondent , because
of the automobile-following episodes.
On April 20 the parties signed a Stipulation for Certifica-
tion Upon Consent Election pursuant to which an election
was to be conducted on May 13. At the April 20 meeting
an eligibility list was worked out by the parties. An issue
herein is whether this agreed-upon eligibility list is binding
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the parties and the Board.7 The election was conducted
on May 13. In the preelection joint conference the Union
indicated its awareness that an employee, whom it deemed
to have left Respondent's employ, had been called in to
vote. As a result of the conference at which this and other
eligibility questions were raised by the parties, 23 persons
who presented themselves at the polls were challenged, ei-
ther by the parties or by the Board agent conducting the
election. These 23 include the 9 employees laid off on April
2 and other employees challenged because of their alleged
supervisory status or employee status at the time of the
election.
The Union filed timely objections based on the argument
that the material changes in the eligibility list and the large
number of challenges caused uncertainty and confusion in
the minds of employees and diluted the organizing efforts
of the Union. The Union also contended that the abnormal
number of challenges and the situations from which they
resulted created an atmosphere which precluded any at-
tempt to conduct an election under the Board's normal
laboratory conditions, and interfered with the employees'
right to exercise freedom of choice.
On May 25 the Union sent Respondent a letter stating
that, in view of the fact that it had filed charges alleging
discrimination in the discharge of the employees on April
2, it preferred to leave the unfair labor practice issues for the
Board to determine and call off the strike. The employees
offered through the Union to return unconditionally to their
jobs. The letter ended by calling on the Employer to inform
the employees when they could come back to work. On June
10 the Employer reacted by calling some of the strikers back
to work. They did not respond to the call, apparently be-
cause all of the strikers were not recalled at that time. On
June 16 the Respondent sent letters to employees Betty
Peterson, Helen McCormick and Terry Edwards, informing
them that because of their "serious misconduct in connec-
tion with the strike and picketing," Respondent "cannot
consider continuing your employment."
When the initial selection of employees did not return to
work pursuant to the recall letters, Respondent recalled
additional employees and worked its way through all of the
strikers in this fashion. None of the strikers apparently re-
turned to work, and the picketing has continued.
IV. ISSUES
The basic issue in this whole proceeding is whether the
Respondent is to be required to bargain with the Union with
regard to wages, hours, and working conditions of its em-
ployees. This could follow as a result of the representation
proceeding, assuming that the 23 challenged ballots were
resolved in such a way that the Union won the election, or
that the objections to the election were sustained and a new
election conducted, which is won by the Union. In the alter-
native, the General Counsel contends that the alleged unfair
labor practices of the Employer, consisting of violations of
Section 8(a)(l) and (3) of the Act, have rendered impossible
the holding of a valid election, and that a bargaining order
7 See Norris-Thermador Corporation, 119 NLRB 1301; also Pyper Construc-
tion Company, 177 NLRB 707.
should issue under what has become known as the Gissel
doctrine. (Gissel Packing Co., Inc., 395 U.S. 575, 1969.)
Whether or not a bargaining order should issue in this
proceeding, the following issues remain to be decided: (1)
whether the nine employees laid off on April 2 are discrimi-
natees within the meaning of Section 8(a)(3) of the Act; (2)
whether the three employees whom Respondent refused to
reinstate after the strike because of their conduct during the
strike are the victims of discrimination under Section 8(aX3)
of the Act; and (3) whether various acts and conduct specifi-
cally alleged by the General Counsel violate Section 8(a)(1)
of the Act. Ten of the 23 challenged ballots were cast by
persons alleged to have been discriminated against in the
instant proceeding. They were not on the eligibility list and
the General Counsel contends that all parties understood
that their eligibility depended on the Decision in the instant
case . The remaining 13 challenged ballots could be determi-
native of the election, but only under the circumstances that
9 of them were cast against representation by the Union. If
this were the result, of course, it would still be necessary to
determine whether the election should be set aside pursuant
to the objections, or the bargaining order should issue under
the Gissel doctrine.
With regard the objections, the Union contends that not
only should the stated objections be considered in determin-
ing whether to set aside the election, but that if the record
discloses that substantial objectionable conduct took place
after the election agreement but before the completion of
the election, such conduct should be considered sua sponte
by the Board, and a determination made whether to set
aside the election. In order to reach this conclusion, or in
order to reach a conclusion in the alternative with regard to
the Gissel argument, a full scale review of the alleged unfair
labor practices is necessary. Accordingly, it behooves me to
consider the issues herein in what would appear to be re-
verse order, commencing with the alleged violations of Sec-
tion 8(a)(1), which in some instances may provide the key
to a conclusion with regard to the alleged instances of viola-
tion of Section 8(a)(3). With this reasoning in mind, we shall
proceed.
V THE ALLEGED UNFAIR LABOR PRACTICES
Section 8(a)(1)
When Sandahl first learned of the petition on March 3,
he was in his office with Rasmusen and Johann preparing
to go to lunch. Although there are as many accounts of the
incident as there are witnesses, it appears that Sandahl
called Betty Peterson into his office and asked her whether
she signed the petition and whether she carried it around.
She admitted signing the petition, but denied carrying it
around or having any other thing to do with it. According
to her testimony Sandahl said that if she had anything to do
with it, she could put on her coat, which she interpreted to
mean that she was discharged. According to the testimony
of the three men, nothing of that nature was said and no
threats were uttered. The General Counsel does not allege
that a threat was uttered on this occasion, although he con-
tended at the hearing that the statement was made and
constituted a threat. Mrs. Peterson said that she knew that
FEDERAL PRESCRIPTION SERVICE, INC. 983
she would be blamed for the petition and Sandahl answered
that there was no blame attached, he just wanted to see The
petition.
The General Counsel contends that this incident consti-
tutes unlawful interrogation in violation of Section 8(a)(1)
of the Act. I agree . Respondent contends that the interroga-
tion was no more than an attempt by management to ascer-
tain what their employees' complaints were. However,
employees have a protected right to engage in concerted
activities, including passing around petitions with regard to
their wages, hours and working conditions. This interroga-
tion during the time the petition was being passed around
and before it had been presented to Respondent could only
serve to interfere with and restrain employees who were
aware of it, even without the uttering of explicit threats of
retaliation. The interrogation was unaccompanied by any
reassurances by Respondent which might reduce the coer-
cive impact of such interrogation . In the light of the whole
record, I conclude that Respondent has violated Section
8(a)(1) by President Sandahl's interrogation of Betty Pe-
terson.
The General Counsel contends that on or about March
4, Richard Johann and Roland Rasmusen interrogated em-
ployees in Sandahl's office concerning concerted activities
protected by the Act. I am unable to determine from the
transcript to what he is referring, other than possibly to their
presence at the meeting of March 3 between Sandahl and
Betty Peterson . Inasmuch as neither Johann nor Rasmusen
said anything at this time, I shall recommend that the com-
plaint be dismissed with regard thereto.
On March 5 when the employees attempted to meet
across the street from the plant, they were immediately
joined by Craig Sandahl, who had been informed by his
secretary, Eve Wisecup, of their gathering . The General
Counsel contends that Sandahl's attendance at this meeting
constituted interference and attempted surveillance of the
meeting in violation of the Act. Again , the facts are clear;
Sandahl admittedly went across to the meeting. His stated
rationale was that if the girls had any questions they wanted
answered, he was the logical one to answer them, so he
made himself available to them . This defense does not meet
the allegation . Again , employees have a right to meet and
act in concert with regard to their wages, hours and working
conditions . It is clear that this meeting resulted from the
meeting conducted by Sandahl in the plant the day before.
The girls met in order to discuss what to do next and it was
at this meeting that the first impetus towards joining the
Union appeared. Sandahl admittedly was aware that the
girls' meeting concerned the subject of the petition. It is
immaterial whether his attendance at this meeting resulted
from legal naivete or a desire to restrain his employees in
their concerted action . It had the effect of immediately
breaking up the meeting : most of the employees in atten-
dance departed as soon as he arrived . I do not believe that
this was simply the result of a naive attempt by Sandahl to
engage in a confrontation and dialogue with his employees.
He had had just such confrontation and dialogue in the
meeting he called himself the previous day, and it had re-
sulted in nothing. I believe that he recognized that he could
break up employee activity by his presence, and that he took
this action deliberately for that purpose. Whether technical-
ly this action should be pigeonholed as a surveillance or
attempted surveillance of a union meeting, or of a meeting
for concerted activity, is unimportant. The fact is that by its
very nature it tended to coerce employees in meeting togeth-
er for their mutual concerns, and it certainly interfered with
and restrained them in this regard. I find that Sandahl's
action violated Section 8(a)(1) of the Act, as alleged. I do
not find any mitigation in the fact that Sandahl's first state-
ments were that the girls could have their meeting inside the
plant. This only adds to the coercive impact of his action in
coming to the girls in the first place.
Again, when the employees had determined to meet with
a union to explore the possibilities of representation, San-
dahl was again tipped off to their activities by his secretary,
Mrs. Wisecup, and again, this time with Johann, made it his
business to attempt to attend the union organization meet-
ing at the community hall. The General Counsel contends
again that by presenting himself and Johann at the union
meeting, and attempting to gain entrance, Respondent
through Sandahl, its president, violated Section 8(a)(1) of
the Act.
I agree with the General Counsel. It appears that here
Sandahl was attempting for the second time to inhibit the
exercise by his employees of their protected rights by pre-
senting himself at their meeting. On this occasion Sandahl
had neither the excuse that the meeting was held under his
window nor that he had been invited. He had not. Accord-
ing to his testimony he had been informed by Mrs. Wisecup
that this was "an open meeting," and accordingly he felt
that he should be permitted to attend it. That it was a
meeting of employees and that he had not been invited does
not appear to have made any difference at all in Mr.
Sandahl's mind. I conclude that by attempting to gain ad-
mission to the meeting Sandahl again demonstrated to his
employees his concern over their concerted activities, and
his position that only by direct confrontation with him
could their concerted activities be successful. Whether in
the absence of the union representative he and Johann
would have attempted to enter the hall over Mrs. Peterson's
protests could not be ascertained, but to the extent that
employees were already present and saw him there, and that
word of his presence at the union meeting would necessarily
come to the attention of other employees, it could not fail
to have coerced and restrained them in the exercise of their
protected rights. Again, as in the situation of the meeting on
the street, I see no point in determining whether this fits into
the pigeonhole of attempted surveillance. In my opinion, it
is an interference with the employees in the exercise of their
protected rights and violates Section 8(a)(1) of the Act.
The General Counsel contends that by eliminating cer-
tain employees' overtime, moving them to other locations,
restricting their movements to their work areas , changing
their daily work hours, increasing supervision over them
and taking their plant keys, Respondent interfered with,
restrained, and coerced employees in the exercise of their
protected concerted activities. The reference is to actions
directed by Sandahl and Johann regarding the work of Bet-
ty Peterson, Peggy Hoover, Helen McCormick and Terry
Edwards. A discussion of the changes requires a discussion
of the situation before the changes were made.
Respondent's business is primarily a mail-order drug-
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
store . When the mail is received, it contains orders, some-
times remittances, payments for orders , inquiries concern-
ing the availability of drugs , the cost thereof , etc. Any
customer who has ordered in the past is given a number, and
all the bookkeeping is done by computer on the basis of this
number . When mail is received it is initially sorted . Prior to
March 8, the mail was sent to file clerks who pulled a card
bearing the number for each customer's order . A new card
was made for any customer who had no number, that is to
say, who had not ordered theretofore . In the event the letter
constituted an inquiry and was written by a person who had
not been a customer in the past , so that no card would exist,
an inquiry card was made out. When a customer ordered
from a price quotation , under which circumstances an in-
quiry card had been made , the inquiry card was pulled and
a customer card typed up, and a number assigned to the
customer. Normally the orders were submitted by custom-
ers on order blanks furnished them with their last order, or
in the advertising through which they were first contacted.
The blanks had spaces for the customer to fill in the name,
the address and the computer identification number. Cus-
tomers making remittances would enclose the top of their
invoice , on which was printed the name, address and cus-
tomer identification number . The only benefit from pulling
cards in these cases was to check these numbers . According
to testimony of Sandahl , he concluded that people normally
would place their name, address and customer number cor-
rectly on their orders and there was no need to pull the
cards, either for orders or for remittances. By the elimina-
tion of the card pulling operation, the Respondent is also
enabled to eliminate the resorting and refiling operation
with the same cards . Also it would permit the order readers
and cash counters to start their work with the orders and
remittances without waiting for the card pullers to complete
their work.
Helen McCormick normally started work at 6 : 30 a.m.
She would pick up the mail at the post office , bring it to her
work place, open it, count it and pull the cards . Mrs. Mc-
Cormick also frequently worked on Saturdays , doing the
same work on Saturdays , picking up the mail and pulling
cards so that work would be ready to proceed on Monday
when the rest of the plant was in operation. On March 8 she
was called into Sandahl 's office where he told her that she
was no longer to come in at 6:30 or to pick up the mail. She
was to start at 8 a .m. and was no longer to pull cards for
cash customers. Sandahl stated that this would cut the time
required at least one-third, and that there was no need for
Mrs. McCormick or June Galetich , who was also a card
puller, to work overtime . After March 8 Steve Hansen,
Johann's son-in-law, normally picked up the mail.
The mail that contained remittances was then sent to
Terry Edwards , who received the remittances and made
notations necessary for the keypunch operators , so that the
customer would be credited for his payment through the
computer. The only change of the new system appears to be
that she would no longer receive a 3- by 5- inch card with
each remittance, and it would be necessary for her to take
the customer number from the invoice sent in by the cus-
tomer . The major part of her job was listing the remittances
and preparing the notations for the keypunch operators.
However, additionally , each evening she would run a tape
on the checks and balance the remittance slips. This func-
tion was taken away from her and given to other girls in the
office. At the same time Sandahl ordered her desk moved
out of the small office in which she had been working, into
the main office near the desk of her supervisor, Barbara
Clemens, stating that she was to stay at her desk until it was
necessary for her to leave it. She was not to do any running
around and she would have better supervision there.8
According to the testimony of Sandahl, changes he made
with respect to the work of Betty Peterson and Peggy Hoo-
ver, who were keypunch operator and keypunch verifier,
respectively, resulted from the new system with regard to
the cards. However, it does not appear in what regard their
work would be changed other than the fact that they would
not be furnished a card, but would be required to pick up
the customer number from the original document . The testi-
mony of Sandahl was that "we could conceivably get a
customer with a wrong account, this always is a problem to
us. We thought ... there might be some of this and I
discussed these changes with them so they would be aware
of what was coming through." However, in addition to dis-
cussing the changes with them which apparently do not
constitute any real change in their work, Sandahl told Mrs.
Peterson and Mrs. Hoover, who prior thereto had been
working hours of their own choice, starting usually between
6:30 and 7:30 in the morning, and working until they were
through in the evening, that thereafter they were not to start
work before 8 in the morning and they were to leave by 4:30.
Sandahl denies telling Hoover and Peterson that they were
not to work overtime. I do not credit his denial. It is clear
that all of the girls in that section, which was supervised by
Barbara Clemens, were informed that they were to work no
more overtime. While Sandahl's testimony was that the girls
had a certain amount of work to do and it was necessary
that they stay until it was completed every day, and work
Saturdays, if necessary, it is equally clear that they were
informed that it was expected that their work would be
completed during the hours 8 to 4:30 daily. Sandahl sup-
ported his denial that he had cut off the overtime of Pe-
terson and Hoover with the statement that they frequently
left as early as 2:30 in the afternoon when their work was
completed, and that on many occasions when he wished to
confer with them in the late afternoon, they were unavail-
able to him. Accordingly, the change was made for his
benefit. The only example of the necessity for this change
appears to be one instance where a new program was insti-
tuted with regard to the business of Federal Vitamin Service
a month or so before the changes were made. Even with
regard to this Sandahl did not testify that he was unable to
consult with Mrs. Hoover; he gave this as an example of his
occasional need to consult with her . Inasmuch as the
changes in the card pulling procedure, which appear to be
the only real changes made, had a minimal effect on the
s Later the same day, upset at what she considered a slight to her efficiency,
Terry Edwards accosted Sandahl and asked him what was wrong with the
job she was doing During the conversation he assured her that the changes
had nothing to do with the petition , but said that she was doing too much
running around and the change would make it possible for her to have better
supervision and to stay at her desk . There is no indication that these changes
affected Mrs. Edwards ' hours of work, but it clearly subjected her to closer
supervision
FEDERAL PRESCRIPTION SERVICE, INC.
work of Peterson and Hoover, I find that Respondent's
reliance on that as a casual factor in changing their hours
and conditions , does not ring true.
It is notable that when Mrs. Peterson came into the plant
several days later at an hour earlier than 8 a.m., in order to
do some personal work , without clocking in, she was told by
Johann , after he had ascertained from other girls to whom
she had spoken that she had not mentioned the union, that
she was not to come into the plant before her starting time
of 8 o'clock . This appears inconsistent with Sandahl 's expla-
nation that the change in her starting time was for his bene-
fit, so that she would be there during the late part of the day
when he might want to consult with her. It is also inconsis-
tent with the representation of Sandahl that part of the
reason for the change of working hours was that it was bad
policy to have employees in the plant before the normal
starting time because of the fact that there were drugs on the
premises , and authorities looked with disfavor on permit-
ting employees to work there in the absence of management
or of pharmacists . Clearly the girls to whom Mrs. Peterson
spoke on that occasion were working , with the approval of
management.
There is no basis on the record for finding that Respon-
dent was aware of any participation by the five girls imme-
diately affected by the changes in the matters concerning
the petition , with the exception of Peterson , whom Sandahl
immediately and correctly judged to be involved in the mat-
ter. It is suspicious that the five affected employees included
the two who formulated the language and drew the petition
up, Helen McCormick and Terry Edwards, but there is no
direct evidence that the Respondent knew this when the
changes were made. The basic change, i.e., the cessation of
the card pulling for purposes of comparison , appears to be
a valid exercise of Respondent's business judgment. I con-
clude that the evidence does not prevail that the procedural
changes in the office work were attributable to the concert-
ed activity of the employees . However , I believe and con-
clude that Respondent , having determined to go ahead with
the procedural changes , used them additionally to tighten
up its office procedures to prevent the employees who were
most likely to have been involved in the unrest from circu-
lating freely among the fellow employees. This is consistent
with Respondent's action with regard to the meetings and
with regard to Betty Peterson when it first discovered the
existence of the petition. Sandahl appears to have a pen-
chant for attempting to stamp out the brush fire of employee
dissent, whenever it appears , as rapidly as possible. There
is no reasonable explanation for the move of Terry Edwards
to a position directly under the eye of Barbara Clemens, her
supervisor, nor of the change in hours of Peterson and Hoo-
ver, who could not so readily be physically moved, but
could be more closely supervised if they were required to
coincide their hours with that of Sandahl , whose desk over-
looked their workplace . I credit the testimony that part of
the rationale for the changes was to afford greater supervi-
sion to Edwards , Peterson and Hoover . I find, therefore,
that the changes with regard to these persons were made for
the purpose of interfering with their concerted activities,
theretofore carried on on company time without complaint
by the Employer. I do not find, however, that Peterson and
Hoover lost overtime as a result of the changes or worked
985
fewer hours. Peterson testified on cross-examination that
the only weeks after the change in which she had fewer than
40 hours were 2 weeks in which she had taken time off for
her own concerns, and there is no evidence by which I can
compare and determine whether any lessening of overtime
was accomplished, since I have no evidence that any given
amount of overtime was worked before or after the changes
were made . I find that by moving Terry Edwards and by
changing the hours of Peterson and Hoover Respondent
violated Section 8(a)(1) of the Act. This conclusion is but-
tressed by other actions taken by Respondent. For instance,
recovering from Peterson and Hoover the keys to the plant,
which they had carried over a period of years, changing the
locks, telling them to stay closer to their work and not move
around so much.
General Counsel contends that at the March 4 meeting
Sandahl urged his employees to reject the Union, with
threats of reprisal or promises of benefit. The testimony
with regard to the March 4 meeting was that, in effect,
Sandahl called the employees together and let them know
that he had heard about the petition and had not seen it, and
advised them that at that time Respondent was financially
incapable of raising their wages or improving their condi-
tions farther than it had. In the same speech Sandahl stated
that in the future as conditions improved, changes would
continue to be made as they had in the past. Betty Peterson
testified that Sandahl, in the speech, made reference to "out-
siders" in terms of warning employees that it would not do
them any good to get outsiders involved in the matter. There
is no corroboration for this and it is denied by Sandahl. I
believe that Mrs. Peterson confused statements made at a
later meeting with the meeting of March 4, and that no such
statements were made by Sandahl at that time. The General
Counsel alleges that at the meeting Sandahl urged the em-
ployees to reject the Union. There was no union involved,
nor had Sandahl any reason to believe that there was a
union involved at that time. It was not until March 5 or 6
that employees first conceived the idea of organizing. Ac-
cordingly, I find that the proof fails with regard to that
meeting.
On March 10, after the initial union meeting at which
Sandahl and Johann sought admission, Sandahl again
called the employees together and addressed them.
This meeting was called late in the afternoon. It was very
short. Sandahl in effect told the employees that he was
aware of their union organizing but he didn't want any
name calling or other activity on company time. He warned
the employees that they were to spend company time doing
company work and said that it was too bad that outsiders
were being called in, that the employees had been one big
happy family until a couple of weeks before and they should
stay that way and that he felt that the employees and the
management could work out their problems among them-
selves without the intercession of an outsider. As appears to
have been normal throughout this matter, Sandahl never
referred to the Union by name or as a union but simply
referred to them as "the outsiders." The General Counsel
finds threats of reprisal and promises of benefit in this
speech. The only evidence in support of this allegation is
evidence that Sandahl stated, in effect, that things were run
informally in Respondent's concern but that if the Union
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
came in and working conditions were reduced to contractu-
al terms that they would be more formalized and restrictive.
I do not believe that this constitutes a threat of reprisal with
the Board 's normal usage of that term . Sandahl did not
suggest that changes of that nature would be unilaterally
imposed by management but rather that they would result
from the collective-bargaining process which is not neces-
sarily invalid . I find no threats of reprisal or promises of
benefit in this meeting and I shall recommend that the
complaint be dismissed insofar as Respondent is alleged to
have violated Section 8(aXI) of the Act in this incident.
On or about March 15 the six employees in the Massey-
Ferguson Building were called together by Steve Hansen for
a meeting at about 11:15 in the morning . One of the girls
pointed out that the luncheon break was at 11:45 and sug-
gested that the meeting be held at a later time . Hansen
answered that whenever the meeting was over the girls could
take their normal 30 minutes and it would be all right. When
the meeting started , Hansen told one of the employees to
remove the phone from the hook because he did not want
to be disturbed and she did so. Hansen commenced the
meeting by stating that he had not been put up to holding
a meeting although Johann knew that he was doing so. He
stated that it was done on his own because he had thought
a lot about it, apparently referring to the union situation,
over the weekend and wanted to call a meeting . The gist of
Hansen's remarks was that, because the employees had
gone to a union , management's hands were tied and they
could not do anything for the employees . Hansen pleaded
with the girls to give Sandahl another chance to remedy
their working conditions ; that Sandahl needed more time to
come up with an acceptable plan; and that, if they gave him
another chance and he did not satisfy them with another
plan, they could always call in the Union at a later time.
Hansen closed with the suggestion that one of the girls
should go over to the main building and get Sandahl and
Johann and bring them over to the Massey -Ferguson Build-
ing to talk to the girls . There was some apparent reluctance
among the girls to go . Each of them said that they were not
afraid to go but none of them went . Hansen stated that he
preferred that one of the girls go get Johann and Sandahl.
By this time it was about noon and Hansen suggested that
they take their lunchbreak and after lunch get Sandahl and
Johann to speak to the girls . After lunch, no one made any
move until late afternoon , each girl apparently waiting for
someone else to start something. Nothing happened and
again Hansen suggested that someone should go . The girls
declined to go. Finally Charlotte Simons said that she would
go and did so; Sandahl and Johann came back with Simons
and they met with the girls at 4 o'clock . The meeting lasted
until well after normal quitting time and the girls were paid
overtime for their attendance . At this phase of the meeting,
Sandahl apparently also asked the girls for more time to
work something out for them and told them that he could
not make them any offers because his hands were tied be-
cause they had brought in the Union. Various questions
were asked by the girls, one asking how it happened that he
was unable to give the employees a raise but that he was
always able to give a raise when the Government raised the
minimum wages . Sandahl answered that business normally
picked up when the minimum wage was raised . Another girl
asked if the employees dropped the Union would they have
to sit and wait for him to work out a schedule of wage raises
and benefits. Sandahl answered that he was already work-
ing on it and had been since the first meeting after the
petition although he didn't know what was in the petition.
The same girl asked what was happening to the profits from
the Massey-Ferguson operation. Sandahl answered that
they didn't actually have much profit and quoted the sum
of $4,000 to which the girl commented that that must have
been used for overtime for one of the girls' salaries.
The General Counsel contends that the events recited
above constitute two violations of Section 8(a)(1), one by
Steve Hansen and one by Sandahl. The Respondents con-
tend that Hansen is not a supervisor and that nothing he
said was binding upon them. Hansen did not testify in the
hearing. The record reveals that Hansen is the son-in-law of
Richard Johann, one of the owners of the establishment. He
was employed there while in school on a part-time basis and
then went into the service. Since his return from the service,
he has been a full-time employee in the Massey-Ferguson
Building . He is not named as a supervisor, and there is no
evidence of his having exercised supervisory authority other
than the events that took place with regard to the meeting
on March 15. He does not punch a timeclock. His normal
duties include picking up the mail in the morning, the job
formally done by Mrs. McCormick, and operating a bag-
sealing machine in the Massey-Ferguson Building as well as
doing various other jobs in that building. While he appar-
ently acts occasionally as a conduit of orders from manage-
ment located in the main building, there is no evidence of
any occasion on which he originated any orders other than
to tell employees what jobs were next to be done on some
occasions. He is not a supervisor, nevertheless, I conclude
that Respondent is responsible for Hansen 's statements in
the meeting. His family relationship was well known to all
of the employees who reasonably attributed his statements
to his father-in-law and to management, although he made
a point of stating that they had not instructed him to make
these statements and that he was acting on his own . Never-
theless, he pointed out that they knew that he was holding
the meeting . His assumption of the authority to cut off the
phone connection of the Massey-Ferguson Building and to
permit the change in the girls' normal lunch hour created
the impression among the employees that he was speaking
with the authority of management. In addition, the fact that
he was on salary and did not punch a timeclock 9 and the
fact that he mirrored the Employer's antiunion attitude,
taking the same position that Sandahl had taken in the prior
meeting, attended by the same girls , and going further and
urging them to reject the Union in order to give Respondent
an additional chance to satisfy their demands, all lead to the
presumption that he was acting as a spokesman for manage-
ment and that the employees would reasonably expect this
to be the fact. I find that his statements are attributable to
management and that by promising , in effect , that the em-
ployees' expectations would be fulfilled if they rejected the
Union and gave Sandahl a chance to deal directly with
them, Respondent, through Hansen, interfered with, re-
9 An employee testified that Hansen so informed her; he was not called
as a witness, and her testimony is credited
FEDERAL PRESCRIPTION SERVICE , INC. 987
strained and coerced employees in their union organiza-
tional attempt in violation of Section 8(a)(1) of the Act.
With regard to the second part of the meeting at which
Sandahl spoke , the statements he made are generally unex-
ceptionable , except when viewed against the background of
the statements made by Hansen at noontime . Hansen told
the employees that management knew that he was calling
the meeting , and I believe it is a fair presumption that
management knew what he was going to say. When Hansen
told the employees to give Sandahl another chance, that he
would work out the pay raises and other benefits that they
were seeking , and this was followed by Sandahl telling the
employees that his hands were tied, that he could promise
them nothing, but that they would be better off without the
Union, it takes somewhat less than a blind leap of faith for
the employees to conclude that Sandahl 's message was that,
given a situation where he was not faced with union organi-
zation , he would see to it that the employees' desires were
satisfied . I conclude that Sandahl 's speech , against the back-
ground of Hansen 's, constituted a promise of benefit to the
employees if they dropped the union organizational at-
tempt, and thus violated Section 8(a)(1) of the Act.
Richard Johann is the vice president of each of the corpo-
rations that comprise Respondent . His wife , Luelle, who is
known in the plant as "Cooter," described herself as person-
al service manager in charge of customer communication,
and stated that she had six girls working under her supervi-
sion . The Johanns have a daughter Gretchen. It appears
that Gretchen Johann was an occasional guest in the home
of Lois Geneser, one of the employees in the plant . Accord-
ing to the testimony of employee Angelina Gibbons, on or
about March 22, Mrs . Johann angrily accused Mrs. Geneser
of untruthfully stating that the Johanns had told Gretchen
not to visit the Geneser household because of the labor
problem . Mrs. Gibbons stated that Mrs. Johann said that
she did not discuss labor problems with Gretchen.
Mrs. Johann testified that she had been told by another
employee that Mrs. Geneser had stated that Mrs. Johann
had forbidden Gretchen to go to the Geneser home , that she
told Mrs . Geneser that she was tired of lies and that she had
never forbidden any of the children to go to the Geneser
home . She further stated that she had told Mrs . Geneser that
Gretchen had been told that if subjects regarding the office
came up, she probably should leave , and that the Johanns
did not discuss problems with their children.
The General Counsel contends that the above incident
constitutes restraint and coercion of employees concerning
their concerted activities . Neither version of the incident
appears violative to me . I see no threat or promise , nor other
type of coercion in the incident . I credit Mrs. Gibbons that
Mrs. Sandahl couched her angry remarks in terms of union
activities . There is no evidence as to what , in fact, Gretchen
Johann was told. That is lost in the mists of hearsay, and
at any rate is irrelevant. But for Mrs. Johann to tell an
employee that she had not ordered her daughter to leave the
employee 's home if the Union was mentioned and that she
had not discussed the Union with her daughter appears
noncoercive to me . I recommend that the complaint be
dismissed with regard to this allegation.
Mrs. Johann was apparently in the habit of talking in a
friendly manner to the women in the plant , both those
whom she supervised directly and others. When the union
organization appeared , she talked about it to a considerable
extent with various employees , three of whom appeared and
testified concerning these conversations . Diana Hamil,
whose husband was a union steward in another employer's
plant, was apparently particularly the beneficiary of Mrs.
Johann's conversation with regard to the Union . Mrs. Ham-
il testified that she had discussions with Mrs. Johann practi-
cally every day, both on coffeebreaks and during working
hours, that Mrs. Johann asked her if she attended union
meetings and discussed various points brought up at the
union meetings , mentioning different employees who had
attended the meetings , and giving her opinion as to the
efficacy of this and other unions.
On one occasion Mrs. Johann was upset because it had
been reported to her that the Union was going to ask for a
wage rate of $3.25 an hour , as well as other costly benefits.
She stated, according to Mrs. Hamil, that if the employees
got that much money, the Company could not afford to
keep them and their jobs would be eliminated, and that
Mildred Hoover's job would be eliminated, and Mrs.
Hamil 's mother , Imogene Seemann , would have to do her
own research . On another occasion Mrs. Johann pointed
out that one way the Union had of achieving its goals was
to call a strike, and the girls might have to go out on strike.
Mrs. Hamil answered that if that were the case she would
naturally go out. On another occasion after the business of
the Employer had been discussed at a union meeting, Mrs.
Johann was furious that the Union had been talking with
apparent knowledge of the extent of Respondent 's business,
and according to Mrs. Hamil, stated that she knew what
girls had taken the information out, and if she could prove
it, she would have them fired. As Mrs. Hamil put it, "well,
naturally, you knew, if you worked there, you knew the two
girls she was talking about." On another occasion Mrs.
Johann talked about the reputation of the Union for violent
action, and stated that she was afraid of the Union, did not
like it, and she could not understand why the girls picked
this Union when there were others that would more normal-
ly be interested in representing office employees . Mrs. Jo-
hann stated that she was afraid, for her mother, who lived
in Florida, to pay a visit because of the possibility of vio-
lence , and that she was afraid for her husband's heart condi-
tion. Mrs. Johann stated that while Sandahl could afford to
lose a lot of money without being hurt, the Johanns did not
have that much money and it could break them.
Mrs. Hamil stated that in her opinion Mrs. Johann spoke
to her in this fashion because Mrs. Hamil had not made up
her mind whether a union would be beneficial to her at the
time. When she finally decided to sign a card Mrs. Hamil
told Mrs. Johann that she had done so.
Mrs. Johann testified that she had conversations with
Diana Hamil but never asked her whether she attended a
union meeting or about other girls attending union meet-
ings . She further testified that she "didn 't have the faintest
idea" who attended union meetings . She testified that she
talked to Mrs. Hamil about unions because her husband
had been a union steward and she was curious and she
recalled asking her how union stewards got their jobs. She
testified she couldn't recall whether Mrs. Hamil ever told
her that she'd signed a union card. With regard to the con-
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
versation having to do with demands that she understood
the Union would make , she testified that the morning after
the second union meeting the entire plant was discussing the
union meeting and several people stopped her and told her
that the women had been told that they were going to take
over the plant and that Sandahl and Johann would have
nothing to do with it . The Union would decide what they
would get and Sandahl would have to take it. She testified
that she was very upset by being told these things and that
specific demands would include paid vacations , holidays
and sick leave for everyone and $3 .25 an hour. She testified
that she told Mrs . Hamil she did not believe this because her
understanding was the Union wouldn't take any more from
the Company than the Company could afford and that
demands of this nature would wreck a small company. She
testified also that she said that the Union and management
would sit down and decide and would negotiate what the
Union got. She denied she said that there would be a cut-
back in employment if the Union got higher wages or that
she told Mrs. Hamil that her job would be eliminated.
Mrs. Johann also testified that she had a conversation
with Mrs. Hamil and another conversation with Mrs. Huser
and that Mrs. Huser might have overheard the conversation
with Mrs. Hamil in which she said that the thing she hated
about the organizational attempt and the confusion and
unhappiness and angriness in the office was the fact that, no
matter who won, somebody was going to be hurt. She
thought unions might be of help to the Company but she
was frightened of the Amalgamated Meat Cutters because
of their alleged reputation for violence and didn 't see why
the girls couldn't have gotten a clerical union . She denied
stating anything in regard to Marjorie Huser , either that she
knew that she was in the Union or that she thought Mrs.
Huser would not be there until the end of April. Generally,
Mrs. Johann testified that she never talked to any employee
other than Mrs. Hamil on the subject of unions although she
admitted that Shirley Walter talked to her about unions.
Mrs. Imogene Seemann, who is Mrs. Hamil's mother,
testified that she was present during some of the conversa-
tions between Mrs. Johann and Mrs . Hamil and generally
corroborated Mrs. Hamil's testimony. She testified also that
she had told Mrs. Johann that she had signed a union card
because she liked Mrs. Johann and wanted her to know.
Mrs. Majorie Huser testified that she had a number of con-
versations with Mrs. Johann concerning the Union but she
recalled the content of none of them except that Mrs. Jo-
hann frequently stated in effect , "You girls are going to be
sorry, someone's going to be hurt."
I credit Mrs. Hamil and Mrs. Seemann that they each told
Mrs. Johann that they had signed union cards . Accordingly,
I discredit Mrs. Johann 's denial of that fact . I credit Mrs.
Huser's testimony that Mrs. Johann told her that she didn't
blame Mrs. Huser for wanting more money becuase Mrs.
Huser had lost her husband and had a family and I believe
that this was said in the context of Mrs . Huser's activities
on behalf of the Union which were known to Mrs. Johann.
Accordingly , I discredit Mrs. Johann's denial that she knew
of the union proclivities of any employee. I discredit Mrs.
Johann's statement that she didn 't have the faintest idea
who attended union meetings . Her testimony that a number
of girls reported the incidents that took place at each of the
union meetings to her is completely inconsistent with her
denial of knowledge. I conclude that Mrs. Johann chose to
deny any knowledge of union activity when such activity
was not done in her presence. With regard to the conversa-
tions with Mrs . Hamil, I find that they amounted to no less
than a persistent cross-examination of Mrs . Hamil, both as
to her own feelings with regard to the Union and as to the
matters under discussion in the plant with regard to the
Union. That Mrs. Johann and Mrs. Hamil were friendly, as
Mrs. Johann testified she was with all of the girls in the
plant, does not change the picture. Obviously, Mrs. Hamil,
being undecided at the time about the Union but having
stated this fact to Mrs. Johann , was a person whose vote
could possibly be swayed by Mrs. Johann's arguments. It is
difficult to see that, if Mrs . Johann, as she testified , did not
believe that the women would take over the plant, more
than double their wages and get paid holidays, vacations
and sick leave, it is difficult to see [sic] why Mrs. Johann was
so extremely upset that she was unable to contain her fear
and anger as she testified . I think rather than expressing her
fear and anger she was expressing her best interests in trying
to convince Mrs. Hamil, Mrs. Seemann and the other girls
to whom she spoke with the fact that the Company could
not afford to pay the type of wages that Mrs. Johann stated
that the girls were talking about.1°
The General Counsel contends that Mrs. Johann interro-
gated employees concerning their signing union cards, at-
tendance at union meetings and other concerted activities
protected by the Act. I find that Mrs. Johann engaged in
interrogation of at least Mrs. Hamil and Mrs. Seemann
although possibly not by direct questions. I believe that she
led the conversation to union subjects deliberately in an
attempt to find out all she could about the union activities
taking place at the plant. I find , therefore, that Respondent
violated the Act by Mrs. Johann's interrogation, which was
certainly unaccompanied by any assurances to the employ-
ees to whom she spoke.) t
The General Counsel contends that Mrs. Johann threat-
ened employees that Respondent would go out of business
if the Union came in. L recommend that this allegation be
dismissed . The evidence reveals that , in fact, what Mrs.
Johann stated was that if the Union could achieve benefits
such as paid vacations, paid holidays, paid sick benefits and
$3.25 base pay, that the Company could not afford it and
would have to close its doors. I do not believe that this
constitutes a threat within the meaning of the Act and I
recommend that the complaint with regard thereto be dis-
missed.
Mrs. Johann denied that she had stated that she knew the
two girls who had taken information out of the plant; and
if she could prove it, she would have them fired. She testified
that she said, when asked how the Union had gotten compa-
10 There is no evidence that the $3 25 basic wage referred to by Mrs.
Johann was ever in fact discussed at a union meeting . I have no doubt that
paid vacations and holidays, none of which were offered by the Respondent,
and sick benefits , which were not offered by the Respondent , were the subject
of discussions at union meetings . They would normally be, I'm sure.
11 Although Respondent denied generally that Mrs. Johann was a supervi-
sor, it admitted that she occasionally performed supervisory functions. It is
clear that from the record that Mrs. Johann is and at all times involved in
this matter has been a supervisor within the meaning of the Act and I so find.
FEDERAL PRESCRIPTION SERVICE , INC. 989
ny sales figures, that they must have run their own tapes
because, if they had taken the company books out of the
building, they could be fired . She denied the specific state-
ment attributed to her . I discredit her in this regard. I be-
lieve that she indicated without saying that she knew who
had furnished the Union with the figures ; and I believe she
stated that, if she could prove that Peterson and Hoover did
so, she could have them fired . I believe that this constitutes
a violation of the Act. Hoover and Peterson , in the normal
course of their business , were aware of the sales of Respon-
dent, not only on a day-by-day basis , but on a cumulative
basis, because they dealt with these figures in their work.
For them to use this knowledge in furtherance of the con-
certed and union activity in which they were engaging does
not lose them the protection of the Act. For Respondent to
threaten discharge for their use of this knowledge is viola-
tive of Section 8(a)(1). I find that Respondent violated Sec-
tion 8(a)(1) by Mrs. Johann 's remarks in this regard.
The General Counsel alleges that Mrs. Johann restrained
and coerced employees by following Union adherents at the
plant . This allegation is based on testimony by Mrs. Hamil
that Mrs. Johann had stated to her that she would like to
follow Betty Peterson all day long to see how long she could
stay out of work , and see what she did do, because every
time she saw her she was not doing much of anything. Mrs.
Johann testified that she did not make the statements attri-
buted to her, but that "I would have said `it is amazing to
me how Betty gets any work done , as much as she is away
from the desk.' " And she might have said this because "In
many instances it was necessary for me to go from my
downstairs office to the front room where Mrs . Peterson
and Mrs . Hoover were on problems concerning accounts. I
made as much as three or four trips on one problem trying
to talk to one or the other, and there was never anyone
there, or not never , but quite frequently. It took three or four
trips to find either one of them." I believe that, in fact, Mrs.
Peterson was away from her work a good bit of the time, but
I believe that the description by Mrs. Johann of her and
Mrs. Hoover's absences from their machines is hyperbolic
in nature . I have no doubt that she commented to Mrs.
Hamil that she would like to follow Betty Peterson some day
and see where she goes , or what she does with her time, but
I find no evidence on the record that she ever did, in fact,
follow her. I believe she might have said that she had
watched Mrs . Peterson one morning , as she might very well
have done , and seen her circulating through the plant. I find
no restraint and coercion of employees in Mrs . Johann's
statement . I find insufficient evidence on the record that
she, in fact , followed Mrs . Peterson in the plant for hours
as the General Counsel alleges . I recommend that the com-
plaint be dismissed with regard to this allegation.
' Margaret Knox , who was employed by Respondent as a
printer and was one of the very few employees in the plant
who earned more than the minimum wage, formed a "com-
mittee" consisting of herself and five other employees, Doris
Lincoln , Opal Lincoln , Lorraine Madison , Shirley Welder
and Grace Clark, for the purpose of opposing the union
organization . The six members of the committee all worked
in different parts of the plant . They held four meetings in
the plant during the course of their workday , all in the
afternoon , usually around 2:30 p.m., and the meetings vari-
ed from 10 to 20 minutes each. Each meeting was called by
Miss Knox , who went around the plant and gathered the
committee members together . Apparently no question was
ever raised by any supervisor as to her authority to do this.
She testified that she invited Mr. Sandahl to the meetings
and he apparently attended some, if not all, of them. One
of the manifestations of the committee was a meeting for all
employees which was held on March 22 at the bank building
in the town of Madrid . Miss Knox at first attempted to have
the meeting held on the plant premises , but Sandahi de-
clined to permit her to do so, stating that that would not be
advisable , so she rented the bank room . She testified that
she never recovered the rent from the Employer , and that
it was solely her idea . Sometime prior to March 20, Miss
Knox discussed with Mr. Sandahl the problem of getting a
speaker at the meeting . Sandahl agreed to provide a speaker,
supposedly to answer questions wth regard to the union
organization . Before the meeting Miss Knox and Shirley
Welder typed up and reproduced a sheet containing ques-
tions to be asked at the meeting. Copies were made for all
who came to the meeting.
On Monday, March 22, Miss Knox invited Johann and
Rasmusen . Sandahl had already been invited, of course,
and was bringing the guest speaker with him. About 25
people showed up, including Sandahl , Johann and Rasmu-
sen. The guest speaker brought by Sandahl, who introduced
himself as a neutral person , was James Rogers , the company
attorney, a former employee of the National Labor Rela-
tions Board , now in private practice. No clear picture ap-
pears on the record of the discussion that took place at the
meeting . Questions were asked . However, Miss Knox could
testify only as to the answer to the question she asked which
had to do with whether her job could be eliminated if the
plant was organized . Miss Knox strongly denied recollec-
tion of any questions having to do with wages, hours or
working conditions , although it appears from the context of
her testimony and that of others who were present that such
questions were asked. Miss Knox displayed excellent recall
in other fields, but with regard to what took place at the
meeting, she was unable to recall most of the discussion.
The General Counsel contends that the meeting in the
bank building was arranged by Respondent and constituted
a violation of Section 8(a)(1). There is insufficient evidence
on the record, as a whole, for me to find that Respondent
caused or paid for the meeting . If there was a charge by Mr.
Rogers presumably it was paid by Respondent. While At-
torney Rogers may not have been candid with the employ-
ees in introducing himself as an impartial person , when he,
in fact , represented the Employer, there is no substantial
evidence on the record that he violated the statute in any-
thing he said . I find that the General Counsel has not sus-
tained his burden of proving that Respondent interfered
with, restrained or coerced employees by the conduct of the
bank meeting , and I recommend that the complaint be dis-
missed with regard thereto.
The day before the meeting, Mrs. Johann was invited by
one of the members of the committee . She spoke about the
meeting to the employees in her section , and told them that
she thought it would be a good idea if they went to the
meeting and asked them to do so as a personal favor to her.
I know of no rules of the Board that render such activity by
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a supervisor unlawful under Section 8(a)(l) of the Act. An
employer may tell his employees his opinion of a union. He
may ask them to vote against the union , he may suggest
one union over another in a two union situation, he may
conduct meetings for employees in which he recommends
against their voting for a union or for any particular union,
or against their union activity, as long as he does not threat-
en them with punishment for engaging in union activities,
or promise them benefits from refraining therefrom.
It would appear to me that if an employer may conduct
a meeting at which he asked employees not to accept a
union, he does not commit an unfair labor practice if he asks
employees to go to a meeting conducted by a third person
with the same purpose, as long as nothing at that meeting
constitutes coercive activity. There is no evidence of any
coercive activities at the bank building meeting. I conclude,
therefore, that there was nothing coercive in the action of
Mrs. Johann in asking employees to go to that meeting as
a favor to her. I recommend that this allegation be dis-
missed.
On the occasion referred to above when Betty Peterson
was admonished not to come into the office before 8
o'clock, Richard Johann went to the girls to whom she had
been talking and inquired of them whether Mrs. Peterson
had been talking to them about the Union. They said she
had not and that they were talking about birthday parties.
According to the testimony of Mrs. Seemann, whom Mr.
Johann did not put at the scene, Johann said that Mrs.
Peterson had a perfect right to talk to the employees and to
talk about the Union, but this sort of thing had to be done
on their own time , and not on company time.
Johann's testimony was in substantial accord. Johann
testified that there is no company rule against talking during
working hours that has been reduced to writing, but that he
had what he calls a no-nonsense rule that girls may not leave
their work place and go over to talk to other girls. The
inference is that his warning addressed to Mrs. Seemann
and the other girls was given pursuant to this rule. It sounds
fair enough if it were evenly applied, but as the General
Counsel demonstrated with the evidence in support of the
allegation with regard to the bank meeting, the Employer
not only permitted the antiunion committee to function
freely during working hours (in fact, Sandahl attended one
or more of the four meetings held among the six members
of the committee during working hours), but the Respon-
dent appears to take exception to similar expenditures of
time on behalf of the Union. When the rule is enforced
disparately it becomes violative. I find that by this disparate
enforcement of the rule which is an extension of and consis-
tent with the actions taken with regard to Peterson and
Hoover requiring them not to come into the plant before 8
o'clock, Respondent was attempting to inhibit the efforts of
the prounion employees within the plant, while at the same
time it was assisting the efforts of the antiunion faction. This
disparate treatment cannot help but have been noticeable to
the employees , and certainly interfered with their exercise
of their rights guaranteed in Section 7 of the Act, in viola-
tion of Section 8(ax l) of the Act.
Finally, the General Counsel contends that Respondent
violated Section 8(axl) by an incident that occurred when
Barbara Clemens , a supervisor, was asked by Patricia
Downing, an employee who had been in a confidential rela-
tionship with Mrs. Clemens, why she had cooled toward her
after Mrs. Downing advocated the Union. Mrs. Clemens
answered that she was terribly disappointed because Mrs.
Downing was following people on whom she would not
have wiped her feet in the past. In consideration of the
situation at Respondent's plant as it has been explicated
above, and in consideration of the fact that Clemens and
Downing were obviously close friends prior to the advent of
the Union, I find no violation attributable to Respondent in
this remark . Strong feelings frequently make for bitter
words, but in my opinion, this exchange was of a personal
nature between the two women and contained no elements
of coercion. I shall recommend that the complaint be dis-
missed with regard to this allegation.
Section 8(a)(3); the April 2 layoff
On April 2, nine girls were called into Sandahl's office
where they were addressed by Richard Johann. They in-
cluded Marjorie Huser, Doris Novy, Beverly Storey, Gene-
va Battani, Judy Allen, Marilyn Gohn, Jo Ellyn Rathbun,
Evelyn Burke and Lois Geneser. Johann told the girls that
they were good workers and he would give them a good
recommendation for any place they could get a job, but that
business was off, Respondent had lost one or two contracts,
and had to cut down on expenses , so he was going to let
them go. One of the employees, Geneser, asked whether the
persons selected for layoff were selected on the basis of
seniority, and Johann answered that they were. Geneser
answered that he was getting rid of his best workers. The
girls were handed slips of paper on which was typed:
... as explained to you, business operating conditions
require us to trim our work forces. I am sorry that as
a part of this program, your employment will be termi-
nated today, April 2, 1971.
Richard G. Johann
Vice President
Immediately prior to the discharge of the nine girls, How-
ard McCormick, a janitor, was called into the office by
Johann, who discharged him with essentially the same mes-
sage and gave him an identical paper.
The General Counsel contends that the discharge of nine
girls and Howard McCormick violated Section 8(a)(3) of
the Act. The Respondent contends that the discharge was
dictated by business conditions, and was an exercise of the
Employer's business judgment.
The Respondent presented evidence to show that the situ-
ation in February looked as though business was decreas-
ing. The Massey-Ferguson Company, for whom
Respondent was engaged in a large scale operation, had a
strike at its main plant and advised Respondent that it
should cease certain mailing work for that customer for the
duration of the strike. The Amvets, through which the Re-
spondent secured between 2 and 2-1/2 percent of its busi-
ness, was indicating to Respondent that it would cease
doing business with it, and the Disabled American Veter-
ans, through which Respondent secured some 10 percent of
FEDERAL PRESCRIPTION SERVICE, INC. 991
its business , had informed Respondent that it would not
renew its contract, effective on May 1, 1971. In view of these
considerations, Respondent contends, it determined that it
had to cut back the expenses which were not in the direct
line of selling. Accordingly, it determined to cut payroll in
the departments which it considered to be indirect labor.
Having chosen the departments which were to be cut, Re-
spondent determined to discharge the employees with the
least seniority, and did so.
In support of its position Respondent put in evidence the
auditor's reports for Federal Prescription and Drivex for the
end of their fiscal year, December 31, 1970, which contained,
a comparison with the year 1969.
The sales figures for Drivex for 1970 were $59,000 as
against $73,000 for 1969. The net income (profits) was ap-
proximately $14,000 as against approximately $18,000 for
the preceding year. For Federal Prescription the sales were
$1,584,000 as against $1,484,000 in 1969, and the net income
for both years was approximately the same , $25,000. The
direct expenses rose between 1969 and 1970 by some
$26,000. These expenses include the pharmacists' salaries,
raised a total of over $9,000, and increases in postage, ship-
ping expenses and order preparation expenses . The indirect
expenses rose by $32,000 from $106,000 to $138,000. The
largest single cause of the rise was an increase of $13,000 in
advertising and $8,000 in supplies for the selling and print-
ing department. The general administrative expenses rose
slightly, partly attributable to an increase in management
salaries of $1,500. The total assets of Federal Prescription
increased from $243,000 to $292,000 between 1969 and
1970.
The above figures scarcely present a dismal figure with
regard to Federal Prescription. However, Respondent con-
tends that in the early part of 1971, things went from bad
to worse. The monthly audit sheets for January, February
and March of 1970 and 1971 are in evidence. They show an
increase in sales in 1971 over 1970 for that 3-month period
of approximately 10.87 percent, that is to say, from $383,000
to $416,000. Other figures remain fairly comparable except
that operating expenses increased substantially, leading to
a net loss for the 3-month period of $15,000, as distin-
guished from a net profit in the year 1970 for that 3-month
period of $240,000. It is notable that in both 1969 and 1970
large net losses appear early in the year. In February 1970,
a loss of $8 ,000 wiped out the $6,000 profit of January, and
was in its turn wiped out by the $6,000 profit in March. In
1971 an initial loss of $12,689 was partially wiped out by a
net profit in February and then augmented by a net loss of
$6,700 in March. No explanation is given on the record for
the extraordinary expenses in the early months of both
years, and the term operating expenses is somewhat less
than definitive. To the extent that a comparison of the pay-
rolls is possible, it does not appear that the loss can be
attributed to the hiring of additional employees during
those months. It may well be that the loss in 1971 was
attributable to a campaign instituted by Respondent to in-
crease its vitamin sales , which led to some 5,000 orders for
vitamins, which may or may not have been sold at a loss.
The record is not clear, but these sales certainly required
personnel time . The record indicates that the sales figures
for the vitamins are not part of the sales figures for Federal
Prescription, but that the employees who worked on the
orders were employees of Federal Prescription. Whether a
separate accounting was made for wages and/or sales is not.
disclosed by the record. A comparison of the payrolls for the
first 3 months of 1971 against the first 3 months of 1970
reveals that for the year 1970 an average of 66 employees
worked an average of 32 hours a week, while in the year
1971 an average of 75 employees worked an average of 32
hours a week. It appears, therefore, that between 1970 and
1971 the work force increased by nine employees. There is
no record to show in what department this increase is re-
flected. Surely some part of it is reflected in the Federal
Vitamin Service campaign, inasmuch as at least for the
period of 1 month the shipments of orders by Respondent
must almost have doubled.
The increase in business of Federal Prescription by some-
thing over 10 percent for the first 3 months of 1971, com-
pared to the first 3 months of 1970, would appear to
warrant, and probably require, an increase in the number of
employee-hours worked by Respondent's employees.12 A
comparison of the average weekly hours reveals that there
was an increase of about 12.5 percent in 1971 over 1970,
somewhat more than the increase in business warranted.
The difference, however, scarcely reflects any substantial
"water" in the payroll.
The facts and figures presented by Respondent in support
of its defense support it only weakly. President Craig San-
dahl testified that the plan of campaign for Federal Vitamin
Service and the rationale for commencing it in the first
place, was to provide a source of new customers, both for
the vitamins, a field which Respondent had been in to a
small extent in the past, and for its other medicine invento-
ry. A necessary device to generate continuing new business
from the "one-short" advertising campaign of Federal Vita-
min Service was the followup of the individual customers
who purchased vitamins. This followup would normally
take place in the month after the customer first ordered
vitamins. The record reveals that the campaign reached its
peak in February, with some 80 percent of the sales in the
first month after the appearance of the advertisement and
that by the end of the 3rd month it had dropped off to
almost nothing. Yet, at the time Respondent planned to
commence its followup campaign to convert the one-shot
vitamin customers into general customers, Respondent, be-
cause of the alleged expectation of reduced business, cut its
work force significantly, 13 a much deeper cut than the
change in business conditions would appear to warrant at
that time.
12 Because of the large number of employees of Respondent who worked
less than a 40-hour week, a comparison of numbers of employees would not
necessarily be valid. However, a comparison of employee-hours would ap-
pear valid in view of testimony of Respondent that casual employees, largely
students, were used on a need basis.
13 It cannot be determined from this record exactly what percentage of the
work force was cut. In terms of employees it would appear that 12.5 percent
of the employees roughly, that is to say, 10 out of 79 or 80 were cut. However,
it appears that all of the girls who were cut were full-time employees. The
only part-time employee cut was John McCormick. Inasmuch as the 79 or
80 employees included many part-time employees, it appears obvious that the
cut in terms of employee-hours was greater than 12.5 percent, a much deeper
cut than the change in business conditions would appear to warrant at that
time
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent argues that the loss of the Disabled Amen-
can Veterans and Amvets contracts , and a strike of Massey-
Ferguson required an immediate adjustment in the expendi-
ture of man-hours. However, the DAV contract did not
expire until May 1, 1971 , and the 1971 figures for DAV were
substantially higher than the 1970 figures had been, while
the Amvets business , which had comprised less than 24/2
percent of Respondent's business in 1970, had in fact in-
creased in 1971, both in totals and in percentiles although
the new contract was under negotiation and no advertising
had appeared for a period of several months . The strike at
Massey-Ferguson, which did not take place until March 19,
resulted in a cessation of only part of the Massey-Ferguson
business and was indefinite in duration.
I view the reasons advanced by Respondent for the dis-
charge of 10 employees as inconsistent and inadequate, but
on the state of the record I cannot find that they are clearly
false. It is not my province to substitute my judgment for
Respondent's in matters of its business . But the defense is
so weakly supported that, although it does not give rise to
a presumption that there had to have been another unack-
nowledged reason for the discharges , it nevertheless re-
quires a close perusal of Respondent 's motivation in
effecting the discharges and gives rise to an inference which
together with other evidence could support a finding that
the discharges were for union activity as alleged.
Respondent contends that it had no knowledge of the
union activities of many if not all of the 10 dischargees. I
do not believe this . From the inception of union activity,
Respondent's management actively sought information
concerning the extent of success of the organizing activities.
It was materially assisted in its search for this information
by the activities of various employees, including Charlotte
Simons, who testified that she attended the meetings and
made records of the persons in attendance at the meeting.
She even went so far as to list the various candidates for
elective office in the Union and tally the ballots by which
they were elected . Although Mrs . Simons testified that she
did not turn over or show her notes and listings to
Respondent 's officers after each of the meetings, she report-
ed to President Sandahl in his office that she had attended
the meetings . Other evidence reveals that she was seen en-
tering Sandahl's office with a notepad in her hand similar
to that on which she was seen to take notes at the union
meeting.14
All but one of the dischargees were union adherents.
There was direct evidence that at least eight of them were
present at the union meeting of March 9 at which Mrs.
Simons was seen taking notes.15
Respondent stated that it chose for the discharge the
junior employees in each of the departments which were out
of the line of direct order filling . One of the departments so
affected was the promotion department from which Beverly
Storey, Lois Geneser, Doris Novy, Judy Allen and Jo Ellyn
14 1 do not not credit Mrs. Simons' denial that she did not inform Sandahl
who attended the meetings or what took place.
'S Two of the alleged discnminatees , Judy Allen and Lois Geneser , did not
appear and testify . Mrs. Geneser , however, signed a union authorization card
on March 9 on the date of the union meeting at which 34 cards were signed.
Judy Allen does not appear to have signed an authorization card and there
is no evidence concerning her in connection with the Union on the record
Rathbun were cut. Clearly Judy Allen, whose hiring date
was January 18, 1971, was thejunior in this department. The
nextjunior employee in that department was Jo Ellyn Rath-
bun. The third was Charlotte Simons who was not dis-
charged but who had proved her value to the Employer in
other respects, supra. Dons Novy was next junior with Steve
Hansen directly behind her. Of course , Steve Hansen was
the son-in -law of vice president Johann and this may have
affected his retention . Although Respondent 's witnesses tes-
tified that he was accorded no privileges or position other
than that accorded all rank -and-file employees , I find the
contrary. Beverly Storey, who commenced work on Septem-
ber 23, 1969, was senior to both Steve Hansen and Charlotte
Simons.
Three employees were laid off from the shipping depart-
ment; Marilyn Gohn, Evelyn Burke and Geneva Battani, all
junior employees. Additionally, Marjorie Huser was laid off
from the customer correspondence department. Her job was
solely cleaning out files, a job that had not been filled before
she was hired and was not filled after her departure al-
though a number of Respondent 's witnesses testified to the
constant need for cleaning out files because of their tenden-
cy to outgrow the space.
The 10th person was John McCormick who was a part-
time janitor and junior to Weldon Soderstrum, another
part-time janitor. Assuming the validity of Respondent's
selection of departments in which to effect the layoffs, it
appears that it followed the basis of seniority except for the
fact that it skipped Steve Hansen and Charlotte Simons in
the promotion department. That Steve Hansen was skipped
should be no surprise. However, that Charlotte Simons was
skipped would seem to require an explanation but none was
forthcoming . The only distinguishing characteristic of
Charlotte Simons that appears on the record was her loyalty
to Respondent which led her to report directly to Mr. San-
dahl on her fellow employees ' union activities . Her reten-
tion thus would appear to contradict the testimony of
Sandahl , Rasmusen and Johann that union adherence had
nothing to do with the selection of employees for layoff.
There is no question that Respondent was bitterly op-
posed to the Union and took steps as I have set forth above
in the discussion under Section 8(a)(1) to meet the union
organization head on and attempt to break it up. Under all
the circumstances set forth above, I conclude and I find that
Respondent in fact laid off the 10 employees, as alleged, as
a demonstration to its employees that it and it alone had the
power to give them jobs or take them away. Judy Allen
apparently did not engage in any union activity. There is no
evidence that Respondent believed that she had. Although
she was unquestionably the most junior employee in the
promotion department and the third most junior employee
in the plant. I conclude that she was terminated to support
Respondent's defense that it selected employees on the basis
of seniority . I conclude further that any selection of employ-
ees would have served Respondent's purpose in demonstrat-
ing its power . I conclude that because Respondent
discharged the 10 named employees in order to discourage
its employees' union activities , Respondent violated Section
8(a)(3) and (1) of the Act.
FEDERAL PRESCRIPTION SERVICE, INC. 993
Section 8(a)(3); The Poststrike Discharges
When Respondent 's employees learned of the discharge
of the 10 employees at the peak of the union campaign, a
strike commenced the next morning. Approximately 35 em-
ployees joined the strike. Respondent continued to operate
with its remaining employees , and as I pointed out above,
an injunction was issued against mass picketing . Later, a
group of employees were found guilty of contempt of court
in the violation of the mass picketing order, and another
group of employees were found guilty of contempt of court
in that they engaged in following nonstriking employees
away from the plant in automobiles in an obvious attempt
to dissuade them from continuing their employment. The
Union offered to end the strike and requested immediate
unconditional reinstatement of its members . After some
weeks of deliberation, Respondent started sending out let-
ters recalling some of the strikers , but sent letters to three
employees, Terry Edwards, Helen McCormick and Betty
Peterson , stating that because they had engaged in serious
misconduct during the strike, they would not be considered
for reemployment. These three ladies were among those
found guilty of contempt in the automobile-following inci-
dents.
With regard to Betty Peterson, Respondent adduced the
evidence of Bill Coffin, an employee of another employer,
who testified that Betty Peterson rode with him in his auto-
mobile and that they followed the car of an employee whom
he did not identify for a space of time during the strike. He
testified that the car he was following stopped at one time.
After turning into a parking lot he stopped, thinking that
they wanted to talk. The other car took off again and went
back to the Employer's plant. Betty Peterson testified that
she was in the car with Mr. Coffin, that they followed Char-
lotte Simons, that after they stopped following her they went
back to the company parking lot. She drove around the
block, stopping in front of the union headquarters where she
climbed out of the car and yelled at the pickets, "they don't
know what we're going to do next." Thereafter, she was
cited for contempt and found guilty, and fined $25.
On another occasion , Terry Edwards was driving her car
and Helen McCormick was riding with her; a third girl was
in the car, not otherwise identified. On this occasion they
followed Charlotte Simons , who returned to the plant and
was followed out of the plant by Sandahl. They followed
Mrs. Simons and Sandahl, while Mrs . Simons delivered an-
other employee to her home, attempted to shake off her
followers and then drove to her home. Craig Sandahl testi-
fied that he took part in the following episode; that he drove
immediately behind Mrs. Simons until Mrs. Edwards
passed him, whereupon Mrs. Simons made a rapid 360 de-
gree circle in a parking lot and pulled off the shoulder until
he got behind her. Then the procession pulled out and went
up to Mrs. Simons ' house . When Mrs . Simons got out she
was in tears . He walked with her to the door and the girls
in the other car honked their horn and yelled "scab" and
other words at her. The record contains the remarks of the
judge who found these three ladies in contempt of the in-
junction , but no specific findings of what they were alleged
to have done to earn their citations. Respondent refused to
employ the three girls allegedly because they were engaged
in automobile-following, which the court found to be a
violation of the injunction.
The Board has frequently considered the question of rein-
statement of strikers who follow nonstriking employees to
their homes or from the plant. In the recent case , Juniata
Packing Company, 182 NLRB 934, the Board found that a
striker who followed such a strike replacement to his moon-
lighting job, and there assaulted him physically, was dis-
qualified. But other strikers who rode with the striker who
assaulted the replacement were not disqualified for rein-
statement since the nature of their conduct was outweighed
by the Employer's unlawful prestrike activity, which includ-
ed discharges, threats and promises of benefits, just as in the
instant case. In another case, Southwestern Pipe, Inc., 179
NLRB 364, the Board found that two incidents where a
striker followed a nonstriker's car from the plant and chased
two nonstrikers leaving the plant through the back exit were
insufficient to disqualify the striker from reinstatement, al-
though other incidents in which he had engaged, including
hitting a nonstriker in the face and flicking a cigarette
against the head of another after abusing and threatening
nonstrikers, were sufficient to disqualify him from reinstate-
ment. I do not believe that the incidents, as set forth in this
case, involving Helen McCormick, and Terry Edwards are
of so outrageous a nature that they render these two ladies
unfit for further employment by Respondent, and I believe
that their discharge by Respondent was violative of Section
8(a)(3) of the Act.
With regard to Betty Peterson, Respondent adduced ad-
ditional evidence that on the first day of the strike in the
company of Union Agent Danny Gettler, she accosted Eve
Wisecup, who was crossing the picket line. Gettler asked in
effect whether Mrs. Wisecup's son did not work at "Perry
Pork," a plant represented by the Union. Wisecup said
"pardon me," and Betty Peterson said in effect "yes, and he
just may have an accident." The above is found in the
testimony of Mrs. Wisecup. Gettler testified that the conver-
sation took place, but asked directly whether Mrs. Peterson
said that Mrs. Wisecup's son "just may have an accident,"
answered that he did not remember that. Mrs. Peterson was
not recalled in rebuttal of this testimony. I believe Mrs.
Wisecup in this regard. I do not conceive that Mr. Gettler's
failure to recall amounts to the denial that Peterson made
the statement. While, as with Terry Edwards and Helen
McCormick, I do not believe the car-following incident is
sufficient to justify Respondent's refusal to reinstate Mrs.
Peterson, I believe that the threat to Mrs. Wisecup with
regard to her son is of such an aggravated nature that Mrs.
Peterson may be denied reinstatement by Respondent. Ac-
cordingly, I recommend that the complaint be dismissed
insofar as her discharge is alleged to be violative.
VI. THE CHALLENGES
With the 8(a)(3) allegations disposed of, we may now
consider the challenges, 10 of which depended on the deter-
mination of the 8(a)(3) allegations. The first issue that arises
with regard to the challenges is the efficacy of the agreed-
upon voting list, considered from the standpoint of whether
it is dispositive, without more, of the eligibility issues herein.
The voting list is in evidence. It is a typewritten list of 72
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
names prepared by Respondent and presented at the con-
ference of April 20, at which the Stipulation for Certifica-
tion Upon Consent Agreement was signed . Seven names
were struck off the voting list. Before and after each strike-
off appear the initials of James Rogers, the attorney for
Respondent , and Ben Detweiler, the International repre-
sentative of the Union . Above his signature Rogers wrote
"approved and agreed to 4/20/71." Above his signature
Detweiler wrote "Okay, by Ben Detweiler." The list is head-
ed "Federal Prescription Services, Inc., Employee List," and
was described by Sandahl as the agreed -upon list arrived at
on April 20, in Boone, Iowa, when the field examiner con-
ducted the joint conference. Sandahl testified that the
strikeouts were the result of a compromise to make a voting
list in exchange for an early voting date . The names struck
out were Barbara Clemens, Lucille Danks , Merritt Hansen,
L. A. Johann, Gary Rasmusen, Eve Wisecup and Sheri L.
Sandahl.
Evidence reveals that when the election was about to
commence , the Union announced that it was going to chal-
lenge the vote of Karen Burke because the Union had
learned that Mrs. Burke had left Respondent 's employ. Re-
spondent contended that this was not so, and apparently a
falling out occurred, which resulted in Rasmusen telling
several of the employees who had been agreed upon as
excluded that they could vote . As a result , Eve Wisecup,
Sheri Sandahl , Gary Rasmusen , Lucille Danks and Merritt
Hansen presented themselves at the polls and voted. They
were all challenged by the Board agent because they were
not on the list. Karen Burke , Marian Danks , Cathy Ed-
wards, Pam Herrstrom , Leanna Lincoln , Theresa Madison
and Jacqueline O'Donnell were challenged by the Union on
the grounds that they were casual employees , and Vicki
Polich was challenged on the grounds that she was no longer
an employee.
The Board does not lightly permit the parties to de-
termine the eligibility of voters in its elections . In Norris-
Thermador, supra, the Board concluded that where the par-
ties enter into a written and signed agreement, which
expressly provides that issues of eligibility resolved therein
shall be final and binding upon the parties, the Board will
consider such an agreement , and only that agreement, as a
final determination of the eligibility issues treated therein,
unless it is in part or in whole contrary to the Act or estab-
lished Board policy. In Pyper Construction Company, supra,
the Board cited this decision with approval and rested an
eligibility finding therein on such a list. In Doctors ' Hospital
of Modesto, Inc., 183 NLRB 950, the Board followed the
rule of Norris- Thermador but found no written stipulation
of the agreement therein, so it included an employee whom
the parties had agreed to exclude . In the instant case there
is nothing in the stipulation for certification which indicates
that there is an agreed-upon list stipulated to be final and
binding upon the parties . While the language imposed upon
the document by Attorney Rogers might lead one to seek
further, the simple statement "okay" by Detweiler does not
support such a finding . In any event I would not find that
the document as it stands sufficiently reveals an intent on
the part of the parties to be bound within the meaning of
the Norris-Thernuuior rule.
Furthermore, the Norris-Thermador rule has, as an ad-
junct, the proviso that the agreement of the parties shall not
be contrary to the Act or established Board policy. The list,
which was prepared by Respondent, reveals something less
than complete candor on its part. The list bears the name
of Lucille Danks, who, according to the testimony of Vice
President Rasmusen, is an employee of Hood Hair Prod-
ucts, Inc., specifically excluded in the appropriate bargain-
ing unit. The names of Barbara Clemens and L. A. Johann,
both clearly supervisory, also appear on the list. For Re-
spondent to assert at this time that these names were re-
moved from the list only in order to satisfy the Union and
make a quid pro quo for voting date, reveals that good faith
was not a prevailing sentiment on its part at the joint confer-
ence . At any rate, I would find that the voting list would not
satisfy the Norris-Thermador standards, even if it were ac-
companied by an adequate stipulation.
Having found that the voting list does not constitute a
binding determination of eligibility, I shall deal individually
with the challenges as follows:
Lucille Danks: The record reveals that Lucille Danks is
the sole employee of Hood Hair Products. Hood Hair Prod-
ucts employees are specifically excluded by the terms of the
Stipulation for Certification Upon Consent Agreement. Ac-
cordingly, Lucille Danks is not an eligible voter. The chal-
lenge to her ballot is sustained.
Eve Wisecup: The record reveals that Eve Wisecup is the
private secretary to President Sandahl and does all of his
clerical work. She is the person who handles, among other
things, any correspondence relating to labor or employee
relations and is privy to and has access to all records with
reference thereto . I find that she is a confidential employee,
ineligible to vote, and the challenge to her ballot is sus-
tained.
Karen Burke: This employee was challenged on the basis
that she was no longer an employee. The sole evidence with
regard to her is that shortly prior to the voting period, her
husband was detailed to another State, and she took a leave
of absence of several weeks to accompany him. The compa-
ny records reveal that she returned from the leave of ab-
sence and, in the week ending April 2, 1971, worked 43
hours. The next week she did not work. The week of April
16 she worked 45 hours. The week of April 23, 29 hours. She
did not work again until the week ending May 14, during
which she worked 22.5 hours, and the week ending May 28,
she worked 6 hours. The record is inadequate to say that she
was not still employed as of the date of the election, May
13. She was not called to testify at the hearing. I cannot find,
on the basis of this record , that she was not an employee.
Accordingly, the challenge to her ballot is overruled and the
ballot may be opened and counted.
Cathy Edwards: Cathy Edwards is listed as an office em-
ployee and was challenged as a confidential employee. The
evidence reveals that her main function was to count and
list cash and checks. She was not a secretary, it does not
appear that she ever typed letters or took dictation, and
there is no evidence that she had available to her any re-
cords or correspondence dealing with employee or labor
relations . I find that she was an eligible voter within the
terms of the stipulation for certification, and I recommend
that her ballot should be opened and counted.
Theresa Madison: Theresa Madison was challenged by
FEDERAL PRESCRIPTION SERVICE, INC.
the Union as a casual employee . The evidence reveals that
she was a full-time keypunch operator employed in Des
Moines , Iowa , and that occasionally she helped Respondent
out by working on a Saturday when additional keypunching
was to be done . The record reveals that she worked a total
of 46 hours in the year 1969, on 12 separate days , working
from 1-2/3 to 7-1 /3 hours a day. In the year 1970, she did
not work at all until October 9. From October 9, 1970,
through the end of that year she worked 57 hours, and
between January 8 and April 2 , she worked 68 hours. She
has not worked since April 2 . In the year 1971 she worked
a total of 11 weeks . I find that Theresa Madison was a
casual employee working irregularly on a need basis. The
apparent regularity of her employment between October
and April preceding the election is explainable by evidence
adduced by Respondent that during that period of time a
keypunch operator was needed because of a special project
which was discontinued thereafter . I find that she is ineligi-
ble as a casual employee ; 16 the challenged is sustained.
Vicki Polich : Vicki Polich was challenged by the Union
contending that she was no longer an employee . The record
reveals that Vicki Polich ceased work at the request of her
father when the strike started, but with a determination to
return after the strike . The record reveals that after the
strike cooled down after the election she did in fact return
to work and worked regularly on a full-time basis through-
out the month of June . She is still an employee of Respon-
dent . Clearly Miss Polich is in no different position than the
strikers insofar as her employee status is concerned. Her
testimony is that she informed her supervisor at all times
that she was planning to return to Respondent's employ.
Accordingly she was an eligible voter and her ballot should
be opened and counted.
Marian Danks , Pam Herrstrom , Leanna Lincoln and Jac-
queline O'Donnell were all challenged by the Union on the
ground that they were casual employees . The record reveals
that all four of them are students in various schools around
Iowa.
Generally speaking, the Board includes students in a bar-
gaining unit if their "community of interest" coincides with
that of the employees and if they work regular part time or
full time . The key word appears to be regular. Respondent
contends that its student employees are regularly employed,
although they may not work at all during the school term
or may work only an occasional Saturday during that time,
because they are regularly scheduled in to work during the
summer months and during Christmas and Easter holidays
when the housewife employees of Respondent normally
cease work . Thus the students have a certain continuity.
This would put them in a classification , if one were to at-
tempt to pigeonhole them, of regular seasonal part-time
employees . The records furnished by Respondent would
seem to bear out the regularity of their employee relation-
ship . Respondent presented evidence that in the year 1969
Leanna Lincoln worked a total of 444 hours in 12 weeks, in
1970 a total of 467 hours in 12 weeks and in 1971 , through
June 25 , a total of 77 hours in 6 weeks . In 1970 Marian
Danks worked 15 weeks or a total of 541 hours , and in 1971,
16 General Stencils, Inc., 178 NLRB 108
995
9 weeks for a total of 201 hours . Jacqueline O'Donnell in
1970 worked 571 hours in 16 weeks , and 171 hours in 6
weeks of 1971 . Pam Herrstrom worked 481 hours in 14
weeks in 1970 and in 1971 worked 78 hours in 3 weeks.
Other records showing a breakdown of the periods of time
worked reveal that in 1969 Leanna Lincoln , starting in the
week of June 8 , worked 4 weeks through the week of August
17 and not thereafter . In 1970, starting on June 5, she
worked 4 weeks through August 21 and not thereafter, in the
year 1971 she worked 18 hours in the week of February 19,
31-1/2 hours in the week of April 9 , 3 hours in the week of
April 16 , 8 hours in the week of April 23 and 8 hours in each
of the weeks of June 11 and 18 , apparently she was not
employed in the week of June 25 which is as far as the record
revealing her employment goes. Jackie O'Donnell worked
first in the year 1970, starting with 24 hours in the week of
May 29 she worked 4 weeks through the week of August 21,
then worked the week of Thanksgiving and the week before
Christmas, in 1971 she worked the week before Easter, a
half day in the week of April 9 and a day in the week of
April 16 and commenced full-time employment on June 11.
Marian Danks in 1970 worked 4 weeks from June through
August 28 with the exception of 1 week, that of July 31;
worked a week before Thanksgiving , 2 weeks during the
Christmas holidays , a half day in the week of January 11,
a week before Easter , a half day the week of April 16, and
half day the week of April 23 , a half day the week of May
13, 4 days the week of June 4 and full time thereafter. In
1970 Pam Herrstrom worked full time from June through
August 28 , except for the week of July 31; she worked 12
hours the week of December 25 and a full week between
Christmas and New Year 's; she worked 7 hours the week of
April 16 and 32 hours the week of June 4; she is not shown
to have worked thereafter.
The position of Respondent regarding these employees as
regular seasonal part-time employees is surely tenable and
the working record of at least three of the employees exclud-
ing Pam Herrstrom would appear to bear it out, however,
the testimony of President Sandahl casts considerable
doubt on the validity of the position . Sandahl testified that
these people were counted as part of the regular work people
they would call in and if the Respondent needed them they
would schedule them in to work , on the other hand some-
times Respondent would have need of the students and
would call them and ask if they would be available to work
on given weekends. Generally speaking they worked during
times when school was not in session if the Employer need-
ed them. "We didn't make jobs for them , either the job was
there or it wasn't there , but they were scheduled in on that
basis." I find with regard to these four employees that they
were not regular employees in the sense in which the Board
uses that term , but were casual employees in that they were
usually available to work when school was not in session,
and were called to work when Respondent had need for
them . There obviously were far more students available
than there were jobs available in the summertime , so that
in the event a student was not available for one reason or
another during the summer another could be fitted into the
slot. There is no indication that any of these students were
taking courses related in any way to Respondent's work
and, in fact, it appears that some of them were taking cours-
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
es an end to which would put them into positions other than
those offered by Respondent . I believe all four of these
employees were casual employees within the Board's use of
that term, and were not within the unit . The challenges to
their ballots , accordingly, are sustained.
The three remaining employees are also students. They
are Merritt Hansen , Gary Rasmusen and Sheri Sandahl.
These were not on the list, and were challenged by the
Board agents . Merritt Hansen is the daughter of Richard
Johann and the wife of Steve Hansen , whom I considered
above . Gary Rasmusen is the son of Roland Rasmusen, vice
president, and Sheri Sandahl is the daughter-in-law of Presi-
dent Craig Sandahl . All three presented themselves to vote
at the suggestion of Rasmusen when the Union determined
that it would challenge the students and Karen Burke. The
three employees are all students . Gary Rasmusen worked 2
full weeks and 14 hours in a 3rd week during August, and
worked 20 hours the week of Christmas, in the year 1970.
In 1971 he worked partial weeks the week of January 3 and
10, and the full week of April 11. He worked 5 hours in the
week of April 18, 30 hours in the week of May 30 and full
time through June , July and August. Merritt Hansen
worked part weeks in 1970 . In the first 2 weeks in September
and in the 5-week period commencing February 7 she
worked about half time . She worked 7 hours the week of
March 14, 6-1/2 the week of March 21, 9 hours the week of
April 1, 23 hours the week of April 11, 14 hours the week
of April 18. She worked sporadically, never more than 27
hours a week , between May and August 8 except that she
worked the full week ending June 21.
According to the Company's records Sheri Sandahl never
worked before the week of April 18, 1971, worked 31-1/2
hours that week , 38 hours the week of April 25, 39 hours the
week of May 2, 19 hours the week of May 9, 40 hours the
week of May 16, and does not appear to have worked for
the Employer since.
The General Counsel contends that these three employ-
ees do not belong in the unit because of their relationship
with the Employer ; also because they are casual employees.
They are obviously much more casual than the four stu-
dents that I discussed above and without considering their
relationships, I do not believe they belong in the unit. It is
notable that Sheri Sandahl never worked before the strike
and worked only 4 full weeks during the strike . Respondent
contends that none of the three have any special privileges
as a result of their relationship with the owners of the Com-
pany. Presumably the rule that they are not expected to
work unless Respondent has need for them applies to them
as well as to the other students . I would gather from the fact
that they were omitted from the list in the first place that
Respondent agreed at that time that they were casual em-
ployees or that their relationships were such that they
should not be included in the unit . It doesn't matter on
which ground the challenges are sustained . I recommend
that they be sustained on the ground that they are casual
employees.
Conclusions With Regard to Challenges
As I've discussed above, I recommend that the challenges
to the ten employees laid off on April 2 be overruled. These
employees are:
Judy Allen Marjorie Huser
Geneva Battani John McCormick
Evelyn Burke Doris Novy
Marilyn Gohn Jo Ellyn Rathbun
Lois Geneser Beverly Storey
In addition I recommend that the challenges to the
votes of the following persons be overruled: Karen Burke,
Cathy Edwards, and Vicki Polich.
VII THE OBJECTIONS TO THE ELECTION
The Union objected to the conduct of the election on the
grounds that , because of the large number of challenges, the
election process was turned into a state of commotion and
the employees were therefore not permitted to cast their
votes under the laboratory conditions normally required by
the Board . I know of no case where the Board has held that
an extraordinarily large number of challenges is grounds for
setting aside an election . There is no evidence on the record
that the employees presenting themselves at the polls to vote
were disturbed by the challenge procedure and the chal-
lenge procedure is clearly contemplated within the defini-
tion of the Board's "laboratory conditions." Indeed, I'm
prepared to take administrative notice that there have been
many cases of elections conducted, particularly under strike
conditions, where all, or nearly all, of the employees who
presented themselves at the polls were challenged. Never-
theless , the Board has certified the results of such elections.
I recommend that the Union's objection be overruled.
The Board may properly consider evidence adduced in
the hearing, discovered in the postelection investigation of
activities of Respondent during the critical period, which is
the period between the filing of the petition on March 22
and the holding of the election on May 13, to determine
whether the election should be set aside, even though such
was not raised by the objections filed to the election. Most
of the violations of Section 8(a)(1) of the Act, found above,
took place prior to the filing of the petition. Only the inter-
rogation of employees by Johann on March 25, the threats
of Mrs. Johann that she would discharge the employees who
took data from the plant if she could prove that they had
done so, and possibly some of the interrogation by Mrs.
Johann of Diana Hamil, took place during the critical peri-
od. However, in addition to the 8(a)(1) activity, it is alleged,
and I have found, that 10 employees were terminated on
April 2 in violation of Section 8(a)(3) of the Act. That this
action on the part of Respondent would have an impact on
employees in the exercise of their protected rights is clear.
The Board has always found a violation of Section 8(a)(1)
Implicit in a violation of Section 8(a)(3). In the instant case
no inference need be drawn , the impact was clearly demon-
strated by the fact that the employees went on strike the
following day to protest the discharges and the Union has
at all times contended that the strike was an unfair labor
practice strike . I recommend that the election be set aside
on the evidence set forth above.
I conclude that in the circumstances of this case, with
substantial coercive conduct by Respondent before the fil-
ing of the petition and additional coercive conduct after the
filing of the petition , culminating in the discharge of 10
FEDERAL PRESCRIPTION SERVICE , INC. 997
employees , the conduct is of such a substantial nature that
it is improbable that its effects in employees ' minds could
be erased by the Board 's normal remedial orders . Accord-
ingly, assuming that the other elements of an 8(a )(5) viola-
tion are met herein , I believe that a bargaining order should
issue.
VIII THE 8(aX5) ALLEGATIONS
A. The Unit
The Union demanded recognition in a unit consisting of
all employees on March 12. The Employer declined recogni-
tion on March 17. Thereafter the parties stipulated that the
following collective-bargaining unit is appropriate.
All full-time and regular part-time employees of Feder-
al Prescription Service , Inc., and Drivex Co . at their
Madrid , Iowa , operation , including customer corre-
spondence , follow-up , janitor , maintenance , Massey-
Ferguson office , order preparation , printing and ship-
ping, but excluding pharmacists , all employees of
Hood Hair Products , Inc., guards and supervisors as
defined in the National Labor Relations Act, as
amended . [The appropriateness of this unit is alleged in
the complaint by the General Counsel and admitted by
Respondent in its answer and I find that it is an appro-
priate collective -bargaining unit.]
The employees who voted in the election , as I have dis-
cussed above in the section of this Decision relating to the
challenges , were not necessarily the employees in the unit as
it is spelled out above . Using the employee list, furnished by
Respondent at the joint conference on April 20 , which con-
tains 72 names , I have already dealt with the eligibility of
12, Barbara Clemens , Lucille Danks , Marian Danks, Mer-
ritt Hansen , Pam Herrstrom , L. A. Johann (Mrs. Richard
Johann), Leanna Lincoln , Theresa Madison , Jacqueline
O'Donnell, Gary Rasmusen , Eve Wisecup , and Sheri San-
dahl, all of whom I have found not to be in the unit. Two
persons appearing on the list , Ken and Ray Lansing, are
contended by the Respondent to be maintenance men. Ray-
mond Lansing took the witness stand and his testimony
revealed that he and his brother are farmers who have been
employed by Respondent doing construction and repair
work in and around the plants over a period of several years.
They work only when their farm work does not keep them
busy . Accordingly , their employment is mostly in the win-
tertime . They are paid on an hourly basis and are paid for
all supplies which they purchase for use in Respondent's
work . They are also employed by Sandahl in other enter-
prises which he conducts and have occasionally done work
for other persons not connected with the Respondent. They
work whatever hours they choose and do not punch a clock
although at the end of each week they turn in their own
reports of their hours and are paid on the basis of these
reports . They do not report to work unless they have con-
tracted to do specific jobs such as the installation of ceilings,
the repair of floors , repair of plumbing, and the like. On at
least one occasion, they assisted in unloading a truck; the
only work connected with production that they apparently
have engaged in. The rest of their time is spent on specific
projects . Normally, Sandahl lays out the jobs he wishes
them to perform . The pace at which they perform them, and
the manner in which they work , is left to them although
Sandahl generally inspects the job at regular intervals,
I conclude that the Lansing brothers are independent
contractors and are not within the unit.
Respondent maintains what it calls the contract payroll
for employees from whom no deductions are made. Most,
if not all, of the employees on the contract payroll are paid
$1.60 an hour with no deductions at all. The Lansings are
customarily paid on this payroll as are certain casual em-
ployees , such as boys hired to shovel snow in the wintertime
or to do other odd jobs . In addition, however , some of the
students and some of the regular employees are placed on
the contract payroll for short periods of time.
According to the testimony of Respondent 's officer, em-
ployees are placed on the contract payroll only at their
request . However, two employees testified that they were
placed on the contract payroll without having requested it.
Another employee , Howard McCormick , testified that he
was on the contract payroll for the first week of his employ-
ment ; thereafter , he was placed on the regular payroll. The
employees on the contract payroll do , for the most part,
exactly the same work as the employees on the regular
payroll ; no distinction can be made for unit purposes based
on an employee 's position on the contract payroll.
Diane Konchar , Cheryl Herrstrom , Patrice Severson, Di-
ane Battani and Gretchen Johann were students in the same
position as Marian Danks, Pam Herrstrom , Leanna Lin-
coln, and Jacqueline O'Donnell, whom I have found above
to be casual employees whose working habits were too irreg-
ular to warrant their inclusion in the unit . The five girls were
not included in the employee list used at the joint confer-
ence on April 20 , 1971, and approved by Attorney Rogers
and Business Agent Detweiler . It would appear that Re-
spondent did not take the position that these five students
should be members of the unit until after the complaint
issued . I conclude as I did with the students who appeared
and voted that these five girls are not employed within the
unit and should not be counted.
Steve Hansen , the son-in -law of Vice President Johann
was found above to occupy an anomalous position with
Respondent . I find that he is not appropriately part of the
unit as a relative of management obviously occupying a
special position . Although not supervisory in the normal
sense of the word, Hansen has exercised authority over the
employees . He is salaried; he does not punch a timeclock;
and he otherwise appears to be favored as a result of his
family situation . I shall exclude him from the unit also.
The demand was sent by the Union through the mail on
March 12 and received on March 15. Mary Lee Madson left
Respondent 's employ on March 12 and Jill Peterson be-
came an employee between the 12th and the 15th. I shall
exclude Mary Lee Madson and include Jill Peterson in the
unit inasmuch as the demand , having been made by mail,
was not perfected in my opinion until it was received on
March 15.
As a result of the considerations set forth above, it ap-
pears that on March 15 , at the time the demand was re-
ceived by the Respondent , Respondent had in the unit
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed to by the parties a total of 63 employees."
B. The Showing of Interest
The General Counsel produced cards signed by 37 em-
ployees, one of whom was Mary Lee Madson whom I have
excluded because she left the Respondent's employ on
March 12 . This leaves a total of 36 card signers who were
employed on the key date, March 15.
Vicki Polich testified that she signed a card only because
the Union's business agent , Gettler, told her that she
wouldn 't be able to vote unless she signed a union card. She
testified that this was told her at the union meeting on
March 16, 1971; that it was not said to her personally but
was stated to the people in attendance at the meeting. Gett-
ler denied making such a statement and other employees
denied hearing such a statement made at the meeting. No
corroboration was afforded by any witness called by the
Respondent . I do not believe Miss Polich. I believe either
that she misunderstood something Gettler said or that her
testimony is colored by the animus against the Union which
she displayed on the witness stand . While it is not disposi-
tive of the representation issue , inasmuch as the Union
clearly with or without her card has demonstrated its major-
ity representation as of the time of the receipt of the de-
mand, nevertheless I count her card. I find that at the time
of the demand the Union represented a majority of the
employees in the appropriate collective-bargaining unit.,,
Conclusions Regarding the
Refusal To Bargain
I find above that the Respondent , after the filing of the
petition, committed unfair labor practices which warrant
setting aside the election in the event that the Union is not
shown to have won it when the challenged ballots are
opened and counted . I also find above that the course of
conduct of Respondent, which included unfair labor prac-
tices committed before the filing of the petition , after the
filing of the petition , before the election and the discharge
of two union employees after the election , constitutes unfair
labor practices which have a tendency to undermine the
Union's majority strength and impedes the election process
and renders it improbable that the Board 's traditional reme-
dies would insure a fair rerun election . Accordingly, I find
in the words of the Supreme Court "that employee senti-
ment once expressed through cards , would, on balance, be
better protected by a bargaining order.... " (Gissel, su-
pra,) I find Respondent's refusal to recognize and bargain
with the Union in these circumstances to be in violation of
the provisions of Section 8(aX5) and (1) of the Act. I shall
therefore recommend, in the event the election conducted
pursuant to Case I8-RC-8603 does not result in the Union
winning when the revised tally of ballots is issued , that it
shall be vacated and set aside and the petition in said case
"A listing of the 63 employees appears attached hereto and marked
"A,pendix A."
Respondent challenges the cards of John McCormick and Rae Jean
Todd who each signed two cards and identified them in their testimony.
Respondent's challenge is based upon an intricate chain of inferences , unsup-
ported by evidence and insufficient to counter the direct and apparently
truthful testimony of the card signers . I find that both signed cards on March
9, the date the cards bear.
be dismissed.
IX THE EFFECT OF THE UNFAIR
LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occur-
ring in connection with the operations of the Respondent
described in section I, above , have a close , intimate, and
substantial relationship to trade , traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
X. THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, certain unfair labor practices , I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act. In view of my finding that Respondent unlawfully
discharged Judy Allen, Geneva Battani , Evelyn Burke,
Marilyn Udorvich Goh, Lois Geneser, Marjorie Huser,
John McCormick, Doris Novy, Jo Ellyn Rathbun, and Bev-
erly Storey, I shall recommend that Respondent be ordered
to offer each of them immediate and full reinstatement to
his former job or , if that job is not available to a substantial-
ly equivalent position, without prejudice to his seniority and
other rights and privileges. I shall further recommend that
each of them be made whole for any loss of earnings suf-
fered by reason of his discharge, by paying each of them a
sum of money equal to that which he would have earned as
wages from the date he was terminated to the date of rein-
statement, or a proper offer of reinstatement , as the case
may be , less his net earnings during such periods . Backpay
is to be computed on a quarterly basis in the manner estab-
lished by F. W. Woolworth Company, 90 NLRB 289, with
interest thereon at 6 percent calculated according to the
formula set forth in Isis Plumbing & Heating Co., 138 NLRB
716. I also recommend that Respondent preserve and make
available to the Board or its agents , upon reasonable re-
quest , all pertinent records and data necessary to aid in
analyzing and determining whatever backpay may be due.
I have found, in addition, the Respondent discriminatorily
discharged Terry Edwards and Helen McCormick. Howev-
er, the record reveals that Terry Edwards and Helen Mc-
Cormick were on strike at the time of their discharges, and
that the strike continues. Although this is an unfair labor
practice strike , there is no showing that these two ladies
would have returned to Respondent's employ if they had
not been discharged . Accordingly, I shall recommend as to
them that Respondent rescind the discharges of these two
employees and mail them letters so stating , correcting its
records insofar as these two employees are shown to be
discharged.
The Respondent contends that it should not be required
to reinstate Evelyn Burke, one of the employees it dis-
charged on April 2, because of her misconduct during the
strike. I have found that Helen McCormick and Terry Ed-
wards , discharged for similar alleged misconduct , are the
victims of discrimination by Respondent. As a result of that
discharge, I find that the evidence of misconduct by Evelyn
FEDERAL PRESCRIPTION SERVICE, INC.
Burke is no different than that with regard to Helen Mc-
Cormick and Terry Edwards. Accordingly, I reject
Respondent 's contention that the incident relating to Mrs.
Burke is of such an outrageous nature as to render her unfit
for further employment by Respondent.
Inasmuch as the alternatives set forth above provide ei-
ther that the Union win the election, in which case Respon-
dent must bargain with it, or that the election be set aside,
and the bargaining order issued , it is my recommendation
that, in order to save time, too much of which has already
been spent on this matter, the challenged ballots should not
be counted, but the election should be set aside, without
further ado , and the bargaining order issued . Respondent
has not throughout this matter shown a willingness to com-
ply with the terms of the Act and there is nothing in the
record herein that would lead me to believe that it will
hereafter be any more willing to recognize and bargain with
the Union than it has been in the past. The unfair labor
practices shown to have been committed are of such a na-
ture that they warrant the immediate issuance of a bargain-
ing order ; the issuance of a decision and direction to open
the ballots can at best lead only to the imposition of the duty
to bargain if the Union prevails , and no bargaining order
will at that time issue . While it is true that a certification
provides certain benefits to the Union, I believe that in this
case, an order to bargain will provide benefits exceeding
those which the Union would gain by achieving certification
through the election process. Accordingly, I shall recom-
mend that the election be set aside , the petition for election
be dismissed and that a bargaining order issue.
Respondent contends that an order to bargain is inappro-
priate because the Union engaged in a deliberate plan of
intimidation against Respondent and the nonstriking em-
ployees. This contention was first raised at the hearing, at
which time Respondent through counsel stated that it had
evidence concerning ( 1) the following of cars, forcing them
off the road on public highways; (2) mass picketing and (3)
voicing of verbal threats. Counsel at that time could refer
me to no authority that activities by the Union of such
nature had ever been held to be so invidious that the Union
should be barred from a bargaining order.
In its brief Respondent cites the Board 's decision in
Laura Modes Co., 144 NLRB 1592, and N.L.R.B. v. United
Mineral & Chemical Corp., 391 F.2d 829 (C.A. 2, 1968), in
support of its contentions. In Laura Modes the misconduct
on which the Board rested its decision to require that the
employees reaffirm their choice of the union in an election
consisted of an unprovoked beating of one of the partners
comprising the employer, and the "pushing around" of fe-
male office employees before the filing of a petition and a
beating administered to another of the partners by four men
during a subsequent strike. In the United Minerals case the
court refused to enforce an order that the employer should
bargain with a union which had over a period of time led
a strike during which the owner was attacked and beaten so
severely that he was hospitalized for several weeks and inca-
pacitated for over 5 months and various male and female
employees were physically assaulted and beaten by strikers.
Both of the cited cases go back to the Fansteel deci-
sion9 and both deal, as did Fansteel with "unprovoked and
999
irresponsible physical assaults." 20
In the instant case the proffered evidence amounts to
automobile following , mass picketing and a single verbal
threat . No physical assault took place ; there was neither
physical nor property damage zI
The Board has issued bargaining orders in many cases
where incidents such as those found here were shown to
have taken place . Recently, in World Carpets of New York,
Inc., 188 NLRB 122, in a supplemental decision after
remand from the court of appeals (403 F.2d 408 (C.A.2,
1968)) the Board considered a case where there was similar
following of cars of nonstrikers , threats of physical harm,
brandishing of sticks or ball bats and two incidents of minor
shoving of nonstrikers-in short a somewhat less innocuous
situation than shown here and rejected the employer's con-
tention that no bargaining order should issue . I believe that
decision rules this . Accordingly I reject Respondent's con-
tention.
The Union suggests that Respondent should be ordered
to reimburse the Union under the rule enunciated in Tiidee
Products, Inc., 194 NLRB 1234. I do not deem the refusal
to bargain herein so "brazen" nor the litigation so'4'frivo-
lous" that such an order is warranted . Accordingly I shall
not so recommend.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
2. Amalgamated Meat Cutters & Butcher Workmen of
North America, AFL-CIO, and its Local P-1149, are each
of them labor organizations within the meaning of Section
2(5) of the Act.
3. All full-time and regular part-time employees of Fed-
eral Prescription Service, Inc., and Drivex Co., at their Ma-
drid, Iowa, operation including customer correspondence,
follow-up, janitor, maintenance, Massey-Ferguson Office,
order preparation, printing and shipping, but excluding
pharmacists, all employees of Hood Hair Products, Inc.,
guards and supervisors as defined in the National Labor
Relations Act, as amended, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. The Union has been the exclusive representative of all
employees in the aforesaid unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the Act,
since March 15, 1971.
5. By failing and refusing to meet and bargain in good
faith, on and after March 15, 1971, with the Union as the
exclusive collective-bargaining representative of the em-
ployees in the appropriate unit described above with respect
to rates of pay, wages, hours of employment and other terms
19 N L R.B. v Fansteel Mettallurgical Corp., 306 U.S 240, 257-258 (1939).
20 Laura Modes, supra
21 Respondent somewhat hyperbolically refers to an "incendiary device"
found by a nonstriking employee in her unlocked trailer. The proffered
evidence consists of the employee 's testimony that she entered her trailer
when she returned home from work and smelled gas or fuel. She found her
rug "soaked with oil" and an open book of matches and a cigarette butt on
the floor. There is no evidence linking this with either the Union or the
striking employees.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and conditions of employment , Respondent has engaged
and is engaging in unfair labor practices within the meaning
of Section 8(aX5) of the Act, and has thus interfered with,
restrained, and coerced employees in the exercise of their
rights guaranteed in Section 7 of the Act, and has thus
engaged and is engaging in unfair labor practices within the
meaning of Section 8 (axl) of the Act.
6. By discharging Judy Allen, Evelyn Burke , Geneva
Battani, Lois Geneser , Marilyn Udorvich Gohn, Marjorie
Huser, John McCormick , Doris Novy, Jo Ellyn Rathbun,
Beverly Storey, Terry Edwards and Helen McCormick, Re-
spondent discouraged membership of its employees in Am-
algamated Meat Cutters and Butcher Workmen of North
America , AFL-CIO, and its Local P-1149, by discrimina-
tion with regard to tenure of employment or terms and
conditions of employment of the above-named persons.
7. By coercively interrogating its employees concerning
their and other employees ' concerted aid union activities,
by interfering with its employees ' meetings in connection
with the Union, by threatening that employees would be
discharged for engaging in activities on behalf of the Union,
by moving its employees so that they worked under closer
supervision, by restricting their movements in their work
area in order to interfere with their concerted or union
activities and by urging its employees to reject the Union
and promising benefits to them if they did so , Respondent
has interfered with , restrained, and coerced employees in
the exercise of their rights guaranteed in Section 7 of the
Act, in violation of Section 8(axl) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
9. Respondent has not committed other unfair labor
practices as set forth above.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case , and pursuant to Section
10(c) of the Act , I hereby issue the following recommended:
ORDER22
Respondent, its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Discharging employees or otherwise discriminating in
any manner with respect to their tenure of employment, or
any term or condition of employment , because they en-
gaged in concerted activity or activity on behalf of Amalga-
mated Meat Cutters and Butcher Workmen of North
America , AFL-CIO, or any other labor organization.
(b) Failing and refusing to bargain collectively in good
faith with Amalgamated Meat Cutters and Butcher Work-
men of North America , AFL-CIO, Local P-1149, as the
exclusive bargaining representative of all its employees
constituting the unit herein found to be appropriate for the
purpose of collective bargaining.
u 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.
(c) Interrogating employees in a manner violative of Sec-
tion 8(a)(1) of the Act.
(d) Promising employees benefits or improvements of
working conditions as an inducement to refrain from be-
coming or remaining a member of the above-named Union,
or any other labor organization , or threatening employees
with discharge for engaging in union activities.
(e) Changing working conditions of its employees and
restricting them in their activities in the plant, for the pur-
pose of interfering with their concerted or protected union
activities.
(f) Attending meetings of its employees held for the pur-
pose of engaging in concerted or union activities.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization , to form labor organizations , to join or assist
the above-named Union, or any other labor organization, to
bargain collectively through representatives of their own
choosing, or to engage in any other concerted activity for
the purpose of collective-bargaining or other mutual aid or
protection, or to refrain from any or all such activities,
except to the extent that such right might be affected by an
agreement to require membership in a labor organization as
a condition of employment as authorized in Section 8(a)(3)
of the Act, as modified by the Labor Management Report-
ing Disclosure Act of 1959.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to Judy Allen, Evelyn Burke, Geneva Battani,
Marilyn Udorvich Gohn, Lois Geneser, Marjorie Huser,
John McCormick, Doris Novy, Beverly Storey and Jo Ellyn
Rathbun, immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially equiva-
lent jobs without prejudice to their seniority and other rights
and privileges previously enjoyed by them, and make them
whole for any losses of pay they may have suffered, by
reason of Respondent 's discrimination against them, with
interest at the rate of 6 percent, as provided in the section
above entitled "The Remedy."
(b) Notify Helen L. McCormick and Terry Edwards that
they are not discharged and upon their application to return
to Respondent's employ they will be employed in their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent ones without prejudice to their seniority and oth-
er rights and privileges previously enjoyed by them.
(c) Upon request, recognize and bargain with Amalga-
mated Meat Cutters and Butcher Workmen of North Amer-
ica, AFL-CIO, Local P-1149, as the exclusive
representative of all the employees in the bargaining unit
described above and, if an understanding is reached, upon
request embody such understanding in a signed agreement.
(d) Post at its plant in Madrid, Iowa, copies of the at-
tached notice marked "Appendix B." 23 Copies of said no-
tice, on forms provided by the Regional Director for Region
18, after being duly signed by Respondent's authorized rep-
resentative, shall be posted by the Respondent immediately
23 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
FEDERAL PRESCRIPTION SERVICE, INC.
upon receipt thereof, and be maintained by it for 60 consec-
utive days thereafter , in conspicuous places , including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or 4govered by any
other material.
(e) Notify the Regional Director for Region 18, in writ-
ing, within 20 days from the date of the receipt of this
Decision , what steps the Respondent has taken to comply
herewith.24
IT IS FURTHER RECOMMENDED that the election held pursuant
to Case 18-RC-8603 be set aside and the petition for elec-
tion in said case be dismissed. It is further recommended
that the allegations of the complaint not herepnabove found
to be supported by the evidence be and they hereby are
dismissed.
24 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modifiiid to read : "Notify
the Regional Director for Region 18, in writing , within 20 days from the date
of this Order , what steps the Respondent has taken to 4omply herewith."
APPENDIX A
Freda Adams Margaret Knox
Dorothy Ahrens Dorothy Laird
Marabell Anthony Carolyn Larson
Judy Allen
Correne Barrett
Geneva Battani
Betty Bell
Linda Benson
Georgia Bozich
Bernardine Burke
Evelyn Burke
Shirley Burke
Nina Grace Clark
Bessie Davis
Pat Downing
Kathleen Edwards
Terry Edwards
Charlotte Fitch
Garnet Galetich
June Galteich
Lois Geneser
Angelina Gibbons
Nancy Gibbons
Mary Ann Good
Emma Grill
Diana Hamil
Doris Hite
Mildred Hoover
Peggy Hoover
Marjorie Huser
Sharon Kilzer
1001
Doris Lincoln
Opal Lincoln
Carol Madison
Lorraine Madison
Helen McCormick
John McCormick
Juanita McCoy
Margaret Niemier
Doris Novy
Icil O'Connell
Betty Peterson
Jill Peterson
Bernice Plummer
Violate Poindexter
Vicki Polich
Gloria Rasmusen
Jo Ellyn Rathbun
Sally Roberts
Imogene Seemann
Olga Sherman
Charlotte Simons
Carol Snider
Wildon Soderstrum
Beverly Storey
Rae Jean Todd
Marilyn Udorvich (Gohn)
Shirley Welder
Betty Williams
Donna Winters