Hub Pharmacy, Inc.

National Labor Relations Board - Board Decisions

Jan 7, 1975

216 N.L.R.B. 69 (N.L.R.B. 1975)

HUB PHARMACY, INC.
Hub Pharmacy, Inc. and Retail Clerks Union, Local
648 Retail Clerks International Association,
AFL-CIO. Case 20-CA-9175
January 7, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
On September 17, 1974, Administrative Law Judge
Richard D . Taplitz issued the attached Decision in
this proceeding . Thereafter , the Respondent filed
exceptions and a supporting brief , the Charging
Party filed a response , and the General Counsel filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings , findings,
and conclusions of the Administrative - Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Hub Pharmacy, Inc.,
San Francisco, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Administrative Law Judge's recommended Order.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLrrz, Administrative Law Judge: This
case was tried at San Francisco, California, on July 18,
1974. The charge was filed on May 7, 1974, by the Retail
Clerks Union, Local 648, Retail Clerks International
Association, AFL-CIO, herein called the Union. The
complaint issued on June 4, 1974, and, as amended at the
opening of the trial, alleges that Hub Pharmacy, Inc.,
herein called Respondent, violated Section 8(a)(5) and (1)
of the National Labor Relations Act, as amended.
I The unopposed motion of counsel for the General Counsel to correct
the transcript of the record is granted as follows On p 28, 1 4, "1974" is
hereby changed to "1973 "
2 Cf Bagel Bakers Council of Greater New York and its Employer-
Members, 174 NLRB 622, 623, 628, enfd . in pertinent part 434 F 2d 884
(C A 2, 1970)
3 The parties stipulated and I find that "During the calendar year
ending December 31, 1973, Broemmel Pharmacy , Bowerman Pharmacy,
Burton Pharmacy, Cal-Medical Pharmacy, Golden Gate Pharmacy,
Issue
69
The primary issue is whether Respondent refused to
bargain with the Union in violation of Section 8(a)(5) and
(1) of the Act by repudiating an agreement that had been
reached and withdrawing from a multfemployer bargaining
unit after its bargaining agent had commenced negotia-
tions with the Union.
All parties were given full opportunity to participate, to
produce relevant evidence , to examine and cross-examine
witnesses , to argue orally , and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record 1 of the case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a California corporation engaged in the
retail pharmaceutical business with its principal place of
business in San Francisco, California. Respondent is a
member of the San Francisco County Pharmaceutical
Association, herein called the Association. For those
members who authorize the Association to do so, it
bargains on a multiemployer basis with the Union. About
60 percent of the Association's 100 members have granted
such authority. The question of whether the Association is
authorized to represent Respondent is a central issue in
this case. The General Counsel has not alleged or proven
that Respondent meets the Board's jurisdictional standards
on an individual basis. The complaint alleges jurisdiction
based on Respondent's participation in the Association's
multfemployer bargaining unit. Jurisdiction is therefore
established only if the General Counsel is successful in
proving that Respondent is part of that multiemployer
unit.2 The parties have stipulated to facts which establish
that employer participants in the multiemployer bargaining
unit are subject to the Board 's jurisdiction.3
I therefore find that the Association and its employer-
members who are part of the multiemployer bargaining
unit mentioned above are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. My finding
with regard to the status of Respondent is deferred until
the issue of multiemployer bargaining unit is hereafter
considered and resolved.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
Hubbard Pharmacy , and Physicians Pharmacy were engaged in the
operation of retail drug stores, were engaged in the retail sale of drugs and
other merchandise, and were , among others , employer-members of the San
Francisco County Pharmaceutical Association , and were part of the multi-
employer bargaining unit described in paragraph VI of the complaint
During the calendar year ending December 31 , 1973, said pharmacies, in the
course and conduct of their business operations , sold goods at retail valued
in excess of $500,000 and purchased and received goods valued in excess of
$10,000, directly from suppliers located outside the State of California"
216 NLRB No. II
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events
1. Background
The Association conducts continuing educational pro-
grams , represents the Association before government
bodies, and performs many services required by its
members. For the last 20 years the Association has
engaged in multiemployer collective bargaining with the
Union on behalf of those of its members that have
authorized it to do so. About 60 of the Association's 100
members have authorized the Association to represent
them in such collective bargaining. For many years the
Association, on behalf of those members, has had
successive collective-bargaining contracts with the Union.
It is stipulated and I find that Respondent was bound by
the 1970-73 contract. Respondent contends that since the
expiration of that contract it has not been a part of the
multiemployer unit.
It was also stipulated and I find that the bargaining unit
covered by the 1970-73 contract was:
All employees of employer-members of the San
Francisco County Pharmaceutical Association per-
forming work and services connected with or incidental
to the handling or selling of all merchandise employed
by employer-members of Employer's Association,
including Respondent, excluding culinary employees,
retail delivery employees, office clerical employees,
guards and supervisors as defined in the Act .4
It was further stipulated and I find that unit was and is
appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act. While conceding
that the unit is appropriate, Respondent contends that it is
not included within that unit.
On October 2, 1970, Respondent, through its president,
Michael Goldstein, executed an authorization which
stated:
I hereby ailthorize and empower the SAN FRANCIS-
CO PHARMACEUTICAL association to negotiate on
my behalf with Retail Clerks' Union, Local 648, and
agree to accept and be bound by any modifications so
negotiated after they have been approved by the San
Francisco County Pharmaceutical Association.
A copy of the authorization was given to the Union.
The 1970-73 contract was executed by the Association
and the Union on March 18, 1971, and was effective from
November 1, 1970, to October 31, 1973. That contract
provided for a year-to-year renewal unless a notice was
given to modify or cancel at least 60 days prior to the
expiration date. The contract contained a union-security
clause and 98 or 99 percent of the employees who worked
more than 30 days were members of the Union. About 300
employees are covered by the contract.
4 It is clear from the credited testimony of Alvin J. Pezner , executive
secretary of the Association , that the expression "employer-members,"
It is the practice of the parties to have the contract signed
by the Association rather than by the employer-members.
2. The 1973 negotiations
On August 28, 1973, the Union sent to the Association a
notice of its desire to change the contract. A copy of the
notice was sent to the employer-members of the Associa-
tion including Respondent.
On June 12, 1973, in anticipation of the Union's notice,
the Association held a meeting at which a negotiating
committee was formed. Notice of that meeting containing
questions relating to counterproposals had been sent to all
the members of the Association including Respondent.
On September 26, October 3, 10, 15, 24, and 31, and
November 19 and 26, 1973, the Association and the Union
met and bargained collectively with respect to the rates of
pay, wages, hours of employment, and other terms and
conditions of employment of the employees employed by
the employer-members of the Association in the multiem-
ployer bargaining unit.
On November 13, 1973, the employer-members of the
Association held a meeting in which the progress of
negotiations was discussed. Notice of that meeting was sent
to Respondent.
At the November 26, 1973, meeting between the
Association and the Union an understanding was reached
on the terms of a collective-bargaining agreement for 1973-
76. It was further agreed that the understanding was
subject to ratification and approval by the employees in
the multiemployer bargaining unit and by the employer-
members of the Association before it was to become final
and binding.
On September 26, 1973, when negotiations began, no
new authorization cards had been signed by the employer-
members of the Association authorizing the Association to
bargain for them. At the end of October or beginning of
November 1973 the Association sent out new authorization
cards for signature by the employer-members. By Decem-
ber 3, 1973, some 44 employer-members had signed ' the
authorizations and by the date of the trial, July 18, 1974,
about 60 employer-members had signed. As of the day of
the trial, Alvin J. Pezner, the executive secretary of the
Association and the owner of one of the employer-
members, had not signed. He credibly testified that it was
his practice to sign the authorization at the same time the
contract was executed. Respondent is currently a member
of the Association with paid-up dues, but it has not signed
the 1973 authorization. There is no written rule in the
Association's bylaws or anywhere else requiring members
who want to be represented for bargaining to submit
written authorizations.
On December 4, 1973, the Association held a meeting
with its members in which the November 26 agreement
was discussed. A notice of that meeting had-been sent to
Respondent. On or about December 5, 1973, the employ-
ees in the multiemployer bargaining unit ratified and
approved the agreement that had been reached on
November 26 . Sometime in January 1974, the employer-
when used in describing the collective-bargaining unit, referred only to
those members who have authorized the Association to bargain for them
HUB PHARMACY, INC. 71
members of the Association ratified and approved that
agreement . Although the dual ratifications made the
November 26 agreement a final and binding collective-
bargaining agreement between the Association and the
Union,5 the contract had not yet been executed as of the
date of the trial. The Union had drafted its understanding
of that contract but the Association disagreed with some of
the language and that disagreement was still being
discussed. The primary dispute related to the compensa-
tion of certain relief pharmacists. Pezner, the executive
secretary of the Association, credibly testified that the
contract is retroactive to November 1, 1973, but as it was
not yet executed, some of the members were voluntarily
paying the increases and some of them might not be paying
them.
At the first negotiating session of September 26, 1973,
the Union asked the Association for a list of the employer-
members who were represented by the Association.
William E. Price, Jr., the vice president of the Union,
credibly testified that he sought a current list of whom the
Association represented because there could have been
stores opening or closing. The Association did not furnish
a list at that time saying that it was being prepared. The
Union requested the list on a number of occasions
thereafter but it was not until about May 15, 1974, that the
Association furnished the Union with a partial list. That
was well after negotiations had been completed and the
agreement ratified. The Association furnished the Union
with a second list in early July 1974. Respondent's name
did not appear on either list. The Union has not been
supplied with copies of the new authorizations of any
employer-members.
3. The discussions between the Respondent and
the Union and Respondent's letter of March 5,
1974
William E. Price, vice president and business representa-
tive of the Union, had conversations with a number of the
employer-members of the Association while making his
rounds as business representative. In mid-November 1973
(the negotiations with the Association had been going on
since September 26, 1973), Price had such a conversation
with William F. Campana, the executive vice president of
Respondent.6 Campana said that he had heard that the
Union was seeking double time on Sunday and holidays
and an additional night premium,.and that it would be
almost impossible for Respondent to live with that. They
discussed the fact that the Union's proposals would only
affect a relatively few stores in San Francisco. Campana
said that he would go back to his committee and see if they
could give them some relief.? Subsequently, Price discussed
the matter with Eric C. Lyons, the president of the Union,
and they decided that they would drop those proposals. In
subsequent negotiations with the Association, they did in
S This finding is based on the admission of Respondent in its amended
answer
6 Campana , as well as Michael Goldstein , the president of Respondent,
has authority to hire and discharge employees I find that they are both
supervisors within the meaning of the Act.
7 These findings are based on the testimony of Price and Campana,
which was in substantial agreement
9 These findings are based on the credited testimony of Price . Campana
fact withdraw those proposals. Two or three weeks after
Price's conversation with Campana, he saw Campana
again and told him that the Union had dropped the
proposals that Campana had objected to relating to night,
Sunday, and holiday premiums . Campana replied, "Well,
that's really great . That could certainly help us." Price
replied, "Well, that's good," and left.
In January 1974 (which was well after the November 26,
1973, agreement had been reached between the Union and
the Association), Price had a third conversation with
Campana. This time Michael Goldstein, Respondent's
president, was also present. Campana and Goldstein told
Price that they had objections to the contract and they did
not feel that they could live with it. Price said that he
thought their objections had been met as the Union had
dropped the things they had objected to. Campana then
said that his auditor told him that they could not afford to
pay union wages. Price replied that they showed a lack of
good faith in that the Union had dropped the proposals
they had objected to and now they had further objections.
Campana told Price that if they could have status quo and
continue with the old contract, they would do so and pay
the old rates . Price replied that an agreement had been
negotiated .8
On' or about March 11, 1974, the Union received the
following letter dated March 5, 1974, from Respondent:
Pursuant to my conversation with Mr. William Price
over the past 2 months, I am writing this letter to
inform you that Hub Pharmacy, Inc. will not be
renewing its Union Contract.
All avenues of solution have been discuess [sic] with
our accountants and auditors and the only one which
can solve our financial dilemma is not to continue with
the Union.
Sincerely,
/s/ Michael Goldstein
President
. A week or two after receipt of that letter, Price had
another conversation with Goldstein. Price asked Gold-
stein whether he had reconsidered and whether he
intended to sign the contract. Goldstein replied that it
would be financially impossible for hire to do so.9
4. Respondent's contentions
The General Counsel's theory of the case is that
Respondent attempted an untimely withdrawal from the
multiemployer bargaining unit. Respondent, on the other
hand, contends that there is no "withdrawal" issue in that
Respondent had never been a member of the Association
for the purposes of bargaining for the 1973-76 contract.
Respondent therefore argues that the case law to be
and Goldstein testified in substantial accord , but they also averred that
Price asked whether they were going to sign the contract . Price acknowl-
edged in his testimony that in a subsequent conversation he did ask
Campana and Goldstein whether they intended to sign . I credit Prices'
assertion that this subject was brought up in that subsequent conversation
9 This finding is based on the testimony of Price and Goldstein, which
was in substantial accord
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applied is that dealing with whether a company enters into
a multiemployer bargaining unit rather than whether it
withdraws from one.
Pezner, the executive secretary of the Association,
testified that prior to each contract the Association always
sent out a request for new authorizations . He averred that
there was no ongoing authorization and that the authoriza-
tions for each separate contract expired with the contract.
In substance , his testimony was that there was no
continuing authorization from the 1970 authorizations that
could apply to the 1973 negotiations . He averred that it
was the practice of the Union to get stores who were not
represented by the Association to sign or not sign on their
own and that the Association only represented those stores
that signed an authorization.
Campana, an officer of Respondent, testified that he did
not sign a 1973 authorization and that he had the
understanding the Respondent would not be in the
Association for bargaining purposes . He did not explain
what his understanding was based on.
Price, the vice president of the Union , acknowledged
that he was familiar with the practice of the Association of
requesting signed authorizations from employer-members
and that he had seen such authorizations in the past. As
indicated above , he repeatedly asked for a list of the
employer-members represented by the Association but he
was not shown it until after the November 26, 1973,
agreement had been reached.
In its brief Respondent argues that the Union attempted
to have Respondent sign separately from the Association
because it knew that Respondent had not authorized
bargaining by the Association. I do not believe that the
facts set forth above can support the conclusion that the
Union engaged in any individual bargaining with Respon-
dent . Respondent received a number of notices concerning
the bargaining going on between the Union and the
Association . When negotiations with the Association were
nearing completion Respondent raised its objection to the
premium pay proposals of the Union. The Union did not
bargain with Respondent about those objections. The
Union continued bargaining with the Association and
withdrew those demands in the course of that bargaining.
In January 1974 when Campana and Goldstein asked Price
if they could continue with the old contract, which would
have been on an individual basis, Price refused . Price did
ask Goldstein whether he had reconsidered his letter of
March 5, 1974, and whether he intended to sign the
contract, but that was after Goldstein had notified the
Union in writing that Respondent would not "continue
with the Union." Price 's reference to the signing of a
contract was simply another way of asking whether
Respondent had changed its mind since writing the letter.
In determining whether this case involves a withdrawal
from the multiemployer unit as opposed to an initial entry
into that unit for the 1973 negotiations , the actions of the
parties as well as the explanations concerning their
subjective understandings must be considered.
B. Analysis and Conclusions
Multiemployer bargaining is consensual in nature. No
such relationship can exist in the absence of assent by all
the parties. A formal delegation of authority is not needed
to establish a multiemployer bargaining unit as long as the
members of the group have unequivocally indicated their
intention to be bound by group rather than individual
bargaining . N.LR.B. v. Dover Tavern Owners' Association,
412 F.2d 725 (C.A. 3, 1969).
Respondent, in its brief , argues that the instant case is
analogous to the situation in Don Mendenhall, Inc.; 194
NLRB 1109 (1972). In the Mendenhall case , the Board
refused to find that an employer was bound by multiem-
ployer bargaining where the employer did not submit a
new power of attorney to an association . However, other
factors in that case render it inapposite . In Mendenhall the
prior contract had covered only the members of the Union.
The Union was, therefore, not the exclusive representative
of all the employees in the bargaining unit . The Board
specifically noted that member -only recognition does not
satisfy statutory norms . In addition , in the Mendenhall case
the Association's bylaws required members to submit new
powers of attorney before the negotiation of each new
agreement . In the instant case , the Association 's bylaws
contain no such requirement.
The Board has set forth rules to insure the stability of
multiemployer bargaining units once they have been
voluntarily established . Those rules were set forth in Retail
Associates, Inc., 120 NLRB 388, 395 (1958), where the
Board held:
Among other things, the timing of an attempted
withdrawal from a multiemployer bargaining unit, as
Board cases show , is an important lever of control in
the sound discretion of the Board to ensure stability of
such bargaining relationships. We would accordingly
refuse to permit the withdrawal of an employer or a
union from a duly established multiemployer bargain-
ing unit, except upon adequate written notice given
prior to the date set by the contract for modification, or
to the agreed-upon date to begin the multiemployer
negotiations . Where actual bargaining negotiations
based on the existing multiemployer unit have begun,
we would not permit, except on mutual consent, an
abandonment of the unit upon which each side has
committed itself to the other , absent unusual circum-
stances.
The rules set forth in Retail Associates have been
consistently followed by the Board . Beck Engraving Co.,
Inc., 213 NLRB No. 13 (1974); Connell Typesetting Co., 212
NLRB 918 (1974); The Evening News Association, 154
NLRB 1494 (1965), enfd. 372 F.2d 569 (C.A. 6, 1967);
Sheridan Creations, Inc., 148 NLRB 1503 (1964), enfd. 357
F.2d 245 (C.A. 2, 1966).
In the instant case, bargaining negotiations based on the
existing multiemployer unit had begun before Respondent
notified the Union that it did not desire to be bound by
group bargaining . There was no consent on the part of the
Union for Respondent to abandon the multiemployer unit.
There are no "unusual circumstances " present to justify
what would otherwise be an untimely unilateral withdraw-
al. The fact that Respondent may have considered the
results of the group bargaining economically undesirable
does not amount to such "unusual circumstances ." Tulsa
HUB PHARMACY, INC. 73
Sheet Metal Works, Inc., 149 NLRBf 1487 (1964), enfd. 367
F.2d 55 (C.A. 10, 1966). There was no dissipation of the
Association's membership which could'amount to "unusu-
al, circumstances" as was present in Connell Typesetting
Co., supra. io
It remains to be considered whether Respondent did
withdraw unilaterally from the Association in an untimely
manner or whether Respondent was never part of the
multiemployerrunit for the 1973 negotiations.
Pezner's testimony that the 1970 authorizations did not
constitute ongoing authority' for the Association to
represerit the employer-members in the 1973 negotiations,
as well as Campana's testimony that it was 'his understand-
ing that he would not be in the Association for collective
bargaining because he did not sign the'! 973 authorization,
must be weighed against the actions of both the Associa-
tion and the Respondent. With regard to the Association, it
began bargaining on September 26, 1973, at a time when it
had not even requested its employe- members to sign
authorizations for the 1973 negotiations. Many of the
authorizations had not 'yet been signed at the time that the
November 26, 1973, agreement was reached. Pezner was an
employer-member . Hof the Association as well as its
executive secretary and he spoke for the Association
throughout the negotiations without having signed a 1973
authorization. As of the date of the trial he had still not
signed one. In spite of this the Association, by entering into
negotiations, led the Union to believe it (Respondent) had
authority to act on behalf of employer-members.
I am persuaded that Respondent's actions were such as
to make the Union reasonably believe that the Association
was authorized to represent it in a multtemployer unit. The
authorization that Respondent had signed in 1970 was not
limited to, the 1970 negotiations. It was completely
openended and is continuing in nature.
Respondent received a number of notices of meetings
regarding the multiunit bargaining, but gave no indication
to either the Association or the Union that it did not want
to be part of that unit until well after negotiations had been
underway.
Respondent, in effect, participated in the multiemployer
unit bargaining. In mid-November 1973, when Campana
protested concerning the Union's demand for premium
holiday and weekend pay, that protest was keyed to a
demand the Union had made of the 'Association in
bargaining in the multiemployer unit. The result of that
protest was a withdrawal of that demand by the Union in
subsequent negotiations with the Association in the
multiemployer unit.
The fact that Respondent did not sign a 1973 authoriza-
tion is not controlling. The Association bylaws did not
require such an authorization. None of the employer-
members had signed when negotiations began and many
had not signed at the time that the November 26, 1973,
agreement was reached. Under all these circumstances I
iu Respondent has not raised any question concerning whether the
Union represented a majority of its employees However, even if the Union
did not represent a majority of Respondent's employees there would have
been no "unusual circumstances " Where a unit consists of all the
employees on a multtemployer basis, the majority status must be keyed to
the overall unit and not one part thereof Beck Engraving Co, Inc, supra
i i This finding is based on the presumption of continued majority raised
am persuaded that Respondent was a part of the
multiemployer bargaining unit when negotiations began
for the 1973 agreement and that it subsequently attempted
to back out of that multiemployer unit because it did not
like the-results of the bargaining.
In sum , I find that the multiemployer bargaining unit
described above, which included Respondent, is appropri-
ate for the purpose of bargaining; that the Association and
its employer-members, including Respondent, who are part
of that multiemployer unit, are employers within the
meaning of'the Act and meet the Board's jurisdictional
standards ; that the Union represents a majority of the
employees in that bargaining unit; ii that on September 26,
•1973, when negotiations began in the multiemployer unit,
Respondent was part of that unit; that by its letter to the
Union of March 5, 1974, in' which it informed the Union
that it would "not be renewing its Union Contract" and
that it would not "continue with the Union", Respondent
repudiated the agreement that the Association had made
on its behalf in the multiemployer bargaining unit and in
effect withdrew from that multiemployer unit; and that the
withdrawal took place without the consent of the Union
and without "unusual circumstances" that would warrant
an otherwise untimely withdrawal.
I therefore find that Respondent refused to bargain with
the Union in violation of Section 8(aX5) and (1) of the Act
by its repudiation of the agreement reached on its behalf
by the Association and by its untimely withdrawal from
the multiemployer bargaining unit.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent, in violation of its duty
under Section 8(aX5) of the Act, has repudiated the
agreement reached on its behalf by the Association in the
multiemployer bargaining unit and has untimely with-
drawn from that unit, the usual remedy would be for
Respondent to be ordered to honor and abide by that
agreement, and to remain in the multiemployer bargaining
unit until .it can timely withdraw. However, as of the date
by the existence of a recently expired contract containing a union-security
clause , the continued recognition and bargaining with the Union by the
Association , and the credited testimony of Union Vice President Price that
98 or 99 percent of those employees who worked more than 30 days were
members of the Union Respondent has not raised any issue concerning the
Union's majority status.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the trial, no collective-bargaining contract had actually
been executed because of certain differences that remained
between the Association and the Union.
Penzer, the executive secretary of the Association,
credibly testified that the agreement is retroactive to
November 1, 1973, but as it had not yet been executed,
some of the members were voluntarily paying the increases
and some of them might not be paying them. Under these
circumstances , I shall, recommend that Respondent be
ordered to honor and abide by any collective-bargaining
contract which is actually executed by the Association on
behalf of the employers in the multiemployer bargaining
unit .12 In addition, I shall recommend that Respondent be
ordered to refrain from withdrawing from that multiem-
ployer bargaining unit except upon adequate written notice
given pnor to the date set by the contract for modification,
or to the agreed-upon date to begin the multiemployer
negotiations ; or, except at such other time as it may
lawfully withdraw.
CONCLUSIONS OF LAW
1. The Association and its employer-members, includ-
ing Respondent, who are part of the multiemployer
bargaining unit set forth below, are employers engaged in
commerce within the meaning of Section 2 (6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees of employer-members of the San
Francisco County Pharmaceutical Association (the
term "employer-members" as used herein includes only
those employers who have authorized the Association
to represent them in the multiemployer bargaining
unit) performing work and services connected with or
incidental to the handling or selling of all merchandise
employed by employer-members of Employer's Associ-
ation, including Respondent , excluding culinary em-
ployees, retail delivery employees, office clerical em-
ployees, guards and supervisors as defined in the Act.
4. The Union is the exclusive representative of the
employees in the aforesaid unit for the purposes of
collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment.
5. By repudiating the agreement that the Association
had made on its behalf in negotiations with the Union in
said multiemployer bargaining unit and by untimely
withdrawing from that multtemployer bargaining unit,
Respondent has violated Section 8(a)(5) and, ( 1) of the Act.
12 If such a contract is by its terms retroactive, then Respondent as to be
required to honor it retroactively.
13 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
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact , conclusions of law,
and upon the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER is
Respondent, Hub Pharmacy , Inc., its officers , agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Retail Clerks
Union , Local 648, Retail Clerks International Association,
AFL-CIO, by repudiating the agreement made on its
behalf by the San Francisco County Pharmaceutical
Association in the following multiemployer bargaining
unit:
All employees of employer-members of the San
Francisco County Pharmaceutical Association (the
term "employer-members" as used herein includes only
those employers who have authorized the Association
to represent them in the multiemployer bargaining
unit) performing work and services connected with or
incidental to the handling or selling of all merchandise
employed by employer-members of Employer's Associ-
ation, including Hub Pharmacy, Inc., excluding culi-
nary employees, retail delivery employees, office
clerical employees, guards and supervisors as defined in
the Act.
(b) Withdrawing from said multiemployer bargaining
unit except upon adequate written notice given prior to the
date set by the contract for modification, or to the agreed-
upon date to begin the multiemployer negotiations; or
except at such other time as it may lawfully withdraw.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Honor and abide by any collective-bargaining
contract executed by the Association on its behalf in said
multiemployer bargaining unit.
(b) Post at its San Francisco, California, facilities copies
of the attached notice marked "Appendix." 14 Copies of the
notice on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 20, in
deemed waived for all purposes.
14 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."
HUB PHARMACY, INC. 75
writing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
authorized the Association to represent them in
the multiemployer bargaining unit) performing
work and services connected with or incidental to
the handling or selling of all merchandise
employed by employer-members of Employer's
Association, including Hub Pharmacy, Inc.,
excluding culinary employees, retail delivery
employees, office clerical employees, guards and
supervisors as defined in the Act.
WE WILL NOT refuse to bargain collectively with
Retail Clerks Union, Local 648, Retail Clerks Interna-
tional Association , AFL-CIO, by repudiating the
agreement made on our behalf by the San Francisco
County Pharmaceutical Association in the following
multiemployer bargaining unit:
All employees of employer-members of the
San Francisco County Pharmaceutical Associa-
tion (the term "employer-members" as used
herein includes only those employers who have
WE WILL NOT withdraw from said multiemployer
bargaining unit except upon adequate written notice
given prior to the date set by the contract for
modification, or to the agreed-upon date to begin the
multiemployer negotiations ; or except at such other
time we may lawfully withdraw.
WE WILL honor and abide by any collective-bar-
gaining contract executed by said Association on our
behalf in said multiemployer bargaining unit.
HuB PHARMACY, INC.