Sav-On Drugs, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1420 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sav-On Drugs, Inc. and Guild for Professional Phar-
macists. Case 32-CA-2668 (formerly 21-CA-
18916)
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 30, 1981, Administrative Law Judge
James M. Kennedy issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Sav-On Drugs,
Inc., Cupertino, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in said recommended Order.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
It] sec. IV of the Administrative Law Judge's Decision, we correct the
date "August 28. 1978," to August 14, 1978.
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
In finding Respondent's exceptions devoid or merit, we note, as did
the Administrative Law Judge, that Respondett did not adhere to its
own published policies and procedures regarding discipline; which pro-
vided that "Employees who receive two written warning notices within
a twelve month period subject themselves to disciplinary action, up to
and including termination." As noted by the Administrative Law Judge,
Hillig had not received any such warnings within the 12 months preced-
ing Respondent's transferring him. Further, the conclusion that Respond-
ent was "attempting to build a justification" fr its action against tlillig is
in our view highlighted by both the inadequate content and shifting-sand
nature of Respondent's asserted reasons. Thus, the October 8, 1979,
notice alleges purportedly "deceitful actions" by Itillig in conjunction
with the Bellomo prescriptions-even though he used a recognized ac-
ceptable approach to the situation. And Respondent's vice president, Vi-
talie, who imposed the discipline, asserted in testifying herein that-conl-
trary to the written notice accompanying Hillig's transfer-the Bellorno
incident "wasn't the reason for" Respondent's action against Hillig In the
face of the record in this case, we view as disingenuous Respondenlt's as-
sertions in its exceptions that the record "does not support" the Admilis-
trative Law Judge's conclusions.
258 NLRB No. 194
DECISION
STA'TI MINTI OF: HI: CASI:
JAMES M. KENNI)Y, Administrative Law Judge: This
case was heard before me in San Jose, California, on De-
cember 11 and 12, 1980, pursuant to a complaint issued
by the Regional Director of the National Labor Rela-
tions Board for Region 32 on June 25, 1980, and which is
based upon a charge filed by Guild for Professional
Pharmacists (herein called the Guild) on April 7, 1980.
The complaint alleges that Sav-On Drugs, Inc. (herein
called Respondent), has engaged in certain violations of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended (herein called the Act).
Issues
Whether or not Respondent threatened its employee
James Hillig with more arduous job assignments because
of his union activity, thereby violating Section 8(a)(1),
and whether it violated Section 8(a)(3) and (1) when on
October 11, 1979,' it issued Hillig a warning letter,
placed him on probation, demoted him, and transferred
him to another store.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine 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 of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent admits it is a California corporation head-
quartered in Anaheim which operates a multistate chain
of retail drug stores including the store involved herein
located in Cupertino. It further admits that during the
past year, in the course and conduct of its business, its
gross volume exceeded $500,000 and during the same
period it purchased goods and materials valued in excess
of $5,000 from sources outside California. Accordingly,
it admits, and I find, that it is an employer engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
11. THE IlABOR ORGANIZATION INVOI.VED
Respondent admits, and I find, that the Guild is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE AI.I Gl) UNFAIR I ABOR PRACTICES
A. Background
Respondent is accused of violating various portions of
the Act with regard to its treatment of James Hillig, a
pharmacy manager at its Cupertino. California, store.
'All da;tes herein refer to 197q 11lc, it llhers..isC ilndicaited
1420
SAV-ON DRUGS, INC.
The incident in question arose against a background of
organizing by the Guild which began in 1978, including
an ultimately successful attempt at severing professional
pharmacists from a preexisting retail clerk unit, repre-
sented by another labor organization.2 The Regional Di-
rector's decision in the original consolidated representa-
tion case held Respondent's pharmacy managers to be
supervisors3 within the meaning of the Act and excluded
them from the pharmacists' bargaining unit. His decision
was reversed by a divided Board who found pharmacy
managers to be statutory employees4 and a statewide unit
to be appropriate.
Hillig has been continuously employed by Respondent
since June 1968. He worked at several stores in the
greater Los Angeles area, becoming a pharmacy man-
ager in 1972. In 1974, when Respondent began opening
stores in the greater San Jose area, Hillig became the
pharmacy manager of the new Santa Clara store, and
later became the manager at Cupertino.
Hillig was involved in the Guild's organizing cam-
paign. He served as a communications liaison between
the Guild's officers in Los Angeles and the 16 or 18
pharmacists employed in the San Jose area. In 1978,
Hillig conducted approximately 12 Guild meetings at his
home.
After the various representation petitions were consoli-
dated, a hearing was conducted in Los Angeles, begin-
ning August 8, 1978. Hillig was the Guild's first witness
and testified on August 9, 1978, with respect to the ques-
tion of whether or not pharmacy managers were supervi-
sors or employees. On January 5, 1979, relying on the
Regional Director's decision that pharmacy managers
were employees, Respondent discharged two managers,
Terry Kunysz and Jerrold Fogel, because of their activi-
ties on behalf of the Guild. Both Kunysz and Fogel were
officers of the Guild. Their discharge triggered a 12-day
strike which began on January 21, 1979. Approximately
59 pharmacists and pharmacy managers participated in
that strike and Respondent discharged all of those strik-
ers. Ultimately, all of these discharges were found to
have violated the Act.5
The representation case history may be found in the Board's Decision
in Sav-On Drugs. Inc., 243 NLRB 859 (1979); the background of unfair
labor practices preceding the instant case is set forth in Sai-On Drugs.
Inc., 253 NLRB 816 (1990). Both parties have requested that I take notice
of these decisions and I have done so.
a Respondent has expressly disclaimed any effort to defend the instant
complaint on the ground that Hillig was a statutor supervisor at the
ttme of the alleged discrimination
' The Regional Director also found the Guild not to he a labor organi-
zation due to supervisory taint. When the Board determined that pharma-
cy managers were not supervisors. the Regional Director's finding was
necessarily reversed
3 In addition to these circumstances. Hillig. the first Guild witness in
the representation case, also held a reasonable belief vwith respect to the
circumstances regarding the cessation of employment of another witness.
Pharmacy Manager Tom Dunn Dunn had been employed at the Camp-
bell store, not far from Cupertino. He had been a candidate for Guild
office resulting in Respondenl's telling him he had the choice of resigning
or being demoted and tratsferred. Dunn chose to resign Hillig's testimo-
ny with respect to Dunn's discharge is clearly hearsay ith respect Io the
implication that Respondenl took action against Dunn because of his
union activities, and I do not rely on it fior that purpose Nonetheless,
Hillig believed that Dunn had been discriminated against because of his
union activities. he ails also Aell aware of the discharges of Klillny\/z ald
Fogel ad the discharge if all the strikers in Souithtern Califorriln
According to Hillig, after he completed his testimony
in the representation case, Carl Vitalie, Respondent's
vice president for the Professional Services Division, 6
said, "Jim, I'm going to get you for this." Vitalie denies
the remark, but even Vitalie, together with other wit-
nesses, agrees that Respondent's counsel, Stephen Con-
hain, remarked loudly, but off the official record, that
Hillig "ought to be fired." Vitalie testified that both he
and Conhain shared the belief that Hillig had perjured
himself.
Hillig returned to Cupertino that evening, and, on the
following day, August 10, 1978, worked his normal
schedule. That day, one of Respondent's district supervi-
sors, Richard Terry, visited the pharmacy. Terry did not
testify and, accordingly, Hillig's version regarding what
followed is credited. After Hillig and Terry greeted each
other, Hillig told Terry he would be with him in a
moment, for he was busy. Terry waited a few minutes
and left. About half an hour later he called Hillig to the
store office and told him he had never been greeted so
rudely and coldly as Hillig had just treated him. He ac-
cused Hillig of an attitude problem and threatened disci-
plinary action. He then asked Hillig if Hillig agreed that
he had treated Terry rudely. Hillig denied he had done
so and asserted he had been quite careful since he had
just returned from the NLRB hearing. Terry then asked
Hillig if he were "man enough to admit" that he had
treated Terry rudely. Terry then asked for Hillig's work
schedule and asked if Respondent's written policies were
being followed. He then excused Hillig.
On the following day, disturbed by Terry's attitude
and believing he had been falsely accused, Hillig asked
Terry to return to the pharmacy to explain to Hillig and
the other pharmacy employees what the supposed "atti-
tude problem" was. That afternoon, Terry came to the
store, but instead of going to the pharmacy, as Hillig re-
quested, called Hillig to the office by intercom. Hillig in-
sisted he wanted Terry to explain his remarks in front of
the other pharmacy employees. Terry refused. Hillig,
using Terry's phrase of the day before, then asked if he
were "man enough" to come to the pharmacy to talk to
him in front of the others.
Shortly thereafter, Terry and store manager Brent
Pond came to the pharmacy. After referencing the previ-
ous day's threat to take disciplinary action, Hillig asked
Terry if he would clarify what he meant. Terry did not
respond and refused to answer. Pharmacy technician
Sharon O'Hara interjected Hillig had greeted Terry in a
friendly way but Terry told her, "Shut up if you know
what's good for you."
On August 14, 1978, Terry issued Hillig a written
warning slip accusing him of having an "unsatisfactory
attitude" because he had been "insubordinate and inso-
lent" to Terry in front of Pond, O'Hara, and pharmacist
John Hanley. He concluded with a warning to Hillig to
improve his attitude or be subject to termination. This
was the first written warning which Hillig had received
since being hired in 1968.
` Vilalie as Hillig's ultimate orporale superior He is a highly edu-
cated indlidual. being a licensed pharmacist. a firrner member of the
Sliate Il.lrd of Phrmac\ .arid a membeh r if the State Ba:r of California
1421
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nothing significant occurred at Cupertino or the other
Northern California stores until after Respondent dis-
charged Kunysz and Fogel in Southern California and
the Guild threatened to strike. In the weeks preceding
the strike, Pond asked Hillig if he intended to go on
strike if the Guild struck. Hillig replied he supported the
Guild "100 per cent" but could not say for sure if he
would join the strike. Shortly thereafter, Terry and Dis-
trict Pharmacy Manager Russ Coon came to the Cuperti-
no store. Terry repeated Pond's question and asked if
Hillig intended to honor the strike if the Guild called
one. Hillig said he was loyal to the Guild but gave a
noncommital answer with respect to his actual intention.
At that point, according to Hillig, Coon asked Hillig
why he had gone to Southern California and testified on
the Guild's behalf. There was some discussion of the per-
ceived discipline given Dunn, and Coon replied, "I'm
surprised that it wasn't you that was disciplined here
. . . I'm surprised you were spared. I don't know what is
sparing you now."
Neither Hillig nor any of the other pharmacists in
Northern California joined the strike when it began, al-
though Hillig continued to act as the Guild's liaison and
telephoned the area's pharmacists to keep them up to
date regarding the strike. He also called Coon urging
him to negotiate with the Guild.
After the strike ended, the organizing appears to have
cooled until early August 1979, when the Board issued
its Direction of Election in the voting unit sought by the
Guild. A mail ballot election was conducted during a 17-
day period beginning on September 10 and ending on
September 26. A week or 10 days before the election,
Hillig conducted a union meeting at his home and told
Pond that a majority of the pharmacists in Northern
California would vote for the Guild. Hillig also attempt-
ed to persuade newly hired pharmacists at nearby stores
to vote for the Guild.
During August Respondent, too, conducted employee
meetings, both in Southern and Northern California. In
Northern California Vitalie called a meeting in which he
deliberately excluded known union activists such as
Hillig. According to part-time pharmacist, Anna Adker-
son, Vitalie told the assembled group that some individ-
uals had not been invited "because they already had their
minds made up and he was not about to have another
shouting match [as he had had in Southern California]."
Vitalie testified to another reason, that he wanted to ex-
press his views to newer employees by trying to give a
"positive" side. Under either version, it is clear that Re-
spondent excluded Hillig, and perhaps others, because
they were known union activists, and the act of exclu-
sion reemphasizes Respondent's earlier knowledge of
Hillig's union sympathies and desires.
On September I I an article appeared in the Wall Street
Journal headlined "Sav-On Drugs, Inc. Ends Acquisition
Discussions With Tentative Suitor." The article noted
that the New York Stock Exchange had halted the trad-
ing of Respondent's stock at the Company's request the
previous day and quoted one of Respondent's vice presi-
dents as saying that an unnamed company had offered to
purchase Respondent but that Respondent's officials had
rejected the offer.
Guild officials who saw the article immediately publi-
cized it, making it into a campaign issue by asserting it
was proof that Respondent's promises of "taking care of
employees" could not be relied upon, for even if this
particular offer had been rejected, Respondent was now
being seen as a purchase target which if a sale occurred
might well result in a management change. By their rea-
soning, if the management changed, there was no guar-
antee that the campaign promises would be kept by new
management.
Hillig quickly learned of the article from the Guild's
president and began discussing it by long distance and
local calls with various pharmacists. Two of the South-
ern California pharmacists, Ernie Bellino and Charles
Mee, were highly regarded by their peers and both, at
the very least, told Hillig that the Wall Street Journal ar-
ticle might influence them to change their votes. Hillig
may or may not have misquoted them in later conversa-
tions he had with the Northern California pharmacists.
Nonetheless, he used their names in his conversations
with his fellow Northern California employees in dis-
cussing the Wall Street Journal article. In essence, he said
that Bellino and Mee either had decided or were consid-
ering changing their vote to favor the Guild.
His campaigning was quickly reported in some fashion
to Coon. Coon called Bellino to ask if he had "told
Hillig he was changing his vote." Bellino explained his
position to Coon and, at Coon's urging, agreed to tele-
phone the Northern California pharmacies to tell them
he had not yet changed his vote.
In addition, Respondent's president, R. L. Call, tele-
phoned the Cupertino store and told Pond that Respond-
ent was not going to be sold. Pond reported to Hillig
that "the general office" knew Hillig had spread the
Wall Street Journal's story and that Respondent was very
upset. In addition, Call sent a mailgram to all pharma-
cists asserting that the Wall Street Journal's story was
being "misused in an attempt to influence your vote in
the election now in process."
B. The Events Leading to Hillig's Demotion
Against the foregoing background, on October 11, 14
days after the election ended, Respondent demoted Hillig
and removed him from the Cupertino store, sending him
to a store in San Jose, where he has served as a staff
pharmacist since.
The trigger for demoting Hillig was an incident in-
volving Hillig's denial of a prescription to a customer.
On October 3, at approximately 7:30 p.m., customer Sue
Bellomo presented Hillig with two prescriptions, both
for controlled substances. Controlled substances are reg-
ulated federally by the Comprehensive Drug Abuse Pre-
vention and Control Act and by the Controlled Sub-
stances Act, as well as by the State's Uniform Controlled
Substances Act. Their purpose is to prevent drug "diver-
sion" to improper recipients.
The prescriptions Bellomo gave Hillig were for Ty-
lenol with codeine and Valium. The codeine compound
1422
SAV-ON DRUGS, INC.
is a schedule III while the Valium is a schedule IV con-
trolled substance.'
Hillig, several days before, had received an unusual
long distance call from a Sacramento physician who said
he had erred in giving a prescription to one Dan Bel-
lomoo which had been called in to Hillig's Cupertino
store. The physician told Hillig not to fill it as he had
decided Dan Bellomo was a potential abuser. Hillig was
therefore alert to a problem involving the Bellomo
family whom he knew.
The prescriptions which Bellomo gave him were writ-
ten by Dr. Robert Bowman, an orthopedic surgeon
whose office was nearby, whose prescriptions were com-
monly filled at Hillig's store.
Aware that Bowman did not keep evening office
hours, knowing that abusers often present prescriptions
at times when they cannot easily be checked, and, re-
membering the Sacramento physician's recent call re-
garding Dan Bellomo, Hillig asked Bellomo if the pre-
scription was for her. She replied it was. Hillig, not satis-
fied, thought the matter over. He decided to fill the
schedule IV drug, Valium, but not the schedule III co-
deine compound. He told her he was "out of stock" in
the latter item.9 Hillig's statement to her was a white lie
which is common to pharmacists and even has the quasi-
official sanction of the State Pharmacy Board. ' All the
employee pharmacists who testified said they usually
told suspect customers the same thing: "We are out of
stock."
Hillig returned the prescriptions to Bellomo. She pro-
ceeded to do some shopping elsewhere in the store, but a
few minutes later returned to the pharmacy desk where
she accused Hillig of "discrimination." She did not ar-
ticulate that charge further to Hillig; to me she said she
was aware that Dan Bellomo had a drug problem and
believed Hillig was "discriminating" against her because
of her last name.
She then left the pharmacy; while checking out she
spoke to Store Manager Pond. Near tears, she told Pond
that Hillig was "more or less" accusing her of getting a
prescription for her husband" and had denied her a pre-
scription. Pond said he would look into it. He did so and
satisfied himself that Hillig had acted responsibly.
A short time later, Sam Bellomo appeared at the phar-
macy. He was very angry and shouted epithets at Hillig
and offered to fight. Pond came to Hillig's assistance and
managed to remove Sam to another area and calm him
7 There are five schedules of controlled drugs Schedule I drugs have
no accepted medical use. such as heroin or LSD Schedule Il drugs have
a medical use but have an extremely high potential for abuse. In general.
these are amphetamines. methaqualones, and pure opiates such as mor-
phine. The drugs on schedule III are lesser controlled and mostly include
narcotics mixed with a nonnarcotic medicinal agent. Schedule IV and V
drugs still have an abuse potential, but the potential is progressively less.
' Dan Bellomo is Sue Bellomo's brother-in-law He maintains a sepa-
rate household from Sue and her husband Sam. but their living arrange-
ments were not known to Hillig.
9 Sue Bellomo testified that Hillig told her he would fill the codeine
compound but not the Valium I do not credit her for a variety of rea-
sons, hut principally because Hillig would he more likely to denly her a
schedule III drug over a schedule IV, due to differing levels of abuse po-
tential
"' See the testimony of Inspector Elmer Miller.
" All three ellomos are or have been Bowman's patients Bo man
said that none "sere "good managers" of drugs
down. Pond testified that Sam appeared to be in pain and
in need of medication. During their discussion, Pond told
Sam that Respondent's headquarters were in Anaheim.
On the following day Sue Bellomo did two things. She
called the pharmacy to see if the prescription was truly
"out-of-stock." She wanted to satisfy herself that Hillig
had lied. The technician who took her call, having been
tipped by Hillig, reconfirmed that they were out of the
medicine. Still not satisfied, she telephoned Respondent's
Anaheim headquarters to complain about Hillig. Her
complaint was routed to Russ Coon, who was then in
Las Vegas.
Coon telephoned the store and first spoke to Pond for
about 20 minutes. Hillig was asked to join the conversa-
tion by an extension; Pond continued to listen. While the
sequence of topics is not clear, Coon asked about the
Bellomo incident and also told Hillig he was upset with
Hillig for spending an evening on the phone during the
election. He told Hillig to "take stock" of himself and re-
evaluate what he wanted to do in life. Hillig said he did
not wish to create problems and did not want trouble
with the Company. Coon told him: "You're damn right
you're in trouble with the Company." Hillig offered to
speak to Bellomo but Coon said he would take care of
it.t2
During their discussion of the Bellomo matter, Hillig
says he explained to Coon that he had not called
Bowman because he knew Bowman was not available at
that hour. 13 Coon could not recall if Hillig told him that
or not. Both agree that the discussion centered around a
pharmacist's professional and legal obligation to deny
drugs to a potential abuser and the appropriate means to
accomplish that without losing the customer. And, both
say, they agreed that the best way to handle such prob-
lem was to verify questioned prescriptions with the
doctor. However, Hillig asserted, to Coon's consterna-
tion, that a pharmacist need not call the physician every
time a doubtful prescription was presented. To support
his view, Hillig read Coon a portion of the Pharmacy
Board's "Newsletter" of January 1979, General Counsel
Exhibit 2, and refused to accept Coon's view as control-
ling.
Coon claims he perceived Hillig's attitude on the
matter as "insubordinate" and unresponsive to counsel-
ing. He reported his views to Vice President Vitalie.
After consulting with the industrial relations department,
Vitalie decided to discipline Hillig.
In the meantime, Hillig asked Pond why he had not
backed Hillig in front of Coon. Pond replied that he
could not help; the name Hillig upset the general office
because it was too closely associated with the Guild.
Hillig was directed to meet Coon at the San Jose store
on October 11. When he arrived, he encountered both
Coon and Vitalie. Vitalie asked Hillig to resign because
he had let the Company down. Hillig told him he had
'I lillig enlisted Bowvman' l aid the dctor telephoned Anaheim and
left the message that Hillig's denial tof the drug had hb n proper in the
ClrCiUnlst.allces
"I1 factr. Bowman may have been as. alable that particular night Fen
so it sotlld have been unusual
1423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worked for Respondent for 12 years, had done nothing
wrong, and refused to resign.
Vitalie then told him they would demote him to staff
pharmacist, transfer him, and put him on 60 days proba-
tion. Hillig said Vitalie "bet" he would not last the pro-
bationary period. He said Vitalie told him that if he dis-
obeyed any management order he would be fired. The
discipline is outlined in General Counsel's Exhibit 6, the
warning slip, bearing an October 8 date.
As a result, Hillig accepted the demotion and has
worked in the San Jose store as a staff pharmacist ever
since, having survived the probationary period. His
income, however, has suffered for he no longer is eligi-
ble for the monthly manager's bonus.
IV. ANALYSIS AND CONCLUSIONS
Quite clearly, the General Counsel has made out a
prima facie case that Respondent demoted Hillig in retali-
ation for his Guild authorities. Respondent had long seen
him as a Guild activist and its animus against the Guild is
well documented. Its discharge of two Guild officers and
its discharge of strikers clearly demonstrate its willing-
ness to take reprisal against employees for their Guild ac-
tivities. The timing of the demotion, too, supports the
General Counsel's case, coming only 2 weeks after the
election ended and a month after Hilligs intensive cam-
paigning involving the Wall Street Journal article. Fur-
thermore, there is Coon's deliberate infusion of Hillig's
Guild activity during their discussion of the Bellomo in-
cident, and earlier threats as well.
And, Respondent did not even follow its own hand-
book with regard to the appropriateness of Hillig's de-
motion. Assuming that Terry's warning of August 28,
1978, was not contrived, it was over a year old. The
handbook says "Employees who receive two written
warning notices within a 12-month period subject them-
selves to disciplinary action, up to and including termina-
tion." Demotion, obviously, is one of the lesser penalties
which might be imposed. Nonetheless, the October 8 dis-
cipline included reliance on Terry's warning slip. Since
that occurred more than a year before, under the hand-
book's own terms it should not have been a considera-
tion. Respondent's reliance on the Terry warning slip,
contrary to its own rule, is evidence Respondent was at-
tempting to build a justification for its demotion of
Hillig.
Thus, the burden is on Respondent to rebut the Gener-
al Counsel's case. To do that Respondent advances two
reasons: Hillig's alleged mishandling of the Bellomo inci-
dent, and his supposed insubordination to Coon in dis-
cussing it.
With regard to the first reason, I am not persuaded
that Hillig did anything out of the ordinary. There is no
question that both Federal and state law impose a duty
on pharmacists to prevent drug diversion. Failure to do
so can subject a pharmacist to various types of disci-
plines-criminal and civil sanctions and/or loss of li-
cense. ' Moreover, Hillig had good reason to suspect
' There is good reason to doubt the validity of the Terry warning slip
but it is unnecessay to do s here.
'" See, e.g., Uited States v. Bernard Kershmnan, 555 F.2d 198 (th Cir.
1977) (criminal): United State v. Fnoith Alden layes, 595 F.2d 258 (5th
Bellomo as a potential drug mishandler. Indeed, both
Bellomos' behavior that evening only served to empha-
size the accuracy of Hillig's assessment. 16 Finally, Hillig's
statement to Sue Bellomo that the drug was out of stock
was a recognized and approved procedure. All of the
pharmacists, including a state inspector, have used or
recommended that approach. And, while there are other
alternatives which Hillig could have followed, I do not
believe Respondent's condemnation of the practice he
chose is warranted in the circumstances. Indeed, Vitalie
testified, pursuant to one of my questions, that Respond-
ent could have lived with Hillig's handling of the Bel-
lomo case. 17
Regarding Respondent's second reason for demoting
Hillig, I am likewise unpersuaded. Vitalie and Coon
assert that Hillig responded to Coon's attempt to counsel
Hillig by becoming a sea lawyer. Its warning notice of
October 8 accused him of "twist[ing] the information."
Neither Coon nor Vitalie wished to have Hillig or any
other pharmacist challenge their views on the outside pa-
rameters of a pharmacist's legal responsibilities under the
laws dealing with controlled substances and drug abuse.
Vitalie, particularly, since he is both a lawyer and a
former member of the board of pharmacy, was intolerant
to being questioned on the point. Certainly Coon resent-
ed Hillig citing an article by a state board of pharmacy
inspector tending to support his views.
Whatever the correct view may be of the full extent to
which a pharmacist must go to carry out his duties under
the drug regulations acts, there is no question that in the
Bellomo case Hillig was well within the bounds tradi-
tionally accepted by Respondent.
While it is true that Hillig did not telephone the physi-
cian, nonetheless, all of the pharmacists who testified on
the point said that there have been occasions where they
have not done so either. Circumstances have varied from
case to case, but there is no question that Respondent has
permitted its pharmacists over the years to deny ques-
tionable prescriptions to customers where the pharmacist
did not bother to seek confirmation from physicians.
Nor, it seems to me, could it be otherwise. Certainly it is
the better practice to consult the physician, but a rea-
soned failure to do so is hardly a substantial deviation
from the practice. When an intoxicated individual ap-
Cir. 1979) (criminal); and United State v. Patrick 1i Will/ams. t at., 416
F.Supp. 611 (D.C. Cir. 1976) (civil.
'" In addition to epithets and fight threats. Sam Bellomo threatened to
sue Respondent for a slight auto accident suffered by Sue when she left
the store. Vitalie gave credence to that threat. though as a lawyer he
must have known it was meritless and as a pharmacist must have recog-
nized it as near-irratiotnal.
Vitali testified that instead of telling Sue Bellom o that he was out
of stock, Hillig should have told her he needed to verify tile prescription
with the physician. Although Bellomo testified that had Hillig so told
her, she would have understood, it seems to me that Vitalie's approach o
a suspected d rug abuser is equally likely to create the sam e suspicion in
such a customer which was created when Hillig told her the pharmacy
was oul of stock. Drug abusers are suspicious individuals who are often
emotiotnall unstable. )enying them their drugs, een fo r a short ime.
can result in angering them. It may well be that ellomo would have
reaced calmly if Hillig had hdled her as Vitalie claims he should have.
but it is not clear that she actually would have beent a y mote tolerant
Respondent here failed to give 12-year veteran tillig the belefit of his
professional experience in dealing itlh such individuals
1424
SAV-ON DRUGS, INC.
pears at a pharmacy, where there is a recognizable forg-
ery, or when an emaciated individual appears with a
weight-control prescription, commonsense, buttressed by
the pharmacy responsibility laws, permits the pharmacist
to deny the prescription without further ado. In the Bel-
lomo case, Hillig had reasonable doubts as to the prob-
ability of drug diversion and was reasonably sure that
the doctor could not be timely reached. Therefore, Re-
spondent's assertion that Hillig was insubordinate in tell-
ing Coon he did not in all cases need to call a physician
is empty of reason.
I conclude that the reasons advanced by Respondent
for its demotion of Hillig is not supported by any valid
evidence. Indeed advancing such a defense persuades me
that it is simply a pretext to mask the real reason, a
reprisal against Hillig for his activities on behalf of the
Guild and to scotch further such activity by him. Cer-
tainly Respondent did not meet its burden of rebutting
the General Counsel's prima facie case. Accordingly, I
find that Respondent demoted Hillig because of his activ-
ities on behalf of the Guild.
There is another issue raised by the complaint. That is
the allegation contending Respondent, at the time it de-
moted and transferred Hillig, threatened him with "more
difficult and arduous job assignments [likely to result] in
Hillig's termination because of his activities on behalf of
the Guild." Literally, I do not believe the General Coun-
sel's proof conforms to the allegation. Certainly, telling
Hillig to work in another pharmacy is not in and of itself
a threat of more arduous work. However, Vitalie also
placed Hillig on 60 days' probation and bet he would not
make it. Since the 60-day probation was part and parcel
of the discriminatory demotion, it seems to me that the
threat was not one of more arduous working conditions.
but a threat to discharge Hillig for discriminatory rea-
sons, using as an excuse the foreseen failure to follow all
directions given him. Accordingly, I find Respondent
violated Section 8(a)(l) of the Act by such a threat.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(I) of the Act, I shall recommend that it be required to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. The
affirmative action recommended shall include the recom-
mendation that Respondent be ordered immediately to
offer James Hillig his former or substantially equivalent
job together with backpay and/or bonuses he would
have earned had he been maintained in that job. Interest
thereon shall be computed in the manner set forth in
Florida Steel Corporation, 231 NLRB 651 (1977). See,
generally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
On the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCI.USIONS OF LAW
1. Respondent Sav-On Drugs, Inc., is an employer en-
gaged in commerce and in an industry affecting corn-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Guild is now, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. On October 11, 1979, Respondent violated Section
8(a)(3) and (1) by demoting its Pharmacy Manager James
Hillig to staff pharmacist and by transferring him to an-
other store because he engaged in activities for and on
behalf of the Guild. Contemporaneously with its demo-
tion of Hillig, Respondent also violated Section 8(a)(3)
and (1) of the Act by issuing him a warning letter and by
placing him on 60 days' probation.
4. On October 11, 1979, Respondent violated Section
8(a)(l) by threatening Hillig with discharge because of
his activities on behalf of the Guild.
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:
ORDER i'
The Respondent, Sav-On Drugs, Inc., Cupertino, Cali-
fornia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge because
they engage in activities on behalf of the Guild.
(b) Demoting, transferring, or otherwise discriminating
with regard to the hire and tenure of employees because
they engage in union and/or protected concerted activi-
ties.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of their Section 7
rights. '9
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Immediately offer James Hillig full reinstatement to
his former job or, if that position no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for lost earnings (including monthly bonuses), plus
interest, in the manner set forth in the section of this De-
cision entitled "The Remedy."
(b) Expunge from its personnel records all references
to the warning letter dated October 8, 1979, to Hillig and
any reference to the 60-day probation period which he
thereafter served.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
" In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulationls of the National Labor Relations Board. the
findings, conclusions, and recommended Order herein shall, as pro'sided
in Sec. 102.48 of the Rules and Regulations, be adopted hy the Board and
become its findings, conclusions. and Order, and all objectlions thereto
shall be deemed aived fr all purposes
"' In ieAw of the nature of these violations. particularly noling Re-
spondent's tenacity and the fact that Respondent has recently displayed a
general disregard for its obligations under the Act. Sav-Ont Drug. Inc..
253 NL.RB 81h (190). I beliese a broad cease-and-desist order i. appro-
priatc. Ifwkmott I-oods In., 242 NLRB 1357 (1979)
1425
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at each of its California stores where pharma-
cists are employed,2 0 copies of the attached notice
marked "Appendix."2 ' Copies of the notice, on forms to
be provided by the Regional Director for Region 32,
after being duly signed by the authorized representative
of Respondent, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
'2 Statewide posting is appropriate as it is consistent with the oard's
order in Sav-On Drugs. Inc., 253 NLRB 816 (1980).
21 In the event that this 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
The Act gives employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through representatives
of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity except
to the extent that the employees' bargaining rep-
resentative and employer have a valid collective-
bargaining agreement which imposes a lawful re-
quirement that employees become union mem-
bers.
WE WILL NOT demote, transfer, or otherwise dis-
criminate with regard to the hire and tenure of em-
ployees because of their activities in behalf of the
Guild for Professional Pharmacists or any other
labor organization.
WE WIL.L NOT threaten employees with discharge
because of their activities on behalf of the Guild.
WE WIlt. NOT in any other manner interfere
with, restrain, or coerce our employees who are ex-
ercising rights guaranteed by Section 7 of the Act.
WE WI.L immediately offer to reinstate James
Hillig to his former job or, if it no longer exists, to
a substantially equivalent job, removing if necessary
any employee who replaced him; and WE WILL
make him whole for any loss of pay he may have
suffered by reason of our discrimination against
him, together with interest thereon.
SAV ON DRUGS, INC.
1426