Superx Drugs, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1968

170 N.L.R.B. 911 (N.L.R.B. 1968)

SUPERX DRUGS, INC. 911
Superx Drugs, Inc. and Retail Store Employees
Union , Local 1099 , Retail Clerks International
Association, AFL-CIO. Case 9-CA-4198
March 29, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On September 11, 1967, Trial Examiner John F.
Funke issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel and Charging Party filed exceptions to the
Trial Examiner's Decision together with supporting
briefs, and the Respondent filed cross-exceptions
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, cross-ex-
ceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, ex-
cept as modified below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order, the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be, and it hereby
is, dismissed in its entirety.
' In affirming the Trial Examiner 's finding that no violations of Section
8(a)(l) or 8 ( a)(5) occurred , we do not rely on his comments as to force
and effect of either Respondent's letter to the Union, dated August 4,
1964, establishing procedures for obtaining recognition for prospective
stores, or the private election held pursuant thereto.
TRIAL EXAMINER'S DECISION
filed February 23, 1967, and an amended charge
filed March 21, 1967, by Retail Store Employees,
Local No. 1099, herein called the Union, against
Superx Drugs, Inc., herein the Respondent or Su-
perx, the General Counsel issued complaint alleging
Respondent violated Section 8(a)(1), (3), and (5)
of the Act. The answer of the Respondent sets forth
certain affirmative defenses and denies the commis-
sion of any unfair labor practices.
This proceeding, with all parties represented, was
heard before me at Cincinnati, Ohio, on June 22
and 23, 1967. At the conclusion of the hearing the
parties were given leave to file briefs and briefs
were received from all parties by August 18, 1967.
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make
the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent is an Ohio corporation engaged in
the sale, at retail, of drugs, cosmetics, and related
products at various stores in Ohio, including its
store at Hamilton, Ohio, the only store involved in
this proceeding. During a representative 12-month
period Respondent's sales exceeded $500,000 in
gross value. During the same period Respondent's
purchases of products and goods from places out-
side the State of Ohio exceeded $50,000 in value.
Respondent is engaged in commerce within the
meaning of the Act.
II. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Superx operates a chain of discount drug stores
in various parts of the United States. Some 12 to 14
stores, including, the one at Hamilton, formed a
wage area group known as the greater Cincinnati
area.' Eleven of the stores, excluding the Hamilton
store, had been covered by a collective- bargaining
agreement entered into between Superx and
the Union in August 1964. (This contract expired
August 4, 1966.) At the time the contract was ex-
ecuted there was no store at Hamilton but col-
lateral with its execution Stanley W. Stevens,
representing Superx, wrote C. P. Questa, president
of the Union, a letter (G.C. Exh. 3-A) setting up
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: Upon a charge
170 NLRB No. 107
' The stores were so grouped as a matter of administrative policy. All
stores within the group received the same wage rates and other benefits
912 DECISIONS OF NATIONAL
the procedure for obtaining recognition for
prospective stores at Hamilton and Middleton,
Ohio. In pertinent part the letter reads:
If SupeRx opens a store in Hamilton, Ohio
and the Union secures a majority of the em-
ployees in the store, then such store will be in-
cluded in the Agreement just concluded with
your Union.
If SupeRx opens a store in Middletown, Ohio
and the Union secures a majority of the em-
ployees in the store, then such store will be in-
cluded in the Agreement just concluded with
your Union.
The `majority of the employees' (referred to
in the two paragraphs above) will be deter-
mined by a secret ballot election conducted by
a person jointly selected, for such purpose, by
the Union and SupeRx. Such election must be
conducted within four weeks from the date the
Union serves notice that it has a majority of
the employees and wants an election.
If the Union secures recognition in the above
manner in the two cities of Hamilton and
Middletown, then the coverage article, Article
II, of the Agreement will be amended to in-
clude Butler County, Ohio. (G.C. Exh. 3(a)).
On November 7, 1966, Superx and the Union ex-
ecuted a new contract (G.C. Exh. 6) and on the
same day the Union, which had been organizing the
Hamilton store, demanded an election pursuant to
the 1964 agreement. (G.C. Exh. 3-B.) On
November 28 the parties agreed to an election to
be supervised by someone ' mutually satisfactory to
the Company and the Union." (G.C. Exh. 3-C.)
The election was held December 9 in a unit
described as:
All clerks and stockers who were on the
payroll as of the week ending November 12,
1966, except employees who have since
resigned, quit or been discharged for cause.
The election was held under the supervision of A.
L. Luebbers, former judge of the Common Pleas
Court for Hamilton County. The Union lost the
election eight to one and the results were certified
by Judge Luebbers. (G.C. Exh. 3-D.) The union
observer, however, did not sign the tally of ballots
issued by the Judge. The election agreement did
not provide for the filing of objections and none
were filed.
2. The alleged 8(a)(5) violations
Prior to or on November 7 the Union had
received authorization cards from eight of the nine
2 G C Exhs 4-A, 4-B, 4-C, 4-D, 4-E, 4-F, 4-H, and 4-1 The card of
Gail Bonar was marked "out" and the explanation was given that she sub-
sequently quit Since the card was signed on November 7 it should be com-
puted as valid on that day The parties agree that there were nine em-
ployees in the unit on November 7 and nine employees voted in the elec-
tion
' Bernel Foam Products Co ,Inc , 146 NLRB 1277
' The wage increase was made retroactive , as to union members, to Au-
LABOR RELATIONS BOARD
employees in the above described unit.' It
proceeded to an election in accordance with its
agreement with Superx and did not rely on its card
check majority. It is the contention of the Union
and the General Counsel that Superx, by the com-
mission of unfair labor practices between
November 7 and December 9, destroyed this
majority and that the election was therefore void
and the Union was entitled to a bargaining order
under Bernel Foam Products.3 It relies on the fol-
lowing facts and testimony.
It is undisputed that Superx, when it granted its
wage increase of 7 cents to its union employees
pursuant to the new contract of November 7,
granted the same wage increase to its employees at
Hamilton.'
Leona Gabbard, an employee at the store,
testified that she was among a group of employees
called to a meeting in the store by a Mr. Jewnard5
and Lewis Johnson, district manager .6 At this meet-
ing the Respondent's employment policies were ex-
plained, including all benef is provided employees.
Jewnard told them that the other stores were union
but that this was a new store and the employees
would receive all union benefits without paying
union dues. After the meeting Gabbard asked him,
during a question-and-answer period, why "they
didn't want this store to be union." She was told
there was a chance of having better relations with
the employees without the Union. (This meeting
was held December 7, 2 days prior to the election.)
On November 9 each employee had an individual
interview with Jewnard and Johnson. In her inter-
view Gabbard was asked how she liked her job and
if she had any complaints. Her complaint was that
she had expected to be made head cosmetician but
the job had been given to another employee. Gab-
bard was promised a chance at the job if that em-
ployee "didn't turn out" and was told she was
receiving a 7-cent raise.
Shirley Sayre, another employee, testified that
she, too, had an interview with Jewnard and John-
son. Jewnard asked her how she liked her job,
asked if she had any complaints, and told her he
knew the girls were signing cards but that it made
no difference whether she sinned or not, she could
still vote "No." She was given a booklet setting
forth the wage program of Superx and told she
would receive a 7-cent wage increase. About 1
week later, according to Sayre, she and a group of
girls were called to a meeting conducted by
Jewnard (Johnson was also present) at which the
benefits at Superx were explained to them and they
were told they would receive these benefits without
gust 4, the expiring date of the former contract As to the Hamilton em-
ployees it was retroactive to the date of their employment (None were em-
ployed until September 1966 )
s Jewnard did not appear as a witness and is only identified as "from per-
sonnel " Respondent 's brief refers to him as director of personnel
B Gabbard identified the date of this group meeting as 2 weeks prior to
the December 9 election.
SUPERX DRUGS, INC.
paying dues. They were told the reason why Superx
was fighting the Union at Hamilton was so that it
could install its own training policies.
Johnson testified that the meetings between
Jewnard and the employees, at which he was
present, occurred on November 10 and December
7. The November meetings were individual, the
December meeting was a group meeting. At the
group meeting, according to Johnson, Jewnard
presented a chart which outlined company benefits
and company policies. The employees were also
told that it was the policy of Superx to treat all em-
ployees in the metropolitan area alike. Johnson
testified that Jewnard did not tell the employees to
vote against the Union but admitted that a purpose
of the meeting was to campaign against the Union.
As to the individual interviews Johnson testified
that their purpose was to find out if the individual
employees had any complaints to make or
questions to ask. In particular Johnson wanted
someone from personnel to hear if any employee
claimed Superx had not lived up to its promises. He
denied that the Union was discussed with any of the
employees. He stated that Sayre, in her interview,
told them she had been contacted by the Union and
asked if the store was going to be union. According
to Johnson, Jewnard said he did not know. As to
the mention of cards, Jewnard told them he was not
interested and that it did not make any difference.
The question of union cards was brought up by the
employees, not by either Jewnard or Johnson.
Apart from the individual interviews with these
two employees and their testimony respecting the
group interviews there is no testimony as to unfair
labor practices committed by Superx which might
have affected the results of the election.
Following its defeat at the December 9 election
the Union renewed its campaign. It received six
cards from employees and on February 8 again
requested an election to be held pursuant to the
August agreement. (G.C. Exh. 3-F.) This letter did
not allege that the Union represented a majority of
Superx's employees but merely requested an elec-
tion. It was signed by C. P. Questa. On February 16
Superx responded by a letter (G.C. Exh. 3-G) from
C. T. Van Ausdall stating, in part:
Your letter of February 8, 1967, requesting
an election in our Hamilton, Ohio store has
been received.
The pertinent section of the Supplementary
Letter to our Agreement covering this matter
reads as follows:
The "majority of the employees" (referred to
in the two paragraphs above) will be deter-
mined by a secret ballot election conducted by
The transcript of this hearing was received as G C. Exh. 2.
Cards were received from Lucy Metcalfe, Shirley Sayre, Roy Winkle,
Lela Dulle, Patrician Ann Farmer and Leona Gabbard (G.C. Exhs. 5-A
through 5-F.) There were 10 employees in the unit at this time
913
a person jointly selected, for such purpose, by
the Union and SupeRx ....
Pursuant to your -request, such an election
was held on December 9, 1966. You are, I am
sure, aware of the outcome of that election.
SupeRx feels that our obligation under the
wording of the Supplementary Agreement has
been fulfilled, and that we are under no further
obligation with regard to the Hamilton store.
However, as a matter of courtesy, if you
should care to request another election in this
unit at some time after December 9, 1967, we
will give your request every consideration.
On February 18 the Union filed a "Petition for a
Temporary Injunction" with the Common Pleas
Court for Hamilton County. The action sought to
enjoin Superx from refusing to participate in a
second election. After a hearing7 at which Witsken
testified that six employees signed cards designating
the Union" the court granted the injunction. (G.C.
Exh. 3-J.) On appeal, however the Court of Ap-
peals for the First Appellant District, Hamilton
County, suspended the injunction (G.C. Exh. 3-0)
and on May 16 dismissed the injunction. (G.C. Exh.
3-P.)
While the court proceedings were pending Su-
perx, on February 21 (the day the hearing in the
Court of Common Pleas was held), filed a petition
for an election with the National Labor Relations
Board in Case 9-RM-476. (G.C. Exh. 3-I.)9 This
petition was dismissed by the Regional Director on
May 2 on the ground that the complaint had al-
ready issued in the instant case. (G.C. Exh. 3-Q.)
On February 23 the Union filed the charge
herein alleging Superx refused to bargain on
November 7, 1966, and on February 16, 1967, and
on March 21 it filed an amended charge alleging
refusal to bargain on February 27 and March 4.
This summarizes the litigation which followed the
December 9 election.
On February 27, Mack Swigert, counsel for Su-
perx, wrote Robert L. Doggett, counsel for the
Union, a letter (G.C. Exh. 3-K) reading:
At the hearing before Judge Gusweiler on
February 21st, you and Mr: Questa, on behalf
of Retail Store-Employees Union, claimed that
the Union had been designated by a majority
of the employees in an appropriate bargaining
unit at the Hamilton, Ohio, store of our client,
Superx Drugs, Inc. Please be advised that we
do not believe that the Retail Clerks Union
represents an uncoerced majority of the em-
ployees of the Superx store in Hamilton, Ohio,
in an appropriate unit, as claimed. Therefore,
on advice on counsel Superx has filed a peti-
9 Van Ausdall testified that one of the reasons he filed the petition was
that Questa had told him, prior to the December 9 election that "we are
going to get that store someday if we have to ask for an election every
month " Questa was not a witness in this proceeding.
350-999 0 - 71 - 59
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion with the National Labor Relations Board
and has asked that agency to resolve the
question concerning representation according
to the procedures set forth in the National
Labor Relations Act, as amended.
On March 1 Doggett wrote Superx referring to
"your two letters dated February 27, 1967"10 and
claiming to represent a majority of the employees
at Hamilton, demanding recognition, offering to,
submit to a card check by a third party, and offer-
ing to proceed to an election in accordance with
the order of the court. (G.C. Exh. 3-N.)
No reply was received and the issues were
brought to hearing.
3. The testimony of Lela Dulle
Lela Dulle testified that she was first employed
by Superx on November 12, 1966, and that she
worked 3 hours at night, 4 days a week. In Februa-
ry 1967 her schedule was changed and she worked
4 hours every night, later 5 hours every night. She
was laid off on March 8, 1967, by William Peak,
store manager, who told her that her work was
good but that the store did not have enought busi-
ness to keep her."
On or about November 14, 1966, shortly after
she was hired, she had a conversation with Lewis
Johnson, district manager of Superx, in which he
asked her how she felt about the Union and she
told him she had always belonged to the Union.
Johnson told her that they did not need a union in
that store and that she would make the same wages
without a union and would not have to pay union
dues; that the Hamilton store would pay the same
wages as the Fairfield store paid. (Fairfield was
union .) Johnson then told her her record looked
good and she went back to work. In February 1967,
she received an increase of 7 cents per hour
retroactive to the date of her employment.
On February 1, 1967, Dulle signed a union
card.12 She engaged in no other union activity.
Lewis Johnson testified that he first met Dulle a
day or two after she started working, that he saw
her in the store, introduced himself, and "talked to
her a little bit to get to know her a little bit, as you
do with any new employee." Johnson described the
conversation as casual . He denied that he made any
inquiry as to her interest in any labor organization.
During this conversation Johnson ascertained that
Dulle had a full-time job elsewhere and he won-
dered why "they" had hired her.13
"The second letter referred to was also from Swigert to Doggett,
requesting that all communications relating to the case be referred to him
as counsel for the defendant (G C Exh 3-L)
Peak was not called as a witness
'x G C Exh 5-F
'a It was stipulated at the hearing that when she applied for employment
at Superx Dulle stated , on her application form, that she was working for
ARA, had started to work for them in 1959, and received $66 per week
This was full-time employment
14 Resp Exh 2
1s Resp Exh 3 indicated both overtime and absenteeism for the critical
William Joseph Seigfried testified that he suc-
ceeded Johnson as district manager of the area
which included the Hamilton store in January 1967.
According to Seigfried, Superx had established a
guide, applied nationally, to show a specific allot-
ment of management and nonmanagement hours
for each store based on its gross volume of sales.14
The Hamilton store was averaging $6,000 to $8,000
per week when Seigfried became district manager,
a volume which called for 277 man hours. The
store was, however, credited with 400 man hours.
The reason for not affecting any immediate reduc-
tion in working hours was the fact that the store
was new and that its estimated capacity was
$13,000. In the middle of February an employee by
the name of Lucy Metcalfe resigned. She was not
replaced thus effecting a reduction of 40 hours per
week. Seigfried testified that later he decided to let
all part-time employees go to effect a further reduc-
tion in hours worked. Dulle was the only part-time
employee and was accordingly released. Instruc-
tions were issued to hire no more part-time em-
ployees. Volume increased and the store, at the
time of the hearing, was averaging between $9,000
and $10,000. Explaining the reason why overtime
was worked at the Hamilton store despite its failure
to meet its expected volume, Seigfried stated that
absenteeism would necessitate coverage by another
employee.','
It was established on cross-examination that Su-
perx employed part-time workers at other stores in
the Cincinnati district and that none were ter-
minated during this period. Since, however, it was
not shown that any of the other stores experienced
the problems of the Hamilton with respect to
hourly charges vis-a-vis its volume I do not find this
testimony relevant.','
Although not alleged as a violation in the com-
plaint," Dulle testified without contradiction that
she did not receive the scale wage of $1.47 when
first employed but received the old scale of $1.40.
(She was employed on November 12 when the
scale was being changed.) The General Counsel
urges that she did not receive the full scale because
she was not eligible to vote in the December elec-
tion and that the increase was granted on February
24, to induce her to reject the Union in any
forthcoming election which might be held.
Although Respondent was not able to explain why
Dulle did not receive full pay from the start of her
employment and the General Counsel's theory is
not implausible, I think more certain proof of dis-
periods Seigfried 's testimony , however , clearly indicated that it was neces-
sary for another employee to work overtime the week Dulle was laid off
and that her layoff caused such overtime
16 i have given no weight to the testimony of employees as to the volume
of business or the increase in business at the Hamilton store during the
period of Dulle's employment. Employees, unless employed in bookkeep-
ing, are not in a position to make accurate estimates of a store 's gross
volume merely from observation
" Since the General Counsel refers to this in his brief I assume he con-
siders the issue "fully litigated "
SUPERX DRUGS, INC.
crimination is required than bare theory. I think it
equally likely that it was mere inadvertent error in
bookkeeping, errors not uncharacteristic of retail
establishments as those who patronize them will
agree. I do not find that she received this increase,
which was due her, to induce her to reject the
Union.18
As to her conversation with Johnson shortly after
she was hired, I have grave difficulty in crediting
Dulle for she did appear, while testifying, to bear
resentment against Superx. I strongly suspect that
her testimony upon recall that she would accept
full-time employment at Superx despite the fact
that she had a full-time job at ARA since 1959 at
higher wages was contrived. While it is true that
wages are not the only consideration in employ-
ment, no explanation is given for her preference for
Superx as a new employee against ARA where she
had years of seniority. Assuming, however, that she
was asked by Johnson how she felt about the Union
there was nothing in the context of his "get
acquainted" interview to indicate the inquiry was
coercive. She did, according to her own testimony,
freely disclose that she had always been union.
Nothing in the interrogation implied any threat of
reprisal and, if she is to be credited, Johnson's sub-
sequent statement that she would enjoy the same
benefits with or without the Union would effective-
ly dispel any such implication.19
I find no violation of Section 8(a)(1) in the
testimony of Dulle.
B. Conclusions
1. As to violations of Section 8(a)(1) and (5)
The General Counsel contends that the election
on December 9 should be voided on the ground
that unfair labor practices on the part of Superx
prevented the holding of a fair election. Overlook-
ing the technicalities created by the failure of the
election agreement to provide for objections and
the fact that no objections were offered to the elec-
tion until February 28, 1967, when the Union in its
letter to Superx (G.C. Exh. 3-M), stated:
Third, we feel that you deserve a direct ex-
planation of our filing NLRB unfair labor
charges in Case No. 9-CA-4198. These
charges are based upon improper conduct of
your representatives just before the December
9, 1966, private election, and upon the result-
ing dissipation of an overwhelming majority
support and authorization of the employees in
the unit. We can, and are willing to demon-
strate our majority status, not only as it is now,
1tr G C Exh. 7 indicates she was carried on the books at a $1 47 rate
since the time of her employment
Section 8(c) of the Act, never repealed by the Congress, reads-
The expression of any views , argument , or opinion , or the dissemina-
tion thereof, whether in written , punted , graphic, or visual form, shall
not constitute or be evidence of an unfair labor practice if such expres-
sion contains no threat or reprisal or force or promise of benefit
915
but also as it was before December 9, 1966,
the private election.
It must be noted that not only was this allegation of
misconduct affecting the result made more than 2
months after the election whereas the Board rules
provide objections must be filed within 5 days,20 but
the allegation is completely lacking in the specifici-
ty required by the Board rules.Z1
Since, however, the General Counsel alleges that
conduct of the Respondent between November 7
and December 9 constituted violation of Section
8(a)(1) and also alleges that Respondent refused to
bargain on November 7, thereby implying that the
election of December 9 was invalid 2 these issues
must be disposed of on the merits.
General Counsel first contends that Respondent
violated Section 8(a)(1) by granting the employees
at Hamilton a unilateral wage increase. I do not
agree. On November 7 the Union and Superx
reached an agreement on a new contract which
provided for a pay increase of 7 cents per hour for
all employees in the stores of the greater Cincinnati
area except the Hamilton and Franklin stores. The
Employer then extended this increase to the Hamil-
ton store, together with whatever other benefits the
contract may have provided.23 The wage increase
was in no way conditioned upon an acceptance or
rejection of the Union, and the timing of it could
not be said to be responsive to the Union' s organiz-
ing campaign, the timing was based on the reaching
of contractual agreement with the Union. It was the
Union which, on November 7, demanded the elec-
tion, and it was this action which made the wage in-
crease coincidental with demand. Van Ausdall
testified that it was the policy of Superx to have no
wage differentials among stores in the same area
group. The statement was made under oath, it was
not contradicted and it appears to be a reasonable
and equitable position. The obvious purpose of
such policy would be to subject an area group to
centralized administrative control and uniform
working conditions. Nevertheless the General
Counsel attacks this testimony as "self-serving" and
without supporting evidence. The answer to that is
that a statement of policy will usually be evidenced
by the testimony of one familiar with the policy and
the testimony of most witnesses in any adversary
proceeding is self-serving in the sense that' it ad-
vances the interests of the witness. It is difficult to
believe that the General Counsel is asking me to
discredit sworn testimony merely because it is ad-
verse to the General Counsel's case and is of a kind
not susceptible of documentary proof. The only
proof of the policy is in its implementation.
The action of Superx was, in fact, a nondis-
(Emphasis supplied )
Sec 102 69.
21 Id
22 The General Counsel's brief alleges that had the December 9 election
been held by the Board Bernel Foam Products Co Inc, 146 NLRB 1297,
and Joy Silk Mills, Inc , 85 NLRB 1263, would have been controlling
2d Whether the Franklin store received the increase is not disclosed
916 DECISIONS OF NATIONAL
criminatory application of its wage structure, a
structure arrived at through collective -bargaining
negotiations . Had Superx refused its unrepresented
employees the same wage increase it granted its
represented employees it would appear that a clear
case of discrimination would be found . In American
Paper & Supply Company, 159 NLRB 1243, the
Board reversed its Trial Examiner and found a
violation of Section 8(a)(1) where the employer,
withheld a promised wage increase because of
pending organizational efforts on the part of the
Union . 24 In Dan Howard Mfg. Co., 158 NLRB 805,
the employer decided to forego increases which
were normally granted at the end of the calendar
year . The Board found this withholding violative of
Section 8 ( a)(1) but did not find that the granting of
holiday pay, one of the benefits the union was urg-
ing, violative on the ground that the employer had
promised some of its employees they would receive
holiday pay prior to the advent of the union. In The
Great Atlantic & Pacific Tea Company, Inc., 165
NLRB 989, the Board affirmed the Trial Ex-
aminer's finding that the employer did not violate
the Act by a wage increase to an administrative
division of its stores , including stores in which a
representation election was pending , since the in-
crease was part of a preconceived plan executed in
the normal course of business.''
It is true that in the instant case there were no
prior promises of wage increases nor, in the literal
sense , any preconceived plan for the grant of a
wage increase on a certain date . I find this a distinc-
tion without a difference . As in the A & P case the
timing of the increase was fixed upon the conclu-
sion of negotiations with a union: 26 Here the in-
creases were granted as soon as the negotiations
with the union were concluded and the amount of
increase had been fixed by contract. Company pol-
icy then dictated that it be extended to all area em-
ployees.
The General Counsel relies on N.L.R.B. v.
Exchange Parts Co ., 375 U. S. 405 , to establish a
violation . I find that case clearly distinguishable
from the instant one. In Exchange Parts the Board
had found that the announcement of birthday
holidays , overtime, and vacation benefits was ar-
ranged with the intention of inducing employees to
vote against the Union . The court affirmed,
reversing the Fifth Circuit , and specifically rejected
the defense that the policy as to two of the benefits
had been established earlier since they were not an-
nounced until after the Board had issued its elec-
24 The case appears distinguishable from those in which the Board has
found it an unfair labor practice to grant a wage increase during an or-
ganizational campaign or the pendency of an election on the ground that,
had it not been for the organization, the employees would have received
the increase
Rs A comparison of this decision with that of the Board in The Great At-
lantic & Pacific Tea Company, Inc , 162 NLRB 1182, indicates the distinc-
tion between lawful and unlawful grants of wage increases
26 In A & P the increases were withheld pending the outcome of bargain-
ing with another union
LABOR RELATIONS BOARD
tion order. The court decision, like the Board's, was
grounded on the finding of an intent to induce the
employees not to vote for the union. If it be argued
that in the instant case the benefits were not an-
nounced until either at, or after, the time of the
Union's demand for an election, the answer is, of
course, they could not be announced until they had
become fixed by the execution of the contract
which, as previously stated, coincided with the elec-
tion demand.
I find no violation of Section 8(a)(1) in the grant
of the wage increase to the employees of the Hamil-
ton store. 7 Nor do I find any violation of the Act
by Respondent in informing its employees that they
would receive the same benefits whether or not
they joined the Union. This was a simple statement
of the Respondent's established nondiscriminatory
policy.
We now turn to the other allegations of the
General Counsel that Respondent violated Section
8(a)(1).
Paragraph 5(b) of the complaint alleges that
Jewnard informed an employee that he knew union
organizers were contacting employees and inter-
rogated an employee as to whether she had signed a
card. Presumably this relates to the testimony of
Shirley Sayre.
Sayre testified that she had an "individual" inter-
view with Jewnard and Johnson (the date is fixed as
November 10 by Johnson and I agree) in which she
was asked how she liked her job, how she got along
with Peak, the store manager, and if she had any
complaints. In this, according to Sayre, Jewnard
told her that he knew the Union was contacting em-
ployees and that some of the girls had signed but
that he did not know about her. Sayre then volun-
teered that she had signed a card" and Jewnard
said it did not matter, that she could still "vote no
for the union."29 Nothing was said about an elec-
tion. He then advised her of her wage increase, an
issue upon which ruling has been made.
Sayre also testified to the group meeting held
December 7. (Sayre stated this meeting was held
about I week after her individual interview. It took
place almost 1 month later.) At this meeting
Jewnard told the employees they would receive the
same benefits with or without a union and without
paying union dues.
I find nothing in Sayre's testimony which
establishes interference, restraint, or coercion
within the meaning of the Act. I therefore find it
unnecessary to resolve any credibility issue between
27 In making this finding I do not rely on Respondent's contention that it
did not know of any organizing campaign at Hamilton until after it an-
nounced the wage increases
'"Sayre specifically denied that Jewnaid asked her if she signed the
card
21 Counsel for the General Counsel then asked her if Jewnard said to vote
"no" and she nodded affirmatively The Trial Examiner then stated her
testimony was that "she could vote no," and she replied "I could vote no "
SUPERX DRUGS, INC. 917
Johnson and Sayre. I accept Sayre's testimony.
Gabbard's testimony likewise falls short of sup-
porting the allegations of the complaint. Testifying
to her "individual" interview with Jewnard and
Johnson she stated she was asked how she liked her
job and if she had any complaints. She told them
she had expected to be made head cosmetician and
Jewnard explained that an employee identified as
"Phyllis" had had a year of college and was given
the job because she would be better at the book-
work. Sayre's testimony on this issue reads:
Well, [Johnson] said if it should happen that
Phyllis didn't work out that I would, you know,
be the next able to apply for that, head
cosmetician that is.
I do not find that this testimony supports the al-
legation of paragraph 5(d) which alleges that "an
employee would be given promotion to a job as de-
partment head, all in an attempt to dissuade him
from his activities on behalf of the Union." There is
neither a promise of promotion to Gabbard in her
testimony nor any indication that this explanation
of her status, present and future, related to union
activity.
Again I find no support in the witness' own
testimony to support alleged violations of Section
8(a)(1).
Dulle testified to a conversation with Johnson a
day or two after she went to work. Her testimony
reads:
Well, he came around and asked me to come
back in the back; he would like to talk to me
since I was new. So I went back with him. And
he asked me, we talked about different things.
But concerning the union he asked me how I
felt about the union. And I said, well, I don't
know here. But I have always belonged to a
union. And he said, well, I think you'll find you
don't need a union here so there won't be no
use for you to worry about it. Because you'll
make the same wages you would make without
a union and you won't have to pay union dues.
He said, we pay the same thing the Fairfield
store pays and they are union.
This testimony does not support the allegation of
paragraph 5(c) of the complaint that employees
would receive higher rates of pay than received by
emplo ees represented by the Union at other
stores. °
Accepting the testimony of the General Coun-
sel's witnesses I find nothing to support the allega-
tions of paragraph 5 of the complaint. It shall there-
fore be recommended that the complaint , insofar as
it alleges independent violations of Section 8 (a) (1)
of the Act, shall be dismissed.
From this ruling it follows that the election held
on December 9 was a valid election and would not
be set aside on the grounds that unlawful conduct
on the part of Superx affected the results . Since all
the Union demanded on November 7 was an elec-
tion pursuant to its agreement with Respondent and
since Superx agreed to and held such an election, I
do not find that Superx refused to bargain with the
Union on November 7 and I further find that the
Union did not represent a majority of the em-
ployees on December 9.
The complaint next alleges , paragraph 12, that
Respondent refused to bargain with the Union on
February 16 and on February 21 and at all times
thereafter 31
Respondent 's letters of February 16 rejected the
Union 's request for a second election and, if this be
held a refusal to bargain , it must be noted that the
Union 's request of February 8 contained no request
for bargaining negotiations. I find it difficult to find
a refusal to bargain in the absence of a request. It
has long been hornbook labor law that a demand
and refusal were conditions precedent to the find-
ing of an unlawful refusal to bargain . The Board has
held, however , that the mere filing of a petition is
sufficient to constitute a demand for recognition .32 I
think that the instant - case is distinguishable. The
Board's decisions equating the filing of a petition
with a demand have related to representation
proceedings in which the petition either failed to al-
lege that a demand and refusal had been made
(paragraph 7) or no demand and refusal had in fact
been made .33 It would seem impractical for the
Board to dismiss petitions on such a technicality.
Where the parties have proceeded to an election
and a refusal to bargain complaint is issued under
the Bernel Foam rule, supra , it would likewise ap-
pear that the Board would find a sufficient demand
in the filing of the petition . Here, however, the
agreement of the parties indicates that no demand
for recognition as such was contemplated. The
Union would merely request an election when it
claimed a majority and, if the majority claim was
sustained at the election , the Hamilton store would
be covered by the contract and included in the unit.
Bargaining had already been concluded for this
unit . Under these special circumstances I do not
find that the Union 's letter of February 8 con-
stituted a demand for bargaining status. Respon-
3U [ reject the argument of the General Counsel that their pay would be
higher because they would not be paying union dues. Their pay would be
the same What they did with their pay was their own business The con-
tract contained a union-security clause and provision for a voluntary
checkoff but it is difficult , even under such circumstances , to hold that the
union employees received lower wages
Si The amended charge, as heretofore stated, alleges a failure to bargain
on February 27 and March 4 in addition to the dates above stated These
allegations are included , I find, within the scope of the complaint's
"thereafter" clause.
'z Mink-Dayton, Inc., 166 NLRB 604, 612; Gordon B Irvine, 124
NLRB 217, fn 3, Gary Steel Products, Corporation, 127 NLRB
1170, fn 2; cf N L R B. v. Superior Cable Corporation, 246 F 2d 539
(C A. 4). Contra Laab's Inc, where the Board stated, "Respondent cor-
rectly contends that the filing of a petition does not constitute a request for
bargaining " Thus an examiner has an option to elect among conflicting
decisions
a3 Respondent 's petition in Case 9-RM-476 did not allege that a demand
had been made
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent did, however, decline the Union's demand for
an election on the ground, tenable at least, that it
had satisfied its obligation under the agreement for
at least a year from December 9. At the hearing
held February 21 the Respondent did not refuse to
bargain-again it contested the Union's right to an
election under the agreement. It did manifest its
good faith, I think, by seeking a NLRB election our
the same day by filing a petition pursuant to 9(c) of
the Act. Since no issues presented themselves
which would prevent the holding of an expedited
election it is difficult to understand why the Union,
which sought an injunction to compel an informal
election, was unwilling to proceed before the Board
and elected the more tortuous and time-consuming
route of Section 8(a)(5). As Respondent points out
in its brief, it was the Union and not the Respon-
dent which was at this point seeking delay. I do not,
therefore, find that Respondent refused to bargain
with the Union in violation of Section 8(a)(5) of
the Act. All that it did was seek to compel the
Union to establish its majority by an election before
the Board. This it had every right to do provided it
acted in good faith and the request was not
designed to gain time to dissipate the Union's
majority and Respondent did not by its conduct in-
dicate a complete rejection of the principles of col-
lective bargammg.34 I find that the Respondent at
all times acted in good faith and that no violation of
Section 8(a)(5) may be found.
2. As to the discharge of Lela Dulle
I cannot find that the General Counsel has
sustained the required burden of proof that the
discharge of Dulle was discriminatively motivated.
" The Charging Party claims that the refusal of Respondent to
acknowledge that the cards presented at the Common Pleas hearing
established a majority, did not establish its good-faith doubt It alleges that
the testimony of Witsken established that the cards were authentic This
was true but the fact that the cards were authentic and obtained without
fraud or duress does not establish that a majority of the employees intended
thereby to vote for the Union in a secret election In November the Union
was in possession of eight cards but the employees rejected the Union eight
to one at a seciet ballot election Four of the employees who signed the
"new" cards had also signed the "old" caids and had partic'pated in the
December election It is difficult to conjure a situation in which an em-
All that was established was that Dulle signed a
union card and that she was subsequently ter-
minated. Her union activity was confined to this
single act. On the other hand the Respondent has
established that its ratio of hours worked to gross
volume was not satisfactory and that reductions
were required.35 Under such circumstances it would
not be unreasonable to release the only part-time
employee who also held another job. This seems to
me to be the action which any reasonable and
responsible employer would take under the same
circumstances. To hold otherwise would create an
assumption that the mere act of joining a union
established a preferred status and an immunity
against discharge for economic reasons. The statute
does not warrant such an inference. The discharge
of Dulle is not free from suspicion, of course, but I
cannot find that the discharge of every union
member or sympathizer becomes an ipso facto
violation of the Act without any other supporting
evidence. I recommended dismissal of the com-
plaint insofar as it alleges violation of Section
8(a)(3).
Upon the basis of the foregoing findings and con-
clusions, I make the following:
CONCLUSION OF LAW
Respondent has not engaged in any unfair labor
practices in violation of Section 8(a)(1), (3), or (5)
of the Act.
RECOMMENDED ORDER
It is recommended that the complaint be
dismissed in its entirety.
player would have better reason to doubt that the cards expressed a firm
desire to be represented by the Um.m The General Counsel has not, on
this issue, sustained his burden of proof Aaron Brothers Company of
California, 158 NLRB 1077, John P Serpa, Inc, 155 NLRB 99, H & W
Construction Company, 161 NLRB 852
as I have considered the fact that Dulle's hours were increased in Februa-
ry from 3 to 4 and that 2 weeks before she was laid off they were increased
to 5 hours per day These facts are clearly inconsistent with Siegfried's
testimony that a reduction in man hours was necessary On the other hand
it was not Seigfried who increased her hours, it was Peak