Lane Drugo Stores, Incorporated'1 And Retail, Clerks International Association, 584 (1950)
National Labor Relations Board
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Lane Drug Stores, Incorporated And Retail Clerks International Association, Local Union 1063, Afl Cases N/os. 10-ca-730 And 10-rc-55-7.-decided February 9, 1950, Decision And Order On October 27, 1949, Trial Examiner John 1-. Eadie, Issued His Intermediate Report Finding That The Respondent Had Engaged In Unfair Labor Practices Within The Meaning Of Section 8 (a) (1) Of The Act, And Recommending That The Respondent Cease And Desist Therefrom, And Take Certain Affirmative Action, As Set Forth In The Copy Of Theintermediate Report Attached Hereto. Thereafter, The Respondent And The General Counsel Filed Exceptions To The Intermediate Report And Supporting Briefs. The Board2' Has Reviewed The Trial e Xaminer's Rulings Made At The, Hearing And Finds That No Prejudicial Errors Were Committed. The Rulings Are Hereby Affirmed. The Board Has Considered The Intermediate Repoirt, The Exceptions, Briefs, And The Entire Record In The Case And Hereby Adopts The Findings, Conclusions, And Recommendations Of The Trial Examiner With The F Ollowing Additions And Modifications. This Consolidated Proceeding Looks To a Determination From This Board Of The Following Questions: (1) Whether The Election Held June 3, 1949, Should Be Set Aside Because Of The Respondent's Preelection Conduct;' And (2) Whether The Respondent's Preelection And Other 'respondent Operates An Interstate Chain Of 74 Drug Stores Located In 9 States. 2 Pursuant To The Provisions Of Section 3 (b) Of The Act, The Board Has Dciegated Its Powers In Connection With This Case To a Three-member Panel [chairman Herzog And Members Houston And Reynolds]. $this Question Was First Raised In Formal Objections To The Election Filed By The Union As Part Of The Representation Proceeding. As Is Noted In The Intermediate Report, The Acting Regional Director Sustained The Objections And Recommended That The Election Be Set Aside. The Validity Of His Recommendation Is Now Before Us On The Exceptions Of The Respondent To It. 88 Nlrb No. 113. Conduct Warrants Findings That The Respondent Engaged In Unfair Labor Practices Within The Meaning Of Section 8 (a) (1) Of The Act. But For The One Post Election Incident, Detailed Below, The Activities Of The Respondent Forming The Subject Of The Objections To The Election And Those Forming The Subject Of The Complaint Are Substantially Identical.4 The Trial Examiner, In Disposing Of The Complaint Allegations And The Acting Regional Director, In Disposing Of The Objections To The Election, Both Found That The Respondent's Preelection Activities Included Interrogation Of Employees Concerning Their Union Activities And Sympathies, Threats To Discharge Employees Because Of Their Union Membership And Activities, And Promises To Its Employees Of Benefits If They Voted Against The Union Or Attempted To Influence Other Employees To Do So. We Find That The Record Sustains These Findings. The Trial Examiner Concluded, And We Agree, These Activities Were Proscribed By Section 8 (a) (1) Of The Act.5 The Acting Regional Director Concluded, And We Agree, That These Activities Of The Respondent Created An Atmosphere Which Made Improbable a Free And Untrammeled Expression By Employees At The Election Of June 3.6 Accordingly, We Shall Adopt The Recommendations Of The Acting Regional Director That The Election Be Set Aside And Shall Direct a New Election At Such Time As The Circumstances Permit a Free Expression By The Employees Of Their Desire To Be Or Not To Be Represented By The Union. 4 We Agree With The Respondent That The May 15 Reduction In Work Hours And/or The Announcement Accompanying It Is Encompassed By The Complaint Allegations. We Also Agree With Respondent's Further Position That, Under The Circumstances Of This Case, Neither The Reduction Nor The Accompanying Announcement Constituted Conduct Violative Of Section 8 (a) (1) Of The Act, And We So Find. We Do Not Rely On This Conduct In Determining Whether The Election Should Be Set Aside. 6 As We Have Repeatedly Held, Employer Interrogation, Threats Of Reprisal And Promises Of Benefit Constitute Acts Per Se Violative Of Section 8 (a) (1) Of The Act, Regardless Of Whether Such Acts Are Effective In Accomplishing The Intended Results. Hence, It Is Not Material That, As Respondent Points Out, Employees To Whom The Coercive Remarks Were Immediately Addressed Testified That They Were Not 'coerced.' See Minnesota Mining And Manufacturing Company, 81 Nlrb 557, Enforced January 16, 1950 (c. A. 8). Nor Is It Material That These Activities Occurred In Acontext In Which The Respondent Permitted The Union Free Access To The Employees At All Times Prior To The Election. We Note, However, That At Least In The Case Of Hazel Rosser, The Coercive Remarks Addressed To Her, Including a Veiled Threat That The Respondent Could Fire Employees By 'using Reasons Other Than The Union,' Had The Desired Result. For, According To Rosser's Testimony, She Decided After These Remarks That 'it Would Be Better' If She Did Not Act As An Observer For The Election. We Note, Further, That Although Respondent Apparently Relies On Its Grant To The Union Of Free Access As Demonstrating Neutrality To The Employees, High Officials, Including The President Of The Company, As Well As Those Lower In The Supervisory Hierarchy, Participated In a Deliberate Campaign To Openly Voiced Opposition To, And Propagandizing Against, The Union. Thus It Could Not But Appear To The Employees That The Coercive Acts Of The Lowerlevel Supervisors Reflected High Managerial Policy. * When, As Here, The Conduct Predictably Affected More Employees Than Testified, We Deem Immaterial The Fact That Employees Who Testified To Threats Or Promises Made To Them, Or To The Interrogation By Their Superiors, Also Testified That These Activities Had Not Affected Their Vote. The Test Is Whether The Conduct Charged Was Reasonably Calculated To Interfere With The Employees' Free Choice. See Bloomingdale Brothers, Inc., 87 Nlrb 1326 And Cases There Cited. See Also Note 4, Supra. As Noted Above, The Trial Examiner Also Found That Following The Election Of June 3, 1949, The Respondent Engaged In Further Conduct Violative Of 8 (a) (1) Of The Act. The Conduct In Question Involves, In Brief, The Offer Of The Respondent's Attorney To The Union Representative On June 6, 1949, To Reimburse The Union For Its Organizational Expenses If The Representative Would Withdraw The Objections To The Election And The Charges Of Unfair Labor Practice Charges Which He Had Filed. The Respondent Admits The Foregoing Conduct, But Objects To The Trial Examiner's Interpretation Of It As An Attempt To Induce The Union To Cease Its Organizational Activity, And To His Legal Conclusion That It Constituted Conduct Proscribed By Section 8 (a) (1) Of The Act. We Are Satisfied From The Record As a Whole That The Respondent's Post Election Conduct Described Above Was Calculated To Induce The Union Representative To Abandon Its Representations Of Employees.7 In Any Event, And Quite Apart From The Respondent's Subjective Motive, We Are Satisfied That The Respondent's Offer Constituted Unlawful Interference With Employee Organizational Activity In Violation Of Section 8 (a) (1) Of The Act. Employees Have a Right, Guaranteed By The Act, To Select Representatives Of Their Own Choosing And To Have The Full Benefit Of Board Election Procedures In Aid Of The Exercise Of That Right. To Ensure That Election Results Reflect The Untrammelled Will Of The Voters, Parties Are Afforded a Right Under Board Procedure To Test The Validity Of The Election By Filing Objections Thereto, And To Seek To Prevent Further Interferences With a Free Election By The Filing Of Unfair Labor Practice Charges. We Regard The Respondent's June 8 Offer As a Direct Interference With Those Rights.8 In The Instant Case, The Vice In The Respondent's Offer Was Aggravated By The Fact That, As Found Above, The Respondent Had Previously Engaged In Unlawful Conduct Which Interfered With, Restrained And Coerced The Employees And Actually Deprived Them Of The Free Exercise Of Their Right To Choose Representatives. Thus, By Seeking To Induce The Union To Withdraw The 'as Set Forth In The Intermediate Report, The Remarks Of The Respondent's Attorney Surrounding The Offer To Reimburse The Union For Its Organizational Expense Included Expressions Indicating That The Real Interest Of The Respondent's Attorney Was Not So Much In The Settlement Of Pending Litigation, But In The Withdrawal Of The Union From The Respondent's Stores. S It Is Immaterial That The Offer Was Not Made To An Employee. For The Union In This Case Pursuant To Prior Authorization Was Acting On Behalf Of Employees In Seeking To Secure For Them The Benefits Of Collective Bargaining And The Rights Incident To Obtaining Such Benefits. Cf. Hollywood-maxwell Company, 24 Nlrb 645, Enforced 126 F. 2d 815 (c. A. 9); Reliance Manufacturing Company, Et Al., 28 Nlrb 1051, Enforced 126 F. 2d 311. See Also Northwest Glove Co., 74 Nlrb 1697, Where The Board Found That The Employer Violated Section 8 (a) (1) Of The Act By Offering To Pay Money To An Employee Leader Of The Union Movement If She Would Use Her Influence To Cause Defection From The Union Ranks. The Difference Between Such a Situation And That Which, As Here, Involves An Offer To a Nonemployee Leader Of Employees Is One Of Degree Only. Objections And The Charges, The Respondent Was Attempting To Perpetuate The Restraining Effects Of Its Prior Misconduct On Employee Organizational Activity.9 Accordingly, We Find That The Respondent Violated Section 8 (a) (1) Of The Act, By The Attempt Of Its Attorney On June 6, 1949, To Induce The Union Representative With An Offer Of a Money Payment To Withdraw The Objections To The Election And The Charges Of Unfair Labor Practices And To Abandon Its Representation Of The Employees. As Urged By The General Counsel, We Shall Specifically Enjoin The Recurrence Of This Conduct In Our Order. Order Upon The Entire Record In The Case, And Pursuant To Section 10 (c) Of The National Labor Relations Act, As Amended, The National Labor Relations Board Hereby Orders That The Respondent, Lane Drug Stores, Shall: 1. Cease And Desist From: (a) Interrogating Its Employees Concerning Their Union Affiliation And Activities; Threaten To Discharge Its Employees Because Of Their Union Membership And Activities; Promising Its Employees Raises In Pay And Better Working Conditions If They Vote Against The Union; And Attempting To Induce Union Representatives With An Offer Of a Money Payment To Abandon Representation Of The Employees; (b) In Any Manner Interfering With, Restraining, Or Coercing Its Employees In The Exercise Of The Right To Self-organization, To Form Labor Organizations, To Join Or Assist Retail Clerks International Association, Or Any Other Labor Organization, To Bargain Collectively Through Representatives Of Their Own Choosing, And To Engage In Concerted Activities For The Purpose Of Collective Bargaining Or Other Mutual Aid Or Protection, Or To Refrain From Any Or All Of Such Activities, Except To The Extent That Such Right May Be Affected By An Agreement Requiring Membership In a Labor Organization As a Condition Of Employment, As Authorized In Section 8 (a) (3) Of The Act. 2. Take The Following Affirmative Action, Which The Board Finds Will Effectuate The Policies Of The Act. (a) Post Immediately In Conspicuous Places In Its Stores Located At Atlanta, Georgia, Copies Of The Notice Attached Hereto And Marked Appendix A.10 Copies Of Said Notice, To Be Furnished By The Regional sin This Connection It Is Noted That The Withdrawal Of Objections To The Election Would Also Have Had The Effect Of Precluding For a Period Of 1 Year The Employees' Exercise Of a Right To Designate a Bargaining Representative In a Board Conducted Election. See Section 9 (e) (3) Of The Act. 'o In The Event That This Order Is Enforced By Decree Of a United States Court Of Appeals, There Shall Be Inserted Before The Words: 'a Decision And Order,' The Words: 'a Decree Of The United States Court Of Appeals Enforcing.' Director For The Tenth Region, Shall, After Having Been Duly Signed By Respondent's Representative, Be Posted By Respondent Immediately Upon Receipt Thereof And Maintained By It For Sixty (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 Insure That Said Notices Are Not Altered, Defaced, Or Covered By Any Other Material; (b) Notify The Regional Director For The Tenth Region In Writing, Within Ten (10) Days From The Date Of This Order, What Steps Respondent Has Taken To Comply Herewith. It Is Further Ordered That The Election Held On June 3, 1949, Among The Employees Of Lane Drug Stores, Inc., In Atlanta, Georgia, Be, And It Hereby, Is Set Aside.' Appendix a Notice To All Employees Pursuant To a Decision And Order Of The National Labor Relations Board, And In Order To Effectuate The Policies Of The National Labor Relations Act, As Amended, We Hereby Notify Our Employees That: We Will Not Interrogate Our Employees Concerning Their Union Affiliation And Activities; Threaten To Discharge Our Employees Because Of Their Union Membership And Activities; Promise Employees Raises In Pay And Better Working Conditions If They Vote Against Retail Clerks International Association; Or Attempt To Induce Union Representatives With An Offer Of a Money Payment To Abandon Their Representation Of Employees. We Will Not In Any Other Manner Interfere With, Restrain, Or Coerce Our Employees In The Exercise Of Their Right To Self-organization, To Form Labor Organization, To Join Or Assist The Abovenamed Union Or Any Other Labor Organization, To Bargain Collectively Through Representatives Of Their Own Choosing, And To Engage In Concerted Activities For The Purpose Of Collective Bargaining Or Other Mutual Aid Or Protection, Or To Refrain From Any And All Of Such Activities Except To The Extent That Such Right May Be Affected By An Agreement Requiring Membership In a Labor Organization As a Condition Of Employment As Authorized In Section 8 (a) (3) Of The Act. ' When The Regional Director Advises The Board That The Circumstances Permit a Free Choice Of Representatives, We Shall Direct That a New Election Be Held Among The Respondent's Employees. All Our Employees Are Free To Become Or Remain Members Of The Above-named Union, Or Any Other Labor Organization. Lane Drug Stores, Incorporated, Employer. By_____ _ __________ (representative) (title) Dated ----this Notice Must Remain Posted For 60 Days From The Date Hereof, And Must Not Be Altered, Defaced, Or Covered By Any Other Material. Intermediate Report Mr. William J. Rains, For The General Counsel. Mr. Ralph Williams, Of Atlanta, Ga., For The Respondent. Mr. Albert W. Gossett, Of Atlanta, Ga., For The Union. Statement Or The Case Upon An Amended Charge Duly Filed By Retail Clerks International Association, Herein Called The Union, The General Counsel Of The National Labor Relations Board, Respectively Called Herein The General Counsel And The Board, By The Regional Director Of The Tenth Region (atlanta, Georgia), Issued a Complaint Dated August 26, 1949, Against Lane Drug Stores, Incorporated, Herein Called The Respondent, Alleging That The Respondent Has Engaged In, And Is Engaging In, Unfair Labor Practices Affecting Commerce Within The Meaning Of Section 8 (a) (1) And Section 2 (6) And (7) Of The National Labor Relations Act, As Amended, 61 Stat. 136, Herein Called The Act. With Respect To The Unfair Labor Practices, The Complaint Alleges That The Respondent, By Certain Of Its Officers, Agents, And Employees, From On Or About March 1, 1949, Interfered With, Restrained, And Coerced Its Employees By: (1) Interrogating Employees Concerning Their Union Membership, Activities, And Sympathies; (2) Soliciting Employees To Find Out And Report The Names Of Other Employees Who Were Members Of The Union Or Were Sympathetic Toward Or Active On Behalf Of The Union; (3) Instructing Employees To Vote Against The Union In An Election, And Accompanying Such Instructions With Threats Of Discharge If Employees Voted For The Union And With Promises Of Raises In Pay And Better Working Conditions If Employees Voted Against The Union; (4) Soliciting Employees To Withdraw From Membership In The Union With Promises Of Wage Increases And Better Working Conditions; (5) Threatening Employees With Loss Of Pay And Overtime Wages If The Union Came Into Its Stores; (6) Threatening Employees With Discharge If They Participated In Any Activity On Behalf Of The Union; And (7) Questioning Employees As To How They Voted In a Representation Election And Threatening To Discharge Any Employee Who Had Voted For The Union. On September 6, 1949, The Board Issued An Order Consolidating
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Lane Drugo Stores, Incorporated'1 And Retail, Clerks International Association, 584 (1950)
In the Matter of LANE DRUGo STORES, INCORPORATED'1 and RETAIL,
CLERKS INTERNATIONAL ASSOCIATION In the Matter of LANE DRUG STORES, INCORPORATED and RETAIL CLERKS INTERNATIONAL ASSOCIATION, LOCAL UNION 1063, AFL Cases N/os. 10-CA-730 and 10-RC-55-7.-Decided February 9, 1950,DECISION AND ORDER On October 27, 1949, Trial Examiner John 1-. Eadie, issued his Intermediate Report finding that the Respondent had engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act, and recommending that the Respondent cease and desist therefrom, and take certain affirmative action, as set forth in the copy of theIntermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs.The Board2' has reviewed the Trial E xaminer's rulings made at the, hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the Intermediate Repoirt, the exceptions, briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the f ollowing additions and modifications.This consolidated proceeding looks to a determination from this Board of the following questions: (1) Whether the election held June 3, 1949, should be set aside because of the Respondent's preelection conduct;' and (2) whether the Respondent's preelection and other 'Respondent operates an interstate chain of 74 drug stores located in 9 States.2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has dciegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Houston and Reynolds].$This question was first raised in formal objections to the election filed by the Union as part of the representation proceeding. As is noted in the Intermediate Report, the Acting Regional Director sustained the objections and recommended that the election be set aside. The ...See the full content of this document
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