Walgreen Co. v. N.L.R.B.

• Citation: 509 F.2d 1014
• Decision Date: 21 January 1975
• Docket Number: No. 73--1934,73--1934
• Parties: 88 L.R.R.M. (BNA) 2401, 75 Lab.Cas. P 10,608 WALGREEN CO., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1014

509 F.2d 1014

88 L.R.R.M. (BNA) 2401, 75 Lab.Cas. P 10,608

WALGREEN CO., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 73--1934.

United States Court of Appeals Seventh Circuit.

Argued Oct. 1, 1974.

Decided Jan. 21, 1975.

Craig L. Ames, Chicago, Ill., for petitioner.

Peter G. Nash, Gen. Counsel, Allison W. Brown, Atty., N.L.R.B., Washington, D.C., for respondent.

Before PELL, SPRECHER and LAY, ^* Circuit Judges.

LAY, Circuit Judge.

Walgreen Company has filed a petition to review, and the National Labor Relations Board a cross-application to enforce, a Board order issued against the Company on September 24, 1973. The Board's decision and order are reported at 206 NLRB 15. The Board found numerous § 8(a)(1) violations as well as a wrongful discharge in violation of §§ 8(a)(3) and (1), and it issued a bargaining order. We grant enforcement of the Board's order.

In 1970 Walgreen opened a new drug store in Petaluma, California. Shortly thereafter the Retail Clerks Union Local 1532 tried to organize the store's employees, but lost a Board election in January 1971. In 1972 a second organizational attempt was made. The Union petitioned for a Board election on April 14, 1972. The election was set for June 14, 1972. On June 9, the Union wrote to the Company stating that it had a card majority of the employees and requested immediate recognition. This was refused by the Company. The Company does not contest, and the record shows, that prior to the election to Union held a valid card majority. The Union subsequently lost the election. Of the 21 votes cast, nine were for the Union, nine were against and three votes were successfully challenged.

I. The Unfair Labor Practices

The Administrative Law Judge found that the Company had violated § 8(a)(1) of the National Labor Relations Act by (1) interrogating employees about Union activities, (2) promising wage increases, (3) threatening to close the store if the Union won the election, (4) treatening denial of promotions to Union adherents, (5) treatening that the Company would refuse to sign a collective bargaining agreement, (6) creating an impression of surveillance of Union activities, and (7) imposing onerous work schedules to punish Union adherents. In addition, he found that the Company violated §§ 8(a)(1) and 8(a)(3) by its discriminatory discharge of clerk Debra O'Neil soon after the election.

The Board adopted the Administrative Law Judge's findings, and in addition upheld a § 8(a)(1) charge, rejected by the Administrative Law Judge, regarding remarks made to Warren Whitney, the husband of an employee.

The unfair labor practices found by the Administrative Law Judge and the Board may be briefly summarized.

(1) Interrogating employees about Union activities

Store Manager James Thornton received the Union's election petition on April 15. That day, he called checkout clerk Debra O'Neil into his office and asked her, in the presence of bookkeeper Audrey Milligan, when she had seen the Union representatives and why she wanted the Union. On subsequent occasions, Thornton interrogated four other employees as well as Warren Whitney, the husband of employee Judith Whitney.

(2) Promising wage and benefit increases

Also on April 15, Thornton told Debra O'Neil that all employees would be getting a raise. Audrey Milligan and Darlene Barlow heard the same promise that day, as did employee Jim Stone, whose mother, Anna Jo Davidson, was also an employee. Thornton told Warren Whitney that the Company was working on 'sick leave, improved hospitalization, and improved profit sharing, but (the Company) could not put such benefits into effect while the Union was in the picture.'

(3) Threatening to close the store if the Union won the election

When he promised Darlene Barlow her raise, Thornton told her that if employees voted the Union in, the store might close. In late April he told Darlene Barlow and Ron Morgan that the store would close if the Union won. Finally, Thornton told Warren Whitney that Richard Wessels, the Company's Director of Employee Relations, had said that the store would have been closed had the Union succeeded in its prior campaign, and that the Company was 'not about to let a store like that go Union.'

Shortly before the election, Assistant Store Manager Philip Johnson told Jim Stone that it would be cheaper for the Company to close the store rather than to sign a Union contract, since the store was operating at a loss. Later, Johnson used a pencil and paper to illustrate this argument to bookkeeper Audrey Milligan.

(4) Threatening denial of promotions to Union adherents

Thornton told Ron Morgan that support for the Union would mean loss of any chance to become an Assistant Manager and to participate in the training program. Thornton told bookkeeper Audrey Milligan that the Company would not promote her to auditor if the Union won. The Administrative Law Judge found these statements to be 'good sound advice, tendered in the friendliest of spirit, but (they) did violate Section 8(a)(1) of the Act.'

(5) Threatening that the Company would refuse to sign a collective bargaining agreement

At various times before the election. Thornton told four employees and Warren Whitney that the Company would refuse to sign a contract, indicating that a strike would be necessary.

(6) Engaging in surveillance and creating an impression of surveillance of Union activities

hornton believed until shortly before the election, mistakenly, that Judith Whitney strongly opposed the Union. He tried to enlist her husband to spy on the employees for him. Shortly before the election, Thornton told Audrey Milligan that he knew who had signed Union cards and insisted that she list those whom she believed had done so. After the election, Assistant Manager Johnson told the employees that the Company knew how everyone had voted.

(7) Imposing onerous work schedules to punish Union adherents

The Administrative Law Judge found that just prior to the election, Thornton knew that Debra O'Neil, Robert Levin, Audrey Milligan and Judith Whitney supported the Union. Immediately after the election, Thornton posted work schedule changes. Audrey Milligan, who had been bookkeeper ever since the store opened, was demoted to cigar counter cashier on the night shift. Pharmacist Levin was switched from a daytime weekday schedule to the night shift and was told that he would have to work weekends. Judith Whitney was switched from the day shift to the night shift, and Ginger Johnson was moved from nights to days, despite the fact that both employees preferred the prior arrangement and no legitimate reason for the switch was advanced by the Company.

(8) The discharge of Debra O'Neil

Debra O'Neil, an open Union adherent, was fired by Thornton on August 4, 1972, allegedly for tardiness and rudeness to customers. Thornton testified that he discharged her because of a customer's complaint that she had called him an S.O.B. The customer, Colonel Hoteling, denied that she had so addressed him, as did O'Neil.

The Administrative Law Judge credited the Colonel's testimony that O'Neil had brusquely told the Colonel's wife, when asked whether a certain item was in stock, 'If it's not there, it's not there.' The Colonel's complaint about that incident to Thornton was found to have been a pretext for a discharge actually motivated by a desire to discourage Union membership in violation of §§ 8(a)(1) and 8(a)(3).

We find substantial evidence on the record to sustain the Board's findings.

II. The Bargaining Order

The more difficult issue relates to the Board's bargaining order issued pursuant to NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). ¹ In previous decisions the courts of appeals have directed the Board to make a detailed analysis and findings as to the three criteria necessary to support a Board order under Gissel. ² See, e.g., Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 118 (7th Cir. 1973); NLRB v. Copps Corp., 458 F.2d 1227, 1229--1230 (7th Cir. 1972); NLRB v. General Stencils, Inc., 438 F.2d 894, 901--902 (2d Cir. 1971). The judicial response to the Board's continued failure has been divided. In some instances, cases have been remanded to the Board for further findings, see, e.g., New Alaska Development Corp. v. NLRB, 441 F.2d 491, 494--495 (7th Cir. 1971); NLRB v. General Stencils, Inc., supra, 438 F.2d at 901--902, 905; Clark's Gamble Corp. v. NLRB, 407 F.2d 199, 202 (6th Cir. 1969); see also note 5 infra. Where Board findings are inadequate, however, in many instances the court has undertaken its own analysis of the record to determine whether the bargaining order should be enforced. See, e.g., NLRB v. Gruber's Super Market, Inc., 501 F.2d 697 (7th Cir. 1974); Peerless of America, Inc. v NLRB, supra, 484 F.2d at 1120; NLRB v. Kostel Corp., 440 F.2d 347, 352 (7th Cir. 1971).

The Board has not provided us with the requisite analysis in the instant case. However, notwithstanding the Board's conclusory findings, where the unfair practices in the factual record are as pervasive as here, this court must give due recognition to the Gissel direction that

(i)t is for the Board and not the courts, however, to make that determination, based on its expert estimate as to the effects on the election process of unfair labor practices of varying intensity. In fashioning its remedies under the broad provisions of § 10(c) of the Act (29 U.S.C. 160(c)), the Board draws on a fund of knowledge and expertise all its own, and its choice of remedy must therefore be given special respect by reviewing courts. See Fibreboard Paper Products v. NLRB, 379 U.S. 203 (, 85 S.Ct. 398, 13 L.Ed.2d 233) (1964). '(I)t is usually better to minimize the opportunity for reviewing courts to substitute their discretion for that of the agency.' Consolo v. FMC, 383 U.S. 607, 612 (, 86 S.Ct. 1018, 1027, 16 L.Ed.2d 131) (1966).

395 U.S. at 612 n.32, 89 S.Ct. at 1939....