Lane Drug Co. v. NLRB, 17466.

• Decision Date: 29 March 1968
• Docket Number: No. 17466.,17466.
• Citation: 391 F.2d 812
• Parties: LANE DRUG CO., a Division of A. C. Israel Commodity Corp., Lane's of Sylvania, Inc., Lane's of Bowling Green, Inc. and Lane's of Oregon, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Retail Store Employees Union Local 954, etc., Intervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

391 F.2d 812 (1968)

LANE DRUG CO., a Division of A. C. Israel Commodity Corp., Lane's of Sylvania, Inc., Lane's of Bowling Green, Inc. and Lane's of Oregon, Inc., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Retail Store Employees Union Local 954, etc., Intervenor.

No. 17466.

United States Court of Appeals Sixth Circuit.

March 29, 1968.

COPYRIGHT MATERIAL OMITTED

Leonard Lane and Alan Arnold, Cleveland, Ohio (Lane, Krotinger, Santora & Stone, Cleveland, Ohio, on the brief), for petitioners.

Hans J. Lehman, N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Attys., N. L. R. B., Washington, D. C., on the brief), for respondent.

Joseph E. Finley, Cleveland, Ohio (Metzenbaum, Gaines, Krupansky, Finley & Stern, Cleveland, Ohio, on the brief), for intervenor.

Before WEICK, Chief Judge, PHILLIPS, Circuit Judge, and McALLISTER, Senior Circuit Judge.

WEICK, Chief Judge.

The controversy in this case grows out of efforts to organize the pharmacists employed by Lane Drug Co., an Ohio corporation, and its three corporate affiliates, in seventeen drug stores¹ located in Toledo, Ohio and environs.

The union² sought to obtain recognition as exclusive bargaining representative of the pharmacists via the signed authorization card route rather than by means of a Board-conducted election.

The union representative attended a meeting of about twenty of the pharmacists which was called late in the evening of April 28, 1965, when sixteen pharmacists signed authorization cards.

The next day, on April 29, 1965, at 5:42 o'clock P.M., the union sent to Lane Drug Co. a telegram stating that it represented a majority of its pharmacists in greater Toledo and Bowling Green, Ohio stores, and requesting a meeting to negotiate a contract covering wages, hours and working conditions for all pharmacists in the above stores, except those who function in a supervisory capacity. The telegram was received by Lane Drug Co. on Friday, April 30th.

On the following Monday, May 3rd, the union, without waiting for a reply, filed with the Board an unfair labor practice charge against Lane, alleging a violation of Section 8(a) (5) of the National Labor Relations Act as amended, 29 U.S.C. § 151 et seq., for refusal to bargain, and also alleging a violation of Sections 8(a) (1) and 8(a) (3) of the Act. An amended charge was filed on June 11th.

On May 4th the union sent another telegram to Lane Drug Co. repeating its demand for recognition and offering to prove its majority through the facilities of an impartial third party, the Toledo Labor Management Citizens Committee.

Subsequent to the filing of a complaint, a hearing was conducted before the trial examiner, who rendered his decision holding that Lane and affiliated companies violated Section 8(a) (1) of the Act by interrogating their employees concerning their union activities or sympathies, by soliciting employees to survey and report to them the activities of other employees in behalf of the union, by promising benefits to pharmacist Nupp in order to have him discontinue his organizational activities, by attempting to deal with strikers on an individual basis, and by stating that the companies would not recognize any union. The examiner expressly found, however, that Lane did not threaten the pharmacists with discharge or reduced hours in reprisal for union affiliation or activities. The examiner further found that Lane violated Section 8(a) (3) of the Act by discharging pharmacist William P. Nupp, and violated Section 8(a) (5) of the Act by refusing to bargain with the union on April 29th and thereafter. He recommended that pharmacist Nupp be reinstated with back pay, that Lane be ordered to bargain with the union, and that appropriate notices be posted.

The Board, in reviewing the examiner's decision, upheld his findings as to Section 8(a) (1), 8(a) (3) and 8(a) (5) violations, but found that he was in error in holding that Lane violated the Act by refusing to bargain in response to the April 29th telegram, because on that date the union with only sixteen cards, did not in fact represent a majority of the appropriate unit of thirty-two pharmacists.³ The Board held, however, that on May 4th, when the union repeated its demand for recognition, it had acquired an additional card and therefore had a majority of one; that Lane did not have a good faith doubt about this majority; and that Lane was therefore in violation of Section 8(a) (5) by refusing to bargain with the union. The Board pointed out a number of errors in the examiner's decision, which it termed "discrepancies", but held that they did not affect his ultimate conclusion or its concurrence therewith.

Upon consideration of the record as a whole, we agree that there was substantial evidence to support the Board's findings of Section 8(a) (1) violations in the respects hereinafter pointed out, and the findings with respect to the 8(a) (3) violation, but we do not agree that there was substantial evidence to support its finding as to a Section 8(a) (5) violation.

Lane owned and operated a chain of fourteen drug stores in the Toledo area. Its affiliated companies, as indicated by their respective names, operated three additional stores in Sylvania, Bowling Green, and Oregon, Ohio. The eighteenth store was opened on May 18, 1965, at Fostoria, Ohio.

A stipulation was filed at the hearing before the examiner, to the effect that the four separate corporations constituted a single employer within the meaning of Sections 2(6) and (7) of the Act. This was because the corporations had substantially the same officers and directors, with the President and Vice Presidents exercising substantial control over their operations and having centralized purchasing, warehousing and payroll systems. The General Manager of the stores, Pethke, was stationed at Toledo and under him were two nonpharmacist supervisors, Wagenman and Willis, each supervising about one-half of the stores. In each store there was one manager and one assistant manager, some of whom were pharmacists, and some were not. A store manager and assistant manager work alternate shifts, so that one of them is in the store at all times.

Ohio law requires pharmacists to be graduates of a recognized school or college of pharmacy, to serve for one year as an intern in a drug store under the supervision of a registered pharmacist, and to pass an examination conducted by the State Board of Pharmacy, in order to obtain a Certificate of Registration. Ohio Rev.Code § 4729.08. The law further provides that a retail drug store shall be "in full and actual charge" of the registered pharmacist. Ohio Rev.Code § 4729.27.

The leader in the organizational movement was pharmacist Nupp, who had been in the employ of Lane since 1961. In the latter part of 1964 Nupp contacted a substantial number of the pharmacists, including pharmacist-managers and assistant managers, to ascertain whether they were interested in forming an organization to deal with the company concerning working conditions. He learned that there was considerable sentiment toward formation of some type of an organization, but there was a difference of opinion as to whether there should be a union "because of professional reasons".

Nupp testified that Vice President Kaye visited him twice at the store where he worked, shortly before Christmas of 1964. Kaye told Nupp that he knew of his organizational efforts and asked him the reason for such activity. Nupp detailed some of the complaints of the pharmacists and Kaye said he would discuss them with the men but that he thought they should bargain only on an individual basis. Kaye told Nupp that he liked him and would like him to become manager of a newly opened store, and that he would prefer that Nupp not continue his efforts to organize a union. Nupp said he was not interested in becoming a store manager. Kaye told Nupp, in a "cynical" tone according to Nupp, that he Nupp did not have to worry about losing his job for what he had done. At the second meeting Kaye repeated substantially the same statements but Nupp did not testify as to any cynicism in this conversation. Kaye added that a pay increase for Nupp could be arranged and that he also might obtain an interest-free loan.⁴

Kaye also interviewed pharmacist Eisenhauer and suggested that Kaye be called on the telephone any time a pharmacist had a grievance.

In January, 1965, Kaye suggested that Nupp write to the Cleveland office and request a $15,000-loan on his own terms. Kaye further told Nupp that he would look into the complaints and would discuss them with the pharmacists. He asked Nupp not to discuss any store problems with fellow employees, but to call him Kaye or Manager Pethke. Nupp told Kaye that what Kaye said made him quite happy and that he was satisfied with Kaye's assurances.

After this meeting, Nupp discontinued his organizational activities, and in February, 1965, he made application by letter to the company for a $14,000-loan. In the letter he stated that he and his wife thought it would be more advantageous for them to remain in Toledo rather than go to California. Several weeks later Kaye told Nupp that the company would loan him only $4,500, which Nupp stated was satisfactory; but he nevertheless resumed his organizational activities. He and three other pharmacists held a meeting, at which he was authorized to contact local unions. Around April 10th General Manager Pethke told Nupp his application for a loan had been denied; that he Nupp was a trouble maker; and that Pethke would perfer that he leave the company. Nupp did not leave.

In the middle of April, Nupp contacted the union and arranged a meeting for the 28th of April. Eighteen to twenty pharmacists, including Assistant Manager Rettig, were invited to attend the meeting. There was some interrogation of two...