Sun Ray Drug Co.

In the Matter of SUN RAY DRUG COMPANY,1 EMPLOYER and RETAIL. UNION OF NEW JERSEY, LOCAL 108, AFFILIATED WITH RETAIL, WHOLE- SALE AND DEPARTMENT STORE UNION, C. I. O., PETITIONER. Cases Not . 4-RC-483 through 4-RC-488, 4-RC-490, and If-RC-513' through 4-RC-514.-Decided November 23, 1949 DECISION AND DIRECTION OF ELECTIONS Upon several petitions duly filed, a consolidated hearing was held before John H. Garver, hearing officer. The hearing officer's rul- ings made at the hearing are free from prejudicial error and are hereby affirmed.2 The hearing officer referred to the Board the Employer's motion to dismiss the petitions on the grounds that, as to the operations here involved, it is not engaged in commerce within the meaning of the National Labor Relations Act and that it will not effectuate the .purposes of the Act for the Board to assert jurisdiction. For the reasons hereinafter given, this motion is hereby denied. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Reynolds and Gray]. Upon the entire record in this case, the Board finds : 1. The Employer, a Pennsylvania corporation with its principal place of business and warehouse in Philadelphia, operates a chain of some 100 retail drug stores in the three States of Pennsylvania, Dela- ware, and New Jersey. Only the New Jersey stores are involved in this proceeding. Eighty percent of the merchandise, valued between ' The names of both the Employer and Petitioner appear as amended at the hearing. The hearing officer referred to the Board the Petitioner 's motion to withdraw the petition in Case 4-RC-512, involving the store at 310 Central Avenue , Jersey City, New Jersey, as it appeared that this store was not owned or operated by the Employer. The Employer does not object to the granting of the motion , and it is hereby granted . 11'. J. Smith Wood Preserving Co., 80 NLRB 824. The hearing officer properly denied the Employer' s motion for severance and hearing on each of the petitions separately . See B . F. Goodrich Chemical Company, 84 NLRB 429. 87 NLRB No. 32. 208 SUN RAY DRUG COMPANY 209 $700,000 and $900,000 annually, received by the New Jersey stores is shipped to them from the Employer's warehouse in Philadelphia, Pennsylvania. All the sales of these stores, approximately $1,000,000 annually, are made within the State. During the year 1948, the Employer purchased merchandise which was shipped to its Philadel- phia warehouse in the amount of about $15,000,000, of which in excess of 50 percent was shipped to it from outside the State of Pennsylvania. The total sales of the Employer at all its stores amount to between $22,000,000 and $23,000,000 annually. We find, contrary to the Employer's contention, that it is engaged in commerce within the meaning of the National Labor Relations Act.' 2. The labor. organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act: 4. The following employees of the Employer constitute separate units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All employees, excluding pharmacists, managers, assistant man- agers, fountain managers, assistant fountain managers,4 and all other supervisors as defined in the Act, in each of the Employer's stores,' at the following locations : 642 Cookman Avenue, Asbury Park; 1138 Broadway, Camden; 365 George Street, New Brunswick; 114 Smith Street, Perth Amboy; 164 Smith Street, Perth Amboy; 65 Broad Street, Red Bank; Main Street, Somerville; Main and Market Streets, Patterson; and 5717 Bergenline Avenue, West New York, all in the State of New Jersey. 3 We reject as without merit the Employer 's contention that the business of the stores here involved is not such as to warrant the assertion of jurisdiction . In determining whether or not jurisdiction of the Board attaches in any given case, we have held that the totality of the Employer's operations and its effect on commerce may properly be con- sidered . Accordingly , we have frequently asserted jurisdiction over retail stores which are part of multi -State chain organizations . Colonial Stores, Incorporated, 84 NLRB 558; Block and Kuhl Department Store, 83 NLRB 418; Piggly-Wiggly Corporation, 82 NLRB 267 ; but cf . Haleston Drug Stores , Inc., 82 NLRB 1264 , where the Board declined to assert jurisdiction over an employer which , unlike the Employer in this proceeding , operated a small chain of retail drug stores all within the confines of a single State. 4 As the four last named categories possess authority responsibly to direct their sub- ordinates and effectively to recommend hiring and discharge, we find that they are super- visors and shall exclude them from the units of stores in which they are employed. We find , in accord with Petitioner ' s, request , unopposed by the Employer, that the employees in each store: constitute a separate unit. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION OF ELECTIONS s As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, elections by secret ballot shall be conducted as early as possible, but not later than 60 days from the date of this Direction, under the direction. and supervi- sion of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees in the units found appropriate in paragraph numbered 4, above, who, were employed during the pay-roll period immediately preceding the date of this Direction of Elections, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees Who have since quit or been discharged for cause and have not been rehired or re- instated prior to the date of the elections, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bar- gaining, by Retail Union of New Jersey, Local 108, affiliated with Retail, Wholesale and Department Store Union, C. I. O. 6 The compliance status of Retail Union of New Jersey, Local 108 has lapsed since the hearing in this matter. In the event it fails to renew its compliance with Section 9 (f), (g), and (h) within 2 weeks from the date of this Direction, the Regional Director is to advise the Board to that effect. No elections shall be conducted unless and until compliance has been renewed.