Skagg's Pay Less Drug Stores

168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By refusing on June 21 , 1960, and at all times thereafter to bargain collectively with the above-named Union as the exclusive representative of its employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 7. The Respondent did not and has not engaged. in unfair labor practices within the meaning of Section 8(a) (3) of the Act. [Recommendations omitted from publication.] Skagg's Pay Less Drug Stores and Retail Store Employees Union, Local 428, AFL-CIO, Retail Clerks International Asso- ciation, Petitioner. Case No. 20-RC-4555. November 14, 1961 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act a hearing was held before Donald E. Twohey, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in this case to a three-member panel [Mem- bers Rodgers, Leedom, and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. We find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9(c)'(1) and Section 2(6) and (7) of the Act. The Petitioner seeks a combined unit of employees at the Em- ployer's two retail drugstores in San Jose, California. The Employer and Intervenor contend that the Board should conduct separate elec- tions in single-store units. The Intervenor has represented the em- ployees at the Employer's Downtown Store in San Jose since 1951. The Intervenor's last contract expired in 1960, prior to opening of the second store in San Jose, known as the Valley Fair Store. In addition to these two stores in San Jose, the Employer operates seven other retail drugstores in California : one in Oakland, one in Pleasant Hill, one in Hayward, one in Stockton, and three in Sacramento. The 1 Skagg's Pay Less Employees Association intervened on the basis of its contract with the Employer Covering certain employees in the unit sought in the petition which, by its terms, expired in 1960 . Bush Terminal Company, 121 NLRB 1170. No party contends that this contract constitutes a bar to this proceeding. 134 NLRB No. 27. SKAGG'S PAY LESS DRUG STORES 169, record indicates that the Employer's general office in Oakland main- tains centralized control and direction by providing an advertising service available to all stores, at the option of the store. Each store dispatches a daily business report to the Oakland office and merchan- dise for all stores is paid for by the central accounting office. The training of supervisors is handled centrally by the Employer and all planning for new stores including selection of merchandise, store lay- out, design, and commodity policy are determined from Oakland. All of these factors support the Petitioner's contention that a two-store unit may be appropriate.2 - On the other hand, each store manager appears to exercise a con- siderable degree of autonomy in the operation of his store in San Jose and in the other communities where the Employer does business. Each store manager is responsible for the -volume of business at his -store and receives a percentage of the profits. The store manager is responsible for the purchasing, pricing, and advertising of all the merchandise sold in the store. Each store warehouses its own mer- chandise, and each store maintains a separate bank account and sep- arate payroll records. Employees are paid by checks which are signed by the individual store managers. The Employer has no central personnel manager and each store manager hires personnel, controls wage increases, promotions, and discharges. There is little inter- change of rank-and-file employees between the two San Jose stores. In these circumstances and 'in the absence of any controlling bar- gaining history upon a broader basis, we find that either a single unit, or two separate single-store units of the Employer's San Jose retail drug stores may be appropriate.' There are two remaining issues to be resolved : Floor supervisors: One store employs two floor supervisors; the other store employs one floor supervisor. The Employer urges their inclusion in the bargaining units. The Petitioner contends that they are supervisors within the meaning of the Act. The Intervenor takes no position concerning them. Because the evidence as to their super- visory status is conflicting and inconclusive, the floor supervisors may vote subject to challenge.4 ' Pharmacists: There are three pharmacists employed at each store and the parties stipulated that they are professional employees within the meaning of Section 9 (b) (1) of the Act. The record shows that they are duly licensed by the State Pharmaceutical Board and it is clear that they are professional employees. - As Section 9 (b) (1) pre- cludes the Board from including in a single bargaining unit profes- sional and nonprofessional employees without according the former ? Buy, Low Supermarkets, Inc, 131 NLRB 23. s Walgreen Company, 114 NLRB 1168 ; Pay Less Drug Stores, 127 NLRB 160. 4 Diamond Mills Corporation (Hanover Division ), 123 NLRB 1796, 1798. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an opportunity for separately expressing their desires respecting such inclusion, we shall poll the professional employees. As we find that either a two-store unit, or separate store units may be appropriate, we shall make no final unit determination at this time, but shall direct that the questions concerning representation which exist be resolved by separate elections among the employees in the following voting groups at the Employer's San Jose, California, drug- stores, excluding from each group assistant store managers, office clericals, guards or watchmen, and supervisors, as defined in the Act: Group (a) : All employees at the Downtown Store, excluding phar- macists, assistant store managers, secretary to store manager, guards, watchmen, and supervisors as defined in the Act. Group (b) : All employees at the Valley Fair Store, excluding phar- macists, assistant managers, secretary to store manager, guards, watch- men, and supervisors as defined in the Act. Group (c) : All pharmacists employed at the Downtown Store, excluding all other employees. Group (d) : All pharmacists employed at the Valley Fair Stores, excluding all other employees. If the Petitioner wins the election in all four groups (with groups (c) and (d) voting to be included in same unit with nonprofessionals), the employees in these groups will be taken to have expressed their desire to constitute a single combined unit and the Regional Director is hereby instructed to issue certification of representative to the Peti- tioner for such combined unit, which the Board, in the circumstances, finds to be appropriate. If the Petitioner fails to win the election in all four groups as stated above, the following will apply. Groups (a) and (b) : If the employees in groups (a) and (b) vote for representation, and-the Intervenor wins the election in either or both of these groups, or the Petitioner wins the election in only one of these groups (and the professionals in groups (c) and (d) vote against inclusion) the employees in groups (a) and (b) will be under- stood to have indicated their desire to constitute separate appropriate units. If the Petitioner wins the election in both groups and the pro- fessionals in groups (c) and (d) vote against inclusion, the employees in groups (a) and (b) will be taken to have indicated their desire to constitute a single combined unit. The Regional Director conducting the elections directed herein is hereby instructed to issue a certifica- tion of representative for such separate unit, or combined unit, which the Board in the circumstances, finds to be appropriate for collective bargaining within the meaning of Section 9 (b) of the Act. The employees in the nonprofessional voting groups (a) and (b), above, will be polled as to whether they desire to be represented by Retail Store Employees Union, Local 428, AFL-CIO, Retail Clerks SKAGG'S PAY LESS DRUG STORES 171 International Association; or by Skagg's Pay Less Employees Associ- ation; or by neither. Groups (c) and (d) : The pharmacists will be asked two questions on the ballot :' 1. Do you desire to be included in the same unit as the nonprofes- sional employees at the Employer's Downtown San Jose, California (or Valley Fair, San Jose, California, as the case may be) drugstore for the purposes of collective bargaining? 2. Do you desire to be represented for purposes of collective bar- gaining by Retail Store Employees Union, Local 428, AFL-CIO, Re- ssociation ;' or by Skagg's Pay Less Em- tail Clerks International Association; ' ployees Association ; or by neither? If a majority of the pharmacists in voting groups (c) or (d) vote "yes" to the first question, indicating their wish to be included in a unit with the nonprofessional employees, the group, or groups, so voting will be included. Their votes on the second question will then be counted together with the votes of the nonprofessional voting groups (a) or (b) to decide the majority representative, if any, for either or both voting groups. If, on the other hand, a majority of the professional employees in voting groups (c) or (d) vote against inclusion, the group, or groups, so voting will not be included with the nonprofessional employees. Their votes on the second question will then be separately counted to decide which labor organization, if any, they want to represent them. Votes will be counted as follows : If both groups cast a majority vote for the-Petitioner, they will be taken to have indicated their desire to constitute a single combined unit of professionals. If the Intervenor wins the election in either or both of these groups, or the Petitioner wins the election in only one of these groups, the pro- fessional employees in each such group will be understood to have indi- cated their desire to constitute a separate appropriate unit. There is no indication in the record that either of the labor organizations would be unwilling to represent the professional em- ployees separately, or otherwise if these employees vote for representa- tion. tion. However, if either union does not desire to represent the professional employees in a separate unit even if those employees vote for such representation, that union may notify the Regional Director within 10 days of this Decision and Direction of Elections.' Our unit determinations are based, in part, then, upon the results of the elections in the voting groups. However, we now make findings that the following voting groups, or combinations of voting groups, s Longs Stores, Inc., a California Corporation, 129 NLRB 1495. 4 Miller Brewing Company, 117 NLRB 1, 5. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may, depending upon the outcome of the elections, constitute appro- priate units : (1) All employees in voting groups (a), (b), (c), and (d) ; (2) all employees in voting group (a), including the pharmacists in (c) ; (3) all employees in voting group (b), including the pharmacists in group (d) ; (4) all employees in voting groups (a) and (b) ; (5) all employees in voting group (a) ; (6) all employees in voting group (b) ; (7) all pharmacists in voting groups (c) and (d) ; (8) all pharmacists in voting group (c) ; (9) all pharmacists in voting group (d). [Text of Direction of Elections omitted from publication.] Stearns-Roger Mfg. Co. and Loyd Elmer Rickman. Case No. 21-CA-4302. November 15, 1961 DECISION AND ORDER On August 30, 1961, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices and recommending that the complaint be dismissed, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed a brief in support of the Intermediate Report and the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This matter came on to be heard before Wallace E. Royster, the duly designated Trial Examiner, in Los Angeles and San Bernardino, California, on July 5 and 6, 1961 . At issue is whether Stearns-Roger Mfg. Co., Denver, Colorado, herein called the Respondent, has by the discharge of Loyd Elmer Rickman discriminated in regard to his hire and tenure of employment in violation of Section 8(a) (1) and (3) of the National Labor Relations Act, as amended. 134 NLRB No. 34.