Grand Union Co.

GRAND RX DRUG STORES 525 The Grand Rx Drug Stores of the Florida Division of the Grand Union Company ' and Retail, Wholesale Department Store Union, Local 1299, AFL,-CIO, Registered Pharmacist's Division 2 Case 12-RC-3678 October 5, 1971 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held between October 6 and 23, 1970, before Hearing Officer Leonard Bass. On October 29, 1970, the Regional Director for Region 12, pursuant to Section 102.87 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, transferred this case to the National Labor Relations Board for decision. There- after briefs were filed by the Petitioner and the Employer. On February 2, 1971, the Board remanded this case to the Regional Director for the purpose of conducting a further hearing. In accordance with the Board's remand, a further hearing before Hearing Officer Leonard Bass was held between March 18 and June 2, 1971. Thereafter a brief was filed by the Employer. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the original and reopened hearings and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon consideration of the briefs and the entire amended record in this case,3 the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Union involved herein is a labor organiza- tion within the meaning of the Act and claims to represent certain employees of the Employer. 3. No question affecting commerce exists concern- ing the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act for the following reasons: Petitioner seeks a unit of registered pharmacists employed in the Employer's drug departments locat- ed within 20 retail Gradway discount stores and Grand Union supermarkets. The Employer contends that the requested unit is inappropriate since limited to individuals who are either supervisors or exempt managerial employees. The drug department in each store is designated by a sign reading "Grand RX Drug Store." In addition to drug departments, the stores contain Grand Union or Grandway departments, which are described in a sign outside the store as a Grand Union or Grand Way store. They include grocery, produce, meats, nonfood, and general (administrative) departments. The drug departments are separate, but contiguous to other departments of the store, and sell health and beauty aids as well as prescriptions. The nonprescription products, which may also include greeting cards and tobacco products, account for the bulk of each department's business volume. The two registered pharmacists assigned to each drug department are designated as drug manager and assistant drug manager. They are in charge of the entire Grand RX department.4 Each store is open for business on an average of 62 hours, 7 days a week. The Grand RX manager and his assistant rotate their hours of work, which range from 40 to 46 hours per week. Although there may be as much as 2 hours' overlap in the shift of the Grand RX manager and the assistant manager, most of the time only one is present and is the only individual representing management in the Grand RX departments. Unlike the clerks under them, the pharmacists receive a fixed weekly salary regardless of their hours of work and fringe benefits, only available to managerial employ- ees, such as major medical payments and sick leave with pay. Their scale of compensation is greatly in excess of that for their clerks, being $275 to $300 per week for managers, and $250 to $275 per week for their assistants, as compared with $1.80 to $2.30 per hour (equivalent to a range of $72 to $92 for a 40-hour week) for their clerks. Unlike the managers and their assistants, the clerks receive additional overtime pay for hours in excess of 40 in each week. On the other hand, managers, assistant managers, and clerks alike are required to record their hours of work on timecards and apparently receive the same vacation and holiday benefits. The supervisory hierarchy with respect to the drug departments shows that the Grand RX manager and his assistant report to an area drug supervisor, who in turn is immediately under the superintendent of drug operations in the Florida division office at Hialeah, Florida. It appears that the superintendent of drug I The name of the Employer appears as amended at the hearing 4 The parties are in agreement that although the record in the original 2 The name of the Petitioner appears as amended at the hearing hearing showed that a relief manager, in addition to the manager and 3 The record in the original and reopened hearings has been corrected assistant manager, may be employed at each store, the job of relief in accordance with the requests of the Employer manager no longer exists , having been abolished by the Company 193 NLRB No. 81 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operations reports to a Grand Union vice president and general manager in charge of the Florida division. Each area drug supervisor visits each drug depart- ment for from 10 minutes to several hours each week. The duties of the drug managers and their assistants appear to be identical . In addition to being solely responsible for preparing and dispensing prescrip- tions, which vary in number from store to store, they are completely in charge of the day-to-day operations of their department . They direct the activities of their clerks in the performance of their duties, which include running the cash register, waiting on custom- ers, and stocking the shelves and displays. These duties may also encompass at some locations the filling out of records of orders and prices . They also attend managerial meetings, see that the proper stock is maintained , the proper prices are charged, that enough clerks are on hand to record incoming orders when received at sporadic times, resolve conflicts between clerks as to their duties , and regulate the clerks' hours of work so that the department is properly manned . It is also their responsibility to fill out daily operational and other records of managerial performance , to open and close the department, to have a key in those drug departments at some locations which are physically separated from the other store departments , and to lock up the prescrip- tion safe . They are also responsible for the cash and merchandise on hand and have authority to see that employees understand their work assignments and keep busy and pleasant to customers while on the job, to post and change an individual clerk's work schedule , to initial changes and corrections in clerks' timecards , to grant time off, and to handle grievances. They are also required to approve payment of invoices and receipt of orders, to approve customers' checks for merchandise and prescriptions, and to change prices . No other manager in the store has any day-to-day authority over the Grand RX managers or their clerks. The record in the original hearing , as indicated by our order reopening the record , disclosed contradicto- ry testimony between witnesses for the Petitioner and the Employer as to whether all drug managers and their assistants were told by the Employer that they had, and whether they exercised, supervisory authori- ty. During the original hearing, the superintendent of drug operations advised all drug managers and their assistants by mail that they were expected to interview and evaluate applicants for work in their department, whether they were referred from the personnel department or directly applied for work , and to reject applicants who were not satisfactory ; to train new 5 Certain of the supervisors declined to exercise the authority conferred, and were terminated We take official notice of the fact that these discharges were the subject of unfair labor practice charges brought by the employees, assign them responsibilities, fix their work schedules, and see that they performed their work properly. Also, through a process of continual evaluation, to warn and suspend them, and if discharge was indicated, to recommend such to the area drug supervisor. The Petitioner asserts that this notification was prepared pursuant to hearing and did not constitute a bona fide delegation of supervisory authority. Since the record evidences the existence of such authority prior to the original hearing, we find no merit in Petitioner's contentions. The evidence, adduced at the reopened hearing, shows that at the time the Employer acquired the stores of Stevens Markets in 1964 it recognized that the Stevens drug managers and assistant drug managers whom it retained possessed the above authority. Furthermore in 1966 it assigned the same authority to the drug manager and in the previously owned Grand Union stores. Because of the newly assigned supervisory responsibilities the Employer raised the scale of salaries to accord with the higher scale of the former Stevens managers. Moreover, testimony from witness- es for both the Employer and the Petitioner now clearly establishes that all possess supervisory author- ity and such authority is exercised by substantially all of those in the requested unit.5 Thus, pharmacists have advertised for, interviewed, and hired or effectively recommended hiring; dis- charged for drunkenness or insubordination or effectively recommended discharge or transfer out of the drug department for disciplinary reasons includ- ing poor work; selected the least productive employee for layoff because of overstaffing; issued warnings or reprimands for idleness, improper dress, unexcused absence, and insubordination; effectively recom- mended transfer into the drug department and refused requested transfers; approved requested transfers; recommended retention of a drug clerk despite her excessive absenteeism due to illness which recommendation was accepted; recommended wage increases; used independent judgment in setting work schedules for individual employees and changing such schedules when required by a change in scheduled times of incoming orders or a decrease in total hours of work because of declining volume in the drug department, and in making work assignments; granted or refused time off; appraised each drug clerk's performance; and handled grievances. On these facts we find that the Grand RX managers and their assistants in all the stores encompassed by the petition possess indicia of supervisory authority, and hence are supervisors within the meaning of Union against the Company in Case 12-CA-5097 . Said charges were dismissed by the Regional Director and such dismissal was sustained on appeal by the General Counsel on May 17, 1971 GRAND RX DRUG STORES 527 Section 2( l 1) of the Act . Accordingly , we shall dismiss the amended petition ,6 as seeking an inappropriate unit. ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. 6 Burlington Food Store, Inc, and Delaware Food Store, Inc, 172 NLRB we find it unnecessary to pass on and we have therefore not considered No 73, Nitro Super Market, Inc, 161 NLRB 505, 510-511, Katz Drug whether the above individuals are also managerial employees who may not Company, 123 NLRB 1615, 1616- 17 In view of our finding that the form an appropriate unit because of the nature of their managerial petition must be dismissed because the above individuals are supervisors , responsibilities.