Gray Drug Stores, Inc.

924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gray Drug Stores, Inc.' and Retail Clerks Union Local No. 1625, AFL-CIO, Chartered by the Retail Clerks International Association ,AFL-CIO, Petitioner. Case 12-RC-3773 June 26, 1972 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on February 2 and 3, and November 4, 1971, before Hearing Officer David Kayton of the National Labor Relations Board. Following the close of the hearing, the Regional Director for Region 12 transferred this case to the Board for decision. Thereafter, the Petitioner and the Employer filed briefs with the Board. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free. from prejudicial error. They are hereby af- firmed.2 Upon the entire record in this proceeding, the Board finds: 3 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.4 2. The Employer declined to stipulate that the Petitioner is a labor organization within the meaning of Section 2(5) of the Act and challenged the Petitioner's authority to represent the employees sought herein. The record shows that the Petitioner is chartered by the Retail Clerks International Associa- tion, AFL-CIO, and that it exists for the purpose of dealing with employees concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work. Moreover, there is nothing in the record indicating that the internal affairs of the Petitioner Local adversely affect its capacity to act as a bargaining representative. We find, under the foregoing circumstances, that Peti- tioner is a labor organization, within the meaning of Section 2(5) of the Act, which claims to represent certain employees of the Employer.5 3. A question affecting commerce exists concern- ing the representation of certain employees of the i The name of the Employer appears as amended at the hearing 2 We find no ment in the Employer's contention that the Board's delegation of authority over representation cases to the Regional Directors under Section 3(b) of the Act is invalid. See Magnesium Casting Company v. NLRB , 401 U.S. 137. 3 The Employer's request for oral argument is hereby denied, as the record, including the briefs, adequately presents the issues and the positions of the parties. 4 Gray Drug Stores and the Petitioner stipulated, based on evidence in the record, that Gray Drug Stores, Inc., the purchaser of the subject drugstores from Broward Drug Stores, Incorporated, is currently the sole Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act .6 4. The Petitioner seeks to represent a unit of all employees in the Employer's 11 drugstores in Dade County, Florida, but, in the alternative, would accept elections in single-store units in Dade County. On the other hand, the Employer contends that the only appropriate unit is a divisionwide unit, encompassing all 30 drugstores of the Employer in Florida. There is no history of collective bargaining for any of the Employer's Florida employees. The Employer, Gray Drug Stores, Inc., an Ohio corporation with its corporate office in Cleveland, Ohio, is a national chain with five operating divisions, including the Florida Division involved in this proceeding. The Employer operates approxi- mately 30 drugstores extending for some 300 miles in a vertical line throughout five counties off the east coast of Florida, including the 11 drugstores in Dade County (Greater Miami), which are the subject of the instant petition. There are about 700 store personnel in the entire Gray Drug Store Florida Division. The unit which the Petitioner seeks to represent, namely, the 11 Dade County drugstores, numbers about 210 employees. The area operating head of Gray Drug Stores is Robert Kwait, the regional manager, who maintains his office in Fort Lauderdale. The 30 stores are grouped into three administrative districts of 10 stores, each under the direction and supervision of a district manager. These administrative districts are not currently divided along geographic lines, al- though one of the district managers is assigned all of the stores north of Broward County. The administra- tive structure of the Company at the main office in Fort Lauderdale includes the regional manager, the three district managers, two soda area supervisors, two individuals in the buying department, and three area cosmetics supervisors. Also located at the main office are the personnel, maintenance, and warehous- ing departments. Personnel and payroll records are kept in the main office, but the payroll checks are prepared in Cleveland. The regional manager, in association with the district managers, handles labor relations, although he consults on policy matters with the parent company in Cleveland. The three district managers visit the stores under employer. Broward Drug Stores, Incorporated , did not appear or participate at the hearing 5 Terminal System, Inc, 127 NLRB 979. 6 The Employer asserts that the petition should be dismissed because no demand was made upon the Employer for recognition poor to the hearing We note, initially, that the Hearing Officer amended the petition at the heanng to reflect that Gray Drug Stores, Inc., was the employer herein In any event, the petition itself constitutes a sufficient demand for recognition, and as the Employer declined at the hearing to recognize the Petitioner, the motion to dismiss is hereby denied National Welders Supply Company, Inc., 145 NLRB 948. 197 NLRB No. 105 GRAY DRUG STORES, INC. their jurisdiction two or three times a week. They closely supervise their stores, having the final say on such matters as the hiring and discharging of employees, wage scales, scheduling of employees' work hours, vacations, etc. They also arrange for the permanent and temporary transfer of employees. The store managers are, for the most part, registered pharmacists and are in charge of the day- to-day operations of their respective stores. Their principal responsibility is to run the pharmacy, direct the work force, and maintain inventory levels. In this connection, 90 percent of the store merchandise is secured from the Company's warehouse in Fort Lauderdale, while 10 percent • is secured from authorized vendors. The store manager has he authority to temporarily suspend or discipline an employee, but may not discharge him, and he is consulted on evaluation and promotion of employ- ees. He is responsible for achieving a profit in the store, but has no control over his budgetary needs. The store manager does not, except in certain circumstances, have authority to hire persons at the store level, although he may interview employees and forward his recommendation to the district manager or the regional manager; he may prepare tentative work schedules, but same must be approved by the district manager; he may submit tentative vacation schedules, although, here again, these must be correlated and checked by the district manager; and he adjusts minor grievances only. As noted above, there are about 700 employees in the Florida Division of Gray Drug Stores. During the past 6 months, there were two or three permanent transfers per week. arising from such factors as personality conflicts, desire to relocate, etc., and it appears that geographic considerations play an important part in such transfers. With respect to temporary transfers, the record shows that such transfers are made primarily on the basis of need and are occasioned by factors such as remodeling of a store, grand opening of a new store, closing of a store, employee absences, and holiday fluctuations. These temporary transfers are not necessarily based on geographic considerations, although an employee may be consulted before being transferred. The record shows that during a prior, 6-month period temporary transfers ranged from a low of 4 or 5 a week to a high of 20 to 25 per week. More specifically, during the same prior 6-month period, there were about 300 temporary transfers in the Florida Division. The Board has held that a single-plant, or single- 7 Frisch's Big Boy III-Mar, Inc, 147 NLRB 551. a The Black and Decker Manufacturing Company, 147 NLRB 825. Haag Drug Company, Inc, 169 NLRB 877; Montgomery Ward & Co., Incorporates 150 NLRB 598. 925 store, unit is presumptively appropriate absent a bargaining history in a more comprehensive unit or a functional integration so severe as to negate the identity of a single-plant, or a single-store, unit.7 Thus, for example, even where there was substantial centralization of authority and considerable product integration between two facilities, the Board has held that one of the two facilities could constitute a separate appropriate unit if the requested facility retained a substantial degree of autonomy.8 Under its broad delegation of authority, the Board, in determining whether such a unit is appropriate, has traditionally looked to such factors as the community of interest among the employees sought to be represented; whether they comprise a homogeneous, identifiable, and distinct group; whether they are interchanged with other employees; the extent of common supervision; the previous history of bar- gaining; and the geographic proximity of the various parts of the employer's operation .9 Viewed in the light of the foregoing, it is apparent here that the appropriateness of a single-store unit has been rebutted. Thus we note, significantly, the lack of autonomy at the single-store level, as reflected by the strict limitations of the store manager's authority in personnel, labor relations, merchandising, and other matters, and the extensive role of the district manager in the day-to-day operation of the stores. In our opinion, the store manager's authority is shared with the district manager to a degree negating any conclusion that the single stores are separate economic units. This factor, together with the geographic proximity of a number of stores in Dade and Broward Counties, and the substantial and frequent interchange of employees among the stores, persuades us that the single-store unit sought alternatively by the Petitioner is not appropriate. i0 Turning to Petitioner's primary claim for a multi- store, countywide unit we note that it has been the policy of the Board to find that the appropriate bargaining unit in retail chain operations should embrace employees of all stores within the employ- er's administrative or geographic area." Sav-On- Drugs, Inc., supra, did not abandon this rule. There, the Board stated that it would apply to retail chain operations the same unit policy which it applies to multiplant locations generally and that it had merely "added the possibility . . . that a single location or grouping other than an administrative or geographi- cal area may be appropriate." The fact that the unit sought would include all employees within such 10 Haag Drug Company, Inc, supra; Caribbean Restaurants, Inc., 162 NLRB 676; Home Exterminating Company, 160 NLRB 1480. 11 The Great Atlantic and Pacific Tea Company, Inc., 128 NLRB 342; see also cases cited in In. 5 of Say-On-Drugs, Inc., 138 NLRB 1032 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD administrative or geographic area has been and continues to be one of the criteria to which the Board looks as part of its general unit policy.12 In the instant case, it is clear that a unit of Dade County drugstores does not encompass an area sufficiently remote from the Employer's drugstores in Broward County to reflect that employees in Dade County have a separate community of interest that can be justified on the basis of geographic considera- tions. Indeed, the stores in both Dade and Broward Counties appear, distributively, as a cluster, with some of the northernmost Dade County stores closer to some Broward County stores than to other stores in Dade County. But, more importantly, a unit of Dade County stores would not reflect the separate community of interest which stems from common supervision. Thus, while one of the district managers supervises all of the stores north of Broward County (not here involved), each of the other two district managers exercises supervisory authority over stores located in both Dade and Broward Counties. Quite obviously therefore a grouping of Dade County stores would not be coextensive with the supervision exercised over them, and would lack operational autonomy. Under the circumstances, and as a unit limited to Dade County stores would not constitute a grouping of employees sharing a distinct community of interest derived from common supervision or clearly defined geographic considerations, we find that these employees do not represent a sufficiently cohesive grouping to qualify for separate representa- tion.13 Although we find a unit of Dade County stores inappropriate, we do not agree with the Employer's contention that the minimum appropriate unit must be statewide in scope. A unit encompassing all employees in Broward and Dade Counties would consist of employees subject to operational supervi- sion with no other employees in the chain and constitute a geographic cluster suggesting a commu- 12 See U-Tote-Em Grocery Co, division of Malone & Hyde, Inc, 185 NLRB No 6, Weis Markets, Inc, 142 NLRB 708 13 It is true, as our dissenting colleagues point out, that use of inflexible, published definitions of geographical areas would provide more predictable and perhaps less controversial guidelines for unit determinations . However, as we have shown, use of the Dade County dividing line in the present case would lead to an artificial and unsatisfactory unit because of the way the Employer's stores are grouped We are willing to sacrifice some measure of predictability in order to achieve a more sensible and, we hope, workable unit for bargaining purposes. We do not believe that the Board should, like Procrustes, lop off vital elements of an employee group in reliance on some universal mold 14 See Haag D.-ug Company, supra, Mott 's Shop Rite of Springfiel4 inc. and Mott's Shop Rite of Chicopee, Inc., 182 NLRB 172, and cases cited therein at fn 3 is As the unit found appropriate herein is more comprehensive than that defined in the petition, we shall instruct the Regional Director to determine the adequacy of the Petitioner's showing of interest in the aforedescnbed appropriate unit before proceeding with an election herein 16 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all nity of interest distinct from employees at the Employer's remaining stores. Accordingly, we find that a unit consisting of employees at the Employer's stores in Broward and Dade Counties constitutes an appropriate unit for the purpose of collective bargaining.14 The parties refused to stipulate as to the superviso- ry status of the soda fountain managers. The soda fountain manager is in charge of the fountain department in his store, and his responsibility is to the area soda supervisor at the main office in Fort Lauderdale. The record reflects that he may effec- tively recommend the hire of new employees, initially establish the hours of work of the fountain employ- ees, and otherwise responsibly direct the employees in his department in the performance of their functions. He also purchases the necessary food products and is responsible for making a profit on the fountain operation. We find that the soda fountain managers are supervisors within the mean- ing of the Act, and we shall, accordingly, exclude them from the unit found appropriate herein. Accordingly, we find that the following employees of the Employer constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All full-time and part-time employees working in all Gray Drug Stores located in Dade County and Broward County, Florida, excluding pharmacists, store managers, assistant store managers, soda fountain managers, guards, and supervisors, as defined in the Act.iS [Direction of Election 16 omitted from publication.] MEMBERS FANNING AND JENKINS, dissenting: We cannot agree with the conclusion of our colleagues to reject the Petitioner's primary unit request for an election among the employees in Employer's 11 stores in Dade County.17 Instead they require that stores in the adjoining county of parties to the election should have access to a list of voters and their addresses which may be used to communicate with them . Excelsior Underwear Inc, 156 NLRB 1236, N.LR.B v. Wyman-Gordon Co, 394 U S 759. Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 12 within 7 days of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed At the hearing, the Employer sought to elicit evidence which in its opinion would establish a lack of need for the list , in view of the Petitioner's posession of some of the names and addresses and its efforts to secure others. For the reasons stated in Murphy Bonded Warehouse, Inc, 180 NLRB 463, the position sought to be litigated by the Employer would not justify a withholding of the list in this case, and the exclusion of the evidence offered did not constitute prejudicial error . See also Pggly Wiggly West Monroe, Inc, 180 NLRB 576. 17 Alternatively Petitioner seeks the stores individually , as separate units. GRAY DRUG STORES, INC. 927 Broward also be included, thus adding 10 more stores. Consistent with their approach there seems little reason not to reach north into the next county-Palm Beach-thus adding four more stores, and so on, up the coast. As it happens, each of these named counties in southeast Florida comprises a "standard metropoli- tan statistical area" recognized as such by the Federal Government. Standing alone, each is a rational basis for a geographically defined unit of retail stores. Standard definitions of metropolitan statistical areas were first issued by the then Bureau of the Budget in 1949. Generally conceived, a "metropolitan area" is an "integrated economic and social unit with a large population nucleus." 18 The Miami Standard Metropolitan Statistical Area con- sists of Dade County; the Fort Lauderdale-Holly- wood Standard Metropolitan Statistical Area con- sists of Broward County; the West Palm Beach Standard Metropolitan Statistical Area consists of Palm Beach County.19 The Bureau of Labor Statis- tics organizes its Employment and Earnings Studies on the basis of such areas.20 Several years ago, in a case involving a chain of drugstores, the Board specifically relied on the Washington, D.C.-Mary- land-Virginia Standard Metropolitan Statistical Area, which includes six counties and three suburban Virginia cities, as the basis for a unit finding.21 Our colleagues do, indeed, ignore a valuable precedent in favor of a curiously imprecise standard they call a "geographic cluster." Dade County, they assert, offers no community of interest based on "clearly defined geographic considerations." Dade combined with Broward, however, does inasmuch as the two are a "geographic cluster suggesting a community of interest distinct from employees at the Employer's remaining stores." Suggesting to whom? The Gov- ernment officially treats Dade and Broward sepa- rately. In truth, our colleagues are now saying that geography and administration must coincide. This approach is a significant departure from the much earlier Board practice on which the majority purports to rely. As they explain, that policy was to group all retail chain store employees "within the Employer's Contrary to our colleagues , we would find that the appropriateness of individual store units has not been rebutted in this case. See Sav-On -Drugs, Inc, 138 NLRB 1032 18 See The Statistical Abstract of the U S 1971 Department of Commerce, Bureau of the Census, p 829, and list beginning at p 890 19 Four additional major Standard Metropolitan Statistical Areas are designated for Florida Jacksonville, consisting of Duval County; Orlando, consisting of Orange and Seminole Counties, Pensacola, consisting of Escambia and Santa Rosa Counties , and Tampa-St Petersburg, consisting of Hillsborough and Pinellas Counties 20 See U S Department of Labor / Bureau of Labor Statistics, Bulletin No 1370-6, issued August 1969, and BLS Bulletin No 1370-7, issued administrative division or geographic area," also expressed as within "either" an employer's adminis- trative division or "a" geographical area.22 The Great A & P case they cite (128 NLRB 342) granted a 3- store unit of meat department 'employees in the Augusta, Georgia, metropolitan area, even though the meat department area supervisor covered some 15 additional stores located at varying distances from Augusta. We would point out that the Board (Member Fanning participated in that case) clearly was not requiring a geographic grouping of stores "coextensive with the supervision exercised over them," as it is doing here. Although the Board there noted that a unit including all employees under the supervision of the meat supervisor might be appro- priate, it also noted that no labor organization sought that unit. And, as the unit requested by the petitioner consisting of all stores in the Augusta, Georgia, metropolitan area was also appropriate partly by reason of more frequent employee transfers, the geographic unit was granted. Defining the scope of multistore units less than employerwide has frequently presented difficulties, particularly when the unit sought is geographic in concept. Yet over the years the Board has repeatedly said that either an administrative or a geographic grouping is appropriate.23 Additional stores periph- eral to the suggested geographic area create the problem. What is an appropriate cutoff? To this problem the standard metropolitan statistical area classification-worked out by the U.S. Office of Management and Budget and officially designating areas that are economically and socially integrated -offers a rational solution. Though a specific standard area as applied to a labor relations problem may fail to satisfy all parties with respect to exclusion of this store or that lying outside the borders of the official area, as a guideline these standard areas are nonsuspect simply because designed to achieve an intelligent, orderly, geographic approach to federally related problems. It ill behooves this Agency to turn its back upon this useful guideline, discourage its further use as an organizing goal, and set up a quagmire instead. August 1970, covering detailed industry data on 212 major labor areas, including the 7 major ones in Florida See also U.S Dept. of Labor / BLS Bulletin 1685-29, being an Area Wage Survey for the Miami Metropolitan Area (Dade County) Nov. 1970. 21 Drug Fair-Community Drug Co, Inc, 180 NLRB 525 22 See The Great Atlantic & Pacific Tea Company, Inc, 132 NLRB 799, 800 23 Kroger Company, 88 NLRB 194, 195; Crown Drug Company, 108 NLRB 1126, 1127, Sparkle Markets Company, 113 NLRB 790, 791, Food Fair Stores, Inc, 114 NLRB 521, 522, Daw Drug Co, Inc, 127 NLRB 1316, 1319; The Great Atlantic & Pacific Tea Company, 132 NLRB 799, 800