Ward Cut-Rate Drug Co.

WARD CUT-RATE DRUG STORE 589 Ward Cut-Rate Drug Company ; and Retail Clerks International Association, AFL-CIO, Local 368,2 Petitioner. Case 16-RC-6264 November 27, 1973 DECISION AND ORDER By MEMBERS FANNING, KENNEDY, AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Billy R. Snow on April 16, 19, and 20; May 14, 15, 16, 17, and 18; and July 9, 10, and 11, 1973. On August 31, 1973, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, and by direction of the Regional Director for Region 16, this case was transferred to the Board for decision. Thereafter, briefs were filed by the Employer, Petitioner, and Intervenor.3 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case, 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 con- cerning 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 all pharmacists employed by the Employer in its stores located in Dallas and Tarrant Counties, Texas, excluding all other employ- ees, watchmen, guards and supervisors as defined in the Act. The Employer contends, inter alia, that the requested unit is inappropriate because the pharma- cists are supervisors within the meaning of the Act. The Employer, at the time of the hearing, operated 76 stores in Texas and Oklahoma. At the hearing, Drug Stores, Inc., a wholly owned subsidiary of Jack Eckerd Corporation, intervened on the ground that it was the conduit by which the Jack Eckerd Corpora- tion was taking over the Employer. At the time of the hearing, 17 of the 47 stores located in Dallas and Tarrant Counties had been "converted" to the Jack Eckerd method of operation. Subsequent to the hearing on August 31, 1973, according to the affidavit of Jack Eckerd Vice President Zeiger, the merger was consummated. Ward Cut-Rate Drug Stores, Inc., became merged into Drug Stores, Inc., which changed its name to Ward Drug Stores, Inc. Under the Employer's premerger system of opera- tion, each store had a pharmacy department, which consisted of personnel classified as pharmacy man- agers, pharmacists, typists, and interns. The pharma- cy department was one of four separate departments in the store and was under the direct supervision of the Employer's executive vice president. Below the executive vice president were three pharmacy super- visors who were responsible for the administrative operations of a particular geographical section. Directly beneath these pharmacy supervisors were 11 pharmacy subsupervisors, who also served as phar- macy managers and were responsible for administra- tive operations of four to six pharmacy departments. During the merger, the Employer's pharmacy operations supervisory structure was reorganized and 2 additional pharmacy supervisors were added, making a total of 5 pharmacy supervisors and the number of pharmacy subsupervisors was reduced from 11 to 2. Each pharmacy supervisor is now responsible for 10 to 20 stores within a particular geographical area. The Employer's individual phar- macy departments have been physically altered. Under the new system, the drug and pharmacy departments have been combined to form a prescrip- tion drug department. The conversion to the new system has resulted in the elimination of the classifications of pharmacy manager and pharmacist, and the establishment of a new classification entitled prescription/drug department manager. Employer's witness testified that, when the conversion was completed, there would be no pharmacists who were not prescription/drug department managers. Drug clerks who were under the store managers' supervi- sion under the old system would be transferred to the prescription/drug department and under the manag- ers' supervision. As under the premerger system, the store manager would have no authority over any facet of the prescription/drug department. Jack Eckerd Corporation has operated under the prescription/drug department system since 1970 and has instituted the system in other drug chains it has 1 The name of the Employer appears as amended at the hearing. the record the affidavit of Martin Zeiger which relates to events 2 The name of the Petitioner appears as amended at the hearing. consummated subsequent to the hearing. No opposition to this motion was 3 Drug Stores, Inc., was permitted to intervene at the hearing. In filed Accordingly, the affidavit of Martin Zeiger is hereby included in the addition to its brief, the Intervenor also filed a motion to incorporate into record. 207 NLRB No. 99 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acquired. Under the postmerger (Jack Eckerd) system, prescription/drug department managers have expanded duties, authorities, and job responsi- bilities. As set out in the prescription/drug depart- ment manual and as articulated at the hearing by the Employer's executive vice president, each prescrip- tion/drug department manager has immediate super- vision over, two to eight typists, interns,4 and drug clerks. This supervision entails scheduling, evaluat- ing, training, disciplining, rewarding, and granting overtime, with written authority to accept or reject drug clerks recommended to work in the prescrip- tion/drug department, to fire or effectively recom- mend firing, to transfer or effectively recommend transfers, and to hire or effectively recommend hiring. The prescription/drug department manager orders and stocks drugs, prepares departmental reports, and has responsibility for customer relations. The supervisory hierarchy indicates that the Em- ployer has only five pharmacy supervisors and two pharmacy subsupervisors for its chain of 76 stores. Store managers have no authority over or responsi- bility for the operation of the prescription/drug department. Day-to-day operation, therefore, is regulated by the prescription/drug department man- agers and there are no pharmacists who are not prescription/drug department managers. On the basis of the foregoing, we find that the pharmacists, or prescription/drug department man- agers, as they are formally titled, possess indicia of supervisory authority and are, therefore, supervisors within the meaning of Section 2(11) of the Act. Accordingly, we shall dismiss the petition as seeking an inappropriate unit.5 ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. 4 Under the laws of Texas, graduates of accredited pharmacy schools Company, 193 NLRB 525. In view of our finding that the petition must be must complete 400 hours as interns before they can take the exam to be dismissed because -the above individuals are supervisors, we find it licensed. unnecessary to pass on, and we have not considered, any other issues 5 The Grand Rx Drug Stores of the Fonda Division of the Grand Union concerning the appropriateness of the requested unit.