Snyder Bros. Sun-Ray Drug

628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD David-Anna Corporation d/b/a Snyder Bros. Sun-Ray Drug and Local No. 789, Retail Store Employees Union, affiliated with Retail Clerks International Association, AFL-CIO. Case 18-CA-3753 January 23, 1974 DECISION AND ORDER By MEMBERS FANNING, KENNEDY, AND PENELLO On April 20, 1973, Administrative Law Judge Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. 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 I has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, except as modified herein. 1. We agree with the Administrative Law Judge that Respondent engaged in independent violations of Section 8(a)(1) of the Act by interrogating employees Laust, Hexum, and Dorothy Anderson concerning both their own activities and the activities of other employees.2 2. We also agree with the Administrative Law Judge that Pharmacist-In-Charge Alan Anderson was a supervisor within the meaning of the Act. Thus, the Administrative Law Judge found that Anderson possessed the authority to discipline pharmacy employees and to responsibly direct them in their work. Anderson's reprimanding of employee David Goudge for tardiness, his resolving of disputes concerning the wage schedule, and his evaluations of the job performances of pharmacy employees ade- quately support the finding of supervisory status. Member Fanning in his separate opinion asserts that the Administrative Law Judge has ignored the fact that the use of the word "supervisor" in State legislation is not determinative of supervisory status under our Act. On the contrary, the Administrative Law Judge specifically stated, "I attach no signifi- I Respondent's request for oral argument is hereby denied, as in our opinion the record, the exceptions , and the brief adequately set forth the issues and positions of the parties 2 As indicated in his separate opinion. Member Fanning concurs in this finding 3 See The Mousetrap of Miami, Inc, d/b/a Bea Morley 's Mousetrap, 174 NLRB 1060, 1063 4 Member Kennedy would not find these remarks to be independently violative of Sec 8(a)(I) of the Act in view of the majority position that Anderson was a supervisor whose discharge for engaging in union activities cance to the Minnesota State Board of Pharmacy's use of the word `supervise' in its regulation 21." It is clear that the Administrative Law Judge relied on the duties and responsibilities imposed on pharmacists- in-charge by the State and not merely the use of the word "supervise." Member Fanning also argues that Respondent presented no evidence at all to establish the supervi- sory status of Anderson . Yet this observation overlooks the facts which were elicited from Ander- son himself on cross-examination and which relate to his duties and responsibilities . If supervisory status is shown by the testimony of the person in question, it is hardly incumbent upon Respondent to go forward with cumulative evidence. 3. However, Member Penello, with Member Fanning's concurrence, does not agree with the Administrative Law Judge's failure to find that Store Manager Rosen and Assistant Store Manager Kram- er violated Section 8(a)(1) of the Act on December 23, 1972, when they told employees Tomita, St. Martin, Dorothy Anderson, and Hexum that Alan Anderson had just been fired for his union activities. The Administrative Law Judge erred in concluding that the statements of Rosen and Kramer were merely declarative of Respondent's legal rights in discharging Anderson whom he deemed to be a supervisor within the meaning of the Act. In all the circumstances described by the Administrative Law Judge, it is clear that these remarks were calculated to create the impression among the employees that they would suffer the same fate as Anderson if they engaged in union activities and are therefore, inherently coercive3 in violation of Section 8 (a)(1) of the Act.4 THE REMEDY In view of the foregoing findings as to Respon- dent's unfair labor practices which are violative of Section 8(a)(1) of the Act, Respondent shall be ordered to cease and desist therefrom and take certain affirmative action. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, was not unlawful As pointed out by the Administrative Law Judge "Since Anderson was a supervisor within the meaning of the Act. Rosen's and Kramer 's statements amounted to no more than a declaration that Respondent had done that which it had a legal right to do. Nothing in the context of the conversations implied that Respondent was thinking in terms of visiting the same penalty on employees for engaging in union activities No such violative discharge took place either before or after December 23 to give Rosen's and Kramer's words an implication they did not have on their face " - 208 NLRB No. 66 SNYDER BROS. SUN-RAY DRUG 629 David-Anna Corporation d/b/a Snyder Bros. Sun- Ray Drug, St. Paul, Minnesota, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating or making coercive statements to employees concerning their union activities or the union activities of others. (b) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its store located at 2157 Hudson Road, St. Paul, Minnesota, copies of the attached notice marked "Appendix. Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respondent's author- ized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER FANNING, concurring in part and dissenting in part: I concur in my colleagues' adoption of the Administrative Law Judge's finding that Respondent engaged in interrogation in violation of Section 8(a)(1) of the Act. I also join Member Penello in finding that Respondent engaged in further 8(a)(1) conduct by its coercive statements to employees that the discharge of Alan Anderson resulted from his union activities. However, as I would find on this record that Alan Anderson was not a supervisor, I would reverse the decision of the Administrative Law Judge on this issue and hold the discharge of Anderson by Store Manager Rosen violative of Section 8(a)(1) and (3) of the Act. The General Counsel proved, as the Administrative Law Judge found, that Rosen abruptly fired Ander- son at the end of his shift on December 23, 1972, for being "a union intimidator." This action followed the numerous independent violations of Section 8(a)(1) by Respondent, which began on December 11 when Rosen called Anderson in to interrogate him about the organizing of clerks and pharmacists then going on. The General Counsel, having proved that Ander- son was employed by Respondent and discharged for his union activity, a prima facie case of unlawful employee discharge was established. It then devolved upon Respondent to go forward with evidence to establish Anderson's supervisory status in order to remove Rosen's conduct from the proscriptive ambit of the statute.ti This Respondent failed to do. In fact, at the hearing, Respondent presented no evidence at all: it merely asked the Administrative Law Judge to take official notice of the State regulations, claiming that, "according to State Law, Mr. Anderson was invested with that power," meaning supervisory authority within the meaning of Section 2(11) of our Act. At no time, however, did respondent demon- strate or even claim that Anderson was invested with any supervisory authority delegated directly by it. That Anderson was fired for his union activity is so obvious that Respondent does not dispute it. Rather, in support of its defense that Alan Anderson was a supervisor,7 Respondent relied solely on the Minne- sota laws pertaining to the necessity for having a state-designated `pharmacist-in-charge' in every pharmacy, whose responsibilities include the duty, under regulation 21 of the Minnesota State Board of Pharmacy, "to `supervise' all of the professional employees of the pharmacy." 8 Interpreting regula- tion 21, the Administrative Law Judge concluded that it was the "intent of the State of Minnesota that persons designated pharmacists-in-charge shall re- sponsibly direct the work of pharmacy employees, both professional and nonprofessional, in the sense in which that phrase is used in the National Labor Relations Act." He then presumed that Respondent conducted its business in a lawful manner, and dismissed for failure of the General Counsel to produce evidence to the contrary.9 This ignores the fact that use of the word "supervisor" in state legislation is not determinative of supervisory status 5 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 6 The Detroit Edison Company and Westinghouse Electric Corporation, 123 N LRB 225, 230-231. enfd subnom Local 636 of the United Association of Journeymen etc in pertinent part 278 F 2d 858 (C A.D.C., 1960); fcCormccli Concrete Company of S C, Inc, 153 NLRB 1507, 1513 r This defense was first made at the hearing. Earlier, in its answers to the complaint and amended complaint , Respondent identified Rosen and Kramer as supervisors , but made no claim that Alan Anderson was a supervisor. a The Minnesota regulation and the statutory definition of pharmacist- in-charge are quoted in the Administrative Law Judge's Decision. 9 The Administrative Law Judge also relied on Anderson 's having disciplined an employee for tardiness, resolved a vacation schedule dispute, discussed employee job performance with the assistant store manager, and (Continued) 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD under our Act.10 In my view, contrary to my colleagues, the Administrative Law Judge, although professing to "attach no significance" to the word "supervise" in the Minnesota regulations, neverthe- less reached precisely that result by finding it the "intent of the State" that pharmacists-in-charge shall responsibly direct the work of pharmacy employees. This result clearly weights the State regulation contrary to Board and court precedent concerning supervisory issues. Actual duties tested under our Act are the sole test of supervisory authority. Thus, the Administrative Law Judge's rationale tends to prejudice the General Counsel by erroneous- ly shifting the burden of proof on the issue of Anderson's nonsupervisory status. I fear that the effect of my colleagues' affirming his decision, on a record so weak in evidence of actual possession or exercise of supervisory authority within the meaning of our Act, will be to insure that all pharmacists-in- charge within the State of Minnesota (and perhaps other States as well) are deprived of the protection of our Act. I believe this contravenes the spirit of the Supreme Court's decision in Bethlehem Steel Co., v. New York State Labor Relations Board, 330 U.S. 767 (1947). In footnote 9 I have analyzed what little evidence there is that can be construed as indicative of supervisory status and found it unpersuasive, thus not meeting the Respondent's burden of proof. Granted that Respondent might have met that burden had it put on evidence as to how the store was staffed and supervised, thus supplying some meaningful context in which to judge the limited results of its cross-examination; but it did not do so. In this posture, it seems a fair inference that the existence of both a manager and an assistant manager provided the store as a whole with all the supervisory authority necessary, thus leaving to the pharmacist-in-charge the exercise of those profes- sional duties which States normally require of licensed pharmacists. Moreover, the Minnesota requirements pertaining to the necessity for a pharmacist-in-charge provide that he shall "assume professional responsibility for instructed other pharmacists on drug purchases From the record, I would not reach similar conclusions I would not term Anderson's talking to Goudge about his tardiness "discipline", moreover, the evidence clearly shows that he did so only after being specifically asked to by both Rosen and Assistant Manager Kramer-hardly the exercise of independent authority Vacations were not scheduled by Anderson and it appears that he merely intervened in a dispute between pharmacists wishing to be away at the same time. He did not formally evaluate the work of employees, and there is no evidence that his opinion , when specifically requested, constituted an effective recommendation within the meaning of Sec. 2(11) About one-half the buying-not including narcotics-was done by other pharmacists. mostly when Anderson was not on duty . Anderson's suggestion that readily available drugs need not be bought in quantity, coming from a man professionally responsible for stocking the pharmacy, hardly denotes supervisory authority under the Act the operation of the pharmacy, in compliance with the requirements and duties as established by the Board in its Rules and Regulations." Regulation 21 sets forth his responsibilities, which are to be performed "consistent with accepted standards of professional conduct and practice and in compliance with all applicable laws." In my opinion, the thrust of the State in this area is clearly in mandating compliance with the professional standards which it deems obligatory in furtherance of the public interest . Section (e) of the Regulation for exam- ple-the only one which mentions nonprofessional employees-provides for their "supervision" by the pharmacist-in-charge only "insofar as their duties relate to the sale and/or storage of drugs." The professional responsibility imposed upon the phar- macists-in-charge by the State regulations involves the exercise of "discretion and judgment," which are an index of "professional employee" status under Section 2(12) of our Act, rather than supervisory status under Section 2(11). This interpretation is in agreement with a long line of Board cases involving "head pharmacists" or "pharmacists-in-charge." In none of those cases have we held the pharmacist-in- charge to be a supervisor, absent a significant exercise of authority under our Act in addition to responsibility as a professional employee; I dissent from doing so now. 1' , Contrary to the Administrative Law Judge, I can see no basis here for arriving at a different result than that reached in Skaggs Drug Centers, Inc., 197 NLRB 1240. There, as here, the state-designated pharma- cist-in-charge received the same slightly higher pay, his name appeared on the necessary State licenses, and he signed for narcotics; he was responsible for seeing to it that the pharmacy was properly stocked with supplies, kept clean, and covered by a pharma- cist at all times. There, as here, the pharmacist-in- charge had no power to hire or fire, nor did he effectively recommend such action. There, under circumstances almost identical to these, we found the pharmacist-in-charge not to be a supervisor. I fear that the majority's failure to address the issue of their 10 Howard Johnson Company, 174 NLRB 1217, 1221, 1222 i i Cases where we have held the head pharmacist not to be a supervisor are Lane Drug Co, Division of A. C Israel Commodity Corporation, 160 NLRB 1147, Skaggs Drug Centers Inc, 197 NLRB 1240, White Cross Stores, Inc, 186 NLRB 492, Walgreen Louisiana Co, 182 NLRB 541 Waigreen Louisiana Co, Inc, 186 NLRB 129. In the latter two, "chief pharmacists" were held not to be supervisors, while those "chief pharma- cists registered" who also acted in sole charge of the entire store up to 98 hours every 2 weeks were held supervisors In Hook Drugs, Inc, 191 NLRB 189, head pharmacists were found supervisors- they were also assistant store managers, signed payrolls , and regularly attended management meetings at corporate headquarters, in Sav-On Drugs, Inc, 138 NLRB 1032, the head pharmacists found to be supervisors were also assistant store managers in charge of the entire store up to 38 hours per week SNYDER BROS. SUN-RAY DRUG silent undermining of Skaggs and other prior cases not only will cause confusion and increase litigation in the field, but will return to haunt us. This is not a case such as Hook Drugs, supra,where the registered pharmacist, who was found to be a supervisor, was also the assistant store manager, attended manage- ment meetings, was in charge of the entire store almost 40 hours per week, and was charged with the duty to supervise as specifically set forth in the company's manual of operations. Finally, assuming arguendo that by reason of Anderson's on job duties with respect to the other pharmacy employees he is a supervisor and thereby not a candidate for 8(a)(3) discrimination because of any union activities he may engage in, I am inclined to think that he should be reinstated and made whole because of the impact of this particular discharge on the employees. The discharge came as an integral part of discouraging store clerks and pharmacists in the exercise of their Section 7 rights to organize, and was followed immediately by statements advising employees of the reason for the discharge. In fact, Respondent made a marked effort to project its antiunion sentiments by publicizing its reason for Anderson's discharge. In my view, it follows that the discharge should be recognized as a separate 8(a)(1) violation, to be remedied with reinstatement and backpay.12 As accomplished, the discharge was inherently coercive of employees in their organizing attempt. I would therefore equate it with Krebs and King Toyota, Inc., 197 NLRB 462. The majority found that termination of a supervisor who spoke for employees by saying "let the Board settle" the dispute was an 8(a)(1) violation remediable by reinstatement, and quoted from Pioneer Drilling Co., Inc., 162 NLRB 918, 923, where the discharge of a supervisor was "an integral part of a pattern of conduct aimed at penalizing employees for their union activities." Though the facts differ, the language and the remedy are singularly appropriate here. 12 It also follows that Respondent engaged in inherently coercive conduct when its store manager and assistant store manager told employees that Anderson was discharged because of his union activities As indicated above, I therefore concur in Member Penello's conclusion that their statements violated Sec 8(a)(1) of the Act APPENDIX 631 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through represent- atives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT interrogate, threaten, or coerce you concerning your union activities or the union activities of others. WE WILL NOT, in any like or related manner, do anything that interferes with or restrains you in the exercise of any or all of the above rights. All our employees are free, if they choose, to join Local No. 789, Retail Store Employees Union, affiliated with Retail Clerks International Associa- tion, AFL-CIO, or any other labor organization. DAVID-ANNA CORPORATION, D/B/A SNYDER BROS . SUN-RAY DRUG (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Tele- phone 612-725-2611. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The charge in this case was filed on December 26, 1972.1 The complaint was issued on January 31, 1973. An amended complaint was issued on February 9, 1973. The hearing was held on March 6, 1973, in Minneapolis, Minnesota. The amended complaint alleges that Respondent violat- ed,Section 8(aXl) of the National Labor Relations Act, as amended, by interrogating employees and Section 8(aX3) and (1) by discharging Alan Anderson. The principal issue litigated was whether Anderson was a supervisor within the meaning of the Act. For the reasons set forth below, I find that he was and Respondent, therefore, did not violate the Act by discharging him on December 23 for engaging in union activities. (Resp. Exhs. 5' and 6 are hereby received into evidence over the objection of the General Counsel. Respondent's motion that this case be transferred to the Board without findings of fact and decision by me is hereby denied.) Upon the entire record and after due consideration of briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Minnesota corporation, operates a retail drugstore in St. Paul, Minnesota. During the year prior to issuance of the amended complaint, it grossed more than $500,000 and purchased and received goods valued in excess of $50,000 from suppliers located outside the State of Minnesota. II. THE UNFAIR LABOR PRACTICES At the conclusion of the General Counsel's case, Respondent elected not to introduce any evidence other than the laws of the State of Minnesota relating to the duties and responsibilities of "pharmacists-in-charge." Consequently, there are no factual disputes in the record. The General Counsel relies on the uncontroverted facts concerning Alan Anderson's union activities and dis- charge. Respondent relies on Minnesota law and the undisputed facts, mainly elicited from Anderson himself on cross-examination, relating to his duties and responsi- bilities as chief pharmacist. A. General Counsel's Facts Prior to December 23 Alan Anderson was chief pharmacist and pharmacist-in-charge at Snyder Bros. Sun- Ray Drug Store. He had worked there for 2 years. The store is managed by Harry Rosen. Kenneth Kramer is assistant manager. On December 7, Anderson and 2 other pharmacists from his store attended a meeting of 10 or 11 pharmacists with 2 of the Charging Party's business agents. (Snyder Bros. Sun- Ray Drug Store is part of a chain in the Minneapolis-St. Paul area known as Snyder Bros. Drug Stores.) All the pharmacists present signed authorization cards. They took more cards back to their respective stores in order to sign up other, employees. On December 9 Anderson signed up some employees at his store's annual Christmas party. The following week he signed up more. In all, he obtained cards from 10 to 15 of the approximately 30 persons employed in his store: On December I I Respondent distributed a letter to its employees in which it stated that it had received a telegram from the Charging Party on December 9. The letter urged the employees not to sign authorization cards. During the week of December 11, the following conversations took place at the store: Rosen called Anderson into his office and said he understood the clerks and pharmacists were organizing a union. He asked Anderson if he knew who started it. Anderson said he did not. Rosen asked Anderson if he had signed. Anderson said no. Rosen asked if Anderson intended to sign. Anderson said, "I might have to go along with the rest." Rosen asked Jean Laust, a drug clerk, in the store's lunchroom in the course of a conversation about the cards that had been passed out, whether she had signed one. Ms. Laust said she had not. Rosen asked Louise Hexum, a clerk, at a counter in the store, whether she knew anything about the union. She said she did not. He told her, if she heard anything, to let him know. Rosen summoned Dorothy Anderson, a clerk, to his office and asked her whether she had signed a card. She said that she had. He expressed surprise and asked whether she had known about the union before she signed. She said she had known nothing until she was handed the card. Around 1:30 p.m. on December 23, as Ms. Laust was starting a break, she stopped to thank Rosen for her Christmas bonus. Rosen invited her into his office. Rosen said he had been planning a raise which the employees had recently gotten for quite a while and had decided to go ahead with it despite the organizing campaign that was going on because he thought the employees were entitled to it. Ms. Laust mentioned that she had signed an authoriza- tion card. Rosen said he thought she was the last one who would ever do that, he was disappointed in her: Ms. Laust said she was the last one to sign. Rosen asked whether Anderson had given her the card. Ms. Laust said she could not remember whether she got it from Anderson or Bob Lovsted, another pharmacist. Rosen asked whether she had been given the card on company time. Ms. Laust said no. Rosen said Anderson was slowing down in his work. Ms. Laust said it was not so, the problem was that the pharmacy was in a mess because it was so busy. Rosen said that he should fire Anderson, he was a troublemaker. A few minutes after 2 p.m., as Anderson was leaving the store at the end of his shift, Rosen intercepted him and took him into the office. Rosen said, "You're fired, you bastard. You're a union intimidator." Anderson said, "You can't get by with this." Rosen said, "I'll close the store before I let you work here." When Ms. Laust got back to her work station in the 1 Dates are 1972 unless otherwise specified. SNYDER BROS. SUN-RAY DRUG 633 pharmacy at the end of her break, Lovsted informed her Rosen had just fired Anderson. Later that afternoon Rosen told Ms. Hexum he had fired Anderson because he was a troublemaker. (A few days later he told Ms. Hexum he had not fired Anderson for the reason she thought. Ms. Hexum told Rosen she did not want to hear about it because she might have to testify against him. Rosen said, "You wouldn't do that, would you?" Ms. Hexum said she would if she were subpenaed.) Rosen also told Dorothy Anderson that afternoon that he had fired Anderson. Ms. Anderson asked why. Rosen said it was because Anderson was getting the Union in. Rosen also telephoned Florence Tomita, a part-time pharmacist, and asked if she could work the next day, Christmas Eve. He said that he fired Anderson because he was involved in union activity. Kenneth Kramer. the assistant manager, told Tonette St. Martin, a clerk, that Anderson had been fired. Ms. Martin said she knew it had something to do with the union, there was no other reason she could see. Kramer said, "It was that and there were other reasons involved." B. Respondent's Facts At the time of Anderson's discharge there were seven employees in the pharmacy in addition to him, two other full-time pharmacists, two part-time pharmacists, one pharmacist intern, and two drug clerks. All five pharma- cists were licensed by the State of Minnesota. At times they filled prescriptions alone. At other times two or three pharmacists worked together. Anderson's salary was approximately $10 a week more than that of the other two full-time pharmacists. He had keys to the store and, on occasion, opened up in the morning or closed up at night. His name appeared first on a list of persons to be contacted if the store were broken into. He was the only one of the five pharmacists authorized to sign narcotics order forms. The other two full-time pharmacists had authority, along with Anderson, to order other drugs from supply houses. Anderson had instructed them to limit their buying to small quantities since they could obtain new stocks readily. Anderson bought about half of the drugs ordered in this manner; his two full-time colleagues, the other half. In the late summer of 1972, when the store was remodeled, Anderson laid out the manner in which drugs would be stored in the pharmacy. He made recommenda- tions to Rosen with respect to the store's check cashing and drug pricing policies. When disputes developed between pharmacy employees as to the vacation schedule, Ander- son resolved them. Prescriptions were filled on a first-in-first-out basis pursuant to a policy established and maintained by Anderson despite Rosen's disagreement. Rosen had tried, and failed, on a number of occasions to persuade Anderson to shift to a priorities system based on the needs of customers. About a month before Anderson's discharge, Rosen and Kramer discussed the tardiness of David Goudge, a pharmacist, with Anderson. They asked Anderson to talk to Goudge. They did not tell Anderson to indicate to Goudge that his job was in jeopardy. When he talked to Goudge, Anderson told him he was on thin ice and should shape up. At other times, Kramer discussed the job performance of pharmacy employees with Anderson. Pursuant to Minnesota regulations, Anderson filed an application with the State Board of Pharmacy to be designated pharmacist-in-charge at the store when he became chief pharmacist. The State Board issued a certificate to that effect. When he was discharged, Anderson failed to report to the State Board that he had ceased to be pharmacist-in-charge. Subsequently, under date of December 28, he received a letter from the State Board which read, "Enclosed is a Certificate of Profession- al Responsibility to be completed by your successor as pharmacist-in-charge." With respect to pharmacists-in- charge, Minnesota law provides as follows: "Pharmacist in charge" means a duly licensed pharmacist in the state of Minnesota who has been designated in accordance with the rules and regulations of the state board of pharmacy to assume professional responsibility for the operation of the pharmacy in compliance with the requirements and duties as established by the board in its rules and regulations. [Chapter 151, Pharmacy; Section 151.01, Definitions; Subdivision 22, Pharmacist in charge; Minnesota Statutes, 1971.] No person shall conduct a pharmacy without a pharmacist-in-charge who shall be designated in the application for license and registration, each renewal thereof or pursuant to Regulation 23. The term "pharmacist-in-charge" means a duly licensed pharma- cist in the State of Minnesota who has been so designated, and it shall be his duty and responsibility consistent with the accepted standards of professional conduct and practice and in compliance with all applicable laws and regulations: (a) To establish for the employees of the pharmacy, policies and procedures for the procurement, storage, compounding and dispensing of drugs, (b) To supervise all of the professional employees of the pharmacy, (c) To supervise all of the non-professional employ- ees of the pharmacy in so far as their duties relate to the sale and/or storage of drugs, (d) To establish and supervise the method and manner for the storing and safekeeping of drugs, (e) To establish and supervise the record keeping system for the purchase, sale, possession, storage, safekeeping and return of drugs, (f) To notify the Board immediately upon his knowledge that his services as pharmacist-in-charge have been or will be terminated. [Regulations, Minne- sota State Board of Pharmacy, 1971 Edition; Regula- tion 21, Pharmacist-in-Charge, Requirement, Defini- tion and Duties; issued pursuant to Chapter 151, Pharmacy; Section 151.06, Powers and Duties [of State Board of Pharmacy]; Subdivision 1(10); Minnesota Statutes, 1971.] 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Analysis and Conclusions 1. Discharge of Alan Anderson That Anderson was discharged for engaging in union activities is so obvious Respondent does not dispute it. Rather, it defends on the ground that Anderson was a supervisor within the meaning of the Act and, thus, beyond the Act's protection. I agree. I find that Anderson met the definition of "supervisor" contained in Section 2(11) of the Act in that he had authority, in the interest of Respondent, to discipline other pharmacy employees and responsibly to direct them under circumstances which required the use of independent judgment. In reaching this conclusion on the record as a whole, I rely especially on Anderson's reprimanding David Goudge for tardiness, his resolution of vacation schedule disputes, his discussions with the assistant store manager of pharmacy employees' job performance, and his instruc- tions to other full-time pharmacist as to drug purchases they could make in his absence. Cf. Skaggs Drug Center, Inc., 197 NLRB No. 171. I attach no significance to the Minnesota State Board of Pharmacy's use of the word "supervise" in its regulation 21. However, I am persuaded by my reading of regulation 21 that it is the intent of the State of Minnesota that persons designated pharmacists-in- charge shall responsibly direct the work of pharmacy employees, both professional and nonprofessional, in the sense in which that phrase is used in the National Labor Relations Act. Consequently, I presume, as urged by Respondent in its brief, Respondent has conducted its business in a lawful manner and rely on the General Counsel's failure to produce any evidence to the contrary. Since Alan Anderson was a supervisor within the meaning of the Act, I find that Respondent did not violate Section 8(a)(3) and (1) when Harry Rosen discharged him on December 23, 1972. 2. Interrogation The only independent violation of Section 8(a)(1) alleged in the amended complaint is interrogation of employees by Rosen during December "concerning their union activities and the union activities of other employees." In his brief, the General Counsel lists nine different conversations as "unlawful interrogations and threats in violation of Section 8(a)(1) of the Act." Regardless of whether they are characterized as interrogations or threats, five of them will not sustain a finding of a violation. The two which involve Anderson-Rosen's query during the week of December 11 about who had started the organizing campaign and the discharge interview on December 23-fail because no employee was involved. The three employees whom Rosen or Kramer told on December 23 that Anderson had been fired for union activities-Dorothy Anderson, Florence Tomita, and Tonette St. Martin-were neither interrogated nor threatened. (The General Counsel failed to include in his list a similar statement by Rosen to Louise Hexum on the afternoon of December 23. The fact that Rosen used the euphemism "troublemaker" rather than making his point more specifically did not change his message However, Ms. Hexum was not interrogated or threatened at that time either.) Rosen and Kramer put no questions to them. Since Anderson was a supervisor within the meaning of the Act, Rosen's and Kramer's statements amounted to no more than a declaration that Respondent had done that which it had a legal right to do. Nothing in the context of the conversations implied that Respondent was thinking in terms of visiting the same penalty on employees for engaging in union activities. No such violative discharge took place either before or after December 23 to give Rosen's and Kramer's words an implication they did not have on their face. The other four conversations relied on by the General Counsel are the occasions during the week of December 11 when Rosen asked Jean Laust, Louise Hexum, and Dorothy Anderson whether they had signed cards and the conversation with Ms. Laust on December 23 which immediately preceded Anderson's discharge. As to these, Respondent defends on the ground that the queries put to these three ladies were isolated or part of a normal response to an employee initiated conversation. I disagree. While the record is not clear as to who started the first conversation between Rosen and Ms. Laust, she entered his office on December 23 at his request so that he could talk to her about the organizing campaign. The query he put to her about Anderson elicited the information that Bob Lovsted, a nonsupervisory pharmacist, had been engaging in union activities also. In the case of Ms. Hexum, Rosen initiated the conversation at her work station. In the case of Ms. Anderson, Rosen summoned her to his office to ask her whether she had signed an authorization card. In none of these incidents did Rosen attempt to remove the inherently coercive sting from the words he spoke by explaining to the employees a legitimate reason for inquiring about union activities in the store. The fact that Rosen asked at least three employees during the week of December 11 whether they had signed cards demonstrates a deliberate effort on his part to pry into the union activities of Respondent's employees. I find, there- fore, that on each occasion Respondent, in the person of Rosen, violated Section 8(a)(1) of the Act by interrogating an employee concerning her union activities or the union activities of other employees. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. David-Anna Corporation , d/b/a Snyder Bros. Sun- Ray Drug, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local No. 789, Retail Store Employees Union, affiliated with Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees concerning their union activities and the union activities of other employees during December 1972, Respondent has violated Section 8(a)(1) of the Act. SNYDER BROS. SUN-RAY DRUG 635 4. The aforesaid unfair labor practices are unfair labor violated Section 8(a)(3) and (1) of the Act by discharging practices affecting commerce within the meaning of Alan Anderson on or about December 23, 1972, has not Section 2(6) and (7) of the Act. been sustained. 5. The allegation of the complaint that Respondent [Recommended Order omitted from publication.]