Walgreen Co.

548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Walgreen Co. and Retail Clerks Union Local 1550, chartered by Retail Clerks International Associa- tion, AFL-CIO. Cases 13-CA-15209, 13-CA- 15210, and 13-CA-15211 October 21, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS PENELLO AND WALTHER Upon charges filed on March 4, 1976, by Retail Clerks Umon Local 1550, chartered by Retail Clerks International Association, AFL-CIO, herein called the Union, and duly served on Walgreen Co., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a consolidated com- plaint and notice of hearing on March 25, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practic- es affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Na- tional Labor Relations Act, as amended. Copies of the charges, consolidated complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on January 16, 1976, following Board elections in Cases 13-RC-13838, 13841, and 13840, the Union was duly certified as the exclusive collective-bargaining representative of Re- spondent's employees in the units found appropri- ate;' and that, commencing on or about February 27, 1976, and at all times thereafter, Respondent has re- fused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargain- ing representative, although the Union has requested and is requesting it to do so. On April 2, 1976, Re- spondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On May 6, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on May 14, 1976, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Official notice is taken of the record in the representation proceeding, consolidated Cases 13-RC-13838, 13841, and 13840, as the term "record" is defined in Secs. 102 68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc, 166 NLRB 938 (1967), enfd . 388 F.2d 683 (C A 4, 1968); Golden Age Beverage Co, 167 NLRB 151 (1967), enfd 415 F 2d 26 (C.A 5, 1969), Intertype Co v Penello, 269 F Supp 573 (D C.Va., 1967), Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A. 7, 1968); Sec 9(d) of the NLRA, as amended Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter failed to file a re- sponse to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint, Respondent admits its refusal to bargain but affirmatively attacks the validity of the Union's certification on the basis of its objection to the appropriateness of the single-store bargaining units for which the Union is certified. Review of the record herein, including the record in consolidated Cases 13-RC-13838, 13841, and 13840, reveals that petitions were filed by the Union on October 1, 1975, seeking to represent separate units of Respondent's employees in four of its Chica- go, Illinois, stores .2 At the representation hearing and in its briefs, Respondent contended that the smallest appropriate unit for collective-bargaining purposes must include all stores in its administrative Chicago South West District, which consists of 13 stores. Fol- lowing the hearing, the Regional Director for Region 13 issued his Decision and Direction of Election on December 2, 1975, in which he found that the sepa- rate single-store units sought by the Union were ap- propriate for the purpose of collective bargaining and directed separate elections therein. Respondent filed a timely request for review of the Regional Director's decision with the Board in Washington, D.C., in which it argued again its posi- tion and contended that, while a single-store, unit is presumptively appropriate, the presumption should be found to be rebutted in this case in view of the following: (1) the stores at issue constitute a distinct metro-market area; (2) the stores have operations that are highly integrated; (3) employee interchange between the stores occurs regularly; (4) the degree of authority exercised by the single-store manager is limited; (5) in other metro-market areas in Respon- dent's chain where stores are organized, the organiza- tion is on a metropolitan area unit basis; and (6) the Respondent's operations are uniform and standard- ized. The Board considered these contentions and, by telegram dated January 2, 1976, denied the re- quest for review as it raised no substantial issues war- ranting review. Subsequently, on January 8, 1976, the 2 In Case 13-RC-13841, the Union sought to represent the employees employed at the store located at 2734 Milwaukee Avenue, Chicago, Illinois However, the Union lost the election among such employees and, conse- quently, that unit of Respondent's employees is not involved herein. 226 NLRB No. 88 WALOREEN CO. Union won the elections held in the three separate store units involved herein. In the absence of objec- tions to such elections, the Regional Director, on January 16, 1976, certified the Union as the exclusive collective-bargaining representative of the employees in the single-store units found to be appropriate. It thus appears that Respondent is attempting to relitigate herein an issue which was raised and de- termined adversely to it in the underlying representa- tion case. It is well settled that in the absence of new- ly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding' All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is, and at all times material herein has been, a corporation engaged in the retail sale of pre- scription and nonprescription drugs and sundry 'items throughout the United States. Respondent's fa- cilities located at 6301 South King Drive, 4005 West 26th Street, and 9511 South Jeffrey Avenue, each being in Chicago, Illinois, are the only facilities in- volved herein. During the past calendar year, a repre- sentative period, Respondent, in the course and con- duct of its business operations, received gross revenues in excess of $500,000. During the past cal- endar year, a representative period, Respondent, in the course and conduct of its business operations, purchased and received at its Illinois facilities goods and materials from directly outside the State of Illi- nois in an amount valued in excess of $50,000. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- 3 See Pittsburgh Plate Glass Co. v. N.LR B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c) 549 in, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert juris- diction herein. H. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union Local 1550, chartered by Re- tail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent con- stitute units appropriate for collective -bargaining purposes within the meaning of Section 9 (b) of the Act: (a) In Case 13-CA-15209-All full-time and regular part-time employees employed at the Employer's store now located at 6301 South King Drive, Chicago, Illinois, but excluding all store managers, assistant store managers, man- agement trainees, pharmacists, pharmacy intern- ees, extra board employees, food service em- ployees, porters, window trimmers, guards and supervisors as defined in the Act. (b) In Case 13-CA-15210-All full-time and regular part-time employees employed at the Employer's store now located at 4005 West 26th Street, Chicago, Illinois, but excluding all store managers, assistant store managers, manage- ment trainees, pharmacists, pharmacy internees, extra board employees, food service employees, porters, window trimmers, guards and supervi- sors as defined in the Act. (c) In Case 13-CA-15211-All full-time and regular part-time employees employed at the Employer's store now located at 9511 South Jef- frey Avenue, Chicago, Illinois, but excluding all store managers, assistant store managers, man- agement trainees, pharmacists, pharmacy intern- ees, extra board employees, food service em- ployees, porters, window trimmers, guards and supervisors as defined in the Act. 2. The certification On January 8, 1976, a majority of the employees of Respondent in said units, in secret ballot elections conducted under the supervision of the Regional Di- 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rector for Region 13, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said units on January 16, 1976, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about February 19, 1976, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described units. Commenc- ing on or about February 27, 1976, and continuing at all times thereafter to date, the Respondent has re- fused, and continues to refuse, to recognize and bar- gain with the Union as the exclusive representative for collective bargaining of all employees in said units. Accordingly, we find that the Respondent has, since February 27, 1976, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the above-described appropriate units, and that, by such refusals, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1),of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III,, above, occurring in connection with its opera- tions described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the above-described appropriate units, and, if an under- standing is reached, embody such understanding in a signed agreement. In order to insure that the employees in the above- described appropriate units will be accorded the services of their selected bargaining agent for the pe- riod provided by law, we shall construe the initial period of certification as beginning on the date Re- spondent commences to bargain in good faith with the Union as the recognized bargaining representa- tive in the appropriate units. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Walgreen Co. is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union Local 1550, chartered by Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of the Respondent constitute units appropriate for the purposes of col- lective bargaining within the meaning-of Section 9(b) of the Act: (a) In Case 13-CA-15209-All full-time and regular part-time employees employed at the Employer's store now located at 6301 South King Drive, Chicago, Illinois, but excluding all store managers, assistant store managers, man- agement trainees, pharmacists, pharmacy intern- ees, extra board employees, food service em- ployees, porters, window trimmers, ;guards and supervisors as defined in the Act. (b) In-Case 13-CA-15210-All full=time and regular part-time employees employed at the Employer's store now located at 4005 West 26th Street, Chicago, Illinois, but excluding all store managers, assistant store managers, manage- ment trainees, pharmacists, pharmacy internees, extra board employees, food service employees, porters, window trimmers, guards and supervi- sors as defined in the Act. (c) In Case 13-CA-15211-All full-time and regular part-time employees employed at the Employer's store now located at 9511 South Jef- frey Avenue, Chicago, Illinois, but excluding all store managers, assistant store managers, man- agement trainees, pharmacists, pharmacy intern- ees, extra board employees, food service em- ployees, porters, window trimmers, guards and supervisors as defined in the Act. WALGREEN CO. 551 4. Since January 16, 1976, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate units for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about February 27, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the aforesaid appropriate units, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusals to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondent, Wal- green Co., Chicago, Illinois, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Retail Clerks Union Lo- cal 1550, chartered by Retail Clerks International Association, AFL-CIO, as the exclusive bargaining representative of 'its employees in the following ap- propriate units: (1) In Case 13-CA-15209-All full-time and regular part-time employees employed, at the Employer's store now located at 6301 South King Drive, Chicago, Illinois, but excluding all store managers, assistant store managers, man- agement trainees, pharmacists, pharmacy intern- ees, extra board employees, food service em- ployees, porters, window trimmers, guards and supervisors as defined in the Act. (2) In Case 13-CA-15210-All full-time and regular part-time employees employed at the Employer's store now located at 4005 West 26th Street, Chicago, Illinois, but excluding all store managers, assistant store managers, manage- ment trainees, pharmacists, pharmacy internees, extra board employees, food service employees, porters, window trimmers, guards and supervi- sors as defined in the Act. (3) In Case 13-CA-15211-All full-time and regular part-time employees employed at the Employer's store now located at 9511 South Jef- frey Avenue, Chicago, Illinois, but excluding all store managers, assistant store managers, man- agement trainees, pharmacists, pharmacy intern- ees, extra board employees, food service em- ployees, porters, window trimmers, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate units with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its facilities at 6301 South King Drive, 4005 West 26th Street, and 9511 South Jeffrey Ave- nue, each of which is in Chicago, Illinois, copies of the attached notices marked "Appendix A, B, and C," respectively.4 Copies of said notices, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous 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. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps have "been taken to comply herewith. ' 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 " APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terms and conditions of employment with Retail Clerks Union Local 1550, chartered by Retail Clerks International Association, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request,' bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time employ- ees employed at our store now located at 6301 South King Drive, Chicago, Illinois, -but ex- cluding all store managers, assistant store managers, management trainees, pharmacists, pharmacy internees, extra board employees, food service employees, porters, window trim- mers, guards and supervisors as defined in the Act. WALGREEN CO. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT. refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Retail Clerks Union Local 1550, chartered by Retail Clerks International Association, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and 'conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time employ- ees employed at our store now located at 4005 'West 26th Street, Chicago, Illinois, but ex- cluding all store managers, assistant store managers, management trainees, pharmacists, pharmacy internees, extra board employees, food service employees, porters, window trim- mers, guards and supervisors as defined in the Act. WALGREEN CO. APPENDIX C NOTICE- To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Retail Clerks Union Local 1550, chartered by Retail Clerks International Association, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time employ- ees employed at our store now located at 9511 South Jeffrey Avenue, Chicago, Illinois, but excluding all store managers, assistant store managers, management trainees, pharmacists, pharmacy internees, extra board employees, food service employees, porters, window trim- mers, guards and supervisors as defined in the Act. WALGREEN CO.