Walgreen Co.

WALGREEN CO. 553 Walgreen Co. and Retail Clerks Union Local 1550, chartered by Retail " Clerks International Associa- tion, AFL-CIO. Cases 13-CA-15385, 13-CA- 15386, 13-CA-15387, 13-CA-15388, and 13-CA- 15389 October 21, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Upon charges filed on April 29, 1976, by Retail Clerks Union 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 May 17, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National La- bor Relations Act, as amended. Copies of the charges, consolidated complaint , and notice of hear- ing 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 April 2, 1976, fol- lowing Board elections in Cases 13-RC-13930, 13927, 13917, 13924, and 13926, the Union was duly certified as the exclusive collective-bargaining repre- sentative of Respondent's employees in the units found appropriate:' and that, commencing on or about April 21, 1976, and at all times thereafter, Re- spondent has refused, and continues to date to re- fuse, to bargain collectively with the Union as the exclusive bargaining representative , although the Union has requested and is requesting it to do so. On May 24, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 8, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary 'Official notice is taken of the record in the representation proceeding, consolidated Cases 13-RC-13930, 13927, 13917, 13924, and 13926, 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 Electrosystenxs, 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 amend- ed. Judgment. Subsequently, on June 24, 1976, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter failed to file a response 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-13930, 13927, 13917, 13924, and 13926, reveals that petitions were filed by the Union on January 2, 1976, seeking to represent separate units of Respondent's employees in 18 of its stores in several administrative districts in Chicago, Illinois? At the representation hearing and in its briefs, Respondent contended that the smallest unit appropriate for collective-bargaining purposes must include all stores in an administrative district, which generally consists of from 13 to 19 stores. Following the hearing,' the Regional Director issued his Deci- sion and Direction of Election, in which he found that the separate single-store units sought by the Union were appropriate for the purpose of collective bargaining and directed separate elections therein. Thereafter, 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 position 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 dis- tinct metro-market area; (2) the stores have opera- tions that are highly integrated; (3) employee inter- change between the stores occurs regularly; (4) the degree of authority exercised by the single-store manager is limited; (5) in other metro-market areas 2In Cases 13-RC-13913 through 13-RC-13916 inclusive, 13-RC-13918 through 13-RC-13923 inclusive, 13-RC-13925, 13-RC-13928, and 13-RC- 13929, the Umon sought to represent employees employed by Respondent at 13 other stores located in Chicago , Illinois However, the Union lost the elections conducted among such employees and, consequently , these 13 units of Respondent's employees are not involved herein 3 At the hearing, Local 239-A, Retail, Wholesale and Department Store Union, AFL-CIO, was permitted to intervene and participate fully therein, and subsequently its name was placed on the ballot. 226 NLRB No. 89 554 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD in Respondent's chain where stores are organized, the organization is on a metropolitan area unit basis; and (6) the Respondent's operations are uniform and standardized. The 'Board considered these conten- tions and, on March -12, 1976, denied the request as it raised no substantial issues warranting review. Sub- sequently, on March 25, 1976, the Union won the elections held in the five separate store units involved herein. In the absence of objections to such elections, the Regional Director, on April 2, 1976, certified the Union as the exclusive collective-bargaining repre- sentative 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 .4 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 I. THE BUSINESS OF THE RESPONDENT Respondent is, and at all times material herein has been, an Illinois corporation engaged in the retail sale of prescription and nonprescription drugs and sundry items throughout the United States. Respon- dent's facilities located at 7901 South Halsted Street, 350 East Garfield Boulevard, 9101 South Commer- cial Avenue, 6101 South Archer Avenue, and 400 East 47th Street, each being in Chicago, Illinois, are the only facilities involved in this proceeding. During the past calendar year, a representative period, Re- spondent, in the course and conduct of its business 4 See Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) operations, received gross revenues in excess of $500,000, During the past calendar year, a represen- tative 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 Illinois 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- 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. II. 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-15385-All full-time and regular part-time employees employed at the Employer's store now located at 7901 South Halsted Street, Chicago, Illinois, but excluding all store managers, assistant store managers, management trainees , pharmacists, pharmacy internees, extra board employees , food service employees, porters, window trimmers , guards and supervisors as defined in the Act. (b) In Case 13-CA-15386-All full-time and regular part-time employees employed at the Employer's store now located at 350 East Gar- field Boulevard, Chicago, Illinois, but excluding all store managers, assistant store managers, management trainees , pharmacists, pharmacy internees, extra board employees , food service employees, porters, window trimmers, guards and supervisors as defined in the Act. (c) In Case 13-CA-15387-All full-time and regular part-time employees employed at the Employer's store now located at 9101 South Commercial Avenue, Chicago, Illinois, but ex- cluding all store managers, assistant store man- agers, management trainees, pharmacists, phar- WALGREEN CO. macy internees, extra board employees, food service employees, porters, window trimmers, guards and supervisors as defined in the Act. (d) In Case 13-CA-15388-All full-time and regular part-time employees employed at the Employer's store now located at 6101 South Archer Avenue, Chicago, Illinois, but excluding all store managers, assistant store managers, management trainees, pharmacists, pharmacy internees, extra board employees, food service employees, porters, window trimmers, guards and supervisors as defined in the Act. (e) In Case 13-CA-15389-All full-time and regular part-time employees employed at the Employer's store now located at 400 East 47th 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. 2. The certification On March 25, 1976, a majority of the employees of Respondent in said units, in secret ballot elections conducted under the supervision of the Regional Di- 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 April 2, 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 April 8, 1976, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described units. Commenc- ing on or about April 21, 1976, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said units. Accordingly, we find that the Respondent has, since April 21, 1976, and at all times thereafter, re- fused 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. 555 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 collective-bargaining purposes within the meaning of Section 9(b) of the Act: (a) In Case 13-CA-15385-All full-time and regular part-time employees employed at the 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer's store now located at 7901 South Halsted Street, Chicago, Illinois, but excluding all store managers, assistant store managers, management trainees, pharmacists, pharmacy internees, extra board employees, food service employees, porters, window trimmers, guards and supervisors as defined in the Act. (b) In Case 13-CA-15386-All full-time and regular part-time employees employed at the Employer's store now located at 350 East Gar- field Boulevard, Chicago, Illinois, but excluding all store managers, assistant store managers, management trainees, pharmacists, pharmacy internees, extra board employees, food service employees, porters, window trimmers, guards and supervisors as defined in the Act. (c) In Case 13-CA-15387-All full-time and regular part-time employees employed at the Employer's- store now located at 9101 South Commercial Avenue, Chicago, Illinois, but ex- cluding all store managers, assistant store man- agers, management trainees, pharmacists, phar- macy internees, extra board employees, food service employees, porters, window trimmers, guards and supervisors as defined in the Act. (d) In Case 13-CA-15388-All full-time and regular part-time employees employed at the Employer's store now located at 6101 South Archer Avenue, Chicago, Illinois, but excluding all store managers, assistant store managers, management trainees, pharmacists, pharmacy internees, extra board employees, food service employees, porters, window trimmers, guards and supervisors as defined in the Act. (e) In Case 13-CA-15389-All full-time and regular part-time employees employed at the Employer's store now located at 400 East 47th 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. 4. Since April 2, 1976, the above-named labor or- ganization has been and now is the certified and ex- clusive 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 April 21, 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 above-described appropriate units, Respondent 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-15385-All full-time and regular part-time employees employed at the Employer's store now located at 7901 South Halsted Street, Chicago, Illinois, but excluding all store managers, assistant store managers, management trainees, pharmacists, pharmacy internees , extra board employees, food service employees, porters, window trimmers , guards and supervisors as defined in the Act. (2) In Case 13-CA-15386-All full-time and regular part-time employees employed' at the Employer's store now located at 350 East Gar- field Boulevard, Chicago, Illinois, but excluding all store managers, assistant store managers, management trainees, pharmacists, pharmacy internees, extra board employees, food service employees, porters, window trimmers , guards and supervisors as defined in the Act. (3) In Case 13-CA-15387-All full-time and regular part-time employees employed at the Employer's store now located at 9101 South Commercial Avenue, Chicago, Illinois, but ex- cluding all store managers, assistant store man- agers, -management trainees , pharmacists, phar- macy internees, extra board employees, food service employees, porters, window trimmers, guards and supervisors as defined in the Act. WALGREEN CO. (4) In Case 13-CA-15388-All full-time and regular part-time employees employed at the Employer's store now located at 6101 South Archer Avenue, Chicago, Illinois, but excluding all store managers, assistant store managers, management trainees, pharmacists, pharmacy internees, extra board employees, food service employees, porters, window trimmers, guards and supervisors as defined in the Act. (5) In Case 13-CA-15389-All full-time and regular part-time employees employed at the Employer's store now located at 400 East 47th 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. (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 7901 South Halsted Street, 350 East Garfield Boulevard, 9101 South Commercial Avenue, 6101 South Archer Avenue, and 400 'East 47th Street, Chicago, Illinois, copies of the attached notices marked "Appendix A, B, C, D, and E,"', respectively.' Copies of said notices, on forms provided by the Regional Director for Region 13, after', being, duly signed by Respondent's repre- sentativep shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other materi- al. (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. 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." APPENDIX A 557 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 7901 South Halsted Street, 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. 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 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 350 East Garfield Boulevard, Chicago, Illinois, but excluding all store managers, assistant store managers, management trainees, phar- macists, pharmacy internees, extra board em- ployees, food service employees, porters, win- dow trimmers, 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 9101 South Commercial Avenue, Chicago, Illinois, but excluding all store managers, assistant store managers, management trainees, phar- macists, pharmacy internees, extra board em- ployees, food service employees, porters, win- dow trimmers, guards and supervisors as defined in the Act. WALGREEN CO. APPENDIX D 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 6101 South Archer 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. APPENDIX E 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 WALGREEN CO. 559 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 400 East 47th Street, Chicago, Illinois, but exclud- ing all store managers, assistant store manag- ers, management trainees, pharmacists, phar- macy internees, extra board employees, food service employees, porters, window trimmers, guards and supervisors as defined in the Act. WALGREEN CO.