Rite Aid Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1998

325 N.L.R.B. 717 (N.L.R.B. 1998)

717
325 NLRB No. 134
RITE AID CORP.
1 The unit description is as follows:
All pharmacists and interns employed by the employer at all its
stores located in Washington, D.C.; Maryland; Delaware; West
Virginia; the State of Virginia; and except those located 30
miles west or 30 miles south of Lynchburg, Virginia and except
those located 30 miles south of a straight line drawn from
Lynchburg, Virginia to Franklin, Virginia, unless such stores
were in operation as of October 22, 1979, in which event, phar-
macists and interns employed at such stores shall be included in
the bargaining unit; and all its stores existing at the time of the
execution date of this Agreement located in the State of Penn-
sylvania.
2 At the time of the hearing, the Employer employed approxi-
mately 145 pharmacy managers, approximately 40 percent of the
pharmacists employed by the Employer.
Rite Aid Corporation and United Food and Com-
mercial Workers Union, Local 400, Petitioner.
Case 5–UC–262
April 30, 1998
SUPPLEMENTAL DECISION ON REVIEW
AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HURTGEN
On December 16, 1987, the Regional Director
issued a Decision and Order Clarifying Bargaining
Unit. On March 18, 1988, the Board granted the Em-
ployer’s request for review. By Order dated February
21, 1990, the Board remanded this proceeding to the
Regional Director for further consideration consistent
with Detroit College of Business, 296 NLRB 318
(1989). On February 27, 1991, the Regional Director
issued a Supplemental Decision and Order Clarifying
the Bargaining Unit to include the position of phar-
macy manager in a unit comprised of all pharmacists
and interns employed by the Employer at various geo-
graphic locations. On July 15, 1991, the Board granted
the Employer’s request for review as it raised substan-
tial issues regarding the supervisory status of the Em-
ployer’s pharmacy managers.
Based on a careful review of the record, for the rea-
sons set forth below, we reverse the Regional Director
in part and clarify the unit to include the position of
pharmacy manager at stores in which no pharmacy
technicians are employed and to exclude the position
of pharmacy manager at stores which employ phar-
macy technicians.
The Employer is engaged in the retail sale and dis-
tribution of pharmaceutical products and health and
beauty aids from its approximately 2000 stores. In
1987 the Employer purchased approximately 175
stores from Drug Fair, Inc. Since 1969 the Petitioner
has represented a unit of pharmacists and interns em-
ployed at the stores purchased from Drug Fair, Inc.
After purchase of the stores, the Employer recognized
the Petitioner as the exclusive collective-bargaining
representative of all pharmacists and interns at certain
of its stores in five states.1 The Petitioner seeks to
clarify the unit by the specific inclusion of the position
titled ‘‘pharmacy manager’’ which was created by the
Employer after its purchase of the stores in which the
unit employees are employed.2
In each of the Employer’s stores at issue, there is a
bifurcation between the front-end or general merchan-
dise operations and the pharmacy and there is both a
front-end manager and a pharmacy manager. The
front-end manager has general responsibility for the
nonpharmacy operations of the store and the pharmacy
manager has general responsibility for the operations
of the pharmacy. The front-end manager has no au-
thority over pharmacy personnel, and the pharmacy
manager exercises no authority over front-end employ-
ees. Depending on a number of factors, a pharmacy
may be staffed by a pharmacy manager, one or more
professional staff pharmacists, pharmacy technicians,
and interns. The parties stipulated that all pharmacists
and interns are professionals. It is the Employer’s pol-
icy to staff each pharmacy so that there is little or no
overlap of pharmacists’ work hours in a particular
store.
A pharmacy manager’s duties include filling pre-
scriptions, taking physician’s orders, ringing up sales,
and dealing with customers. In addition, the pharmacy
manager is also responsible for ordering merchandise,
implementing price changes, and submitting reports.
The pharmacy manager also exercises the authority to
hire, fire, discipline, evaluate and schedule pharmacy
technicians, and effectively recommends pay increases
for them. The pharmacy managers do not possess any
supervisory authority with respect to the other phar-
macists or interns.
The pharmacy technicians (also clerks or cashiers)
wait on customers and ring up sales on the register.
The pharmacy technicians can ring up not only phar-
macy items but also front-end merchandise from the
nonpharmacy portions of the store on a separate reg-
ister key. The pharmacy technicians/cashiers also assist
the pharmacist on duty, whether the pharmacy manager
or a staff pharmacist, in taking prescriptions and typing
labels. The number of technicians varies in each store,
with some facilities having none and others employing
as many as six. The record indicates that pharmacy
technicians are employed at approximately 65 of the
175 stores within the unit. Individual pharmacy techni-
cians work in a single store ‘‘99% of the time’’ rather
than splitting their hours between two or more stores.
Because of rotating pharmacist schedules, a technician
may be working at various times with either the phar-
macy manager or a staff pharmacist.
The issue here is whether the pharmacy managers
should be excluded from the unit because they exercise
supervisory authority over pharmacy technicians. In his
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00717 Fmt 0610 Sfmt 0610 D:\NLRB\325.104 APPS10 PsN: APPS10
718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
February 27, 1991 Supplemental Decision and Order
Clarifying Bargaining Unit, the Regional Director, ap-
plying Detroit College of Business, 296 NLRB 318
(1989), found that the pharmacy managers’ exercise of
supervisory authority over the pharmacy technicians is
‘‘an ancillary part of the pharmacy managers’ primary,
professional duties of filling and selling prescriptions’’
and that the pharmacy technicians ‘‘do not perform
work that is ‘part and parcel’ of the pharmacy man-
agers’’ ‘primary work product’.’’ Accordingly, the Re-
gional Director found that the pharmacy managers
share a community of interest with the other unit mem-
bers and issued an order clarifying bargaining unit to
include the position of pharmacy manager.
In its request for review, the Employer requests the
Board to reverse the Regional Director’s supplemental
decision that the unit be clarified, or, alternatively, to
remand the matter to the Regional Director for reopen-
ing of the record to receive information on changes in
the supervisory role of the pharmacy manager and the
parties’ bargaining history since the 1987 hearing. The
Employer contends that the Regional Director failed to
apply Detroit College properly, asserting that super-
vising technicians is not simply an ancillary part of the
job of pharmacy manager, but part of their primary
work product. In addition, the Employer contends that
the inclusion of the pharmacy managers in the unit
would create a conflict of interest because, unlike the
sporadic or infrequent supervision exercised in Adelphi
University, 195 NLRB 639 (1972), and analogized by
the Board in Detroit College, the pharmacy managers
are called upon to exercise their supervisory functions
on a daily basis.
In the 65 stores in which pharmacy managers super-
vise pharmacy technicians, we find merit in the Em-
ployer’s contentions, and, contrary to the Regional Di-
rector, find that the pharmacy managers are properly
excluded from the unit under the standard set forth in
Detroit College. The Board must evaluate in profes-
sional settings whether the supervisory functions being
exercised by a professional employee over nonunit em-
ployees ‘‘so allied the individuals with management as
to establish a differentiation between them and other
employees in the unit.’’ Detroit College, 296 NLRB at
320 (quoting Adelphi, supra at 644). Such an evalua-
tion is necessary due to the relative imprecision of the
supervisory question in professional settings and the
fact that professional employees frequently require the
‘‘ancillary services’’ of nonprofessional ‘‘support per-
sonnel’’ in order to carry out their professional duties.
Id. (quoting New York University, 221 NLRB 1148 at
1156 (1975)). See also Legal Aid Society of Alameda
County, 324 NLRB No. 135 (Oct. 21, 1997).
In this case, there are two distinct aspects to a phar-
macy manager’s job, and his relationship vis-a-vis the
pharmacy technicians with regard to each aspect must
be separately examined. First and foremost, a phar-
macy manager is a pharmacist who spends his time
dealing with doctors and customers in relation to his
primary task of filling prescriptions. As to this aspect
of his job, the pharmacy technicians assist the phar-
macy manager by taking the prescription orders from
doctors and customers on the telephone or in person,
typing labels, and ringing up the sales. In this regard,
there is no distinction in the interaction between the
pharmacy technicians and the pharmacy manager than
between the pharmacy technicians and the staff phar-
macists. Under these circumstances, we find that, as to
this aspect of the pharmacy manager’s job, the super-
vision of the pharmacy technicians is analogous to the
supervision by the admissions director in Adelphi and
the librarians in New York University of clerical em-
ployees. All of the pharmacists, whether pharmacy
manager or staff pharmacists, require the ‘‘ancillary
services’’ of the pharmacy technicians to perform their
own professional duties, and the work of the pharmacy
technicians in this regard is ‘‘merely adjunct to that of
the professional.’’
An examination of the second aspect of the phar-
macy manager’s job, however, leads to a different re-
sult with regard to the supervision of the pharmacy
technicians. As manager of the pharmacy’s operations,
the pharmacy manager, unlike the staff pharmacists,
hires, fires, disciplines, evaluates, and schedules phar-
macy technicians and effectively recommends pay in-
creases for them. This supervision encompasses not
only the pharmacy technicians’ performance of their
duties assisting pharmacists in filling prescriptions but
also in performance of their duties in assisting cus-
tomers and ringing up sales with regard to nonprescrip-
tion items. These latter duties of the pharmacy techni-
cians are not ‘‘merely adjunct’’ to that of the phar-
macists’ role in filling prescriptions. Further, like the
coordinators in Detroit College, the pharmacy man-
agers were hired both to perform pharmaceutical work
and to manage the pharmacy, including hiring, firing,
disciplining, evaluating, and scheduling pharmacy tech-
nicians. These supervisory duties constitute regular and
frequent portions of the pharmacy managers’ respon-
sibilities. Therefore, we find that the pharmacy man-
agers have two ‘‘primary work products’’—one of
them having to do with their work as pharmacists, and
the other one having to do with their work as man-
agers of the pharmacy. The supervision of the techni-
cians includes supervision of their performance of du-
ties which are not directly related to the pharmacists’
role of filling prescriptions. In sum, supervision is
‘‘part and parcel’’ of the pharmacy managers’ role as
managers, and that supervision extends to technician
duties that are beyond those that are ‘‘merely adjunct
or ancillary’’ to the pharmacy managers’ professional
duties as pharmacists. In these circumstances, we con-
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00718 Fmt 0610 Sfmt 0610 D:\NLRB\325.104 APPS10 PsN: APPS10
719RITE AID CORP.
clude that these pharmacy managers are ‘‘so allied
with management as to establish a differentiation be-
tween them and other employees in the unit.’’ Adelphi,
195 NLRB at 644.
However, in the 110 stores in which there are no
pharmacy technicians, the pharmacy managers possess
no supervisory authority which would warrant their ex-
clusion from the unit of pharmacists and interns, nor
does the Employer contend that there is any basis to
exclude them from the unit. Accordingly, we clarify
the unit to include the position of pharmacy manager
at stores which do not employ pharmacy technicians
and to exclude the position of pharmacy manager at
stores which employ pharmacy technicians.
ORDER
The Petitioner’s bargaining unit, as set forth in the
current collective-bargaining agreement, is clarified to
include the position of pharmacy manager at stores in
which no pharmacy technicians are employed and to
exclude the position of pharmacy manager at stores
which employ pharmacy technicians.
CHAIRMAN GOULD, concurring and dissenting.
For the reasons set forth in my concurrence and dis-
sent in Legal Aid Society of Alameda County, 324
NLRB No. 135, slip op. at 3 (Oct. 21, 1997), I would,
contrary to my colleagues, clarify the unit of phar-
macists to include pharmacy managers at all of the
Employer’s stores in which unit employees are em-
ployed. Consistent with my position in Legal Aid, in
my view, even assuming that pharmacy managers at
stores which employ pharmacy technicians possess
statutory supervisory authority over such employees,
the unit should be clarified to include them because
their supervision extends only to nonunit support per-
sonnel.
Thus, pharmacy technicians are part of a separately
organizable and differently oriented group of employ-
ees who are wholly outside of the scope of the unit.
They assist the pharmacist on duty by taking prescrip-
tion orders from doctors and customers over the tele-
phone or in person, typing labels, and ringing up sales.
In so doing, they are clearly providing support to the
pharmacists as they perform their professional duties of
filling prescriptions, taking prescription orders, ringing
up sales and dealing with customers.
The majority relies on the fact that technicians occa-
sionally ring up sales of nonprescription items using a
separate register key in support of their conclusion that
the technicians perform duties which are not merely
adjunct to that of the pharmacists role in filling pre-
scriptions. Even in this aspect, however, the techni-
cians are supporting the pharmacists on duty since the
pharmacists are required to ring up these sales if there
are no technicians available, just as they ring up sales
of prescription items when there are no technicians
available. Further, there is no showing that these duties
are more than incidental to their duties as support per-
sonnel for the pharmacists. Although the technicians
provide services to both pharmacy managers and staff
pharmacists, and thus do not work exclusively for the
managers who supervise them, this does not remove
the technicians from the definition of support person-
nel. As I noted in Legal Aid, the critical factor is that
the technicians provide support to pharmacists as they
perform their professional duties. Accordingly, I would
affirm the RD and clarify the unit to include the posi-
tion of pharmacy manager at all of the Employer’s
stores in which unit employees are employed.
VerDate 11-MAY-2000 15:35 May 01, 2002 Jkt 197585 PO 00004 Frm 00719 Fmt 0610 Sfmt 0610 D:\NLRB\325.104 APPS10 PsN: APPS10