Sav-On Drugs, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1962

138 N.L.R.B. 1032 (N.L.R.B. 1962)

1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Merriman ) went home . Wyman testified that he did not give permission to Braden
to leave early and I credit such testimony . Merriman had told Wyman earlier that
he probably would be going home early because he did not feel well. Braden
testified that he had mentioned his back was bothering him in a general conversation
in the Red Flannel Restaurant earlier in the evening but did not know if Wyman heard
it. Wyman testified he had not heard it and did not think he (Wyman) had been in
the restaurant all night.
The next morning Braden went to Wilder's office with Priest and Bettys. While
there Braden never informed Wilder that he had left early because of illness. Wilder
was never informed that Braden 's reason for going home was different from Priest's
and Bettys ' and for all Wilder knew Braden had walked off the job for the same
reasons they had left. Thus Wilder had no reaosn to believe that Braden's case
was different or that he should be treated differently from Priest and Bettys.
The General Counsel contends in his brief that since Priest, Bettys, and Braden
had been leaders for the Union it was quite natural for the Respondent to assume
that Braden had allied himself with Priest and Bettys in the walkout. The Respond-
ent also contends that Wilder assumed that Braden had allied himself with Priest
and Bettys in the walkout but not because of their union activities.
On the basis of the entire record, I find that Braden was discharged because Wilder
believed he had allied himself with Priest and Bettys in the unauthorized walkout
on June 21 and in so doing the Respondent was not motivated by any unlawful
discriminatory motives . The complaint with respect to Braden should therefore be
dismissed.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
proceedings , I make the following
CONCLUSIONS OF LAW
1. The Union is, and has been at all material times, a labor organization within
the meaning of Section 2(5) of the Act
2 The Respondent is, and has been at all material times, an employer within
the meaning of Section 2(2) of the Act.
3. The record does not establish that the Respondent committed the unfair labor
practices alleged in the amended complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
the entire record in this proceeding , I recommend that the Board enter an order
dismissing the amended complaint.
Sav-On Drugs , Inc. and Retail Clerks Union , Local 1262 , affili-
ated with Retail Clerks International , AFL-CIO. Case No.
22-RC-1342. September 26, 1962
DECISION ON REVIEW AND DIRECTION OF ELECTION
On November 14, 1961, John J. Cuneo, the Regional Director for
the Twenty-second Region, issued a Decision and Order in the above-
entitled proceeding dismissing the petition on the ground of inappro-
priateness of the proposed units. Thereafter the Petitioner, in ac-
cordance with Section 102.67 of the Board's Rules and Regulations,
as amended, filed with the Board a request for review of such Deci-
sion and Order. The Employer filed a statement in opposition to the
request for review.
The Board by telegraphic order dated December 15, 1961, granted
the request for review because of the factual and policy issues raised.
138 NLRB No. 61.
SAV-ON DRUGS, INC. 1033
The Board has considered the entire record in this case,l including
the positions of the parties as set forth in the request for review, the
opposition thereto, and their briefs, and makes the following findings :
The Petitioner seeks to represent separate units of (1) all profes-
sional employees and (2) all other employees at the Edison, New
Jersey, retail store. The Employer contends that the appropriate
units for such employees should encompass all like employees in its
nine stores in New Jersey and New York, which together comprise an
administrative subsidivision of its parent corporation, Kroger Com-
pany, or in the alternative, that the unit should embrace all the stores
in the State of New Jersey. The Regional Director in his decision
agreed with the Employer's primary position, in reliance on the policy
statement made in prior Board decisions that "in cases involving retail
chainstore operations, absent unusual circumstances, the appropriate
unit for collective bargaining should embrace employees of all stores
located within an employer's administrative division or geographic
area." 2
In its request for review of the Regional Director's unit determina-
tion Petitioner urged, inter alia, that there are compelling reasons for
the Board to reconsider the above-stated policy. Reviewing our
experience under that policy we believe that too frequency it has
operated to impede the exercise by employees in retail chain operations
of their rights to self-organization guaranteed in Section 7 of the Act.
In our opinion that policy has overemphasized the administrative
grouping of merchandising outlets at the expense of factors such as
geographic separation of the several outlets and the local managerial
autonomy of the separate outlets; and it has ignored completely
as a factor the extent to which the claiming labor organization had
sought to organize the employees of the retail chain. We have decided
to modify this policy and to apply to retail chain operations the same
unit policy which we apply to multiplant enterprises in general .3
Therefore, whether a proposed unit which is confined to one of two or
more retail establishments making up an employer's retail chain is
appropriate will be determined in the light of all the circumstances
of the case.' With these principles in mind, we turn to the facts
disclosed in the record of the instant case relating to the unit issue.
' Following the hearing the hearing officer accepted and made part of the record a
stipulation of the parties setting forth additional evidence as to employee interchange
and the record of transfers between the Employer 's several retail stores for the calendar
year 1961.
2 See Data Drug Company, Inc., 127 NLRB 1316 ; Robert Hall Clothes , 118 NLRB 1096;
Father & Son Shoe Stores , Inc, 117 NLRB 1479.
8 See American Linen Supply Company, Inc., 129 NLRB 993; Thompson Ramo Wool-
dridge, Inc., 128 NLRB 236; Victory Grocery Company, et al., 129 NLRB 1415; General
Shoe Corporation , 113 NLRB 905; General Shoe Corporation , 109 NLRB 618.
4 We disagree with our dissenting colleague 's analysis that the intent of our decision
is to make extent of organization the "decisive factor" in determining appropriate unit.
In no way have we varied the factors to be considered . We have simply added the pos-
sibility-as in manufacturing and other multiplant enterprises-that a single location
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer is engaged in the sale of drugs and other merchandise
in its nine stores in New Jersey and New York. As above indicated,
it is a wholly owned administrative subdivision of Kroger Company.
Seven of the stores are located in separate communities in northern
New Jersey and two are in Staten Island, New York. The stores are
geographically separated by distances ranging from approximately
5 to 65 miles. Each store is separately incorporated. However, all
the stores are serviced administratively by a central office in Plain-
field, New Jersey, which is approximately 10 miles from the Edison
store. The central office handles various recordkeeping functions for
all nine stores pertaining to personnel, payroll, invoices, bills, social
security deductions, unemployment, etc.
Operating out of the central office and having overall responsibili-
ties are the division manager and a division purchasing agent. The
division manager visits each store at least once a week and gives advice
to the store manager. However, the store managers are in charge
of the day-to-day operations of their respective stores. They have
complete hiring authority with respect to part-time employees. They
also interview applicants for full-time positions and hire them upon
approval of the division manager. The division purchasing agent
visits merchandise shows and selects merchandise to be carried in the
Employer's stores. However, there is no central warehouse for the
division. Each store manager purchases merchandise for his own
store from a list of companies approved by the division manager.
Suggested advertising materials are supplied by Kroger Company's
Chicago office. However, the store managers generally decide what
and how to advertise. Sometimes stores in close proximity to one
another advertise jointly.
There is some degree of interchange of employees between the stores
to accommodate unexpected fluctuations in business volume. The
Employer designates one pharmacist and one other employee as floaters
and it appears that they are assigned to stores where they are most
needed. Otherwise in the normal course of business transfers between
stores are infrequent, mainly for relief work and emergencies. An
exception arose in 1961 when 26 employees were transferred tem-
porarily to assist in the opening of 2 new stores. A permanent transfer
between the stores is made only with the employee's consent.
From the foregoing, it is clear that there are a number of factors
militating in favor of units divisionwide in scope. However, there
or a grouping other than an administrative division or geographical area may be appro-
priate. Indeed , most of the cases which our dissenting colleague implies would be
changed under the policy herein would have reflected the same result under it.
In addition, we think it too self-evident to admit of argument that the experience of
this Board is that innumerable petitions for single store units or groupings of stores
not in conformity with the administration division -geographical policy have been dismissed,
largely in unpublished decisions.
SAV-ON DRUGS, INC. 1035
are other factors supporting units confined in scope to the Edison
store, such as geographic separation of the Edison store, the substantial
authority of the store manager, the minimal interchange of employees
between the Edison store and other stores , the absence of a bargaining
history for any of the employees in the division, and the fact that
no labor organization is seeking to represent employees on a broader
basis. We find therefore, in view of these factors, that the requested
units confined in scope to the Edison store is appropriate herein.
Accordingly, we find, contrary to the Regional Director, that a
question affecting commerce eixsts herein concerning the representa-
tion of employees of the employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
We turn therefore to the composition of the Petitioner's proposed
Edison store units :
The Petitioner agrees that Gangwisch, the store manager, who is
one of the stores two pharmacists, is a supervisor, but it contends that
the other pharmacist, Nisonoff, who is also the assistant manager
of the store is not a supervisor and that as a professional employee
a separate election as to his placement in the store unit is required
under the Act. The Employer took no position.
Both Gangwisch and Nisonoff are registered pharmacists and are
salaried. They work 48 hours a week. The regular workweek for
full-time employees is 40 hours . The store is open 86 hours a week,
during which the manager is present and in charge for 48 hours. Dur-
ing the remaining 38 hours Nisonoff is in charge , in compliance with
a State law which requires that a registered pharmacist be in charge
at all times. While in charge Nisonoff has authority to grant time
off, discipline, suspend, and recommend the discharge of employees
for serious rule infractions. We find that he is a supervisor as defined
in the Act.
In the circumstances, as there are no nonsupervisory professional
employees at the Edison store, we find that the following employees
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
All regular full-time and part-time retail clerks at the Employer's
Edison, New Jersey, drugstore, including the cosmetician clerk, but
excluding the store manager, the assistant store manager, professional
employees, guards, and all other supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS, dissenting :
My colleagues are here abandoning the Board rule that the appro-
priate bargaining unit in retail chain store operations should embrace
the employees of all stores within an employer's administrative or
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
geographical area. The principle which is being overturned has, since
1948, controlled requests for multistore units; 5 and has, since 1955,
controlled, with rare exceptions, requests for single-store units 6 This
rule was grounded on, and recognized, the integrated nature of retail
chain operations. It took cognizance of the fact that retail chains
generally combine centralized control with a limited amount of local
autonomy. Thus, in retail chains overall management generally estab-
lishes and to a large degree directs broad policy, while middle man-
agers, in charge of administrative subdivisions, are generally respon-
sible for the effective operation of all stores within their jurisdictions.
Local store managers generally exercise only limited authority.' The
rule also recognized a certain affinity between the stores in a geo-
graphical area. Thus, such stores are physically located close to-
gether, generally have a central personnel office, generally have
uniform prices and advertising, and often interchange personnel."
These factors, in varying combinations, in some cases more, in others
less, resulted, the rule recognized, in a singular community of inter-
ests for employees in such multistore groups.
Now the rule is being abandoned, and no good reason is advanced for
the change. The sole rationale my colleagues set forth is that the
rule has operated to impede the exercise by employees of their right
to self-organization under Section 7 of the Act. Significantly, my
colleagues cite no authority to support their sweeping conclusion in
this respect other than the magic catch-all phrase "our experience."
Established precedent ought not to be overturned on the basis of such
conclusionary generalizations. Moreover, the fact that my colleagues
point to the dismissal in unpublished cases of petitions for single-
store units proves only that the Board has applied established prece-
dent to such unit requests in the past-the same precedent from which
it is now departing.
5Westbrook Enterprises , Inc., 79 NLRB 1032 ; C. Pappas Company , Inc, 80 NLRB
1272; The Great Atlantic and Pacific Tea Company , 85 NLRB 680 ; The Kroger Com-
pany, 85 NLRB 6; 88 NLRB 194; Schaeffer Stores Co , 88 NLRB 1446; Safeway Stores,
Incorporated, 96 NLRB 998 ; The Great Atlantic and Pacific Tea Company, 99 NLRB
1500 ; Crown Drug Company , 108 NLRB 1126 ; Frank G. Shattuck Company, 106 NLRB
838; L. Wiemann Company, 106 NLRB 1167 ; Jewel Food Stores, 111 NLRB 1368; Food
Fair Stores , Inc, 114 NLRB 521; B.G. Wholesale, Incorporated, etc., 114 NLRB 1429;
Jackson Jitney Jungle Stores , Inc., 115 NLRB 374, at 374-375; Father & Son Shoe Stores,
Inc, 117 NLRB 1479; The Great Atlantic & Pacific Tea Company , Inc., 119 NLRB 603;
121 NLRB 1193; Payton Wholesale Grocery Company , 123 NLRB '316 ; Katz Drug Com-
pany, 123 NLRB 1615; Winn•Dixie Stores , Inc, 124 NLRB 908; Royal Tile Company, 124
NLRB 1233; Dow Drug Co, Inc, 127 NLRB 1316; The Great Atlantic and Pacific Tea
Company, Inc ., 128 NLRB 342; 132 NLRB 797 ; 132 NLRB 999.
6 Sparkle Markets Company, 113 NLRB 790; Robert Hall Clothes, Inc., 118 NLRB
1096 ; ACF-Wrigley Stores , Inc, 124 NLRB 200; Weis Markets, Inc., 125 NLRB 148;
Quality Foods Markets, Inc., 126 NLRB 349; but compare Walgreen Company , 114 NLRB
1168; and Goldblatt Bros, Inc, 118 NLRB 643; 119 NLRB 1340.
7 See Safeway Stores, Incorporated , 96 NLRB 998; The Great Atlantic & Pacific Tea
Company, 132 NLRB 999.
8 See The Great Atlantic d Pacific Tea Company, 99 NLRB 1500, B G Wholesale Inc,
supra; ACP-Wrigley Stores, Inc. supra, The Great Atlantic and Pacific Tea Company,
Inc., 128 NLRB 342
COLGATE-PALMOLIVE COMPANY 1037
I certainly have no desire to frustrate the employees' right to self-
organization. But that right must be accommodated by the Board
to the prohibition in Section 9(c) (5) of the Act that, in deciding the
unit appropriate for the purposes of collective bargaining, "the
extent to which the employees have organized shall not be controlling."
In short, what the present change signifies, in my opinion, is that the
union's extent of organization has now become, and will be, a decisive
factor in determining the appropriate unit for retail store operations.'
Y Quality Food Markets, Inc ., 126 NLRB 349, at page 351 See also the following pre-
Taft-Hartley cases in which the Board relied on extent of organization : First National
Stores, Inc., 26 NLRB 1275, at 1279-1280 ; 55 NLRB 1346 , at 1347-1348 ; 56 NLRB 1870,
at 1872-1873; and 63 NLRB 138, at 139-142.
Colgate-Palmolive Company and Phyllis Boyle
International Longshoremen 's & Warehousemen 's Union, Local 6
and Phyllis Boyle. Cases Nos. 20-CA-2116 and 20-CB-866.
September 27, 1962
DECISION AND ORDER
On January 9, 1962, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter, the Respondents filed exceptions
to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner to the extent consistent herewith.
On June 12, 1961,' Phyllis Boyle became delinquent as to her May
dues. On June 24, the Union sent her a warning notice stating that
the deadline for payment of the amount in arrears was July 12, and
urging her to "straighten out this matter immediately." On June 27,
in accord with established practice,2 the Respondent Union sent
to the Respondent Company a letter containing a list of members
(including Boyle) whose dues were delinquent for the month of
May and advised the Respondent Company that their memberships
would be terminated unless the subject dues were paid by July 12.
' All dates refer to 1961.
2 The union -shop contract and the practices of the Union and Company thereunder are
fully described in the Intermediate Report and will not be repeated here
138 NLRB No. 108.