Sav-On Drugs, Inc.

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1168 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sav-on Drugs, Inc. and Guild for Professional Phar-
macists. Case 31-CA- 11356
May 28, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JLNKINS, AND
ZIMMERMAN
Upon a charge filed on July 21, 1981, and an
amended charge filed on August 28, 1981, by Guild
for Professional Pharmacists, herein called the
Union, and duly served on Sav-On Drugs, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 31, issued a complaint
on September 10, 1981, against Respondent, alleg-
ing that Respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge and
complaint and notice of hearing before an adminis-
trative law judge were duly served on the parties
to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on February 11,
1981, following a Board election in Cases 31-RC-
4134, 31-RC-4135, 31-RC-4136, 31-RC-4137, 31-
RC-4138, 31-RC-4139, 31-RC-4140, 31-RC-4141,
31-RC-4196,1 31-RC-4187, and 31-RC-4219, the
Union was duly certified as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees in the unit found appropriate; 2 and that,
commencing on or about April 9, 1981, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representa-
tive, although the Union has requested and is re-
questing it to do so, in that on or about May 4,
1981, Respondent unilaterally and without prior
consultation with the Union granted a wage in-
crease of $1 an hour to employees in the bargaining
unit. On September 25, 1981, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On January 4, 1982, counsel for the General
Counsel filed directly with the Board a Motion for
] The Board's Decision on Revice, and Directioni of Ilcction in the
underlying representation proceeding is reported at 243 NI.RB 859
(1979).
2 Official notice is taken of the record in the representation proceed-
ing, Case 31 RC-4134, et al., as the term "record" is defined in Sees
102 68 and 102 69(g) of the Board's Rules and Regulations. Series 8, as
amended See LTV ElecIros.ysems, Inc., 166 NL.RB 938 (1967), enfd 388
F 2d 683 (4th Cir. 1968); Golden Age Heverage Co., 167 NI.RB 151 (1967),
enfd. 415 F.2d 26 (5th Cir. 1969); Inertype Co.o v. Penello, 269 F.Supp
573 (D.C.Va 1967); Follell Corp., 164 NI.RB 378 (1967), enfd. 397 1 2d
91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended
261 NLRB No. 174
Summary Judgment. Subsequently, on January 15,
1982, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
on January 28, 1982, filed a response to the 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
Counsel for the General Counsel in his Motion
for Summary Judgment herein avers that the in-
stant case is directly related to Case 31-CA-11070,
involving the same parties and otherwise identical-
ly captioned, pending before the Board on a
motion similar to that herein at the time the instant
motion was filed. That case, involving Respond-
ent's general refusal to recognize and bargain with
the Union following the Board's certification in the
underlying representation proceeding, differs sub-
stantively from the instant case only in that the
complaint in that case alleged a general refusal to
recognize and bargain in its paragraph (9), whereas
the instant complaint alleges that Respondent, sub-
sequent to its general refusal to bargain, unilaterally
granted a wage increase of $1 an hour to employ-
ees in the certified bargaining unit without prior
consultation or bargaining with the Union. Counsel
for the General Counsel further notes that since
most of the procedural underpinnings and argu-
ments for the motion in the instant case have al-
ready been set forth in the General Counsel's
motion in Case 31-CA-11070, except for copies of
the charge and amended charge, complaint and
answer, and certificates of service thereof in the in-
stant case, they were not reiterated here; that Re-
spondent in its answer admits the Union's labor or-
ganization status; and that Respondent's answer is
otherwise substantively the same as its answer in
Case 31-CA-11070. Counsel for the General Coun-
sel therefore requests that the Board "administra-
tively notice the Motion To Transfer Case To and
Continue Proceedings Before the Board and For
Summary Judgment in Case 31-CA-11070, togeth-
er with supporting arguments and documents, and
grant the similar Motion in the instant case, for the
same reasons asserted in the prior Motion."
Respondent, in its response to the Notice To
Show Cause, initially notes that "the ultimate issue
in the instant case, i.e., the obligation of the Re-
spondent to bargain with the Guild for Professional
1168
SAV-ON I)RUGS, INC.
Pharmacists, is the same issue underlying the Gen-
eral Counsel's Motion for Summary Judgment now
pending before the Board in Case No. 31-CA-
11070." Thus, while Respondent admits the opera-
tive factual allegation of the complaint, including
the Union's labor organization status, the certifica-
tion, and the request and Respondent's refusal to
bargain, it reiterates here its contentions that the
Board acted improperly in granting the request for
review in the underlying representation case, Case
31-RC-4134, et al.,3 and that the certification of
the Union was improper.
The Board, in agreement with the parties, con-
cludes that the instant case is directly related to
Case 31-CA-11070, and that the ultimate issue
herein is the same. The Board has taken notice of
the motion and the record and underlying docu-
ments and arguments in Case 31-CA-11070. On
review of the entire record herein, inlcuding that in
Case 31-CA-11070, noted above, as well as the
record in the underlying representation proceeding,
we find Respondent's asserted defenses herein to be
without merit for the reasons more fully discussed
in our recent decision in Case 31-CA-11070. 261
NLRB 14524 issued this date.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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 Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and in Case 31 CA-
11070, as noted above, and Respondent does not
offer to adduce at a hearing any newly discovered
or previously unavailable evidence, nor does it
allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding. We
3 243 NLRB 859
4 With respect to Respondent's assertion that the Board acted improp-
erly in granting the request for review in the underlying represenltatio
proceeding, and reversing the Regional Director, we note, inter aliua, tliat
the Regional Director's basis for dismissing the petition, ie., that the
Union was not a labor organization, was incorrect as a matter of law
Respondent now admits the Union's status as a labor organization. Fur-
ther, the conclusion of the Board that the head pharmacists or pharmacy
managers were not supervisors as a class-a finding based oin a complete
record and premised in part on factors not alluded to in the Regional Di-
rector's decision (see 243 NLRB at 861, fn. 8)-cannot be deemed to
have denied Respondent due process of law. Indeed. Respondent has
been afforded ample due process, and has availed itself of full opportuni-
ty, as indicated by the extensive record in these related protceedings. to
raise and fully litigate the issues which it now asserts preclude summar,
judgment. See 261 NLRB 1452
Member Jenkins dissented in the underlying representation case, but
recognizes the controlling character of that decision and thus joins in
finding the violations here
5 See Pittsburgh Plate Glass (Co. v. NL.R.B., 313 U.S 146. 162 (1941);
Rules and Regulations of the Board. Secs. 102.67(f) and 102.6
9
(c)
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THEf BUSINESS OF RESPONDENT
Respondent is a California corporation engaged
in the retail sale of general merchandise and pre-
scription drugs at numerous locations throughout
the State of California with its principle office and
place of business in Anaheim, California. Respond-
ent in the course and conduct of its business oper-
ations annually derives gross revenues in excess of
$500,000 and annually purchases and receives
goods and services valued in excess of $50,000 di-
rectly from suppliers located outside the State of
California.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, 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 jurisdiction herein.
11. THE l.ABOR ORGANIZATION INVOLVEiI)
Guild for Professional Pharmacists is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
111. THI UNFAIR l.ABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All registered pharmacists employed by Re-
spondent at its facilities located within the
State of California, excluding all other employ-
ees, guards, and supervisors as defined in the
Act.
2. The certification
On November 28, 1979, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 31, designated
the Union as their representative for the purpose of
collective bargaining with Respondent.
1169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on February 11, 1981, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about February 19, 1981, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about April 9, 1981, and continuing
at all times thereafter to date, Respondent has re-
fused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit, and on or about May 4, 1981, Respondent
unilaterally and without prior consultation with the
Union granted a wage increase to employees in the
unit.
Accordingly, we find that Respondent has, since
April 9, 1981, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. TIHE lFF CT OF THE UNFAIR I.ABOR
PRACTICI.S UPON COMMIRCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE RIEME)Y
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom,6 and,
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit and, if an understanding is
reached, embody such understanding in a signed
agreement.
I Nothing in our Order, however. shall require Respondent to rescind
or withdraw any wages or benefits that employees now enjoy See Key-
stone Steel & Wire, Division of Keystrone Convolidaled Industrris. Inc., 248
NLRB 283 (1980)
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCI USIONS OF LAW
1. Respondent Sav-On Drugs, Inc., is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Guild for Professional Pharmacists is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All registered pharmacists employed by Re-
spondent at its facilities located within the State of
California, excluding all other employees, guards,
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. Since February 11, 1981, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about April 9, 1981, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, and by unilat-
erally granting a wage increase to unit employees
on May 4, 1981, without prior consultation with
the Union, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
1170
SAV-ON DRUGS, INC.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Sav-On Drugs, Inc., Anaheim, California, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment, and unilaterally grant-
ing wage increases without prior consultation with
Guild for Professional Pharmacists as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All registered pharmacists employed by Re-
spondent at its facilities located within the
State of California, excluding all other employ-
ees, guards, and supervisors as defined in the
Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at each of its California facilities where
pharmacists are employed copies of the attached
notice marked "Appendix." 7 Copies of said notice,
on forms provided by the Regional Director for
Region 31, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
I In the event that this Order is enforced by a Judgment (lf a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Fnfolrcing an
Order of the National Labor Relations Board"
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl LABOR REI.ATIONS BOARD
An Agency of the United States Government
WE Wl l. NOT unilaterally grant wage in-
creases without prior consultation or otherwise
refuse to bargain collectively concerning rates
of pay, wages, hours, and other term and con-
ditions of employment with Guild for Profes-
sional Pharmacists as the exclusive representa-
tive of the employees in the bargaining unit
described below.
WE WlIL. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
Wt wWil.., upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All registered pharmacists employed by us
at our facilities located within the State of
California, excluding all other employees,
guards, and supervisors as defined in the
Act.
SAV-ON DRUGS, INC.
1171