Sav-On Drugs, Inc.

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1451 (N.L.R.B. 1982)

SAV-ON DRUGS
Sav-On Drugs, Inc. and Guild for Professional Phar-
macists. Case 31-CA- 11070
May 28, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on April 22, 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 May 7, 1981, against Respondent, alleging that
Respondent had engaged in and was engaging 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 Relations Act,
as amended. Copies of the charge and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
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-4219, 31-RC-4196,1 and 31-RC-4187 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. On May 18, 1981, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the com-
plaint.
On July 31, 1981, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on August 7, 1981,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
I The Board's Decision on Review and Direction of Election in the
underlying representation proceeding is reported at 243 NLRB 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 Secs
102 68 and 102.6
9
(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 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967),
enfd 415 F2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F Supp
573 (DC.Va 1967); Folletr Corp., 164 NLRB 378 (1967), enfd 397 F 2d
91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
Judgment should not be granted. Respondent on
August 21, 1981, filed a response to the Notice To
Show Cause. On October 9, 1981, the General
Counsel filed an erratum to the motion to transfer
the case to the Board and for summary judgment,
amending the last paragraph thereof to correct an
inadvertent error. 3
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 and response to
the Notice To Show Cause Respondent admits
most of the operative factual allegations of the
complaint, including the Union's certification and
the request and refusal to bargain. Respondent
denies, however, that the Union is a labor organi-
zation and that it has been at all times since Febru-
ary 11, 1981, the exclusive representative of all em-
ployees in the certified unit for the purposes of col-
lective bargaining with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment. As affirmative defenses,
Respondent asserts that the pharmacy managers or
head pharmacists are supervisors within the mean-
ing of the Act; that, in reversing the Regional Di-
rector's decision and by ordering an election, the
Board acted in excess of its statutory authority;
and, further, that Respondent has been denied due
process of law. Counsel for the General Counsel
submits in effect that Respondent in its answer
seeks to relitigate issues which were or could have
been litigated in the prior representation proceed-
ing; that Respondent does not offer to adduce any
newly discovered or previously unavailable evi-
dence, and does not allege the existence of any spe-
cial circumstances which would require the Board
to reexamine the decision made in the representa-
tion proceeding; that Respondent has admitted that
the Union requested it to bargain and Respondent
refused such request; and that no issues of fact
remain to be litigated before the Board in the in-
stant proceeding and summary judgment is there-
fore appropriate. We agree with the General Coun-
sel.
Review of the record herein, including the
record in Cases 31-RC-4134, et al., reveals that fol-
lowing a hearing in said matter the Regional Direc-
I While the General Counsel's erratum was not accompanied by state-
ment of service on the other parties, this omission was subsequently cor-
rected, and no response to the erratum has been filed with the Board.
The Board has accepted the amendment
261 NLRB No. 189
1451
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tor issued a Decision and Order in which he found,
inter alia, that the Union was not a labor organiza-
tion within the meaning of the Act and dismissed
the petition. The Board granted the Union's request
for review of the Regional Director's Decision and
Order and, on July 31, 1979, the Board issued its
Decision on Review and Direction of Election, 243
NLRB 859, in which it found, inter alia, that the
Union is a labor organization within the meaning of
the Act, and that pharmacy managers were not su-
pervisors as a class. The Board therefore directed
an election in a unit composed of "all registered
pharmacists employed by the Employer at its facili-
ties located within the state of California, excluding
all other employees, guards, and supervisors as de-
fined in the Act," a unit which Respondent agreed
was appropriate.4 Following the Board's denials of
various motions for reconsideration and interven-
tion filed by Respondent and Intervenor Retail
Clerks Locals, an election by secret ballot was con-
ducted under the direction and supervision of the
Regional Director. The Intervenors filed timely ob-
jections to conduct affecting the results of the elec-
tion and, on February 27, 1980, the Regional Di-
rector issued a Supplemental Decision overruling
Intervenors' objections, sustaining the challenges to
certain voters, and overruling the challenges to
others. Intervenors filed a request for review of the
Supplemental Decision, which was denied by the
Board on April 16, 1980. On January 8, 1981, the
Regional Director issued a Second Supplemental
Decision, in which he overruled the challenges to
the ballots of 50 employees who the Board had
found were discharged by Respondent in violation
of Section 8(a)(3) of the Act.5 Thereafter, follow-
ing a second revised tally of ballots showing that,
of approximately 469 eligible voters, 443 cast bal-
lots, of which 12 were void, 230 were cast for the
Union, 52 were cast for the Intervenors, 82 were
cast against the participating labor organizations,
and 5 remaining undetermined challenged ballots
were not sufficient to affect the results of the elec-
tion, the Regional Director on February 10, 1981,
issued a Certification of Representative and, on
February 11, issued a corrected Certification of
Representative. Commencing on or about February
19, 1981, the Union has requested that Respondent
bargain collectively with it as the exclusive collec-
tive-bargaining representative of the employees in
the certified unit, and commencing on or about
April 9, 1981, Respondent has refused to bargain
collectively with the Union.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
4 See Sav-On Drugs. Inc., 243 NLRB 859.
5 Sav-On Drugs. Inc., 253 NLRB 816 (1980).
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. 6
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and 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
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding.7 Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACI
1. TIHE 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 principal 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.
6 See Pittsburgh Plate Glass Co. v. N.L.R B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Sees. 102 67(f) and 102 69(c).
' We find Respondent's asserted "affirmative" defenses herein to be
devoid of merit. With respect to Respondent's assertion that the Board
acted beyond its statutory authority in granting the request for review
and reversing the Regional Director, we note, inter alia, that the Region-
al Director's basis for dismissing the petition, i.e., that the Union was not
a labor organization, was incorrect as a matter of law Further, the
Board's conclusion that the head pharmacists or pharmacy managers
were not supervisors as a class, a finding based on a full record and pre-
mised in part on factors not alluded to in the Regional Director's decision
(see 243 NLRB at 861, fn. 8), cannot be said to have denied Respondent
due process of law. Indeed, Respondent was afforded ample due process,
and availed itself of full opportunity, as revealed by the voluminous
record in these proceedings, to raise and fully litigate the issues it now
alleges preclude summary judgment.
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SAV-ON DRUGS
II. THE LABOR ORGANIZATION INVOI.VED
Guild for Professional Pharmacists is a labor or-
ganization 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 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.
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 RespondentCs
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.
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. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
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 REMEDY
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, 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.
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:
CONCLUSIONS 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-
1453
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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)(l) 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.
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 with Guild for Profes-
sional Pharmacists as the exclusive bargaining rep-
resentative of its employees in the following appro-
priate 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."8 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
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.
In1 the event no exceptions are Filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations HBoard, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusitons, and Order, and all objetlions thereto
shall be deemed waived for all purposes.
APPENDIX
NOIiCE To EMPLOYEES
Pos-rED BY ORDER OF THE
NATIONAt LABOR REIATIONS BOARD
An Agency of the United States Government
WE WIIl. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Guild for Professional Pharmacists as the
exclusive representative of the employees in
the bargaining unit described below.
WE Wll.I. 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.
WE WI. , 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.
1454