Adams Drug Co., Inc.

National Labor Relations Board - Board Decisions

May 12, 1967

164 N.L.R.B. 594 (N.L.R.B. 1967)

594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Adams Drug Co ., Inc. and Local 1325 , Retail
Clerks International Association , AFL-CIO,
Petitioner . Case 1-RC-8949.
May 12, 1967
DECISION ON REVIEW AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On June 16, 1966, the Regional Director for
Region 1 issued a Decision and Order in the above-
entitled proceeding, in which he found that the
requested unit of the Employer's retail drugstores
confined to the State of Rhode Island was too narrow
in scope to be appropriate. As the Petitioner
disclaimed interest in any other unit, the Regional
Director dismissed the petition. Thereafter,
pursuant to National Labor Relations Board Rules
and Regulations, the Petitioner filed a timely request
for review of the Regional Director's Decision,
contending that he departed from Board policy in
finding the requested unit inappropriate. The
Employer filed opposition to the request for review.
Retail Clerks International Association filed a
telegraphic request for permission to file an amicus
curiae statement in support of the request for
review.
By telegraphic order dated September 13, 1966,
the National Labor Relations Board granted the
request for review. Thereafter, the Petitioner filed a
timely brief on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has considered the entire record in this
case, including the briefs of the parties, and makes
the following findings of fact:
The Petitioner requested a unit of all full-time and
regular part-time store clerks, including sales girls,
cosmeticians, fountain help, and stockmen,
employed at the Employer's 25 retail drugstores
located in the State of Rhode Island. The Employer
contended that a chainwide unit is appropriate and,
in the alternative, that the smallest area unit for the
employees sought must encompass similar
employees at its stores in Massachusetts and
Connecticut. The Regional Director concluded that
the requested unit was inappropriate as the Rhode
Island stores did not comprise a complete
geographic or administrative division of the
Employer's operations.
In its brief on review, the Petitioner concedes that
there may be other groupings of the Employer's
stores for unit purposes, but contends that its
requested statewide grouping is also appropriate. In
support of its contention, the Petitioner relies
principally on the fact that the State of Rhode Island
regulates almost every phase of drugstore
operations within its jurisdication, and on other
evidence that the employees within the State share a
community of interest. The amicus asserts that a
statewide unit "is a traditional appropriate unit in
the retail as well as other industries." We find merit
in the Petitioner's contention.
The Employer operates a chain of 83 drugstores in
Rhode Island, Massachusetts, Connecticut, New
York, Kansas, and Oklahoma. Its central office and
warehouse are in Pawtucket, Rhode Island. The
stores are operated either directly by the Employer
or by wholly owned subsidiaries of the Employer.'
There are 25 drugstores in Rhode Island,2 all but one
of which operate under the Adams Drug Store trade
name,3 and all are in the Providence-Pawtucket-
Warwick metropolitan area.4 The Employer has 12
stores in Massachusetts,5 7 in Connecticut,6 and 24
in New York, at points within and between the
Buffalo-Niagara Falls and the Albany-Schenectady
areas.
At its central office the Employer maintains
records and prepares the payroll for all 83 stores.
The central warehouse provides all stores with much
of their merchandise. As to some merchandise such
as newspapers, magazines, books, lunch counter
items, certain drugs, and other items, the Employer
designates the vendors from which the store
managers may buy.
Store operations are under the overall supervision
of a general store supervisor who reports to the
Employer's treasurer and director of store
operations. Under the general store supervisor are
seven "area" supervisors who assist store managers
in solving problems arising in the operations of their
stores. There is also a cosmetic supervisor who
assists managers of stores in the New England
States in the operation of their cosmetic
departments. Three of the area supervisors service
' The Employer directly operates the central office and
warehouse and six of the Rhode Island stores.
2 Certain food products are sold in most of the stores. Three
operate fountains. Four operate post office substations.
2 The exception is the Brown-Adams store in Woonsocket. Five
Massachusetts stores also operate under the Adams Drug trade
name : Attleboro, Cambridge, Somerset, and two in Fall River.
' See Standard Metropolitan Statistical Areas, 1964 edition, as
amended May 24, 1966, published by Office of Statistical
Standards, Bureau of the Budget. The Wakefield store is virtually
on the boundary line of the area. Also within the area is the
Employer's Attleboro, Massachusetts, store, located 5 miles
distant from the nearest Rhode Island store. The Employer's two
stores in Fall River and one in Somerset, Massachusetts, located
about 8 miles from the Rhode Island State line, are within a
separate Fall River metropolitan area.
These stores are located in the eastern part of Massachusetts.
Three of them do not operate a pharmacy.
s One does not operate a pharmacy. The nearest Connecticut
store is 50 miles from the Rhode Island stores. The average
employee complement for Connecticut stores is 25: for
Massachusetts and Rhode Island stores, it is 10 to 11.
164 No. 71
ADAMS DRUG
stores in the New England States. However, the
stores which each service do not necessarily fall
within a distinct geographic area, as stores are
assigned to them on the basis of convenience,
workload, talent, and experience with the particular
problem arising. It is clear, therefore, that the Rhode
Island stores do not comprise an administrative
subdivision of the Employer's chain.
The central office exerts control of store
operations in other ways. It establishes price lists,
negotiates prices for items to be bought from the
outside vendors, and formulates advertising content.
Prices are uniform for all stores except as to fair-
trade items and local discounts permitted for
promotional or competitive purposes. Identical
forms are prescribed for all stores. Central office
personnel hire the supervisory and professional staff
for stores in the four eastern States,' as well as most
stockmen and, on occasions, cosmeticians, and they
screen all employment applications. The central
office sets store hours." It issues store bulletins
setting forth operational guide lines for store
managers, including the duties of employees and
their starting wages. All store clerks are given the
same "PM's," bonuses for sales of certain items of
merchandise. A uniform vacation policy is followed
for all Rhode Island stores and the five
Massachusetts stores which use the Adams Drug
Store trade name. The central office arranges for a
shopping service to submit factual reports on the
competence and honesty of all store personnel. It
administers a single noncontributory health and
accident plan for all full-time employees at stores in
the New England States, as well as group insurance
plans for all store employees.
The store managers direct the day-to-day
operations of their stores, within the guidelines set
by the central office. Except when problems arise,
area supervisors visit the stores infrequently. Store
managers determine the size of the store
complement, hire their own sales clerks, and
recommend promotions. However, as above
indicated, cosmeticians are sometimes hired by the
cosmetic supervisor, and stockmen, who are
assigned one per store, except at a few larger stores,
and who have been promoted to store manager
positions at a few stores, are generally hired by
central office personnel. The stockmen and
i In Case 1-RC-8507, in which the Petitioner herein sought a
unit of all pharmacists employed at the Employer's Rhode Island
stores , the Regional Director in a Decision issued October 28,
1965, found that all pharmacists are supervisors as defined in the
Act He indicated that, at all but five stores, the store managers
were pharmacists and that all other pharmacists were assistant
store managers
8 Most of the stores , located in or near suburban residential
areas, are "long hour" stores, those located in downtown business
districts are "short hour" stores
9 Once a year an inventory crew, made up of an inventory crew
chief, an area supervisor , the cosmetic supervisor , and selected
male store personnel , spends a day at each store
11 See Davis Cafeteria, Inc, and Polly Davis Broward
Cafeteria, Inc , 160 NLRB 1141
595
pharmacists , who are generally males, are
interchanged and transferred from store to store on
occasions : to wit , as part of the training of stockmen,
on promotion to store managers , and as substitutes
during vacations and emergencies .9 On the other
hand , the store clerks, who are mostly females, are
rarely interchanged between stores.
From the foregoing , it is evident that there are a
number of factors indicating, as contended by the
Employer, that the store employees involved could
be bargained for on the basis of an employerwide or
New England States areawide unit . Indeed, the facts
support a grouping of stores within the Providence-
Pawtucket -Warwick metropolitan area as an
appropriate unit , and such a grouping would require
the addition of only the Attleboro store to the
Petitioner 's proposed unit . However , in the absence
of any history of collective bargaining , where no
labor organization is seeking a broader appropriate
unit , the Board has long held that the petitioning
labor organization needs only to establish that the
group of employees it has attempted to organize and
seeks to represent is "an " appropriate unit. 10
Here, the Petitioner has restricted its interest to a
Rhode Island State grouping of the Employer's
drugstore employees . The facts set forth above
clearly demonstrate that the requested employees
have substantial interests in common,
notwithstanding the fact that they do not fall within a
distinct administrative subdivision of the Employer's
multistate operations . Although it is true that
employees at stores outside the State share some of
these interests , we are persuaded that the
employees in the Rhode Island stores enjoy a special
community of interest apart from the others by
reason of the State's regulation of the retail drug
industry . The Board has stated in cases arising in
the insurance industry that groupings of district
offices within a State may constitute appropriate
geographic area units. t t We believe the same
considerations apply to retail drug chains. The State
of Rhode Island , under its police power , can and
does regulate pharmacies and the sale and
distribution of pharmaceutical , cosmetic , food, and
other products within its political boundaries. This
control by the State also affects the terms and
conditions of employment of all employees in the
drugstores . 12 We conclude , therefore , that all
' 1 See State Farm Mutual Automobile Insurance Company, 158
NLRB 925. Metropolitan Life Insurance Company , 156 NLRB
1408, 1417, ibid, 43 NLRB 962, 968
12 Without attempting to detail the extent of this control, we
note that the State of Rhode Island has on its statute books laws
governing the licensing of pharmacies and of pharmacists, and
laws pertaining to health and safety in the operation of
pharmacies and the sale and distribution of pharmaceutical,
cosmetic , food, and other products dispensed by drugstores
within the State The State of Rhode Island also imposed sales
and payroll taxes and has other laws setting forth minimum
standards for health and safety in employment
298-668 0-69-39
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drugstores of the Employer within the boundaries of
the State of Rhode Island constitute a clearly
delimited geographic area appropriate for purposes
of collective bargaining.
Accordingly, we find that a question affecting
commerce exists concerning the representation of
certain employees of the Employer within the
meaning of Section 9(c)(1) and Section 2(6) and (7) of
the Act, and that the following employees of the
Employer constitute a unit appropriate for the
The Petitioner would exclude two full- time post office
substation employees employed at stores 4 and 28 The record
indicates that they are employees of the Employer, and share the
same supervision and employment conditions as other employees
In addition to their principal post office duties, they receive public
utility payments , maintain records , and, at times , perform other
sales and nonsales work of the type performed by other store
employees We find that they have sufficient interests in common
with other store employees to warrant their conclusion in the unit
14 The Petitioner would exclude as supervisors fountain
managers at three of the drugstores As the record contains
insufficient evidence pertaining to their status , we shall permit
them to vote subject to challenge
purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All full-time and regular part-time employees
employed at the Employer's drugstores located in
the State of Rhode Island, including post office
substation employees,13 but excluding pharmacists,
store managers and assistant managers, guards, and
all other supervisors as defined in the Act.14
[Text of Direction of Election15 omitted from
publication.]
'' An election eligibility list, containing the names and
addresses of all the eligible voters, must be filed by the Employer
with the Regional Director for Region 1 within 7 days after the
date of this Decision on Review and Direction of Election The
Regional Director shall make the list available to all parties to the
election No extension of time to file this list shall be granted by
the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for
setting aside the election whenever proper objections are filed
Excelsior Underwear Inc , 156 NLRB 1236