Daw Drug Co., Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1960

127 N.L.R.B. 1316 (N.L.R.B. 1960)

1316 DECISIONS OF NATIONAL LABOR' ,RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent' set forth in section III, above , occurring in
connection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.,
V., THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that he cease and desist therefrom and that he take certain
affirmative action designed to effectuate the policies of the Act. Because of the
Respondent's unlawful conduct and its underlying purpose and tendency, I find
that the unfair labor practices found are persuasively related to the other unfair
labor practices proscribed by the Act and-that danger of their commission in the
future is to be anticipated from the course of conduct in the past . N.L.R.B. v.
Express Publishing Company, 312 U.S. 426. The preventive purpose of the Act
will be thwarted unless my recommendations are coextensive with the threat. In
order, therefore , to make effective the interdependent guarantees contained in
Section 7 of the Act, to prevent a recurrence of unfair labor practices , and thereby
to minimize industrial strife which burdens and obstructs commerce , and thus ef-
fectuate the policies of the Act, I will recommend that the Respondent cease and
desist from in any manner infringing upon the rights of employees guaranteed in
Section 7 of the Act.
,Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization ' within the meaning of the Act.
2. By interfering with, restraining , and coercing his employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
3. The' aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. The allegations of the complaint that the Respondent has engaged in unfair
labor practices within the meaning of Section 8 ( a) (3) and ( 5) of the Act have not
been sustained.
[Recommendations omitted from publication.]
Daw Drug Co., Inc. and Retail Store Employees Union, Local
345, AFL-CIO, Petitioner. Case No. 3-RC-29264. June 17, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor'
Relations Act, a hearing was held before Hymen Dishner, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers' in! connection with this case to a three-
member panel [Members Rodgers, Jenkins, and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2.. The labor organization involved "claims to represent certain
employees of the Employer.
127 NLRB No. 152.
DAW_ DRUG_CO ;.^TNC.- ' ? a c - : 1317
3. ,A' question affecting commerce exists 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.
The Petitioner seeks to represent a unit of all the pharmacists
employed by the Employer in its 14 drugstores located in Metropolitan
Rochester, New York, or .in the alternative to represent a unit of all
of the pharmacists employed by the Employer in its Rochester, New
York, area,. consisting of 13 drugstores and a prescription center in
Metropolitan Rochester, .1 drugstore in Seneca Falls, New York, and
2 drugstores in Auburn, New York. The Employer moved to dismiss
the petition, on the grounds that. both of the requested units are
inappropriate and contends that the only appropriate unit should be
employerwide, i.e., a unit ,of the pharmacists employed by the Em-
ployer in all of its 36 stores all located in New York State. There is
no bargaining history.
Daw Drug Co., Inc.; is a New York corporation engaged in the
retail drug business. The home office and headquarters of the Em-
ployer are in Rochester, New York. The Employer, Daw Drug Co.,
Inc., has several wholly owned operating subsidiaries and together
with these subsidiaries operates 36 stores in central New York State.
The officers and the directors of the Employer and its subsidiaries are
the same. - The offices of the subsidiaries are at the same location as
the parent in Rochester, New York. All of the stores display a
common sign. However, in the- instance of the subsidiaries there is
a, small sign, usually over the doorway, identifying the particular
subsidiary which is operating that particular store. The Employer
has the following officers over all 36 stores : The executive vice presi-
dent, the vice president in charge of general merchandising for all of
the stores in the chain, and the general operations manager.
The general merchandising manager is in charge of the buying
departments for all the stores in the chain. He also. has under his
supervision the advertising department for all 36 stores. Purchases
for all the stores are made through the Employer's home office and
all the merchandise purchased is shipped to the, Employer's ware-
house located at the home office site which serves all the stores. There
is also a sales training department supervised by the general mer-
chandising manager and the general operations manager located at
the Employer's home office in Rochester, New York. Payrolls for all
of the stores are made up at the Employer's home office, and the
payroll records are kept there.. Daily bulletins are issued-to all the
stores frorii the Employer's home office, and sales reports for all the
stores are handled and recorded at the Employer's home office. All
hiring of managers and pharmacists must be approved by the home
office. The hours of work and rates of pay are generally set by the
home office. Generally the labor policy for all of the stores is deter-
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mined at the Employer's home office. The record shows that- the
Employer's operations are centralized in many respects and that an
employerwide unit of pharma;cists maybe appropriate.'
However, the factors relating to the integration of the Employer's
operations are not, alone, determinative of the question 2 Stores of
the Employer are as far as 225 miles apart. The pharmacists of the
stores, designated by the Petitioner in the alternative as constituting
an-appropriate unit, include all of the stores within an area designated
by the Employer as the Rochester area and which is under the super-
vision of an area manager whose salary is,paid only by the Rochester
area stores. The record shows that the. Employer's operations are
divided into the following 3 distinct areas : (1) Rochester, (2) Utica,
and (3) Syracuse. Each of the areas has an area manager, and, as
stated above, the salary of the area manager is paid only by the stores
in his particular area. In addition the record shows that the area
managers exercise considerable authority over the stores in their re-
spective areas. Thus, the area managers supervise each store in their
areas as to the proper amount of merchandise, proper type of display,
and the proper number of employees. They are responsible for su-
pervising managerial duties such as proper order writing. They in-
terview for purpose of recruiting personnel for their stores, such as
clerks, stockmen, and sales ;clerks. The area managers also have
authority to interview pharmacists, i.e., screening applicants for their
stores, and may recommend hiring, which recommendations are
usually followed, although the store operations manager makes the
final determination. Area managers are responsible for the store
maintenance and store remodeling and also for supervising the super-
visory personnel. The number of hours to be worked are set by the
central office, but the time when an employee is to work is determined
by the area manager.' The area managers actually determine the
needs of the particular stores in their areas with reference to inventory
as well as personnel, with the exception of the managers and the
pharmacists.
Finally the area managers are responsible for the assignment of
duties to the personnel of the; stores in their area and have the author-
ity to grant wage increases; within a certain range except for the
managers and pharmacists. Although the record contains testimony
that the Employer has. a policy of transferring pharmacists between
stores and between areas, the record shows that the average period of
employment for a pharmacist within the Rochester area is 5 years.
The factors above listed, together with the fact that there is a definite
'Although only Daw Drug was named in the petition, the subsidiary companies in-
volved were represented at the hearing, and no issue was raised as to the propriety of
their inclusion in the proceeding. We find that Daw Drug and its subsidiaries constitute
a single employer.
2 Crown Drug Company, 108 NLRB 1126, 1127.
MARINETTE PAPER COMPANY 1319
community of interest among all of the employees of the Employer in
a particular area in which they work, indicate the appropriateness of
the alternative unit sought by the Petitioner.3 The Board has fre-
quently indicated that, absent unusual circumstances, the appropriate
collective-bargaining unit should embrace all employees within the
categories sought, who perform their work within the Employer's
administrative division or geographical area.4 We find, therefore,
that a unit consisting of all the pharmacists in the Employer's Roch-
ester, New York, area, which comprises an administrative division
of the Employer as well as a geographical area, is appropriate.
The following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act :
All pharmacists employed at the Employer's drugstores and the
prescription center in Rochester, New York, the drug-store in Seneca
Falls, New York, and the drugstores in Auburn, New York, all known
as the Rochester area, excluding all other employees and supervisors
as defined in the Act.
[Text of Direction of Election omitted from publication.]
3 Crown Drug Company, supra.
A See Safeway Stores, Incorporated, 90 NLRB 998-1000.
Marinette Paper Company and International Brotherhood of
Pulp, Sulphite and Paper Mill Workers , AFL-CIO, Petitioner
Marinette Paper Company and Local 773, United Association
of Journeymen and Apprentices of the Plumbing and Pipe
Fitting Industry of the U.S. and Canada, AFL -CIO, Petitioner.
Cases Nos. 3-RC-2355 (formerly 2-RC-105f6) and 3-RC-2356
(formerly 2-RC-10729). June 17, 1960
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed in Case No. 3-RC-2355 under Section
9 (c) of the National Labor Relations Act, a hearing was held before
Louis A. Schneider, hearing officer, and the proceeding thereafter
transferred to the Board. Upon the subsequent filing of the petition
in Case No. 3-RC-2356, the Board, by order of April 28, 1960, re-
opened the record in the earlier case and remanded it to the Regional
Director for the purpose of consolidation with Case No. 3-RC-2356
and for completion of the record. A consolidated hearing was held
before Louis A. Schneider, hearing officer. The hearing officer's
rulings made at the hearings are free from prejudicial error and are
hereby affirmed.
127 NLRB No. 166.