Drug Fair - Community Drug Co., Inc

National Labor Relations Board - Board Decisions

Dec 31, 1969

180 N.L.R.B. 525 (N.L.R.B. 1969)

DRUG FAIR COMMUNITY DRUG CO., INC. 525
Drug Fair - Community Drug Co., Inc. and
Metropolitan Guild of Pharmacists , Petitioner.
Case 5-RC-6872
December 31, 1969
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before William Shooer, Hearing
Officer of the National Labor Relations Board.
Following the hearing and pursuant to Section
102.67 of the National Labor Relations Board Rules
and Regulations and Statements of Procedure,
Series 8, as amended, and by direction of the
Regional Director for Region 5, this case was
transferred to the National Labor Relations Board
for decision. The Petitioner filed a brief and a reply
brief. The Employer filed a brief and an answering
brief to Petitioner's reply brief.
The Board' has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization claims to represent
certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. Petitioner seeks to represent all pharmacists
and interns employed by the Employer at all of its
stores located in Washington, D.C., Laurel, Md.,
Montgomery and Prince George's counties in
Maryland, Alexandria City, Fairfax City, Falls
Church City and Arlington, Fairfax, Loudoun, and
Prince Williams counties in Virginia, but excluding
all other employees, guards and supervise ^ as
defined in the Act. The Employer maintains that the
unit requested by the Petitioner is inappropriate,
and takes the position that the only appropriate unit
would be employerwide.
The Employer is a Maryland corporation with its
general offices and distribution center in Alexandria,
Virginia. It operates a chain of retail drug stores in
the District of Columbia, Maryland, Virginia, West
Virginia, and Delaware. There are 116 stores in the
chain employing some 300 pharmacists and interns,
'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
but not counting an additional number of
pharmacists who are also managers or assistant
;.Tanagers of their stores, and who the parties
stipulated were supervisors. The unit petitioned for
would include about 82 stores, employing about 200
pharmacists and interns, and would exclude about
34 remaining stores in the chain, at which 100
pharmacists and interns are employed. The
Petitioner contends that the included stores
constitute an appropriate unit because they are
located, with one exception, within the
Federally-designated Washington metropolitan area.
Ultimate responsibility over all of the Employer's
pharmacists resides in three officials: Myron Gerber,
Chairman of the Board and Executive Vice
President, Edward Spearbeck, Director of
Professional Relations, and John Jones, Assistant
Director of Professional Relations. Spearbeck and
Gerber are professional pharmacists. These three
men do all of the recruiting, hiring, firing, and
disciplining of pharmacists, and determine their
hours of work, salaries, and fringe benefits. They
assign the pharmacists to specific stores, and are
responsible for permanent transfers. They
periodically visit all of the stores in the chain.
Pricing policies for prescriptions dispensed by
pharmacists are centrally determined, and these are
uniform throughout the chain. All pharmacists
report their prescription sales daily to the central
office. All payroll checks are paid from the
accounting department in Alexandria. All stores in
the chain are supplied from the Alexandria
distribution center. Some 90 percent of the drugs
sold by the stores in the chain is obtained from the
distribution center in Alexandria, which supplies
each store on a weekly basis. Some 10 percent of
the drugs sold are ordered by the pharmacists in the
individual store from a local wholesaler in order to
fill gaps in the inventory.
The Employer holds periodic meetings of all the
pharmacists in the chain. The number of these
meetings varies from one to several per year. They
are held in Alexandria. At these meetings, wage and
fringe benefits programs are discussed and
announced.
Below the central office, the chain is divided into
seven districts, each supervised by a district
manager. Five of the seven districts are either
entirely within or entirely outside the proposed unit.
The two divided districts (districts 2 and 5) have,
respectively, 6 stores in the proposed unit and 10
out, and 16 in and 6 out. While the powers of the
district managers were not extensively discussed at
the hearing, some testimony relating to their
responsibilities was elicited. From this, it would
appear that district managers supervise pharmacists
"no more than as to their being to work on time,
their appearance, their manner with customers ...,"
according to the testimony of Chairman of the
Board Myron D. Gerber. As to their power to
discipline pharmacists, Gerber testified that district
180 NLRB No. 94
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
managers would in some instances "pass on" a
cautionary word , for example , in the case of
repeated tardiness . District managers do authorize
"relief arrangements" for pharmacists, namely
temporary interchange of employees to cover, for
example, a night shift or a vacancy one night each
week in another store . Other than as discussed, it
appears that neither store managers nor district
managers exercise any substantial control over the
pharmacists.
Petitioner, an independent guild of pharmacists
whose membership is predominantly employed in
the Washington metropolitan area, seeks a unit of
pharmacists , including interns, in all of the
Employer's stores located in the greater
Washington, D.C. - Maryland - Virginia
"Standard Metropolitan Statistical Area," as
defined by the Executive Office of the President
Bureau of the Budget, as of March, 1967. The
general concept of a "Metropolitan Area" is one of
an integrated economic and social unit with a
recognized large population nucleus.'
For the general statistical use of government
agencies in appraising metropolitan problems, the
Bureau of the Budget has developed criteria for
defining "metropolitan areas ." The purpose of such
definition is to establish and label those segments of
the populace which , on the basis of population
density, population character, and integration of
social and economic communication , share common
metropolitan characteristics , needs, and problems.
According to these criteria used by the Bureau of
the Budget,3 some 200 pharmacists in 84 stores
located in Washington, D.C., Montgomery and
Prince George's counties in Maryland , the cites of
Alexandria, Fairfax and Falls Church in Virginia,
and Arlington , Fairfax, Loudoun and Prince
William counties in Virginia , fall within the
recognized statistical metropolitan area .' During the
course of the hearing , Petitioner amended its
petition to include one store in Laurel , Maryland,
which store was outside of the unit originally
proposed . The Employer has two stores in Laurel.
One, located in Prince George's County, is within
and the other, just outside the county line, is outside
the Washington Statistical Area. They are, however,
positioned within a mile of each other . Both of these
stores are in the same administrative district of the
Employer. At the hearing the Employer focused on
the exclusion of the second Laurel store as a
dramatic example of the allegedly arbitrary nature
of the proposed unit. Subsequent to this, Petitioner
amended the petition to include it.
'P. vii , Standard Metropolitan Statistical Areas, 1967, Executive Office
of the President , Bureau of the Budget (U.S. Government Printing Office
1967-0.257-095).
'See generally Id. pp . 1-3, for the criteria followed in establishing
standard metropolitan statistical areas.
'At the extremes , the remaining 32 stores in the chain outside of the
proposed unit have the following characteristics . To the north , the Dover,
Delaware store is 102 miles from Washington . Northwesternmost is the
store in Cumberland , Maryland , 140 miles from Washington. The
On the question of permanent and temporary
interchange of employees, the Employer submitted
an exhibit compiled from memory by Edward
Spearbeck, Director of Professional Relations.
Spearbeck also testified at the hearing on this
question. From these sources it would appear that
approximately 75 instances of employees being
transferred either into or out of the proposed unit
took place over the past 10 years, though a majority
of these occurred in the last four years. While the
figures are not entirely free from ambiguity, it
would appear that of these 75 instances,
approximately 50 were permanent transfers, and
approximately 25 were temporary or "relief"
transfers. Spearbeck, moreover, testified that the
permanent transfers were primarily transfers to
newly opened stores from older established ones.
On these facts, Petitioner contends that the unit
sought is appropriate on the grounds set forth by the
Acting Regional Director in Drug Fair -
Community Drug Co., Inc., 5-RC-6147
(unpublished ), when , in a case involving the same
Employer, he directed an election in a unit of
pharmacists coextensive with the Washington
metropolitan area. The Acting Regional Director
relied on the principle that employees working
within the metropolitan area have similar social and
economic interests, citing Crown Drug Company,
108 NLRB 1126.
Petitioner points out that pharmacists within the
Washington metropolitan area face similar
economic problems and to that extent enjoy a
community of interest not shared by those outside
the metropolitan area . Petitioner further cites, as a
factor favoring the smaller unit it seeks over the
company-wide unit urged on us by the Employer, its
own small size, recent organization , lack of
professional staff, and consequent inability to
adequately represent employees on the broader
basis.
The Employer contends that the only appropriate
unit is company-wide, stressing principally its
centralized administrative structure relating to
pharmacists. The Employer notes that three
company officials whose offices are in Alexandria
do all of the recruiting, hiring, firing, and
disciplining , and that they schedule hours,
assignments, and permanent transfers . All its
pharmacists participate in its fringe benefits, which
are uniform throughout the chain. Contending that a
company-wide unit is the only sensible one in these
circumstances, the Employer points out that the
company-wide unit was the one alleged to be
appropriate by the General Counsel in a complaint
issued in Drug Fair - Community Drug Co., Inc.,
Martinsburg , West Virginia, store is 78 miles west of Washington. The
Madison Heights , Virginia , store is 180 miles southwest. The Salisbury,
Maryland , store is 124 miles northeast of Washington . The Williamsburg,
Virginia, store is 154 miles to the south . Eight of the 32 stores are located
in Baltimore , three in Richmond . On the other hand , some of the stores
outside the unit would be within a few miles from stores in the unit.
DRUG FAIR - COMMUNITY DRUG CO., 527
5-CA-3037, on August 12, 1965. The Employer also
refers to unsuccessful attempts in the past to
organize it on a companywide basis, and cites this
labor relations "history" as an additional reason for
dismissing this petition for a smaller unit. Moreover,
the Employer argues that a " metropolitan area"
unit applies an irrelevant and arbitrary geographical
standard , since it would leave out of the unit stores
no more than 1, 2, 5 or 10 miles from unit stores,
while including stores up to 50 miles apart . Finally,
the Employer contends that pharmacists may be
represented separately from its other employees only
if they are found to be professionals . At the hearing
Petitioner declined to stipulate that these
pharmacists are professionals , and no evidence on
this question was presented.'
In essential agreement with the position of the
Petitioner , we find that the proposed metropolitan
unit is appropriate. Under the statutory scheme for
promoting the national policy of "encouraging the
practice and procedure of collective bargaining and
[of] protecting the exercise by workers of full
freedom of association, self-organization, and
designation of representatives of their own choosing
the Board has been given a mandate to
"decide in each case whether , in order to assure to
employees the fullest freedom in exercising the
rights guaranteed by this Act, the unit appropriate
for the purposes of collective bargaining shall be the
employer unit , craft unit, plant unit, or subdivision
thereof."' The Employer, however, takes the
position that the Board 's affirmative mandate is
effectively circumscribed on the facts of this case by
the stricture of Section 9(c)(5) of the Act, which
precludes extent of employee organization as the
controlling justification for finding a unit
appropriate. The Employer argues in its brief:
. .. Petitioner ' s proposed unit is based solely on
extent of organization . There are no objective
criteria to justify a finding that the Petitioner's
proposed unit may be appropriate because the
facts show conclusively that no aspect of
geographical location affects a pharmacist's rate
of pay, job content or professional duties , fringe
benefits or any other facet of his relationship with
the Company.
Contrary to the Employer , we believe that the
proposed metropolitan geographical area unit is
supported by substantial nonorganizational factors.
The Bureau of the Budget has concluded that the
area encompassed by the proposed unit (with the
single exception of the added store in Laurel) is a
separately definable metropolitan entity, presumably
sharing and facing those needs and problems
peculiar to such a community , and enjoying a large
'We note that in our past decisions , pharmacists have been considered to
be professionals and as such were entitled to separate representation.
Crown Drug Company, 108 NLRB 1126, Longs Stores, Inc., 129 NLRB
1495.
'Section I of the National Labor Relations Act , as amended
'Section 9(b) of the Act.
measure of economic and environmental integration.
In the legislative history of the 1947 amendments to
the Act, Senator Taft, in answering criticism of
Section 9(c)(5), said:
Opponents of the bill have stated that it prevents
the establishment of small operational units and
effectively prevents organization of public utilities,
insurance companies, and other business whose
operations are widespread. It is sufficient answer
to say that the Board has evolved numerous tests
to determine appropriate units, such as
community of interest of employees involved,
extent of common supervision, interchange of
employees, geographical considerations, etc., any
one of which may justify the finding of a small
unit. 0
In Crown Drug Company,' in a factual context
similar to that presented here, the Board found
appropriate a unit of 31 drugstores in the greater
Kansas City metropolitan area, which included
stores in two states. The employer had a total of 69
stores in 3 states. There, too, the employer's
operations were highly centralized, and an
employer-wide unit would also have been
appropriate. As we stated in that case, however, ". .
. the factors relating to the integration of the
Employer's operations are not alone determinative
of the question."10 The Board cited, inter alia, the
similarity in community of interests of the
employees obtaining from the social and economic
integration of the large metropolitan area in which
they worked. As we stated in Metropolitan Life
Insurance Company (Woonsocket, R.I.I:"
"Multiplant and multistore units which include all
employees in all the plants or stores in a defined
area are commonplace and have proved workable."
We reject the Employer's contention that because
the Board or its representative has earlier found a
broader unit appropriate," it may not also find the
narrower unit proposed here appropriate. As the
Court noted in Local 1325, Retail Clerks v.
N.L.R. B.,' 3 the existence of an alternative unit
'93 Cong. Rec. 7002 (June 12, 1947); Leg. Hist of Labor Management
Rel. Act, 1947, p. 1625. (Emphasis supplied.)
'108 NLRB 1126.
"Id at 1127. For other cases in which the Board has found appropriate
metropolitan geographical units even though they do not coincide with the
employer's administrative Imes, see Weis Markets, Inc, 142 NLRB 708
(two citywide units); Barr's Jewelers , 131 NLRB 235 (store in Norfolk,
Va., excluded from unit of 10 stores located in Philadelphia , Pa. region),
Metropolitan Life Insurance Company. 138 NLRB 512 (Six offices in
Cleveland and three suburban offices found appropriate)
"156 NLRB 1408, 1415, fn. 18.
"In 1961, the Regional Director directed an election in an employerwide
unit in a case involving this same Employer in Case S-RC-3567
(unpublished ) Most recently, however, in Case S-RC-6147, the Acting
Regional Director directed an election in a metropolitan area -wide unit
involving this same Employer . The Board denied the Employer 's request
for review of the Acting Regional Director ' s decision and direction of
election on December 4, 1967
-3414 F.2d 1194 (C.A.D C .), denying enforcement to 171 NLRB No. 13.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which is "appropriate" does not preclude the Board
from ordering an election in another unit which is
also appropriate. See Haag Drug Co., 169 NLRB
No. 111; Dixie Bell Mills, Inc., 139 NLRB 629,
631.
In sum, and after consideration of the Employer's
arguments regarding its administrative centralization
and the apparently minimal transfer and interchange
experience throughout the chain, we find that the
appropriateness of the metropolitan area unit here
proposed is supported by substantial factors of
economic, demographic, social and geographic
integration , and shall direct an election therein.
We find that the following employees of the
Employer constitute a unit appropriate for purposes
of collective bargaining within the meaning of
Section 9(b) of the Act:
All pharmacists and interns employed by the
Employer at all its stores located in Washington,
D.C., Laurel, Md., Montgomery and Prince
George's counties in Maryland , Alexandria City,
Fairfax City, Falls Church City, and Arlington,
Fairfax , Loudoun and Prince William counties in
Virginia, but excluding all other employees,
guards, and supervisors as defined in the Act.
[Direction of Election" omitted from publication.]
"In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236; N. L R B v Wyman-Gordon Company,
394 U S 759. Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all eligible voters, must be filed
by the Employer with the Regional Director for Region 5 within 7 days of
the date of this Decision 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