Grand Union Co.

National Labor Relations Board - Board Decisions

Oct 5, 1971

193 N.L.R.B. 525 (N.L.R.B. 1971)

GRAND RX DRUG STORES 525
The Grand Rx Drug Stores of the Florida Division of
the Grand Union Company ' and Retail , Wholesale
Department Store Union, Local 1299, AFL,-CIO,
Registered Pharmacist's Division 2 Case
12-RC-3678
October 5, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held between October 6 and 23, 1970, before
Hearing Officer Leonard Bass. On October 29, 1970,
the Regional Director for Region 12, pursuant to
Section 102.87 of the National Labor Relations Board
Rules and Regulations and Statements of Procedure,
Series 8, as amended, transferred this case to the
National Labor Relations Board for decision. There-
after briefs were filed by the Petitioner and the
Employer. On February 2, 1971, the Board remanded
this case to the Regional Director for the purpose of
conducting a further hearing. In accordance with the
Board 's remand , a further hearing before Hearing
Officer Leonard Bass was held between March 18 and
June 2, 1971. Thereafter a brief was filed by the
Employer.
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 reviewed the Hearing Officer's
rulings made at the original and reopened hearings
and finds that they are free from prejudicial error. The
rulings are hereby affirmed.
Upon consideration of the briefs and the entire
amended record in this case,3 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 Union involved herein is a labor organiza-
tion within the meaning of the Act and claims to
represent certain employees of the Employer.
3. No question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act for the following reasons:
Petitioner seeks a unit of registered pharmacists
employed in the Employer's drug departments locat-
ed within 20 retail Gradway discount stores and
Grand Union supermarkets. The Employer contends
that the requested unit is inappropriate since limited
to individuals who are either supervisors or exempt
managerial employees.
The drug department in each store is designated by
a sign reading "Grand RX Drug Store." In addition to
drug departments, the stores contain Grand Union or
Grandway departments, which are described in a sign
outside the store as a Grand Union or Grand Way
store. They include grocery, produce, meats, nonfood,
and general (administrative) departments. The drug
departments are separate, but contiguous to other
departments of the store, and sell health and beauty
aids as well as prescriptions. The nonprescription
products, which may also include greeting cards and
tobacco products, account for the bulk of each
department's business volume.
The two registered pharmacists assigned to each
drug department are designated as drug manager and
assistant drug manager. They are in charge of the
entire Grand RX department.4 Each store is open for
business on an average of 62 hours, 7 days a week. The
Grand RX manager and his assistant rotate their
hours of work, which range from 40 to 46 hours per
week. Although there may be as much as 2 hours'
overlap in the shift of the Grand RX manager and the
assistant manager, most of the time only one is
present and is the only individual representing
management in the Grand RX departments. Unlike
the clerks under them, the pharmacists receive a fixed
weekly salary regardless of their hours of work and
fringe benefits, only available to managerial employ-
ees, such as major medical payments and sick leave
with pay. Their scale of compensation is greatly in
excess of that for their clerks, being $275 to $300 per
week for managers, and $250 to $275 per week for
their assistants, as compared with $1.80 to $2.30 per
hour (equivalent to a range of $72 to $92 for a 40-hour
week) for their clerks. Unlike the managers and their
assistants, the clerks receive additional overtime pay
for hours in excess of 40 in each week. On the other
hand, managers, assistant managers, and clerks alike
are required to record their hours of work on
timecards and apparently receive the same vacation
and holiday benefits.
The supervisory hierarchy with respect to the drug
departments shows that the Grand RX manager and
his assistant report to an area drug supervisor, who in
turn is immediately under the superintendent of drug
operations in the Florida division office at Hialeah,
Florida. It appears that the superintendent of drug
I The name of the Employer appears as amended at the hearing 4 The parties are in agreement that although the record in the original
2 The name of the Petitioner appears as amended at the hearing hearing showed that a relief manager, in addition to the manager and
3 The record in the original and reopened hearings has been corrected assistant manager, may be employed at each store, the job of relief
in accordance with the requests of the Employer manager no longer exists , having been abolished by the Company
193 NLRB No. 81
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operations reports to a Grand Union vice president
and general manager in charge of the Florida division.
Each area drug supervisor visits each drug depart-
ment for from 10 minutes to several hours each week.
The duties of the drug managers and their assistants
appear to be identical . In addition to being solely
responsible for preparing and dispensing prescrip-
tions, which vary in number from store to store, they
are completely in charge of the day- to-day operations
of their department . They direct the activities of their
clerks in the performance of their duties, which
include running the cash register, waiting on custom-
ers, and stocking the shelves and displays. These
duties may also encompass at some locations the
filling out of records of orders and prices . They also
attend managerial meetings , see that the proper stock
is maintained , the proper prices are charged, that
enough clerks are on hand to record incoming orders
when received at sporadic times, resolve conflicts
between clerks as to their duties , and regulate the
clerks' hours of work so that the department is
properly manned . It is also their responsibility to fill
out daily operational and other records of managerial
performance , to open and close the department, to
have a key in those drug departments at some
locations which are physically separated from the
other store departments , and to lock up the prescrip-
tion safe . They are also responsible for the cash and
merchandise on hand and have authority to see that
employees understand their work assignments and
keep busy and pleasant to customers while on the job,
to post and change an individual clerk's work
schedule , to initial changes and corrections in clerks'
timecards , to grant time off, and to handle grievances.
They are also required to approve payment of
invoices and receipt of orders , to approve customers'
checks for merchandise and prescriptions, and to
change prices . No other manager in the store has any
day-to-day authority over the Grand RX managers or
their clerks.
The record in the original hearing , as indicated by
our order reopening the record , disclosed contradicto-
ry testimony between witnesses for the Petitioner and
the Employer as to whether all drug managers and
their assistants were told by the Employer that they
had, and whether they exercised , supervisory authori-
ty. During the original hearing , the superintendent of
drug operations advised all drug managers and their
assistants by mail that they were expected to interview
and evaluate applicants for work in their department,
whether they were referred from the personnel
department or directly applied for work , and to reject
applicants who were not satisfactory ; to train new
5 Certain of the supervisors declined to exercise the authority conferred,
and were terminated We take official notice of the fact that these
discharges were the subject of unfair labor practice charges brought by the
employees, assign them responsibilities, fix their work
schedules, and see that they performed their work
properly. Also, through a process of continual
evaluation, to warn and suspend them, and if
discharge was indicated, to recommend such to the
area drug supervisor. The Petitioner asserts that this
notification was prepared pursuant to hearing and did
not constitute a bona fide delegation of supervisory
authority. Since the record evidences the existence of
such authority prior to the original hearing, we find no
merit in Petitioner's contentions. The evidence,
adduced at the reopened hearing, shows that at the
time the Employer acquired the stores of Stevens
Markets in 1964 it recognized that the Stevens drug
managers and assistant drug managers whom it
retained possessed the above authority. Furthermore
in 1966 it assigned the same authority to the drug
manager and in the previously owned Grand Union
stores. Because of the newly assigned supervisory
responsibilities the Employer raised the scale of
salaries to accord with the higher scale of the former
Stevens managers. Moreover, testimony from witness-
es for both the Employer and the Petitioner now
clearly establishes that all possess supervisory author-
ity and such authority is exercised by substantially all
of those in the requested unit.5
Thus, pharmacists have advertised for, interviewed,
and hired or effectively recommended hiring; dis-
charged for drunkenness or insubordination or
effectively recommended discharge or transfer out of
the drug department for disciplinary reasons includ-
ing poor work; selected the least productive employee
for layoff because of overstaffing; issued warnings or
reprimands for idleness, improper dress, unexcused
absence, and insubordination; effectively recom-
mended transfer into the drug department and
refused requested transfers; approved requested
transfers; recommended retention of a drug clerk
despite her excessive absenteeism due to illness which
recommendation was accepted; recommended wage
increases; used independent judgment in setting work
schedules for individual employees and changing
such schedules when required by a change in
scheduled times of incoming orders or a decrease in
total hours of work because of declining volume in the
drug department, and in making work assignments;
granted or refused time off; appraised each drug
clerk's performance; and handled grievances.
On these facts we find that the Grand RX managers
and their assistants in all the stores encompassed by
the petition possess indicia of supervisory authority,
and hence are supervisors within the meaning of
Union against the Company in Case 12-CA-5097 . Said charges were
dismissed by the Regional Director and such dismissal was sustained on
appeal by the General Counsel on May 17, 1971
GRAND RX DRUG STORES 527
Section 2( l 1) of the Act . Accordingly , we shall dismiss
the amended petition ,6 as seeking an inappropriate
unit.
ORDER
It is hereby ordered that the petition filed herein be,
and it hereby is, dismissed.
6 Burlington Food Store, Inc, and Delaware Food Store, Inc, 172 NLRB we find it unnecessary to pass on and we have therefore not considered
No 73, Nitro Super Market, Inc, 161 NLRB 505, 510-511, Katz Drug whether the above individuals are also managerial employees who may not
Company, 123 NLRB 1615, 1616- 17 In view of our finding that the form an appropriate unit because of the nature of their managerial
petition must be dismissed because the above individuals are supervisors , responsibilities.