Haag Drug Co., Inc.

National Labor Relations Board - Board Decisions

Apr 13, 1964

146 N.L.R.B. 798 (N.L.R.B. 1964)

798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The principal reason for the discharge , I am'persuaded , was Day's admitted dis-
closure to persons in the Lake City community not connected with her employer or
the Union of a problem relating to her employment and, in doing so, attributing
a dictatorial attitude to Kehrer which, in his view, not only misrepresented his posi-
tion but convinced him she lacked discretion and a proper sense of loyalty to her
employer . A contributing factor, I find , was the revelation to the local chairlady
and Cameron , contrary to policy, of information about the medical findings relating
to an employee-patient. While I have no doubt that Kehrer was displeased with
Day's association with Thomas, I do not believe that this relationship caused her
termination . Accordingly , I find that Day was discharged for reasons not violative
of the Act , and I shall therefore recommend that the complaint be dismissed in
its entirety. 14
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Southeastern Regional ILGWU Health and Welfare Fund is an employer en-
gaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act.
2. International Ladies' Garment Workers ' Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondents have not engaged in any unfair labor practices as alleged
in the complaint.
RECOMMENDED ORDER
It is hereby recommended that the complaint be dismissed in its entirety.
141n view of my finding that Day was not discharged because of her association with
Thomas or because she refused to cease such association , as alleged in the complaint, it
seems unnecessary to consider whether, if I had found the reason to be as alleged , a viola-
tion of Section 8(a) (3) and 8(b) (1) (A ) and (2 ) would thereby be established.
Haag Drug Company, Incorporated and Retail Clerks Union
No. 725, a/w Retail Clerks International Association, AFL-
CIO, Petitioner . Case No. 25-RC,-2455. April 13, 1964
DECISION, DIRECTION, AND CONTINGENT ORDER
AND DIRECTION OF SECOND ELECTION
Pursuant to a stipulation for certification upon consent elec-
tion, an election by secret ballot was conducted on August 22, 1963,
under the direction and supervision of the Regional Director for the
Twenty-fifth Region, among the employees in the agreed-upon unit.
Upon the conclusion of the election , the parties were furnished a tally
of ballots which showed that of approximately 315 eligible voters,
267 cast ballots, of which 124 were for, and 117 were against, the
Petitioner, and 25 were challenged and 1 was void. The challenges
were sufficient in number to affect the results of the election. There-
after, the Petitioner filed timely objections to conduct affecting the
results of the election.
In accordance with the Board's Rules and Regulations, the Regional
Director conducted an investigation and on December 23, 1963, issued
and duly served on the parties his report on challenged ballots and
objections, in which he recommended that 5 challenges be sustained
146 NLRB No. 96.
HAAG DRUG COMPANY, INCORPORATED 799
and that 20 be overruled. He further recommended that objections
Nos. 1 and 2 be overruled, and that objection No. 3 be sustained and
the election set aside in the event the votes of the four additional
eligibles there involved could affect the election results shown by the
revised tally to be prepared. Thereafter, the Petitioner and the Em-
ployer filed timely exceptions to the Regional Director's report.
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 [Chairman McCulloch and Members Leedom and
Brown].
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.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Section 9(c) (1) and Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that all employees of the
Employer at its retail drugstores located in Marion, Johnson, Monroe,
and Shelby Counties in Indiana, including all regular part-time em-
ployees, but excluding all general office employees, warehouse em-
ployees, Huddle Restaurant employees, Mr. Pancake employees, store
managers, assistant store managers, pharmacists, professional em-
ployees, guards, and supervisors as defined in the Act, constitute a
unit appropriate for purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
5. The Board has considered the Regional Director's report, and
the exceptions thereto, and hereby adopts the findings and recommen-
dations of the Regional Director, with the following modifications.'
The Petitioner excepted to the Regional Director's finding that
Pearle M. Zollars and James E. Kesling are regular part-time em-
ployees and therefore eligible to vote.
The report indicates that Zollars has worked a scheduled 6-hour
shift every other Sunday and, since beginning to work for the Em-
ployer in September 1961, has averaged about 15 hours per 2-week
pay period. Also, she receives paid vacations, sick leave, holiday pay,
and merchandise discounts as do the regular full-time employees. We
agree with the Regional Director, on the basis of Zollers' employment
history, that she is a regular part-time employee.
1 We adopt pro forma the Regional Director 's recommended disposition of the objections
and of all the challenges to which no exceptions were filed.
T44-670-65-vol. 146-52
SOO DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to April 1963, Kesling had substantial part-time employ-
ment with the Employer. However, since April 1963, he has had a
full-time job elsewhere and has worked with the Employer on sched-
uled days providing overtime work on his full-time job did not inter-
fere. Notwithstanding this fact, as of the election date, he had since
April 1963 actually worked for the Employer during three con-
secutive 2-week pay periods for a total of 221/2 hours and did not work
at all in seven pay periods. Such an employment history does not,
in our opinion, warrant n finding that Kesling is a regular part-time
employee of the Employer. We conclude that he is an irregular or
intermittent part-time employee and is therefore, under our policy,
excluded from the unit and ineligible to vote. Accordingly, we hereby
sustain the challenge to Kesling's ballot.
The Petitioner also excepted to the Regional Director's finding that
six apprentice pharmacists are not professional employees and are
therefore eligible to vote. The Petitioner urges that they are profes-
sional employees because they are licensed by the State of Indiana
and they fill prescriptions for the Employer. However, it is clear
from the facts set forth in the report that they fill prescriptions only
under the direction and with the approval of the pharmacists, and
that they rarely if ever do any compounding. As neither their edu-
cational qualifications nor the work they do is such as to bring them
within the term "professional employee" as'defined in Section 2(12)
of the Act, we conclude that the apprentice pharmacists and are not
professional employees. In view of their community of interests
with other store employees, we find that they are within the unit and
eligible to vote. Accordingly, the challenges to their ballots are
overruled.
The Employer excepted to the Regional Director's findings that
Harry W. Brandenburg and Samuel J. Austin are managerial em-
ployees. We find merit in this contention. The report shows that
Brandenburg, classified as a senior sales clerk, and Austin, classified as
a floor manager, are engaged principally in ordering, marking, and
displaying merchandise. Both order merchandise from the Em-
ployer's warehouse stocks. An order for any item not stocked in the
warehouse must be signed by the manager. Although Brandenburg
exercises judgment as to whether to discontinue items selling for less
than $5 and Austin does the same as to items selling for less than $7,
such decisions are based solely on the lack of customer demand for
the items. Furthermore, these items will generally continue to be
available in the warehouse and the final decision as to whether to
continue to stock the items is made elsewhere. In view of the limits
on their discretion in making these decisions and the absence of any
HAAG DRUG COMPANY, INCORPORATED 801
authority on their part to pledge the Employer's credit, we find that
they are not managerial employees and that they are in the unit and
eligible to vote .2 Accordingly, we shall overrule the challenges to their
ballots.
As we have overruled the challenges to 21 ballots, we shall direct the
Regional Director to open and count such ballots. In the event the
revised tally of ballots shows that a majority voted for the Petitioner,
and such majority could not be affected by four additional votes, the
Regional Director is directed to certify the Petitioner as the rep-
resentative of the employees in the appropriate unit.3 If, on the other
hand, the Petitioner does not receive a majority, and four additional
votes could affect such results, the Contingent Order and Direction of
Second Election set forth below shall become applicable.
[The Board directed that the Regional Director open and count
the ballots of Adamson, Chaille, Goodwin, McElroy, D. Long,
Fancher, Murray, Van Horn, R. E. Thompson, Glazer, Zollars, Smith,
Todd, Brandenburg, Austin, Morgan, T. V. Thompson III, Bough,
Lang, Welsh, and Gibbs, and thereafter serve upon the parties a re-
vised tally of ballots, including therein the count of the above-
mentioned ballots. If, according to the revised tally of ballots, the
Petitioner has received a majority of the valid ballots cast in the
election, and four additional votes could not affect such results, the
Regional Director is directed to certify Retail Clerks Union No. 725,
a/w Retail Clerks International Association, AFL-CIO, as the ex-
clusive bargaining agent for the employees in the appropriate unit.
If, according to the revised tally of ballots, the Petitioner has not re-
ceived a majority of the valid ballots cast-in the election, and four
additional votes could not affect the results, the Regional Director
shall issue a certification of results of election. If, on the other hand,
four additional votes could affect the results according to the revised
tally, the following Order and Direction of Second Election shall be
applicable.]
[The Board set aside the election conducted herein on August 22,
1963.]
[Text of Direction of Second Election omitted from publication.]
2 Eastern Camera and Photo Corp., 140 NLRB 569, 571.
3 The Regional Director found, as to objection No. 3, that the Employer's conceded in-
advertence in failing to post the notice of election at store 29 resulted in confusion of four
employees concerning voting hours. He therefore recommended , as above ' indicated, that
the objection be sustained and the election set aside if four additional votes could affect
the election results. No exceptions were filed to this recommendation.