Hook Drugs, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1971

191 N.L.R.B. 189 (N.L.R.B. 1971)

HOOK DRUGS, INC. 189
Hook Drugs, Inc. and Carl Edward Freije . Case 25-
CA-3870
June 15, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND KENNEDY
On February 19, 1971, Trial Examiner William W.
Kapell issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had not engaged
in certain unfair labor practices and recommending
dismissal of the complaint in its entirety, as set forth in
the attached Trial Examiner's Decision. Thereafter the
General Counsel filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief, and the Re-
spondent filed a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the com-
plaint herein be dismissed in its entirety.
spondent or the Company, on or about July 2 threatened
employees with discharge or other reprisals if they engaged
in prounion activities, and discriminatorily discharged Freije
and refused to reinstate him because of his union and con-
certed activities for collective bargaining and mutual aid or
protection. In its duly filed answer Respondent denied the
commission of the alleged unfair labor practices, and that the
Indiana Pharmacist Guild, hereafter referred to as the Union
or Guild, is a labor organization as alleged in the complaint.
All parties were represented and were afforded an oppor-
tunity to adduce evidence, to examine and cross-examine
witnesses, and to file briefs. Briefs have been received from
the General Counsel and Respondent and have been carefully
considered. Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I COMMERCE
Respondent, an Indiana corporation, at all times material
herein has maintained its principal office and warehouse in
Indianapolis, Indiana, and various other facilities throughout
Indiana where it has been engaged in the business of operat-
ing retail drugstores. During the past year, in the course and
conduct of its business operations, Respondent sold and dis-
tributed products, the gross value of which exceeded $500,-
000, and during the same period of time received goods
valued in excess of $50,000 transported to its Indiana facili-
ties in interstate commerce directly from States other than the
State of Indiana. Respondent admits, and I find, at all times
material herein, that it has been engaged as an employer
within the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
As indicated above Respondent denies that the Guild is a
labor organization within the meaning of Section 2(5) of the
Act. It appears, and I find, that the Guild is an organization
admitting employee-pharmacists to membership, who par-
ticipate in its activities, which include dealing with their em-
ployers to improve employee working conditions and terms.
See N.L.R.B. v. Cabot Carbon Company, 360 U.S. 203. I,
accordingly, conclude that the Guild is a labor organization
within the meaning of the Act.
' Member Brown finds this case factually distinguishable from Walgreen
Louisiana Co., Inc., 182 NLRB No. 79, in which he dissented In that case
he concluded that assistant managers-registered exercised routine authority
for brief periods ranging from 3 to 16 hours a week. In the instant case, the
record shows that store manager and assistant store manager alternate shifts,
and that Assistant Store Manager Freije was in full charge of the store about
half the time it was open or approximately 48 hours weekly.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM W. KAPELL, Trial Examiner: This matter, a pro-
ceeding under Section 10(b) of the National Labor Relations
Act, as amended, herein called the Act, was heard in In-
dianapolis, Indiana on December 1, 1970,1 with all parties
participating pursuant to due notice upon a complaint' issued
by the General Counsel on September 28. The complaint, in
substance, alleges that in violation of Section 8(a)(1) and (3)
of the Act, Hook Drugs, Inc., hereafter referred to as Re-
' All dates hereafter refer to the year 1970 unless otherwise noted
2 Based upon a charge filed by Carl Edward Freije on July 27.
III. THE ALLEGED VIOLATIONS
A. Background
The Company has a chain of approximately 128 retail
drugstores throughout the State of Indiana, including 34
stores in the Metropolitan Indianapolis area. The only such
facility involved herein is the Fountain Square store in In-
dianapolis. Each store has a manager and an assistant
manager both of whom are registered pharmacists in Indiana.
There are also one or more clerks employed in each store, and
some stores also have one or more registered pharmacists
who are neither store managers nor assistant managers. The
Fountain Square store, and presumably the other stores, op-
erate on two shifts,' and either the store manager or the
assistant manager is on duty on one of these shifts which is
rotated every other week. There usually is some slight over-
lapping of the shifts to permit the individual going off duty
to pass on any information to the one coming on duty. The
stores are grouped in divisions which are serviced by a divi-
' The Fountain Square store hours were 8 a.m to 10 p.m., Monday
through Saturday, and 9 a.m. to 9 p.m. on Sunday.
191 NLRB No. 45
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sional coordinator' who visits the stores, discusses store oper-
ations with either the manager or assistant manager on duty
at the time, and reports to Norman Reeves, the vice president
in charge of operations. Annually, each store manager and
assistant manager fills out a questionnaire called "Employee
Performance Review for Store Manager or Assistant Store
Manager." This is a self-evaluation report in which the in-
dividual grades himself on his major jobs, duties, and stan-
dards.s These reports are reviewed by the divisional coordina-
tor who discusses them individually with the party involved,
appends his comments and observations, and submits them
to Norman Reeves.
The Manual of Store Operations, a copy of which is placed
in each store sets forth, inter alia, the authorities, duties, and
responsibilities of the store manager and assistant store
manager.'
Hook's Pharmacists Guide, a copy of which is also placed
in each store, setting forth the Company's policies provides,
inter alia:
(6)The telephone provided [the Fountain Square store
has only one phone] is very important to the success of
your Prescription Department. It is to be used for profes-
sional or business use, confining all conversations to a
minimum of time. Often calls may be of an emergency
nature. Also, a physician or customer is easily dis-
couraged by a persistent busy signal.
B. The Alleged Threats To Discharge
or Other Reprisals
The complaint sets forth that in violation of Section 8(a)(1)
of the Act, Respondent by its supervisor and agent, Norman
Reeves, on or about July 2 threatened its employees with
discharge or other reprisals if they became members of the
Union or engaged in prounion activities. No evidence in sup-
port thereof was introduced by the General Counsel. I, ac-
cordingly, recommend that said 8(a)(1) allegation in the com-
plaint be dismissed.
C. The Alleged Discriminatory Discharge
and Refusal To Reinstate
Carl E. Freije, a registered pharmacist, was hired by Re-
spondent on March 10, 1969, as an assistant store manager
at its Indianapolis Midcity store. Due to problems, not perti-
nent herein, Freije was transferred 7 months later or on about
September 7 to the Fountain Square store, also as an assistant
manager. Albert Foullois is the manager of that store, and
there were usually also four employee clerks, consisting of
two floor clerks, a cashier, and a clerk in the post office,
working on the day shift, and usually one clerk and a cashier
on the second shift.
1. The evidence as to the supervisory
status of Freije
According to Reeves, the assistant store manager is in sole
charge of the store in the absence of the store manager and
is vested with the following authority: He supervises the other
employees and can grant time off to them. He is authorized
on behalf of the Company to order goods from wholesalers
when necessary or unavailable from the company warehouse.
Such purchases amount to 13 percent of the store's needs. He
signs payrolls and cash reports, processes special employee
* James Caldwell was the coordinator of the division which included the
Fountain Square store.
Relevant questions appearing in the report are attached as Appendix A.
e The pertinent provisions are attached as Appendix B Freije did not
receive any other instructions as to these matters.
discounts on purchases, and approves overrings on the cash
register. He keeps keys to the store and the restricted areas
in the store. He attends managerial meetings twice a year with
the store manager at the corporate offices, at which store
operations are discussed. He is eligible with the store manager
to compete for an annual award called "Golden Key Award"
which is based upon excellence in store operations. The win-
ning manager and assistant manager each receive the same
award. He is paid a weekly salary of $250.' Only he with the
manager can qualify for a profit-sharing incentive bonus plan
on a 40-60 basis, respectively.'
Freije stated that he did not have time to read the Manual
of Store Operations because he was too busy working.' He,
however, admitted that a copy of the manual was available
at the store. He testified further that he did not supervise the
store clerks or assign work to them, claiming that. the store
ran itself with each employee performing his regular work,
and that on occasion he was rebuffed when he attempted to
assign a store clerk to a particular task. He also denied that
he had authority to grant time off to an employee," lay off or
recall an employee, promote, reward, or discipline an em-
ployee, or to recommend such action, and asserted that he
had never been told that he had such authority. With regard
to assigning work to employees, he stated he did so "only
what Mr. Foullois left or what/came out from the red bag."
2. The facts leading to Freije's discharge
The Guild was organized in October 1969 after Freije con-
tacted and requested the assistance of the Retail Clerks
Union. In December 1969 he was elected president of the
Guild. He solicited members, made speeches at meetings, and
distributed union literature.
Foullois testified that following Freije's transfer to the
Fountain Square store he began receiving complaints from
store employees that Freije was "talking union on the
phone."" He also asserted that customers and a doctor's
nurse complained about the phone being tied up excessively,
and that he relayed these complaints to coordinator Caldwell.
Caldwell testified without contradiction that he met with
Freije on December 10, 1969, and discussed,. inter alia, his
excessive use of the phone concerning the Guild. On June 19
Caldwell reviewed Freije's self-evaluation report with him.
He remarked that Freije was anefficient, fast pharmacist, and
that all he had against him was his union activities, and that
according to Foullois he (Freije) was using the phone. Freije
claimed that only on three occasions when he used the phone
on business he had incidentally, commented about the Guild
and that he never called anyone specifically about the Guild.
Caldwell testified further that he received complaints from
about six identified store managers and assistant managers to
the effect that Freije had called them about the Guild. Layne
stated that he also received similar complaints from two other
store managers.12
' The managers receive $270 a week, other store employees, including
registered pharmacists who are neither managers nor assistant managers, are
paid on an hourly basis
8 James Caldwell, Albert Foullois and Harry Layne (assistant vice presi-
dent of operations) corroborated, in substance, the testimony of Reeves with
respect to the status and duties of assistant store managers.
' Reeves testified that all new employees were directed to read the
manual.
10 He did not reveal how an employee could obtain time off, e g, in an
emergency when the assistant manager was on duty.
" About 50 percent of the store's business is transacted on the telephone.
" It is significant to note that no witnesses were called to testify that they
actually received such calls The above-related testimony appears to be of
a hearsay character.
HOOK DRUGS, INC. 191
On July 2, Freije appeared at Layne's office pursuant to the
latter's request where he also met Reeves and Caldwell. Ac-
cording to Freije, Reeves told him that he was being ter-
minated and that during the ensuing conversation Reeves
stated that he was tired of Freije's inflammatory speeches and
some of the literature he was mailing around and he was not
going to pay Freije's phone bill, and that Freije would have
plenty of time to organize the whole State. Reeves' version of
the conversation differed somewhat in that he told Freije it
was not necessary_ to furnish him with office space and a-
telephone to recruit for the Guild and that Freije didinot deny
his accusations. He stated further that Freije was fired be-
cause of his extracurricular duties which prevented his per-
formance on the job. However, on cross-examination he ad-
mitted that Freije's performance was "good, fast and efficient
in pharmacy duties ... good with customers," and that in
firing him he took into consideration his talking "union" on
the phone. Freije was permitted to remain on the job for the
balance of the week, and about 2 weeks later he received a
letter from the Company stating "Discharged-violation of
company policy."
D. Contentions of the Parties
The General Counsel contends that Freije was discharged
because of his union activities and that he was not a super-
visor within the meaning of the Act. Respondent claims that
Freije was a supervisor, unprotected by the Act, and that
furthermore he was fired because he violated the Company's
telephone policy by using the store phone for other than
business purposes, thereby adversely affecting his work per-
formance.
E. Conclusions
Apparently, the General Counsel does not dispute the
supervisory status of the store managers. The Manual of
Operations (Appendix B) delegates to the assistant store
manager the extent of the manager's responsibilities during
his absence from the store, which is approximately half of the
store's operating hours. One distinction between their respec-
tive responsibilities is that the store manager is responsible to
the vice president in charge of store operations or his delegate
for his supervisory duties, whereas the assistant store
manager is responsible to the store manager. Other similari-
ties between them include the following: Both of them were
paid a weekly salary, whereas other store employees, includ-
ing other registered pharmacists, were paid on an hourly
basis. Their respective salaries varied only by about 7 percent.
They both were required to fill out the same questions in the
Employee Performance Review for Store Manager or Assis-
tant Manager, grading themselves on the same major jobs,
duties, and standards. They were both eligible for the same
golden key awards, and only they could compete for the
profit-sharing incentive plan, albeit on a 60-40 basis. Both
attended managerial meetings twice a year at, the corporate
offices. I find that the above-related similarities constitute
strong indicia of the supervisory status of Freije.
The evidence is in conflict as to whether Freije had au-
thority to change work, assignments of store clerks or to
supervise them. The General Counsel contends that in the
absence of the store manager, and while the assistant manager
was on duty (one of them had to be on duty during operating
hours)," the store had no supervision and, in effect, ran itself
" In addition to company policy in that regard, Indiana state law requires
a registered pharmacist to be on duty in the drug department of drugstores
whileopen to the public and to be responsible for the lawful conduct of such
pharmacy.
with each employee performing his own duties. I find it diffi-
cult to accept that contention. It would be unrealistic to
assume that a retail store having several employees could
operate without having someone in charge to represent man-
agement and to supervise operations during half of its operat-
ing hours." The coordinators visiting the stores consult the
managers or assistant managers as to overall operations. They
do not supervise or participate in the specific transactions
taking place in the stores. In circumstances similar to those
herein, the Board has held assistant store managers to be
supervisors. See Remington Rand Corp., 141 NLRB 1052,
1054; Sav-On Drugs, Inc., 138 NLRB 1032, 1035; Walgreen
Louisiana Co., Inc., 182 NLRB No. 79.
As for the General Counsel's argument that Freije did not
exercise any of his alleged powers, the law is well settled that
a supervisor retains his supervisory status regardless of
whether he actually exercises his supervisory powers. It is the
existence of the powers which determines his status. Ohio
Power Co. v. N.L.R.B., 176 F.2d 385, 388 (C.A. 6), cert.
denied 338 U.S. 899; West Penn Power Co. v. N.L.R.B., 337
F.2d 993 (C.A. 3).
Based on the entire record and, in particular, upon the
Manual of Operations, the Employee Performance Review,
and the manner in which the store has operated, I conclude
that Freije was a supervisor within the meaning of the Act.
He, accordingly, is not protected under the Act with respect
to his discharge. Consequently, the General Counsel has
failed to establish that Freije's discharge violated Section
8(a)(3) of the Act. See Karl Kristoferson and Sigvald Kristoff-
erson, co-partners d/b/a United Painting Contractors, 184
NLRB No. 19.
In view of the above findings, it becomes unnecessary to
determine whether or not Freije was discharged because of
his union activities."
Based on the foregoing considerations and upon the entire
record I make the following:
" In an unpublished decision, Revco D. S. Inc., Case No, 7-RC-5757, the
Regional Director issued a Decision and Order (July 8, 1963) dismissing the
petition for an election involving the operation of a retail drugstore because
the unit sought by the petitioner consisted only of supervisors. He stated,
inter alga
During the time that each pharmacist (be he the manager or the
assistant manager) is working as the only pharmacist on duty in his
store, he is in sole charge of the store's operation.
To find that they are not supervisors, it is significant to note, would
result in the employees working without any responsible supervisory
representative of the Employer being on the premises with them dung
the major part of their working hours.
On July 31, 1963, the Board issued an Order on Review of the Regional's
Decision and Order, also dismissing the petition.
15 If for any reason it should become necessary to determine that issue,
I find that the evidence amply establishes that his known union activities
played at least some part in his discharge. It appears that the Company
objected as much to the alleged nature of his use of the phone-campaigning
for the Guild-as it did to the fact that he used the phone in violation of
company policies. It place no credence in Respondent's claims that Freije
was not performing his duties because of his use of the telephone. The
self-evaluation report of Freije contains Caldwell's observation that he was
"good, fast and efficient in pharmacy duties-good with customers," and
Respondent's witnesses admitted as much. Nor was it established by compe-
tent and persuasive evidence that Freije's use of the phone was as serious
as claimed.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is an employer whose operations affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Guild is a labor organization within the meaning of
Section 2(5) of the Act.
3. Freije was a supervisor within the meaning of Section
2(11) of the Act.
4. Respondent has not engaged in conduct constituting
unfair labor practices within the meaning of Section 8(a)(1)
or (3) of the Act.
Upon the foregoing findings of fact , conclusions of law, and
the entire record , and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.
APPENDIX A
(a) Responsibility for enforcing Respondent' s rules
concerning smoking in the prescription department or
on the store's selling area and the prohibition of ingress
to the department to all but persons on official business
in the department. (Item I, 2., d and e)
(b) Responsibility for seeing to it that employees kept
their personal belongings, purses, coats, etc. in the desig-
nated place. (Item II, 7)
(c) Responsibility for seeing that all store bulletins are
read by store personnel. (Item VIII, 1. 8)
(d) Responsibility for all store employees following
proper cash register procedures, the security of the store,
checking merchandise, signing invoices and credit
memos. (Item II, 1-3)
(e) Responsibility as management for writing up em-
ployee charges and administering the employee purchase
plan, as well as the proper handling of daily reports and
pulling money from the cash register. (Item II, 4-6)
(f) Responsibility for supervising general surveillance
of merchandise and property as a shoplifting deterrent.
(Item II, 10)
(g) Responsibility for proper selection and placement
procedures for all new employees. (Item IV 5, b)
(h) Responsibility for proper training and develop-
ment of all new and present employees. (Item IV, 6)
(i) Responsibility to correctly fill out and turn in to the
Personnel Department all personnel forms. (Item IV,
12)
(j) Responsibility for maintaining a good sales volume,
an optimum gross profit, proper inventory control, a
good store controllable profit and an optimum turnover
rate. (Item III , 2, 5, 6 and 7)
(k) Responsibility for all reports, payrolls, store or-
ders, invoices and charges, proper bank procedures, tak-
ing inventories, the pricing of all goods and prescriptions
(Item VI , 1, 2, 3 and 4 ; Item I , 3 b), as well as all phases
of in-store merchandising . (Item VIII, 1-a)
APPENDIX B
STORE MANAGER
The store manager is responsible to the Vice President in
charge of store operations or his delegate (divisional coor-
dinator) for supervising the human and physical resources of
a designated store toward its most profitable operation con-
sistent with company policy and for participating in any
subordinate activity to the extent it serves this objective. He
has full responsibility for the entire store operation.
1. Employs the store layout for best merchandising
effects within the established facilities. Proposes im-
provements when deemed profitable and necessary to
accomplish this purpose.
2. Establishes the storage and material handling proce-
dure conducive to greatest economy, both as to labor
involved and the safekeeping of merchandise. Provides
instruction for the care and use of equipment schedules
and assigns housekeeping tasks and the reporting of re-
pair or service needs and assures compliance with them
as well as economical utilities usage.
3. Maintains working conditions for employees com-
mensurate with company standards.
4. Assures the maintenance of a representative range of
merchandise adequate to market potential and with due
concern for profitable inventory. Delegates to proper
personnel the preparation of requisitions to replenish
stock to proper inventory level that he has established
and exercises final approval of these requisitions.
5. Responsible for the return of aged, shopworn and
non-moving stock subject to procedures or clearance
authorized by divisional coordinator.
6. Establishes the procedure for receiving, marking and
shelving of merchandise, allocating such tasks to the
respective personnel and supervises their performance.
7. Responsible for maintenance of current price books
and changes due to markup and markdowns, certifies
invoices per merchandise received and for the processing
instances of shortages and overages for proper recording
of financial responsibility involved.
8. Directs the taking of physical inventories of specified
departments in accordance with established procedures
and timing.
9. Applies approved techniques for apprehending shop-
lifters and supervises general surveillance of merchan-
dise and property including precaution at all times with
life and property.
10. Responds to call at any time in case of fire or bur-
glary to assist civil officers in the protection of property.
Reports such instances fully to superior and carries out
subsequent action required.
11. Responsible for the sale of merchandise. Instructs
and motivates sales personnel in the performance of their
assigned duties.
12. Assures the conduct of merchandising programs and
aids as prescribed by the merchandise manager keeping
alert to forthcoming advertising to assure readiness on
publication.
13. Makes sure there is sufficient sales personnel to meet
operating demands.
14. Assures conformance with regulations governing
food service, pharmacy and liquor sales.
15. Responsible for the recording, safekeeping and
deposit of cash receipts in the manner prescribed.
16. Deals with customers having complaints and makes
adjustments authorized or informs them of company
policy precluding such actions.
17. Organizes store staff. Assigns, guides and develops
the personnel for work designated.
18. Administers established personnel procedures as to
employment, wage administration, employee services,
counselling and record development.
19. Reads and acts daily on all bulletins that are received
from the Service Center. This is the first line of com-
munication and one of the most important. Assigns
bulletins to various people in the department to which
they apply.
HOOK DRUGS , INC. 193
20. Delegates to assistant manager the extent of his ac-
tivities during manager's absence from the store.
ASSISTANT MANAGER
The assistant manager is responsible to the store manager
for supervising and participating in the "normal conduct" of
store operations on his shift in accordance with established
policy and procedures. Exercises full authority in such super-
vision subject to review of superior. "Normal conduct" com-
prises the replenishment of stocks , sales activities and phar-
macy duties, general housekeeping , safeguarding property
and personnel supervision . It does not include authority for
initiating , without prior approval of superior, and deviations
from established practice of employee selection and termina-
tion.