Katz Drug Co.

National Labor Relations Board - Board Decisions

Jun 9, 1959

123 N.L.R.B. 1615 (N.L.R.B. 1959)

KATZ DRUG COMPANY 1615
Katz Drug Company and Retail Department Store, Mail Order
and Warehouse Employees , Local Union 652, I.B.T.C.W. &
H. of A., Petitioner. Case No. 18-RC-3778. June 9, 1959
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Alan Bruce, 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, Bean, and Fanning].
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
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.
4. The Petitioner seeks to represent a unit of all employees at the
Employer's three retail drug stores, Nos. 6, 31, and 37, in Des Moines,
Iowa. The Intervenor, Retail Clerks International Association, Local
No. 30, AFL-CIO, agrees that such a three-store unit is appropriate.
The Employer moved to dismiss the petition on the ground that a
multistore unit, including all categories of employees, is inappropri-
ate. There is no history of collective bargaining.
The Employer is engaged in the retail drug business. It operates
a chain of stores in Kansas City and St. Louis, Missouri; Memphis,
Tennessee; Oklahoma City, Oklahoma; and Des Moines, Iowa. Its
main office and a central warehouse are located in Kansas City,
Missouri. The main office sets prices on all items and supplies the
advertising materials to the branch stores. In addition, it formulates
labor relations policies, appoints store managers, sets budgetary limi-
tations for the employment of personnel in the branch stores, and
gives final approval for all pay increases. The central warehouse
furnishes the supplies to all the stores with the exception of certain
food fountain items which may be bought locally.
Each store is headed by a manager with full responsibility for the
day-to-day operations. The manager has the authority to hire and
discharge employees and take all other necessary personnel actions
subject to the policy established by the main office. In the Des Moines,
Iowa, area, all stores have similar departments, employ the same
classifications of employees, and extend the same rates of pay, work-
123 NLRB No. 193.
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing conditions, insurance plans, and vacation to all employees. There
is also a measure of interchange of employees between the stores.
As all three stores in Des Moines, Iowa, are centrally controlled,
are subject to centralized labor relations, employ the same classifica-
tions of employees under the same rates of pay and working condi-
tions, and as they are all located in the Des Moines, Iowa, metropolitan
area in close geographical proximity, we find that the multistore unit
sought by the Petitioner is appropriate.' Accordingly, the Em-
ployer's motion to dismiss is denied.
There remains the disputed unit placement of the following
classifications :
Cashiers.-Each store employs one cashier who does no selling,
works in an office removed from the selling area, takes care of cash,
and prepares payrolls. In addition, the cashiers keep all records in-
cluding confidential reports on the honesty or dishonesty of em-
ployees, and records on employee status, rates of pay, hiring, transfer,
and discharge of employees, which indicate the reasons for such
actions. They also process salary adjustment requests and fidelity
bond applications. Finally, they handle all confidential correspond-
ence for the managers who are responsible for formulating, determin-
ing, and effectuating the Employer's labor policies in the individual
stores. Contrary to the Petitioner, and in accordance with the con-
tentions of the Employer and the Intervenor, we find that the cashiers
are confidential employees and exclude them from the unit.2
Department managers.-Each store is subdivided into a number of
departments, each of which is headed by a department manager. The
department managers are responsible for the maintenance of stock,
the execution of merchandising directives, and the setting up of ad-
vertising displays. In addition they are responsible for the training
and direction of all personnel in their respective departments. They
interview prospective employees and no one is hired by the store
managers without having first been approved by them. They also
have the authority to recommend wage increases, disciplinary action,
and discharge of employees. They schedule the number of employees
necessary and hours of work, subject to budget limitations and the
approval of the store manager. The department managers are paid
on a higher scale and share in a bonus plan based on volume of sales
and gross profit. Although the number of employees under their
direction varies from 1 to 48 depending on the size of the department
and the volume of business, and although there is some variation in
the exercise of responsibility and use of independent judgment, we
find that all department managers are supervisors within the mean-
1 The Great Atlantic & Pacific Tea Company, Inc ., 119 NLRB 603, 605.
2 See Armour and Company , 119 NLRB 122 , 126. The B. F. Goodrich Company, 115
NLRB 722, 724.
KATZ DRUG COMPANY 1617
ing of the Act. Accordingly, contrary to the contention of the Inter-
venor, we shall exclude them from the unit.'
Pharmacists.-The pharmacists compound prescriptions and sell
prepared drugs. They are graduates of accredited schools of pharmacy
and are licensed to practice in the State of Iowa. We find that they
are professional employees within the meaning of Section 2(12) of
the Act. The Petitioner and the Employer would exclude all pharma-
cists from the unit, while the Intervenor would include them. Two of
the pharmacists are coassistant managers in store No. 6 and two
others are managers of the pharmacy departments in stores Nos. 31
and 37. These are excluded from the -unit as supervisors. The re-
maining pharmacists, however, may be included in the unit if they
so desire.4
We find that the following employees may constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act: All regular full-time and part-time em-
ployees at the Employer's Des Moines, Iowa, drug stores Nos. 6, 31,
and 37, excluding store managers, assistant store managers, co-
assistant store managers, department managers, cashiers, guards, and
supervisors as defined in the Act.
However, the unit as set forth above includes professional em-
ploy ees whom the Board, pursuant to Section 9(b) (1) of the Act, is
precluded from including in the unit with employees who are not
professional unless a majority of the professional employees vote for
their inclusion in such a unit. Accordingly, we must ascertain the de-
sires of the professional employees as to inclusion in the unit with
nonprofessional employees. We shall, therefore, direct separate elec-
tions in the following voting groups: (a) All nonprofessional regu-
lar full-time and part-time employees at the Employer's Des Moines,
Iowa, drug stores Nos. 6, 31, and 37, excluding store managers, assist-
ant store managers, coassistant store managers, department managers,
cashiers, guards, and supervisors as defined in the Act; and (b) all
professional employees (pharmacists) at the Employer's Des Moines,
Iowa, drug stores Nos. 6, 31, and 37, excluding all other regular full-
time and part-time employees, store managers, assistant store man-
agers, coassistant store managers, department managers, cashiers,
guards, and supervisors as defined in the Act. The employees in the
nonprofessional voting group (a) will be polled as to whether they
desire to be represented by the Petitioner, or by the Intervenor, or
by neither.
The employees in the professional group (b) will be asked two
questions on their ballots : 1 (1) Do you desire the professional em-
3 The Great Atlantic d Pacific Tea Company, Inc., supra.
'Crown Drug Company, 108 NLRB 1126, 1128.
5 See Miller Brewing Company, 117 NLRB 1, 4; Sono tone Corporation, 90 NLRB
1236, 1240.
5088'89-60-vol. 123-103
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees to be included with the nonprofessional employees. in a unit
composed of all regular full-time and part-time employees at the
Employer's Des Moines, Iowa, drug stores Nos. 6, 31, and 37, for the
purposes of collective bargaining? (2) Do you desire to be repre-
sented for the purposes of collective bargaining by Retail Department
Store, Mail Order and Warehouse Employees, Local Union 652,
I.B.T.C.W. & H. of A.; by Retail Clerks International Association,
Local No. 30, AFL-CIO; or by neither? If a majority of the pro-
fessional employees in voting group (b) vote "Yes" to the first ques-
tion, indicating their wish to be included in the unit with the non-
professional employees, they will be so included. Their votes on the
second question will then be counted together with the votes of the
nonprofessional group (a) to decide the representative for the whole
three-store unit. If, on the other hand, a majority of the professional
employees voting group (b) vote against inclusion, they will not be
included with the nonprofessional employees. Their votes on the
second question will then be separately counted to decide which
union, if any, they want to represent them in a separate professional
unit. There is no indication in the record that either of the unions
would be unwilling to represent the professional employees separately
if these employees vote for separate representation. However, if
either union does not desire to represent the professional employees
in a separate unit even if those employees vote for such representa-
tion, that union may notify the Regional Director to that effect within
10 days of this Decision and Direction of Elections.
Our unit determination is based, in part, then, upon the results of
the election among the professional employees. However, we now
make the following findings in regard to the appropriate unit.
1. If a majority of the professional employees vote for inclusion in
the three-store unit with the nonprofessional employees, we find that
the following employees will constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act: All regular full-time and part-time employees employed
at the Employer's Des Moines, Iowa, drug stores Nos. 6, 31, and 37,
including pharmacists, but excluding store managers, assistant store
managers, coassistant store managers, department managers, cashiers,
guards, and supervisors as defined in the Act.
2. If a majority of the professional employees do not vote for in-
clusion in the three-store unit with the nonprofessional employees,
we find that the following two groups of employees will constitute
separate units appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
(a) All nonprofessional regular full-time and part-time employees
at the Employer's Des Moines, Iowa, drug stores Nos. 6, 31, and 37,
excluding professional employees (pharmacists), store managers, as-
BROWN ENGINEERING COMPANY, INC. 1619
sistant store managers, coassistant store managers, department man-
agers, cashiers, guards, and supervisors as defined in the Act.
(b) All professional employees (pharmacists) employed at the
Employer's Des Moines, Iowa, drug stores Nos. 6, 31, and 37, exclud-
ing all other regular full-time and part-time employees, store man-
agers, assistant store managers, coassistant store managers, depart-
ment managers, cashiers, guards, and supervisors as defined in the Act.
[Text of Direction of Elections omitted from publication.]
Brown Engineering Company , Inc. and International Associa-
tion of Machinists , AFL-CIO. Case No. 10-RC-4309. June 9,
1959
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 William A. Caldwell,
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 [Chairman Leedom and Members Bean 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 em-
ployees of the Employer.
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.
4. The Petitioner seeks to represent a unit of production and main-
tenance employees at the Employer's Meridian Street plant in Hunts-
ville, Alabama. The Employer maintains that the unit should com-
prise employees at both its Fifth Street and Meridian Street plants-
The Employer, an Alabama company, has its main plant at Meridians
Street, and a smaller plant about 4 miles away at Fifth Street. It is,
engaged at both plants in engineering and experimental work in con-
nection with the Government missile program. It also contracts with
customers for its engineering services, and conducts a shop prototype
manufacturing operation. The record shows that the personnel poli-
cies of both plants are controlled through the Meridian Street opera-
tion. The vice president in charge of engineering at Meridian Street
supervises the work at the Fifth Street plant. There is, when neces-
123 NLRB No. 177.