Sam's Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1948

78 N.L.R.B. 826 (N.L.R.B. 1948)

In the Matter of SAM'S INC ., RANDOLPH DRUG COMPANY AND SAM'S
DRUG DEPARTMENT, INC., EMPLOYER and PHARMACEUTICAL GUILD
OF MICHIGAN, PETITIONER
Case No. 7-RC-28.-Decided July 30,1948
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held in the above case
before a hearing officer of the National Labor Relations Board. The
hearing officer's rulings made at the hearing are free from prejudicial
error and are hereby affirmed. At the hearing the Intervenor made
two motions to dismiss the petition upon the ground (1) that the
Employer is not engaged in interstate commerce within the meaning
of the Act; and (2) that the Petitioner is not a labor organization
within the meaning of the Act. The hearing officer referred both of
these motions to the Board. For reasons hereinafter stated, the
motions are hereby denied.
Upon the entire record in the case, the National Labor Relations
Board I makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Sam's Inc., (the Employer), a Michigan corporation, operates two
department stores, located at 1056 Randolph Street and 19-21 Campus
Martius, Detroit, Michigan, where it employs over 900 persons. In
these two department stores of Sam's Inc., two other Michigan corpo-
rations (Randolph Drug Company and Sam's Drug Department, Inc.)
transact retail business 2
I 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-man panel consisting of the undersigned
Board'Members [ Chairman Herzog and Members Houston and Reynolds].
2 These two corporations are wholly owned subsidiaries of Sam 's Inc., and are main-
tained as separate entities for legal purposes only, the entire business being generally
referred to by the employees as Sam's Inc.
78 N. L. R. B., No. 104.
826
SAM'S INC. 827
Randolph Drug Company operates the proprietary (patent medi-
cine) drug counters in both department stores of Sam's Inc. During
the year 1947, Randolph Drug Company purchased drugs and com-
modities, the retail value of which was approximately $2,000,000, of
which approximately 75 percent was purchased from outside the
State of Michigan. During the same period, its proportion of sales
outside of the State of Michigan was less than 1 percent.
Sam's Drug Department, Inc., operates the prescription depart-
ments for the compounding of drugs and the filling of prescriptions
issued by physicians, in both department stores of Sam's Inc. During
the year 1947, Sam's Drug Department, Inc., purchased drugs, the
retail value of which was approximately $300,000. During this period,
2 percent of these drugs was purchased outside the State of Michigan,
and 98 percent was purchased from Randolph Drug Company. Dur-
ing the year 1947, less than 1 percent of the retail sales of Sam's
Drug Department, Inc., was made to persons outside the State of
Michigan.
We find, contrary to the contention of the Intervenor, that the Em-
ployer is engaged in commerce within the meaning of the Act.3
H. THE ORGANIZATIONS INVOLVED
The Petitioner is an unaffiliated labor organization claiming to
represent employees of the Employer.'
The United Variety and Department Store Employees Union Local
339, affiliated with the United Retail, Wholesale and Department
Store Union, CIO, herein called the Intervenor, is a labor organiza-
tion claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer has refused to recognize the Petitioner as the exclu-
sive bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce exists concerning the
representation of the employees of the Employer, within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
See Matter of Milliron's, 72 N. L. R. B. 69; Matter of Whitney's Department Store,
73 N. L. R. B. 1245 ; Matter of Thaihimer Brothers, Inc, 77 N. L. R. B 1249.
4 Notwithstanding the contrary contention of the Intervenor , we find that the Petitioner
is a labor organization within the meaning of the Act, as it is established for the purpose
of representing employees of the Employer with respect to wages, hours , and other conditions
of employment.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT
The Petitioner seeks a single unit of all registered pharmacists in
both of the Employer's stores, including 18 pharmacists who work in
the prescription departments of Sam's Drug Department, Inc., and 19
pharmacists who work at the proprietary drug counters of the Ran-
dolph Drug Company. Since 1943 the pharmacists of both the pre-
scription department and the proprietary drug counter in each store
have been represented together by the Intervenor in a store-wide unit
with other employees of the Employer. The Employer and Inter-
venor oppose the inclusion of the pharmacists who work at the pro-
prietary drug counters in a unit with the pharmacists who work in
the prescription departments upon the ground that they are not pro-
fessional employees within the meaning of the Act. However, the
Employer and Intervenor apparently admit that the pharmacists in
the prescription departments, as distinguished from the pharmacists
at the proprietary drug counters, are professional employees within
the meaning of the Act, and entitled to separate representation if they
so desire despite their previous inclusion in a broader bargaining unit.
The pharmacists who work at the proprietary drug counters owned
by Randolph Drug Company, as well as the pharmacists who are em-
ployed in the prescription departments of Sam's Drug Department,
Inc., are registered and licensed under the laws of the State of Michi-
gan.5 The pharmacists at the proprietary drug counters are paid
$1.04 per hour, plus 3 percent commission on sales, plus a bonus on
special merchandise. The pharmacists in the prescription department
are paid a flat rate of $1.77 per hour. At the end of each 6-month pe-
riod the earnings of the pharmacists at the proprietary drug counters
and the pharmacists in the prescription departments are equalized by
Sam's Inc., so that the total earnings of these groups are identical.
The record discloses that when a vacancy occurs in the prescription
departments it is generally filled by a pharmacist from the proprietary
drug counters.
The 19 pharmacists at the proprietary drug counters (13 at the Cam-
pus Martius store and 6 at the Randolph Street Store) work together
with 8 clerks (4 at each store), all under the supervision of a registered
pharmacist who is a part of management. The clerks are paid 87
cents per hour and a 3-percent commission on sales. While the pri-
mary function of both the pharmacists and the clerks is selling pro-
prietary drugs directly from the shelves to the customer without a
prescription from a physician, there are at least 36 items, which are
5 To be a registered pharmacist in the State of Michigan one must be at least 21 years of
age, a citizen of the United States, a graduate from an accredited college of pharmacy with
a B. S. degree and pass a State Board examination.
SAM'S INC. 829
listed in the United States Pharmacopoeia,e that must, under the laws
of Michigan, be sold by or under the direct supervision of a registered
pharmacist. Moreover, contrary to the Employer's and Intervenor's
contentions that any clerk can perform the duties required of the phar-
macists at the proprietary drug counters, the record discloses that
customers, in selecting a particular remedy for a stated condition,
often ask for advice which requires the technical knowledge of a
registered pharmacist.'
While the registered pharmacists employed at the proprietary drug
counters may not at all times exercise their technical knowledge as
fully as the pharmacists employed in the prescription departments, we
believe that they are not thereby to be deprived of the status of pro-
fessional employees." In view of the foregoing considerations and
upon the entire record in the case, we find that all the registered phar-
macists who are employed by Randolph Drug Company at the pro-
prietary drug counters of both the Campus Martius store and the
Randolph Street store, are professional employees within the mean-
ing of the Act, as are the pharmacists who are employed by Sam's
Drug Department, Inc., in the prescription departments of both the
Campus Martius store and the Randolph Street store. We find that
the pharmacists employed at the proprietary drug counters together
with the pharmacists employed in the prescription departments may,
if they so desire, constitute a separate unit, notwithstanding their
previous inclusion in a broader unit. However, we will not make any
unit determination until we have first ascertained the desires of the
employees involved.
We shall direct that an election be held among all registered phar-
macists employed by Randolph Drug Company and all registered
pharmacists employed by Sam's Drug Department, Inc., at both the
Campus Martius and Randolph Street stores of Sam's Inc., Detroit,
Michigan, excluding all supervisors as defined by the Act. If, in this
8 A book containing a selected list of drugs , chemicals; and medicinal preparations , issued
under the Food and Drug Act of June 30, 1906, and issued every 10 years after revision by
a committee composed chiefly of physicians and pharmacists.
4 The fact that the Employer employs 19 registered pharmacists at its proprietary drug
counters as opposed to 8 sales clerks, plus the added factor that the pharmacists are
placed in a higher wage scale than the sales clerks , indicates that even the Employer believes
it necessary to have the technical knowledge of the pharmacists available at its proprietary
drug counters.
8 Similarly in the case of craft employees , the fact that such employees are not currently
required to exercise all their skills will not necessarily exclude them from the status of
craft employees See Matter of American Chain and Cable Company , 77 N. L. R. B. 850.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election, the employees select the Petitioner, they will be taken to have
indicated their desire to constitute a separate bargaining unit.
DIRECTION OF ELECTION 9
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees de-
scribed in Section IV, above, who were employed during the pay-roll
period immediately preceding the date of this Direction of Election,
including employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, but ex-
cluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
election, and also excluding employees on strike who are not entitled
to reinstatement, to determine whether they desire to be represented,
for purposes of collective bargaining, by Pharmaceutical Guild of
Michigan, or by United Variety and Department Store Employees
Union Local 339, affiliated with the United Retail Wholesale and
Department Store Union, CIO, or by neither.
° Any participant in the election directed herein may, upon prompt request to and
approval thereof by the Regional Director, have its name removed from the ballot.