Sav-On Drugs, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1979

243 N.L.R.B. 859 (N.L.R.B. 1979)

SAV-ON l)Rt!(iS. IN(C.
Sav-On Drugs, Inc. and Guild for Professional Phar-
macists, Petitioner. Cases 31 RC' 4134. 31 RC'
4135, 31 RC-4136, 31 RC 4137, 31 RC 4138.
31-RC 4139, 31 RC 4140, 31 RC 4141, 31 RC
4187 (formerly 21 RC- 15547), 31 RC 4196. and
31 RC 4219 (formerlv 32 RC 400))
July 31, 1979
DECISION ON REVIEW AND DIRECTION OF
EL ECTION
On September 26, 1978, the Regional Director for
Region 31 issued his Decision and Order in the
above-entitled proceeding in which he dismissed the
petitions filed herein. Thereafter, in accordance with
Section 102.67 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
Petitioner filed a timely request for review of the Re-
gional Director's Decision, on the grounds, inter alia,
that the Regional Director erred in finding the phar-
macy managers to be supervisors and in dismissing
the petitions. The Intervenors' filed statements in op-
position thereto.
The National Labor Relations Board by tele-
graphic order dated November 8, 1978, granted the
request for review.2 Thereafter, Intervenor Local 324
filed a brief to the Board and a request for oral argu-
ment, Petitioner filed a brief on review and a request
for oral argument, and Intervenor Locals 770 and
1167 filed a brief in support of the Regional Direc-
tor's Decision and also filed a request for oral argu-
ment.'
The Board has considered the entire record, includ-
ing the briefs in this case, and makes the following
findings:
The Employer is a California corporation engaged
in the retail sale of general merchandise and prescrip-
tion drugs at numerous locations throughout the
State of California and in the States of Texas and
Nevada. Only the California locations are involved in
this proceeding. The parties stipulated, and we find,
that the Intervenors are labor organizations within
the meaning of Section 2(5) of the Act. The Employer
has had bargaining relationships with Intervenors
since 1949. At the time of the hearing, 92 of the Em-
Retail Clerks Union. Local 770. Local 1167. Local 324. Local 1222. Local
905, and Local 1428, chartered by United Food and Commercial Workers
International Union, AFL CIO, formerly Retail Clerks International Union
AFL-CIO-CLC, are Intervenors in these proceedings. Retail Clerks Local
1442. which is also party to a contract with the Employer. did not seek to
formally intervene herein, but agreed to be bound by any position taken by
Local 770. Local 428's request to intervene herein was denied. No request for
review was filed.
2 The Board deferred ruling at that time on the admissibility of Pet. Exh. 2.
See fn. 12, infra.
I The request for oral argument are hereby denied, as the record and briefs
adequately present the issues and the positions of the parties.
ployer's approximately 123 Sav-On stores in the State
of California were covered by Retail Clerks agree-
ments. All of the past agreements (including that
which expired June 30, 1978) have covered all of the
employees, including all pharmacists, in the Sav-On
unionized stores. The Employer's and the Interve-
nors' current collective-bargaining agreements ex-
clude pharmacists. The parties stipulated that phar-
macists are professional employees within the
meaning of the Act and that the pharmacists to date
had not had an opportunity to express their choice in
an election under Section 9(b)( I) of the Act. The par-
ties declined to stipulate that Petitioner is a labor or-
ganization. At the hearing herein, the Employer de-
clined to recognize Petitioner or the Intervenors as
the collective-bargaining agent for the employees in
the unit petitioned for until such time as either Peti-
tioner or the Intervenors are certified in an appropri-
ate unit or units determined by the Board. All of the
parties agree that there is no contract bar to an elec-
tion in this case.
Petitior. r's Status as a l.abor Organization
Petitioner's constitution and bylaws state in article
2 that: "The Guild has been established and is dedi-
cated to advance and promote the interests of em-
ployee pharmacists professionally, educationally and
economically. The objectives of the Guild are; to ob-
tain status as exclusive bargaining representative of
pharmacists; to improve wages. hours and working
conditions through negotiated collective bargaining
agreements and legislative action . . . to provide
through collective bargaining for comprehensive
health and welfare and retirement benefits; to process
grievances and enforce all other rights arising out of
the collective bargaining relationship." Membership
in the Guild is open to "employee pharmacists li-
censed by the state in which they are employed," with
"employee pharmacist" defined as a pharmacist hav-
ing no direct ownership in any company engaged in
an aspect of pharmacy. At the time of the hearing,
Petitioner's board of directors was composed of II
licensed pharmacists employed by the Employer. Of
those 11, 9 were employed as pharmacy managers,
who the Regional Director concluded were supervi-
sors. He further concluded "that Petitioner is con-
trolled and dominated by supervisors, and hence that
Petitioner is not a labor organization within the
meaning of the Act." We find that the Regional Di-
rector erred in this regard.
At the outset, it may prove helpful to dispel any
possible misapprehension derived from the Board's
combined discussion in prior cases of two somewhat
related but distinctly separate concepts. The first is
the existence of a group or entity as a labor organiza-
243 NLRB No. 149
859
) ( ISI()NS ()I NA I lIO)NAI l.At()R RIlA I IONS B()ARI)
tion: the second is that organization's capactity or
qualification to act as a bargaining representative. As
to the former Section 2(5) of' the Act provides that
"the term 'labor organizatio n' means any organiza-
tion of any kind, or any agency or employee represen-
tation committee or plan, in which employees partici-
pate and which exists for the purpose, in whole or in
part, of dcelaing with employers concerning griev-
ances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work." Thus the Board,
with court approval, "has consistently construed this
section to mean that, if 'employees' are admitted to
membership in a union which deals with employers
concerning wages and other conditions of employ-
ment, the union is a 'labor organization' despite the
tfact that it may also admit supervisors in substantial
numbers.'"4
In the instant case, it is clear that Petitioner exists
at least in part to deal with employers as a bargaining
representative of employees and that statutory em-
ployees are members of, and fully participate in. Peti-
tioner's internal afflairs, including Petitioner's pres-
ident pro em and vice president at the time of the
hearing. Thus, while we agree with the Regional Di-
rector's finding that pharmacy managers are members
of Petitioner and participate in its affairs, we empha-
size here that that fact is essentially irrelevant to de-
termining Petitioner's status as a statutory labor or-
ganization, irrespective of whether the pharmacy
managers are supervisors, as long as "employees" also
participate.'
We conclude, contrary to the Regional Director,
that Petitioner is a labor organization within the
meaning of Section 2(5) of the Act.6
Supervisory Status of Pharmacy Managers 7
As noted above, the Employer at the time of the
hearing herein operated approximately 123 stores in
the State of California, offering a broad selection of
general merchandise for retail sale. Each store also
has a pharmacy department which handles both pre-
scription and nonprescription pharmaceutical items.
Over 400 licensed pharmacists, including the phar-
International Organization of Masters, Mates and Pilots of America, Inc.,
AFL-CIO, et al. (Chicago Calumet Stevedoring Co., Inc.). 144 NLRB 1172,
1177 (1963), affd. 351 F.2d 771 (D.C. Cir. 1965). In Calumer, the union was
held to be a labor organization where a minimum of 170 of the approxi-
mately 11,000 members were "employees."
5Sierra Vista Hospital, Inc,, 241 NLRB 631 (1979).
We find no ment in the Intervenors' contentions that Petitioner is not a
labor organization because its formal bylaws had not been finalized by the
date of filing of its petitions herein.
' The terms "Pharmacy Manager" and "head pharmacist" are both used
in the record. According to the Employer's principal witness, the title phar-
macy manager is used currently, in part because of its sound. We shall use it
herein.
macy managers. are employed by the Employer,
Each store (including the pharmacy department) is
open approximately 83 to 85 hours per week. Phar-
macists, like other employees, work a 40-hour week,
and some pharmacists divide their time between two
stores. hus, some pharmacies utilize only two full-
time and one half-time pharmacists: the average is
approximately 3.5 pharmacists pet store. including
pharmacy managers. As noted by the Regional )irec-
tor, the supervisory hierarchy in each store includes a
store mlanager, two assistant store mllnlagers, two
management trainees, a chief receiling clerk, and a
customer service manager. At least the store manag-
ers and assistant store managers are agreed on by all
parties herein to be supervisors under the Act, and
they have been excluded as such in the collective-
bargaining agreements between the Employer and the
Intervenors. Although not noted by the Regional [)i-
rector, the Employer also employs 10 district manag-
ers who report to the vice president of store opera-
tions and oversee the operations of the stores within
their districts. The store managers report to the dis-
trict managers. In addition to the above, a vice pres-
ident of pharmacy operations and two pharmacy su-
pervisors also actively oversee the pharmacy
operations in the various stores. Pharmacists are re-
cruited and hired directly by the vice president for
pharmacy operations. Petitioner contends that in
finding the pharmacy managers to be supervisors, the
Regional Director misapplied Board precedent and
accorded insufficient weight to the professional status
and responsibilities of the pharmacists. We find merit
in these contentions.
We note at the outset that the pharmacists herein
are clearly professionals. Thus, as we observed in
Neighborhood Legal Services. Inc., 236 NLRB 1269:
We have been, and are, most hesitant to deny
employees rights which the Act is designed to
protect. Accordingly, we are careful to avoid ap-
plying the definition of "supervisor" to profes-
sionals who direct other employees in the exer-
cise of their professional judgment, which
direction is incidental to the practice of their
profession, and thus is not the exercise of super-
visory authority in the interest of the Employer.
[Id. fn. 9.]
It is clear that pharmacy managers do not hire, trans-
fer, suspend, layoff, recall, promote, discharge. or re-
ward other pharmacists, nor effectively recommend
such action. The Regional Director's conclusion that
pharmacy managers are supervisors appears to be
bottomed essentially on the statements that the super-
visory hierarchy in each store has no authority over
the pharmacy department. Therefore, if the numerous
X()
SA\ -O N D)RIt!(S. IN(C
pharmacy managers were found not he supervisors,
the two pharmacy supervisors and the ice president
of pharmacy operations would each he charged with
supervision of approximately 130 licensed pharma-
cists, and that such finding would he "inherently il-
logical." First, the record in our view does not sup-
port the Regional Director's finding that the
supervisory hierarchy in each store (the store man-
ager and two assistant store managers) has "no au-
thority" over the pharmacy department.! To the con-
trary, the Employer's vice president of pharmacy
operations, noting in his testimony that there was a
distinction between professional and administrative
responsibilities with respect to pharmacy operations,
conceded that the supervisory hierarchy within the
store does apply to the pharmacy.) In addition, it is
clear that the district managers also exercise authority
over pharmacy operations and personnel. With re-
spect to strictly professional matters, the pharmacists
are also supervised by the two pharmacy supervisors
and the vice president of pharmacy operations. The
record discloses that pharmacy managers spend at
least 90 to 95 percent of their time on the job per-
forming the same functions as other pharmacists.
Thus, the pharmacy managers fill prescriptions, call
doctors' offices, type labels, order merchandise, clean
the pharmacy, and perform all other pharmacy func-
tions. They work in the same areas as the other phar-
macists and do not have separate offices or desk
space. The pharmacy managers are charged with the
responsibility for inventory control functions, and in-
Our contrary finding on this basic issue and our consideration o the
overall supervision over pharmacists, as well as other store employees. exer-
cised by the Employer's 10 district managers a factor not alluded to hby the
Regional Director are central to our rejection of the Regional Director's
resolution of the supervisory issue that our colleagues would adopt. Our
ultimate conclusion reversing does not entail demeanor or credibility.
Rather, we have rejected the Regional Director's finding that certain phar-
macists are supervisory largely "because of our disagreement as to the con-
clusions reasonably to be drawn from all the record." See Screwmaic, Inc.,
218 NLRB 1373, fn. 1 (1975), a consolidated complaint and representation
proceeding with the posture of a representation case, inasmuch as the Ad-
ministrative Law Judge assumed that all the testimony was true. In our view
however, Screv.maic. as well as Pennsylvania Truck Lines, Inc.. 199 NLRB
641 (1972), relied on by the Regional Director and the dissent with respect to
disproportionate employee-to-supervisor ratio, is of little help on that issue.
Those cases did not arise in the context of a chain of stores, each store
averaging two or three professionals employed as pharmacists whose profes-
sional duties are directed by a "head pharmacist" (or "pharmacy manager")
and who are otherwise directed by a store manager or assistant store man-
ager. In truth, the problem is not ratio here. The title of "pharmacy man-
ager" must be assessed in context. It does imply a responsible professional
direction, as does "head" pharmacist; but on this record it means no more
than that. See, for example, Diamond Parking, Inc.. 198 NLRB 239 (1972),
where garage "managers"-246 of them in a multistate operation--were
found not to be supervisors and were included in the unit.
' The following testimony by the vice president of pharmacy operations is
illustrative:
Q. Would the chain of command as you indicated it from president
of the company to director of stores to district managers to store manag-
ers, would that line of authority apply to pharmacists at Sav-On in non-
professional matters?
A. In non-professional matters, yes.
ventories are conducted pursuant to detailed guide-
lines. Pharmacy managers are also charged with some
responsibility for ordering drugs and other merchan-
dise in order to maintain proper inventory levels and,
in some stores, have limited discretion to adjust prices
on certain items within prescribed limits. Pharmacists
and pharmacy managers may also receive a bonus or
incentive pay, in addition to salary, based on the vol-
ume of prescription business. However, because of
their additional responsibilities, the pharmacy man-
agers receive a somewhat higher bonus than pharma-
cists. (One pharmacy manager testified that his bonus
averages $250 a month more than the other pharma-
cists in his store.) We conclude that the pharmac
managers are normally the most experienced pharma-
cists in the store. '0
We consider the pharmacy managers' premium
pay an acknowledgment of their additional responsi-
bilities in overseeing inventory, pricing of certain
items, and making sure that a licensed pharmacist is
present to cover the pharmacy as required b state
law, and that the pharmacy operations and records.
etc., are conducted in accordance with applicable
laws and regulations. It does not appear that phar-
macy managers have the authority to authorize over-
time for pharmacists without the prior consent of
store or district managers, except possibly perhaps in
extraordinary circumstances, nor do they have the
authority to order individuals in to work. In the event
of the absence of a pharmacist which would leave the
pharmacy unmanned, it appears to be the responsibil-
ity of the pharmacy manager to work until his or her
superiors can make the necessary arrangements. In
this connection, we note that while the pharmacy
managers usually make out the schedules, this is a
purely clerical function within the confines of the Em-
ployer's narrowly drawn guidelines requiring equal
rotations of hours and days off. Moreover, other staff
pharmacists also prepare work schedules. The record
discloses that at least some of the pharmacy managers
have been involved, along with store and/or district
managers, in issuing warning slips for unsatisfactory
performance or behavior. However, it does not ap-
pear that the pharmacy managers have the authority
to undertake such action without prior consultation
and approval by store managers and/or district man-
agers or pharmacy supervisors." Indeed, pharmacy
0 Testimony at the hearing indicated that in the year preceding the hear-
ing the Employer had hired approximately 350 pharmacists Given the ratio
of approximately 3.5 pharmacists per store, this suggests that the pharmac
manager may be the only experienced pharmacist in a store. The record does
not indicate whether the number of hires represents normal turnover of
pharmacists.
Ii In evidence as an employer exhibit is a warning letter to a pharmacist
signed by a district manager and below by a pharmacy manager. to the effect
that certain work deficiencies needed to be corrected. These included. e.g..
unnecessary time spent talking on the telephone. "inability to place priority
(('rninnuedi
861
I)( ISI()NS ()I NA IlO)NAI. I.AB()R RI:l.A I I)NS BOARDI)
managers have requested such authority and been
overruled by their superiors. Though pharmacy man-
agers are asked to attempt to resolve gripes or profes-
sional differences at the store level, such complaints
are taken to the store or district managers or the
pharmacy supervisors i' no voluntary resolution is
achieved.
As indicated above, pharmacy managers, together
with the other licensed pharmacists, had been in-
cluded by the Employer and the Intervenors in the
same unit with nonprofessional employees and, like
all other pharmacists, the pharmacy managers have
been subject to the union-security clause. In this re-
gard, we note that in response to the Region's request
for the Employer's position, upon the filing of the
petitions herein. Clifford Marker, the Employer's vice
president of industrial relations, stated the following
in a letter to the Region:
In all of the contracts over some almost 30 years
these pharmactists have been of one class. They
are hourly-paid employees. None of them carry
supervisory responsibilities. They do not hire.
They do not discharge. They do not discipline.
They do monitor the work of intern unregistered
student pharmacists upon occasion. Never dur-
ing all of the years have either the Employer or
unions considered these pharmacists to other
than in one classification. 2
While such fact is of course not dispositive of the
issue of supervisory status, it does accord with Peti-
tioner's contention, which we find supported by the
record, that prior to the time of the hearing herein
pharmacy managers were not considered by their col-
leagues, or themselves, as supervisors of their fellow
professionals,' nor viewed as such by the Employer.
In sum, while the pharmacy managers do exercise
discretion and judgment in the performance of their
on other duties." failure to check in and process incoming orders when work-
ing in the late shift, leaving prescriptions for the AM pharmacist to finish.
failure to complete third-party forms, speed in typing, running control cards.
cleaning, and other regular duties. Questioned as to the letter. the Employ-
er's principal witness stated that district managers, unlike pharmacists, pos-
sess management training. The witness also testified that the matters in the
letter were "beyond the competence of the pharmacy manager."
12 The above-quoted portion of the letter was read into the transcript
herein. The Heanng Officer, for reasons which are not entirely clear from the
record, rejected Petitioner's attempt to introduce the letter as an exhibit.
Petitioner here renews its contention that the rejection of the exhibit consti-
tutes prejudcial error. In light of our decision herein, and the fact that the
quoted portion was retained in the record, we find no prejudicial harm to
Petitioner, and we hereby deny its motion.
1' It appears that pharmacy managers in some respects direct certain
clerks when they are assigned to the pharmacy department. In view of the
limited nature and extent of such duties, and the fact that such supervision
would be exercised only over individuals outside the professional unit sought
herein, we do not view such exercise as constituting the type of conflict of
interest which would warrant excluding the pharmacy managers from the
professional unit. See Automobile Club of Missouri, 209 NLRB 614 (1974);
Adelphi University. 195 NI.RB 639. 644 (1972); Westinghouse El ctric Corpo-
ration, 163 NLRB 723. 726-727 (1967).
duties, such exercise in our view falls clearly within
the ambit of' their professional responsibilities, and
does not Constitute the exercise of supervisoJ y author-
ity in the interest of the Employer. We note further
that when pharmacy managers are absent ftr vaca-
tion or other purposes, another staff' pharmacist is
designated to fill the head pharmacists postion as re-
quired by state law. And, while such pharmacists
have all the duties and responsibilities of the phar-
macNy manager at such times, none of the parties con-
tends that they are supervisors. Finally, we note that
the pharmacy managers, like the other pharmacists,
work 40 hours per week. Thus, they are present for
less than half the hours that the pharmacy is open, in
many cases spend the majority of their working time
as the only pharmacist on duty, and thus are not pre-
sent to exercise alleged supervision during most hours
worked by other pharmacists. We do not view this
situation as consistent with the contention that phar-
macy managers as a class possess or exercise true su-
pervisory authority, particularly in light of the lfact
that at least one of the store's admitted supervisors is
present. 4
Accordingly, n the basis of the above, we find.
contrary to the Regional Director, that pharmacy
managers as a class are not supervisors, and we there-
fCore include them in the professional unit."
The Unit
At the hearing herein, Petitioner without objection
amended its petition in Case 31-RC 4134 to seek a
, Compare HooA Drug.i Ins , 191 NI.RB 189(1971). where head pharma-
cists found to be supervisors were also assistant store managers, signed pay-
rolls. and regularly attended management meetings at corporate headquar-
ters: Sa-On Drugs, Inc. 138 N RB 1032 (1962). where the two pharmacists
found to be supervisors were also the store's managers, in charge of the entire
store 38 to 48 hours per week. See also Walgreen l.ouisiana Co, Inc. 182
NLRB 541 (1970). and Walgreen Louisiana Co., Inc.. 186 NLRB 129 (1970),.
wherein "'Chief Pharmacists" were held not to be supervisors, while those
"Chief' Pharmacists registered" who also acted in sole charge of the entire
store up to 98 hours every 2 weeks were held to be supervisors The Board
does not hold "head pharmacists" or pharmacists in charge to be supervisors
absent a significant exercise of authority under the Act in addition to respon-
sibility as a professional employee. See. e.g.. Lang Drug, Co., Division ofA. C
Irael Commodity Corporation, et al.. 160 NLRB 1147 (1966); Skaggs Drug
Center, Inc. 197 NLRB 1240 (1972): White Cross Stores, Inc., 186 NLRB
492 (1970) Walgreen Louisiana Co., Inc., supra In the context of this case,
our colleagues' suggestion that no adverse inference would attach with re-
spect to inconsistent treatment of acting pharmacy managers, because exer-
cise of alleged supervisory authority on their part would be "sporadic." mis-
ses the point. The pharmacy managers herein, like all other full-time
pharmacists, work a 40-hour week. But the requirement that a pharmacist
"in charge" be on duty at all times applies equally to the remaining 43 to 45
hours of the store's open hours when the "pharmacy manager" is not on
duty. Thus. in view of the requirement that shifts. hours worked, and days off
he rotated evenly, among all pharmacists, the pharmacists other than "head"
or "manager" regularly serve as pharmacists in charge
In light of our finding that pharmacy managers are not supervisors, we
need not reach and do not pass on the question of whether their participation
in Petitioner as supervisors would create a conflict of interest such that it
would disqualify Petitioner from acting as collective-bargaining agent herein
See Sierra Vista Hospital, Inc.. upra
862
SAV-ON [)RI:(;S. IN('
unit composed of "all registered pharmacists em-
ployed by the Employer at its facilities located within
the State of Calitfornia, excluding all other employees,
guards, and supervisors as defined in the Act."
The Employer agrees with Petitioner that the state-
wide unit can he appropriate herein. The Intervenors
contend that elections must he conducted in single-
store units or, alternatively, in units corresponding to
the jurisdictions of various intervenors. In view of the
Employer's long and extensive practice of multistore
bargaining and its agreement to the unit sought by
Petitioner, we find on this record that, though pre-
sumptively appropriate, single-store units are not
alone appropriate herein. Further, we find no merit in
the Intervenor's contention that any appropriate units
other than single-store units must be structured along
the Intervenor Locals' jurisdictional lines, which in
our view would result in arbitrary and artificial con-
figurations not consonant with our usual unit deter-
mination criteria.'6 Rather, we shall direct an election
in the statewide unit described above which. in the
circumstances of this record and in accordance with
the Petitioner's and the Employer's positions, we find
constitutes an appropriate unit.'
[Direction of Election 8 omitted from publica-
tion.] '9
MEMBERS JENKINS ANt) MuRPHY', dissenting:
Contrary to the majority. we would find the Em-
ployer's pharmacy managers to be supervisors and
the role played by the Employer's pharmacy in the
formation and internal affairs of Petitioner to be a
clear and present danger to meaningful collective bar-
gaining in the event Petitioner becomes certified. Ac-
cordingly, we would disqualifty Petitioner from repre-
u' E.g.. one Intervenor's territorial jurisdiction is defined as: "From Ventu-
ra County line east along the line on jurisdictiiinall map solulh of Mulholland
Drive to Sepulveda Boulevard, south to Sunset Boulevard. east on Sunset
Boulevard to Beverly (Glen. south through center of parkwa , to Cittaraugus.
thence to Robertson Boulevard. Robertson Boulevard to Venice Boulevard.
east on Venice Boulevard to line marked on jurisdictional map south to
Jefferson Boulevard. Jefferson Boulevard to Sepulveda Boulevard. suth to
Imperial Highway. Imperial Highway east to Alameda Street. Alameda
Street north to Pacific Electric tracks. Pacific Electric tracks southeast I los
Angeles River. north to Ro Hondo River. Rio Hondo River north as out-
lined on jurisdictional map, continuing to Kern County. Kern ('County line
west to Ventura Counts hline South along Ventura County line to the line on
jurisdictional map." A further cavl''or notes that "the aove boundaries do
not include all the detail shown ln the jurlsdlctiunal map which is the final
authority."
* This does not mean that the statewide unit constitutes the only .appro-
priate unit. or that other units. i sought. might nt lso he considered appro-
priate
l cei'lsor tixtnote iomitted Irom puhllcatlon
' The Intersenors did nt indicate ait the hearing hether they would
participate in an electioInin a statewide ilnit. nor have all Intervenors tiled
positions with the Board Accordingly. we shall require Interseniors to nottl
the Regional )lrector within 7 days of the date ,of this ecisiion hether or
not hey wish to a ppear n the ballot herein aInd. it so, the Regionl I)ilrectlor
shall include te he appropr.le Retail (Clerks designaltlon r design.atins
senting the petitioned-lfor unit of pharmacists 2t and
would dismiss the petition.-
In our view. the record supports the Regional Di-
rector's finding that pharmacy managers are statutory
supervisors. Thus, we are not persuaded by our col-
leagues' contention that the exercise b, pharmacy
managers of' authority with respect to stall' pharma-
cists is "clearls within the ambit of their professional
responsibilities." Rather, we believe that the relation-
ship between pharmacy managers and staff pharma-
cists transcends a merely professional one. Compare
NVighhorhood lgyal Services.. Inc.. 236 NLRB 1269
(1978).
In his Decision. the Regional Director found that
the Employer employs approximately 400 profes-
sional pharmacists. including pharmacy managers. at
the 123 stores involved in this proceeding. Thus it
employs approximately 2.5 staff pharmacists per
store. In each store there are a store mana;ger. two
assistant store managers, two management trainees, a
chief' receiving clerk, a customer service manager. and
a pharmacy manager. The Regional Director fbund
that at the local level no one but the pharmacy man-
agers has significant authority over the pharmacy em-
ployees. Our colleagues conclude to the contrary. re-
lying on a purported distinction between
"professional'" authorit -which lies with the phar-
macy managers and "administrative" authority
which lies with the store managers. However, the'
fail to specitv instances wherein store managers (or,
fbr that matter, district manager) have exercised sig-
nificant authority with respect to personnel matters in
the pharmacy departments. In this connection, we
note also that the allocation of responsibilities postu-
lated by our colleagues is seemingly contradicted by
the Employer's policy statement entitled "Duties of
Pharmacy Manager." which states that pharmacy
managers should. inter lia, "[sitrive to solve all per-
sonnel problems at the store level" and to "resolve
differences of professional opinion."
The Regional Director found that two pharmacy
supervisors and the vice president of pharmacy op-
erations oversee the pharmacy operations on a com-
panywide basis. There is no dispute that these indi-
viduals are statutory supervisors. The record shows
that they bear ultimate responsibility for making
most final decisions regarding employee status
changes within pharmacy departments. However. as
" See Swrr I ,ru lrspiral. It . 241 NL.RB 31 ( 1979) We re. however.
in iagreenmenl with our colleagues' rejection of Ihe Regional Director's finding
that Petilloner is nt a. labtir organliation. I hus. as the Boalrd recentl em-
phli/tticdl il i-rrl a Ii l, t i,ii. trp,. the "presence t super lsors in an
a.ssocilatln does not hear upon its 'labor organlatltol' sttllus. [Ihowse, erl the
Identity ind role iof those supers siors In the lalhr trg.lllltolrl lu.ls oper.ate.
Inonetlhc[l s. to dlsqualif, it iron h.bargaiing in eCI Lin IllStilil c 's
21 nitnlili x sc w le Utlid dilsni the petition. we inld iI unnecssrsN 1t
pu,,s on the pproprilene,, of st'late.lde unitl
g63
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director observed, since the pharmacy
departments are relatively autonomous vis-a-vis local
store managers, a finding that pharmacy managers
are not supervisors would result in a disproportionate
employee-to-supervisor ratio. See, e.g., Screwmatic,
Inc., 218 NLRB 1373 (1975); Pennsvlvhania Truck
Lines, Inc., 199 NLRB 641 (1972).
The record shows that the Employer's vice pres-
ident for pharmacy operations is responsible, inter
alia. for hiring, firing, and promoting pharmacy em-
ployees. Thus our colleagues are essentially correct in
asserting "that pharmacy managers do not hire,
transfer, suspend, layoff, recall, promote, discharge,
or reward other pharmacists." However, the majority
ignores several qualifications placed by the Regional
Director on his findings regarding these issues. For
example, pharmacy managers have on occasion inter-
viewed applicants for pharmacy positions; pharmacy
managers have recommended terminations, some-
times successfully; and, more significant, pharmacy
managers evaluate staff pharmacists for purposes of
promotion, both in writing and verbally. Addition-
ally, pharmacy managers evaluate new employees af-
ter 30 days. See Mon Valley United Health Services,
Inc., 238 NLRB 916 (1978).
With regard to discipline, the Regional Director
found that pharmacy managers have authority to is-
sue written warning notices to pharmacists. Further,
he found that pharmacy managers have verbally
counseled pharmacy employees regarding such things
as inadequate work performance, violations of com-
pany policies, inappropriate work attire, poor work
attitudes, and excessive tardiness. In a case of flagrant
violation of company policies, a pharmacy manager
may suspend an employee on the spot. Finally, the
Regional Director found that pharmacy managers
have a duty to report violations of company policies
to higher management officials and to recommend
appropriate disciplinary action. Although our col-
leagues have cited the testimony of one of the Em-
ployer's witnesses to the effect that he considers some
disciplinary matters "beyond the competence of the
pharmacy managers," our colleagues nonetheless do
not dispute the Regional Director's findings that
pharmacy managers have in fact warned employees
regarding work performance and attitudes. See, e.g.,
J. K. Electronics, Inc., d/b/a Wesco Electrical Com-
pany, 232 NLRB 479 (1977).
The Regional Director found that pharmacy man-
agers exercise independent judgment in scheduling
pharmacy employees. He noted that pharmacy man-
agers prepare weekly work schedules and, when nec-
essary because of vacations, illnesses, emergencies,
etc., approve changes in those schedules. Addition-
ally, pharmacy managers may assign overtime within
company guidelines. Our colleagues seek to portray
the pharmacy managers' authority with regard to
scheduling and overtime as "purely clerical" because
it is subject to the Employer's guidelines. Futher, they
find significance in evidence that other staff pharma-
cists may on occasion prepare work schedules. We
are not persuaded by either argument, however. The
only guideline provided to pharmacy managers re-
garding scheduling is that vacations and weekend and
night assignments must be distributed equitably
among pharmacy employees. ('Tf The New Jerseov I-
mous.v Amos Chocolate Chip Cookie C(orporation, 236
NLRB 1093 (1978). The fact that pharmacy manag-
ers may on occasion delegate to staff pharmacists the
task of preparing work schedules in no way dimin-
ishes the fact that responsibility for preparation
thereof rests with the pharmacy managers.
The Regional Director also found that pharmacy
managers have independent authority to direct the
work of pharmacy employees. Thus, he noted that, in
addition to the previously mentioned scheduling re-
sponsibilities, pharmacy managers observe the work
of staff pharmacists and act to insure that this work is
performed in accordance with company policies and
state law. Pharmacy managers have final authority to
make decisions regarding questionable prescription
requests. Additionally, pharmacy managers assign
cleaning and inventory control functions to staff
pharmacists. See The New JerseY Famous Amos
Chocolate Chip Cookie Corporation, .vpra. Finally,
pharmacy managers oversee the training of new phar-
macists, although occasionally pharmacy managers
delegate their training responsibilities to experienced
staff pharmacists. Our colleagues have not addressed
these findings of the Regional Director.
The evidence shows that pharmacy managers have
authority to adjust grievances of pharmacy employ-
ees. In support of a finding thereof, the Regional Di-
rector cited the Employer's policy statement, men-
tioned previously, which specifies, inter alia, that
pharmacy managers should "[sitrive to solve all per-
sonnel problems at the store level." In addition, the
Regional Director found that pharmacy managers in
fact had exercised such authority in one case by re-
solving a scheduling dispute, in another by resolving
a work dispute between two pharmacy employees,
and in yet another by conducting a staff meeting to
permit discontented staff members to air their com-
plaints. Our colleagues' observation that grievances
which cannot be resolved at the store level are taken
to the district managers or pharmacy supervisors does
not diminish the fact that the Regional Director
found that pharmacy managers have the authority to
adjust employee grievances, clearly an indicium of su-
pervisory status. Cf. Consolidated freightwOs (orpo-
ration of Delaware, 196 NLRB 807 11972).
Additional factors cited by the Regional Director
864
SAV-ON DRUGS. INC.
as evidencing the supervisory status of pharmacy
managers include the pharmacy managers' attending
annual management meetings wherein personnel
problems and policies are discussed, a traditional in-
dicium of supervisory status (e.g.. Associated Hospi-
tals of the East Bay, 237 NLRB 1473 (1978)), and
their receiving substantially more pay than staff phar-
macists. Our colleagues do not consider the manage-
ment meetings and discount the pay premiums ac-
corded to pharmacy managers as merely an
acknowledgment of their "additional responsibilities
in overseeing inventory, pricing of certain items, and
making sure a licensed pharmacist is present to cover
the pharmacy as required by state law, and that the
pharmacy operations and records, etc., are conducted
in accordance with applicable laws and regulations."
Contrary to our colleagues, it is well settled that such
pay differentials can serve as evidence of supervisory
status. E.g., Illini Steel Fahricator.s, Inc., 197 NLRB
303 (1972).
Finally, our colleagues rely on several additional
factors which, in our view, do not support their posi-
tion that pharmacy managers are not supervisors. For
example, they observe that for 30 years pharmacists,
including pharmacy managers, have been covered by
collective-bargaining agreements between the Em-
ployer and the Intervenors. Our colleagues suggest
that this supports Petitioner's contention that phar-
macy managers were not considered supervisors prior
to the hearing. The short response to this argument is
that, given that pharmacists have never been ac-
corded a self-determination election, the previous
coverage of all pharmacists under collective-bargain-
ing agreements could just as well suggest that phar-
macists are not professionals, a result clearly at odds
with Board law and the majority's findings. See, e.g.,
Long Stores, Inc., a California Corporation, 129
NLRB 1495 (1961). Our colleagues also note that
staff pharmacists fill in for pharmacy managers when
pharmacy managers are absent for vacation or other
purposes, and observe that no one has contended that
staff pharmacists are also supervisors. However, our
colleagues have ignored the Regional Director's find-
ing that pharmacy managers have the authority to
appoint acting pharmacy managers to assume their
duties while they are absent. Moreover, unlike our
colleagues, we can justify no adverse inference from
the failure of the parties to contend that these acting
pharmacy managers also are supervisors, inasmuch as
the sporadic exercise of supervisory authority has
never been sufficient to establish supervisory status.
E.g., Gordon Mills, Inc., 145 NLRB 771, 775 (1963).22
22 Our colleagues assert that we have "missed the point" by concluding
that staff pharmacists who regularly assume the title "pharmacist-in-charge,"
dunng those times in which the pharmacy manager is off duty, exercise
supervisory authority only sporadically, and insufficiently to constitute them
In view of the foregoing, we are convinced that in
finding pharmacy managers not to be supervisors our
colleagues have substituted their interpretation of the
record evidence for that of the Regional Director
rather than basing their decision upon the requisite
"compelling reasons." See Section 102.67(c) of the
Board's Rules and Regulations. Series 8. as amended.
Accordingly, inasmuch as the Regional Director's
findings are supported by the record. certainly are not
clearly erroneous, and are not inconsistent with
Board law,2 we dissent from the majority's decision
to reverse the Regional Director and to find phar-
macy managers not to be supervisors.
Because we would find, in agreement with the Re-
gional Director, that the Employer's pharmacy man-
agers are supervisors, we must reach the question of
whether the involvement of pharmacy managers in
the formation and internal affairs of Petitioner re-
quires the disqualification of Petitioner from repre-
senting nonsupervisory pharmacists. The Regional
Director found that 9 of 11 members of Petitioner's
current board of directors are pharmacy managers. In
addition, Petitioner's mailing address is the home of a
pharmacy manager. Further, it appears that phar-
macy managers were actively involved in the solicita-
tion of Petitioner's showing of interest.24 Thus, we be-
lieve it scarcely can be disputed that the involvement
of pharmacy managers in Petitioner's formation and
internal affairs would pose a clear and present danger
to meaningful collective bargaining were Petitioner to
become the certified bargaining representative of the
Employer's pharmacists.25 See Sierra Vista Hospital,
supra. Accordingly. as indicated above, we would dis-
qualify Petitioner from representing the Employer's
pharmacists and would dismiss the petition.
supervisors. But obviously. a staff pharmacist who regularly acts as "phar-
macist-in-charge" during weeks in which the pharmac) manager is working
(but dunng the pharmacy manager's off-duty hours) would have little if any
occasion (or authority) to exercise the pharmacy manager's respoxnsibilities
regarding the interviewing of applicants, evaluating and disciplining of phar-
macy employees, preparing of work schedules, or resolving of employee
grievances. duties which we consider evidence of supervisory status. It is our
position that the occasional delegation of the aforementioned duties to a staff
pharmacist when the pharmacy manager is absent for an extended period of
time, such as during illness or vacations. would nonetheless he insufficient to
constitute that staff pharmacist a supervisor.
"See David-Anna Corporation dbla Snvder Bros Sun-Ra Drug. 208
NLRB 628 (1974); Ward Cut-Rate Drug Company, 207 NLRB 589 (1973).
Katz Drug Cormpany, 123 NLRB 1615 (1959) Cf Sav-On Drugs, Inc, 138
NLRB 1032 (1962).
' Cf. Flinr Motor Inn Company d/bla Sheraton Motor Inn. 194 NLRB 733
(1971).
12 We note that this is not a situation, such as that which was presented In
Sierra Vista. where the question is whether the participation of some other
employer's supervisors in the internal affairs of a union seeking to represent
a particular employer's employees presents a clear and present danger to the
collective-bargaining process. As the Board stated in Sierra Virta. the burden
of demonstrating a conflict of interest which would require the disqualifica-
tion of a labor organization where an employer alleges only that some other
employer's supervisors participate in the affairs of the union is considerably
greater than where, as here, the employer's own supervisors are alleged to
participate in the affairs of the petitioning union
865