Snyder Bros. Sun-Ray Drug

National Labor Relations Board - Board Decisions

Jan 23, 1974

208 N.L.R.B. 628 (N.L.R.B. 1974)

628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
David-Anna Corporation d/b/a Snyder Bros. Sun-Ray
Drug and Local No. 789, Retail Store Employees
Union, affiliated with Retail Clerks International
Association , AFL-CIO. Case 18-CA-3753
January 23, 1974
DECISION AND ORDER
By MEMBERS FANNING, KENNEDY, AND
PENELLO
On April 20, 1973, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board I has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except as modified
herein.
1. We agree with the Administrative Law Judge
that Respondent engaged in independent violations
of Section 8(a)(1) of the Act by interrogating
employees Laust, Hexum, and Dorothy Anderson
concerning both their own activities and the activities
of other employees.2
2. We also agree with the Administrative Law
Judge that Pharmacist-In-Charge Alan Anderson
was a supervisor within the meaning of the Act.
Thus, the Administrative Law Judge found that
Anderson possessed the authority to discipline
pharmacy employees and to responsibly direct them
in their work. Anderson's reprimanding of employee
David Goudge for tardiness, his resolving of disputes
concerning the wage schedule, and his evaluations of
the job performances of pharmacy employees ade-
quately support the finding of supervisory status.
Member Fanning in his separate opinion asserts
that the Administrative Law Judge has ignored the
fact that the use of the word "supervisor" in State
legislation is not determinative of supervisory status
under our Act. On the contrary, the Administrative
Law Judge specifically stated, "I attach no signifi-
I Respondent 's request for oral argument is hereby denied, as in our
opinion the record, the exceptions , and the brief adequately set forth the
issues and positions of the parties
2 As indicated in his separate opinion. Member Fanning concurs in this
finding
3 See The Mousetrap of Miami, Inc, d/b/a Bea Morley 's Mousetrap, 174
NLRB 1060, 1063
4 Member Kennedy would not find these remarks to be independently
violative of Sec 8(a)(I) of the Act in view of the majority position that
Anderson was a supervisor whose discharge for engaging in union activities
cance to the Minnesota State Board of Pharmacy's
use of the word `supervise ' in its regulation 21." It is
clear that the Administrative Law Judge relied on the
duties and responsibilities imposed on pharmacists-
in-charge by the State and not merely the use of the
word "supervise."
Member Fanning also argues that Respondent
presented no evidence at all to establish the supervi-
sory status of Anderson . Yet this observation
overlooks the facts which were elicited from Ander-
son himself on cross-examination and which relate to
his duties and responsibilities . If supervisory status is
shown by the testimony of the person in question, it
is hardly incumbent upon Respondent to go forward
with cumulative evidence.
3. However , Member Penello , with Member
Fanning ' s concurrence , does not agree with the
Administrative Law Judge 's failure to find that Store
Manager Rosen and Assistant Store Manager Kram-
er violated Section 8(a)(1) of the Act on December
23, 1972, when they told employees Tomita, St.
Martin , Dorothy Anderson, and Hexum that Alan
Anderson had just been fired for his union activities.
The Administrative Law Judge erred in concluding
that the statements of Rosen and Kramer were
merely declarative of Respondent 's legal rights in
discharging Anderson whom he deemed to be a
supervisor within the meaning of the Act. In all the
circumstances described by the Administrative Law
Judge , it is clear that these remarks were calculated
to create the impression among the employees that
they would suffer the same fate as Anderson if they
engaged in union activities and are therefore,
inherently coercive3 in violation of Section 8 (a)(1) of
the Act.4
THE REMEDY
In view of the foregoing findings as to Respon-
dent's unfair labor practices which are violative of
Section 8(a)(1) of the Act, Respondent shall be
ordered to cease and desist therefrom and take
certain affirmative action.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
was not unlawful As pointed out by the Administrative Law Judge "Since
Anderson was a supervisor within the meaning of the Act. Rosen's and
Kramer 's statements amounted to no more than a declaration that
Respondent had done that which it had a legal right to do. Nothing in the
context of the conversations implied that Respondent was thinking in terms
of visiting the same penalty on employees for engaging in union activities
No such violative discharge took place either before or after December 23 to
give Rosen's and Kramer 's words an implication they did not have on their
face "
- 208 NLRB No. 66
SNYDER BROS . SUN-RAY DRUG 629
David-Anna Corporation d/b/a Snyder Bros. Sun-
Ray Drug, St. Paul, Minnesota, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating or making coercive statements to
employees concerning their union activities or the
union activities of others.
(b) In any like or related manner interfering with,
restraining, or coercing their employees in the
exercise of rights guaranteed them in Section 7 of the
Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Post at its store located at 2157 Hudson Road,
St. Paul, Minnesota, copies of the attached notice
marked "Appendix. Copies of said notice, on
forms provided by the Regional Director for Region
18, after being duly signed by Respondent's author-
ized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER FANNING, concurring in part and dissenting
in part:
I concur in my colleagues' adoption of the
Administrative Law Judge's finding that Respondent
engaged in interrogation in violation of Section
8(a)(1) of the Act. I also join Member Penello in
finding that Respondent engaged in further 8(a)(1)
conduct by its coercive statements to employees that
the discharge of Alan Anderson resulted from his
union activities.
However, as I would find on this record that Alan
Anderson was not a supervisor, I would reverse the
decision of the Administrative Law Judge on this
issue and hold the discharge of Anderson by Store
Manager Rosen violative of Section 8(a)(1) and (3) of
the Act.
The General Counsel proved, as the Administrative
Law Judge found, that Rosen abruptly fired Ander-
son at the end of his shift on December 23, 1972, for
being "a union intimidator." This action followed the
numerous independent violations of Section 8(a)(1)
by Respondent, which began on December 11 when
Rosen called Anderson in to interrogate him about
the organizing of clerks and pharmacists then going
on.
The General Counsel, having proved that Ander-
son was employed by Respondent and discharged for
his union activity, a prima facie case of unlawful
employee discharge was established. It then devolved
upon Respondent to go forward with evidence
to establish Anderson's supervisory status in order to
remove Rosen's conduct from the proscriptive ambit
of the statute.ti This Respondent failed to do. In fact,
at the hearing, Respondent presented no evidence at
all: it merely asked the Administrative Law Judge to
take official notice of the State regulations, claiming
that, "according to State Law, Mr. Anderson was
invested with that power," meaning supervisory
authority within the meaning of Section 2(11) of our
Act. At no time, however, did respondent demon-
strate or even claim that Anderson was invested with
any supervisory authority delegated directly by it.
That Anderson was fired for his union activity is so
obvious that Respondent does not dispute it. Rather,
in support of its defense that Alan Anderson was a
supervisor,7 Respondent relied solely on the Minne-
sota laws pertaining to the necessity for having a
state-designated `pharmacist-in-charge' in every
pharmacy, whose responsibilities include the duty,
under regulation 21 of the Minnesota State Board of
Pharmacy, "to `supervise' all of the professional
employees of the pharmacy." 8 Interpreting regula-
tion 21, the Administrative Law Judge concluded
that it was the "intent of the State of Minnesota that
persons designated pharmacists-in-charge shall re-
sponsibly direct the work of pharmacy employees,
both professional and nonprofessional, in the sense
in which that phrase is used in the National Labor
Relations Act." He then presumed that Respondent
conducted its business in a lawful manner, and
dismissed for failure of the General Counsel to
produce evidence to the contrary.9 This ignores the
fact that use of the word "supervisor" in state
legislation is not determinative of supervisory status
5 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
6 The Detroit Edison Company and Westinghouse Electric Corporation, 123
N LRB 225, 230-231. enfd subnom Local 636 of the United Association of
Journeymen etc in pertinent part 278 F 2d 858 (C A.D.C., 1960);
fcCormccli Concrete Company of S C, Inc, 153 NLRB 1507, 1513
r This defense was first made at the hearing. Earlier, in its answers to the
complaint and amended complaint , Respondent identified Rosen and
Kramer as supervisors , but made no claim that Alan Anderson was a
supervisor.
a The Minnesota regulation and the statutory definition of pharmacist-
in-charge are quoted in the Administrative Law Judge's Decision.
9 The Administrative Law Judge also relied on Anderson 's having
disciplined an employee for tardiness, resolved a vacation schedule dispute,
discussed employee job performance with the assistant store manager, and
(Continued)
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under our Act.10 In my view, contrary to my
colleagues, the Administrative Law Judge, although
professing to "attach no significance" to the word
"supervise" in the Minnesota regulations, neverthe-
less reached precisely that result by finding it the
"intent of the State" that pharmacists-in-charge shall
responsibly direct the work of pharmacy employees.
This result clearly weights the State regulation
contrary to Board and court precedent concerning
supervisory issues. Actual duties tested under our Act
are the sole test of supervisory authority.
Thus, the Administrative Law Judge's rationale
tends to prejudice the General Counsel by erroneous-
ly shifting the burden of proof on the issue of
Anderson's nonsupervisory status. I fear that the
effect of my colleagues' affirming his decision, on a
record so weak in evidence of actual possession or
exercise of supervisory authority within the meaning
of our Act, will be to insure that all pharmacists-in-
charge within the State of Minnesota (and perhaps
other States as well) are deprived of the protection of
our Act. I believe this contravenes the spirit of the
Supreme Court's decision in Bethlehem Steel Co., v.
New York State Labor Relations Board, 330 U.S. 767
(1947). In footnote 9 I have analyzed what little
evidence there is that can be construed as indicative
of supervisory status and found it unpersuasive, thus
not meeting the Respondent's burden of proof.
Granted that Respondent might have met that
burden had it put on evidence as to how the store
was staffed and supervised, thus supplying some
meaningful context in which to judge the limited
results of its cross-examination; but it did not do so.
In this posture, it seems a fair inference that the
existence of both a manager and an assistant
manager provided the store as a whole with all the
supervisory authority necessary, thus leaving to the
pharmacist-in-charge the exercise of those profes-
sional duties which States normally require of
licensed pharmacists.
Moreover, the Minnesota requirements pertaining
to the necessity for a pharmacist-in-charge provide
that he shall "assume professional responsibility for
instructed other pharmacists on drug purchases From the record, I would
not reach similar conclusions I would not term Anderson's talking to
Goudge about his tardiness "discipline", moreover, the evidence clearly
shows that he did so only after being specifically asked to by both Rosen
and Assistant Manager Kramer-hardly the exercise of independent
authority Vacations were not scheduled by Anderson and it appears that he
merely intervened in a dispute between pharmacists wishing to be away at
the same time. He did not formally evaluate the work of employees, and
there is no evidence that his opinion , when specifically requested,
constituted an effective recommendation within the meaning of Sec. 2(11)
About one-half the buying-not including narcotics-was done by other
pharmacists. mostly when Anderson was not on duty . Anderson's
suggestion that readily available drugs need not be bought in quantity,
coming from a man professionally responsible for stocking the pharmacy,
hardly denotes supervisory authority under the Act
the operation of the pharmacy, in compliance with
the requirements and duties as established by the
Board in its Rules and Regulations ." Regulation 21
sets forth his responsibilities, which are to be
performed "consistent with accepted standards of
professional conduct and practice and in compliance
with all applicable laws." In my opinion, the thrust of
the State in this area is clearly in mandating
compliance with the professional standards which it
deems obligatory in furtherance of the public
interest . Section (e) of the Regulation for exam-
ple-the only one which mentions nonprofessional
employees-provides for their "supervision" by the
pharmacist-in-charge only "insofar as their duties
relate to the sale and/or storage of drugs." The
professional responsibility imposed upon the phar-
macists-in-charge by the State regulations involves
the exercise of "discretion and judgment," which are
an index of "professional employee" status under
Section 2(12) of our Act, rather than supervisory
status under Section 2(11). This interpretation is in
agreement with a long line of Board cases involving
"head pharmacists" or "pharmacists-in-charge." In
none of those cases have we held the pharmacist-in-
charge to be a supervisor, absent a significant
exercise of authority under our Act in addition to
responsibility as a professional employee; I dissent
from doing so now. 1' ,
Contrary to the Administrative Law Judge, I can
see no basis here for arriving at a different result than
that reached in Skaggs Drug Centers, Inc., 197 NLRB
1240. There, as here, the state-designated pharma-
cist-in-charge received the same slightly higher pay,
his name appeared on the necessary State licenses,
and he signed for narcotics; he was responsible for
seeing to it that the pharmacy was properly stocked
with supplies, kept clean, and covered by a pharma-
cist at all times. There, as here, the pharmacist-in-
charge had no power to hire or fire, nor did he
effectively recommend such action. There, under
circumstances almost identical to these, we found the
pharmacist-in-charge not to be a supervisor. I fear
that the majority's failure to address the issue of their
10 Howard Johnson Company , 174 NLRB 1217, 1221, 1222
i i Cases where we have held the head pharmacist not to be a supervisor
are Lane Drug Co, Division of A. C Israel Commodity Corporation, 160
NLRB 1147, Skaggs Drug Centers Inc, 197 NLRB 1240 , White Cross
Stores, Inc, 186 NLRB 492, Walgreen Louisiana Co, 182 NLRB 541
Waigreen Louisiana Co, Inc, 186 NLRB 129. In the latter two , "chief
pharmacists" were held not to be supervisors, while those "chief pharma-
cists registered" who also acted in sole charge of the entire store up to 98
hours every 2 weeks were held supervisors In Hook Drugs , Inc, 191 NLRB
189, head pharmacists were found supervisors- they were also assistant
store managers , signed payrolls , and regularly attended management
meetings at corporate headquarters, in Sav-On Drugs, Inc, 138 NLRB 1032,
the head pharmacists found to be supervisors were also assistant store
managers in charge of the entire store up to 38 hours per week
SNYDER BROS. SUN-RAY DRUG
silent undermining of Skaggs and other prior cases
not only will cause confusion and increase litigation
in the field, but will return to haunt us. This is not a
case such as Hook Drugs, supra,where the registered
pharmacist, who was found to be a supervisor, was
also the assistant store manager, attended manage-
ment meetings, was in charge of the entire store
almost 40 hours per week, and was charged with the
duty to supervise as specifically set forth in the
company's manual of operations.
Finally, assuming arguendo that by reason of
Anderson's on job duties with respect to the other
pharmacy employees he is a supervisor and thereby
not a candidate for 8(a)(3) discrimination because of
any union activities he may engage in, I am inclined
to think that he should be reinstated and made whole
because of the impact of this particular discharge on
the employees. The discharge came as an integral
part of discouraging store clerks and pharmacists in
the exercise of their Section 7 rights to organize, and
was followed immediately by statements advising
employees of the reason for the discharge. In fact,
Respondent made a marked effort to project its
antiunion sentiments by publicizing its reason for
Anderson's discharge. In my view, it follows that the
discharge should be recognized as a separate 8(a)(1)
violation, to be remedied with reinstatement and
backpay.12 As accomplished, the discharge was
inherently coercive of employees in their organizing
attempt. I would therefore equate it with Krebs and
King Toyota, Inc., 197 NLRB 462. The majority
found that termination of a supervisor who spoke for
employees by saying "let the Board settle" the
dispute was an 8(a)(1) violation remediable by
reinstatement, and quoted from Pioneer Drilling Co.,
Inc., 162 NLRB 918, 923, where the discharge of a
supervisor was "an integral part of a pattern of
conduct aimed at penalizing employees for their
union activities." Though the facts differ, the
language and the remedy are singularly appropriate
here.
12 It also follows that Respondent engaged in inherently coercive
conduct when its store manager and assistant store manager told employees
that Anderson was discharged because of his union activities As indicated
above , I therefore concur in Member Penello 's conclusion that their
statements violated Sec 8(a)(1) of the Act
APPENDIX
631
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had a chance to give
evidence, the National Labor Relations Board has
found that we violated the National Labor Relations
Act and has ordered us to post this notice. The Act
gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through represent-
atives of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT interrogate, threaten, or coerce
you concerning your union activities or the union
activities of others.
WE WILL NOT, in any like or related manner, do
anything that interferes with or restrains you in
the exercise of any or all of the above rights.
All our employees are free, if they choose, to join
Local No. 789, Retail Store Employees Union,
affiliated with Retail Clerks International Associa-
tion, AFL-CIO, or any other labor organization.
DAVID-ANNA
CORPORATION, D/B/A
SNYDER BROS . SUN-RAY
DRUG
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 316 Federal Building, 110 South
Fourth Street, Minneapolis, Minnesota 55401, Tele-
phone 612-725-2611.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The charge in this case was filed on December 26, 1972.1
The complaint was issued on January 31, 1973. An
amended complaint was issued on February 9, 1973. The
hearing was held on March 6, 1973, in Minneapolis,
Minnesota.
The amended complaint alleges that Respondent violat-
ed,Section 8(aXl) of the National Labor Relations Act, as
amended, by interrogating employees and Section 8(aX3)
and (1) by discharging Alan Anderson. The principal issue
litigated was whether Anderson was a supervisor within the
meaning of the Act. For the reasons set forth below, I find
that he was and Respondent, therefore, did not violate the
Act by discharging him on December 23 for engaging in
union activities. (Resp. Exhs. 5' and 6 are hereby received
into evidence over the objection of the General Counsel.
Respondent's motion that this case be transferred to the
Board without findings of fact and decision by me is
hereby denied.)
Upon the entire record and after due consideration of
briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Minnesota corporation, operates a retail
drugstore in St. Paul, Minnesota. During the year prior to
issuance of the amended complaint, it grossed more than
$500,000 and purchased and received goods valued in
excess of $50,000 from suppliers located outside the State
of Minnesota.
II. THE UNFAIR LABOR PRACTICES
At the conclusion of the General Counsel's case,
Respondent elected not to introduce any evidence other
than the laws of the State of Minnesota relating to the
duties and responsibilities of "pharmacists-in-charge."
Consequently, there are no factual disputes in the record.
The General Counsel relies on the uncontroverted facts
concerning Alan Anderson's union activities and dis-
charge. Respondent relies on Minnesota law and the
undisputed facts, mainly elicited from Anderson himself
on cross-examination, relating to his duties and responsi-
bilities as chief pharmacist.
A. General Counsel's Facts
Prior to December 23 Alan Anderson was chief
pharmacist and pharmacist-in-charge at Snyder Bros. Sun-
Ray Drug Store. He had worked there for 2 years. The
store is managed by Harry Rosen . Kenneth Kramer is
assistant manager.
On December 7, Anderson and 2 other pharmacists from
his store attended a meeting of 10 or 11 pharmacists with 2
of the Charging Party's business agents. (Snyder Bros. Sun-
Ray Drug Store is part of a chain in the Minneapolis-St.
Paul area known as Snyder Bros. Drug Stores.) All the
pharmacists present signed authorization cards. They took
more cards back to their respective stores in order to sign
up other, employees. On December 9 Anderson signed up
some employees at his store's annual Christmas party. The
following week he signed up more. In all, he obtained cards
from 10 to 15 of the approximately 30 persons employed in
his store: On December I I Respondent distributed a letter
to its employees in which it stated that it had received a
telegram from the Charging Party on December 9. The
letter urged the employees not to sign authorization cards.
During the week of December 11, the following
conversations took place at the store:
Rosen called Anderson into his office and said he
understood the clerks and pharmacists were organizing a
union. He asked Anderson if he knew who started it.
Anderson said he did not. Rosen asked Anderson if he had
signed. Anderson said no. Rosen asked if Anderson
intended to sign. Anderson said, "I might have to go along
with the rest."
Rosen asked Jean Laust, a drug clerk, in the store's
lunchroom in the course of a conversation about the cards
that had been passed out, whether she had signed one. Ms.
Laust said she had not.
Rosen asked Louise Hexum, a clerk, at a counter in the
store, whether she knew anything about the union. She said
she did not. He told her, if she heard anything, to let him
know.
Rosen summoned Dorothy Anderson, a clerk, to his
office and asked her whether she had signed a card. She
said that she had. He expressed surprise and asked whether
she had known about the union before she signed . She said
she had known nothing until she was handed the card.
Around 1:30 p.m. on December 23, as Ms. Laust was
starting a break, she stopped to thank Rosen for her
Christmas bonus. Rosen invited her into his office. Rosen
said he had been planning a raise which the employees had
recently gotten for quite a while and had decided to go
ahead with it despite the organizing campaign that was
going on because he thought the employees were entitled to
it. Ms. Laust mentioned that she had signed an authoriza-
tion card. Rosen said he thought she was the last one who
would ever do that, he was disappointed in her: Ms. Laust
said she was the last one to sign. Rosen asked whether
Anderson had given her the card. Ms. Laust said she could
not remember whether she got it from Anderson or Bob
Lovsted, another pharmacist. Rosen asked whether she had
been given the card on company time. Ms. Laust said no.
Rosen said Anderson was slowing down in his work. Ms.
Laust said it was not so, the problem was that the
pharmacy was in a mess because it was so busy. Rosen said
that he should fire Anderson, he was a troublemaker.
A few minutes after 2 p.m., as Anderson was leaving the
store at the end of his shift, Rosen intercepted him and
took him into the office. Rosen said, "You're fired, you
bastard. You're a union intimidator."
Anderson said, "You can't get by with this."
Rosen said, "I'll close the store before I let you work
here."
When Ms. Laust got back to her work station in the
1 Dates are 1972 unless otherwise specified.
SNYDER BROS . SUN-RAY DRUG 633
pharmacy at the end of her break, Lovsted informed her
Rosen had just fired Anderson. Later that afternoon Rosen
told Ms. Hexum he had fired Anderson because he was a
troublemaker. (A few days later he told Ms. Hexum he had
not fired Anderson for the reason she thought. Ms. Hexum
told Rosen she did not want to hear about it because she
might have to testify against him. Rosen said, "You
wouldn't do that, would you?" Ms. Hexum said she would
if she were subpenaed.)
Rosen also told Dorothy Anderson that afternoon that
he had fired Anderson. Ms. Anderson asked why. Rosen
said it was because Anderson was getting the Union in.
Rosen also telephoned Florence Tomita, a part-time
pharmacist, and asked if she could work the next day,
Christmas Eve. He said that he fired Anderson because he
was involved in union activity. Kenneth Kramer. the
assistant manager, told Tonette St. Martin, a clerk, that
Anderson had been fired. Ms. Martin said she knew it had
something to do with the union, there was no other reason
she could see. Kramer said, "It was that and there were
other reasons involved."
B. Respondent's Facts
At the time of Anderson's discharge there were seven
employees in the pharmacy in addition to him, two other
full-time pharmacists, two part-time pharmacists, one
pharmacist intern, and two drug clerks. All five pharma-
cists were licensed by the State of Minnesota. At times they
filled prescriptions alone. At other times two or three
pharmacists worked together.
Anderson's salary was approximately $10 a week more
than that of the other two full-time pharmacists. He had
keys to the store and, on occasion, opened up in the
morning or closed up at night. His name appeared first on
a list of persons to be contacted if the store were broken
into. He was the only one of the five pharmacists
authorized to sign narcotics order forms. The other two
full-time pharmacists had authority, along with Anderson,
to order other drugs from supply houses. Anderson had
instructed them to limit their buying to small quantities
since they could obtain new stocks readily. Anderson
bought about half of the drugs ordered in this manner; his
two full-time colleagues, the other half.
In the late summer of 1972, when the store was
remodeled, Anderson laid out the manner in which drugs
would be stored in the pharmacy. He made recommenda-
tions to Rosen with respect to the store's check cashing and
drug pricing policies. When disputes developed between
pharmacy employees as to the vacation schedule, Ander-
son resolved them.
Prescriptions were filled on a first-in-first-out basis
pursuant to a policy established and maintained by
Anderson despite Rosen's disagreement. Rosen had tried,
and failed, on a number of occasions to persuade
Anderson to shift to a priorities system based on the needs
of customers.
About a month before Anderson's discharge, Rosen and
Kramer discussed the tardiness of David Goudge, a
pharmacist, with Anderson. They asked Anderson to talk
to Goudge. They did not tell Anderson to indicate to
Goudge that his job was in jeopardy. When he talked to
Goudge, Anderson told him he was on thin ice and should
shape up. At other times, Kramer discussed the job
performance of pharmacy employees with Anderson.
Pursuant to Minnesota regulations, Anderson filed an
application with the State Board of Pharmacy to be
designated pharmacist-in-charge at the store when he
became chief pharmacist. The State Board issued a
certificate to that effect. When he was discharged,
Anderson failed to report to the State Board that he had
ceased to be pharmacist-in-charge. Subsequently, under
date of December 28, he received a letter from the State
Board which read, "Enclosed is a Certificate of Profession-
al Responsibility to be completed by your successor as
pharmacist-in-charge." With respect to pharmacists-in-
charge, Minnesota law provides as follows:
"Pharmacist in charge" means a duly licensed
pharmacist in the state of Minnesota who has been
designated in accordance with the rules and regulations
of the state board of pharmacy to assume professional
responsibility for the operation of the pharmacy in
compliance with the requirements and duties as
established by the board in its rules and regulations.
[Chapter 151, Pharmacy; Section 151.01, Definitions;
Subdivision 22, Pharmacist in charge; Minnesota
Statutes, 1971.]
No person shall conduct a pharmacy without a
pharmacist-in-charge who shall be designated in the
application for license and registration, each renewal
thereof or pursuant to Regulation 23. The term
"pharmacist-in-charge" means a duly licensed pharma-
cist in the State of Minnesota who has been so
designated, and it shall be his duty and responsibility
consistent with the accepted standards of professional
conduct and practice and in compliance with all
applicable laws and regulations:
(a) To establish for the employees of the pharmacy,
policies and procedures for the procurement, storage,
compounding and dispensing of drugs,
(b) To supervise all of the professional employees of
the pharmacy,
(c) To supervise all of the non-professional employ-
ees of the pharmacy in so far as their duties relate to
the sale and/or storage of drugs,
(d) To establish and supervise the method and
manner for the storing and safekeeping of drugs,
(e) To establish and supervise the record keeping
system for the purchase, sale, possession, storage,
safekeeping and return of drugs,
(f) To notify the Board immediately upon his
knowledge that his services as pharmacist-in-charge
have been or will be terminated. [Regulations, Minne-
sota State Board of Pharmacy, 1971 Edition; Regula-
tion 21, Pharmacist-in-Charge, Requirement, Defini-
tion and Duties; issued pursuant to Chapter 151,
Pharmacy; Section 151.06, Powers and Duties [of State
Board of Pharmacy]; Subdivision 1(10); Minnesota
Statutes , 1971.]
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Analysis and Conclusions
1. Discharge of Alan Anderson
That Anderson was discharged for engaging in union
activities is so obvious Respondent does not dispute it.
Rather, it defends on the ground that Anderson was a
supervisor within the meaning of the Act and, thus, beyond
the Act's protection. I agree.
I find that Anderson met the definition of "supervisor"
contained in Section 2(11) of the Act in that he had
authority, in the interest of Respondent, to discipline other
pharmacy employees and responsibly to direct them under
circumstances which required the use of independent
judgment. In reaching this conclusion on the record as a
whole, I rely especially on Anderson's reprimanding David
Goudge for tardiness, his resolution of vacation schedule
disputes, his discussions with the assistant store manager of
pharmacy employees' job performance, and his instruc-
tions to other full-time pharmacist as to drug purchases
they could make in his absence. Cf. Skaggs Drug Center,
Inc., 197 NLRB No. 171. I attach no significance to the
Minnesota State Board of Pharmacy's use of the word
"supervise" in its regulation 21. However, I am persuaded
by my reading of regulation 21 that it is the intent of the
State of Minnesota that persons designated pharmacists-in-
charge shall responsibly direct the work of pharmacy
employees, both professional and nonprofessional, in the
sense in which that phrase is used in the National Labor
Relations Act. Consequently, I presume, as urged by
Respondent in its brief, Respondent has conducted its
business in a lawful manner and rely on the General
Counsel's failure to produce any evidence to the contrary.
Since Alan Anderson was a supervisor within the
meaning of the Act, I find that Respondent did not violate
Section 8(a)(3) and (1) when Harry Rosen discharged him
on December 23, 1972.
2. Interrogation
The only independent violation of Section 8(a)(1) alleged
in the amended complaint is interrogation of employees by
Rosen during December "concerning their union activities
and the union activities of other employees." In his brief,
the General Counsel lists nine different conversations as
"unlawful interrogations and threats in violation of Section
8(a)(1) of the Act." Regardless of whether they are
characterized as interrogations or threats, five of them will
not sustain a finding of a violation. The two which involve
Anderson-Rosen 's query during the week of December
11 about who had started the organizing campaign and the
discharge interview on December 23-fail because no
employee was involved. The three employees whom Rosen
or Kramer told on December 23 that Anderson had been
fired for union activities-Dorothy Anderson, Florence
Tomita, and Tonette St. Martin-were neither interrogated
nor threatened. (The General Counsel failed to include in
his list a similar statement by Rosen to Louise Hexum on
the afternoon of December 23. The fact that Rosen used
the euphemism "troublemaker" rather than making his
point more specifically did not change his message
However, Ms. Hexum was not interrogated or threatened
at that time either.) Rosen and Kramer put no questions to
them. Since Anderson was a supervisor within the meaning
of the Act, Rosen's and Kramer's statements amounted to
no more than a declaration that Respondent had done that
which it had a legal right to do. Nothing in the context of
the conversations implied that Respondent was thinking in
terms of visiting the same penalty on employees for
engaging in union activities. No such violative discharge
took place either before or after December 23 to give
Rosen's and Kramer's words an implication they did not
have on their face.
The other four conversations relied on by the General
Counsel are the occasions during the week of December 11
when Rosen asked Jean Laust, Louise Hexum, and
Dorothy Anderson whether they had signed cards and the
conversation with Ms. Laust on December 23 which
immediately preceded Anderson's discharge. As to these,
Respondent defends on the ground that the queries put to
these three ladies were isolated or part of a normal
response to an employee initiated conversation. I disagree.
While the record is not clear as to who started the first
conversation between Rosen and Ms. Laust, she entered
his office on December 23 at his request so that he could
talk to her about the organizing campaign. The query he
put to her about Anderson elicited the information that
Bob Lovsted, a nonsupervisory pharmacist, had been
engaging in union activities also. In the case of Ms.
Hexum, Rosen initiated the conversation at her work
station. In the case of Ms. Anderson, Rosen summoned her
to his office to ask her whether she had signed an
authorization card. In none of these incidents did Rosen
attempt to remove the inherently coercive sting from the
words he spoke by explaining to the employees a legitimate
reason for inquiring about union activities in the store. The
fact that Rosen asked at least three employees during the
week of December 11 whether they had signed cards
demonstrates a deliberate effort on his part to pry into the
union activities of Respondent's employees. I find, there-
fore, that on each occasion Respondent, in the person of
Rosen, violated Section 8(a)(1) of the Act by interrogating
an employee concerning her union activities or the union
activities of other employees.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. David-Anna Corporation , d/b/a Snyder Bros. Sun-
Ray Drug, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local No. 789, Retail Store Employees Union,
affiliated with Retail Clerks International Association,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By interrogating employees concerning their union
activities and the union activities of other employees
during December 1972, Respondent has violated Section
8(a)(1) of the Act.
SNYDER BROS. SUN-RAY DRUG 635
4. The aforesaid unfair labor practices are unfair labor violated Section 8(a)(3) and (1) of the Act by discharging
practices affecting commerce within the meaning of Alan Anderson on or about December 23, 1972 , has not
Section 2(6) and (7) of the Act. been sustained.
5. The allegation of the complaint that Respondent [Recommended Order omitted from publication.]