Stineway Drug Co., Inc., et al.

National Labor Relations Board - Board Decisions

Feb 24, 1953

102 N.L.R.B. 1630 (N.L.R.B. 1953)

1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elizabeth Powell
Carl Ridgley
Hilda Shank
Blanche Tracey
Jacob D. Weatherholt
Jean M. Yeager
Estelle M. Baker
Mary K. Burrier
George Franklin Freed
Charles H. Hahn
George W. Harris
Barbara S. Koontz
Mehrl L. Murphy
Martin L. Wachter, Jr.
Emma Aumen
Vernon Baer
Robert T. Bauingardner
Chester Blank
Mehrl Bopst
Betty Brunner
Betty Butler
Lee Cline
Pauline Cole
Ruth Boone
Morris Damuth
Charlotte Droneburg
Austin G. Fisher
Gertrude Glass
Barbara Hane
Paul Hildebrand
Melton Holt
Edward B. Jones, Jr.
William J. Koontz
James E. May
Martha O'Brien
Dorothy Owens
Melvin Riddle
Joyce Rippeon
Ruth Stupp
Thomas B. Wainwright
Carrie White
Irene Zimmerman
Frances C. Blinkenstaff
Ellen E. Freed
Edward L. Gray
Frances C. Hardman
Oscar P. Johnson
Pauline F. Kreh
Mary A. Staley
and thereafter prepare and cause to be served upon the parties a sup-
plemental tally of ballots, including therein the count of the chal-
lenged ballots.
MEMBER HOUSTON took no part in the consideration of the above
Second Supplemental Decision and Direction.
STINEWAY DRUG Co., INC., ET AL.,1 PETITIONER and DRUG STORE, SODA
FOUNTAIN AND LUNCHEONETTE EMPLOYEES UNION, LOCAL 658,
HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNA-
TIONAL UNION, AFL. Case No. 13RM-146. February 24,1953
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Herman J. DeKoven,
I The following companies and individuals are also named as petitioners - Frieden Drug
Co ; A. Z. Drug Co.; Grand Drug Co. ; Thaddeus Skarr ; Congress -Michigan Pharmacy ;
Bernard G . Goldsmith ; Cyrus M. Spannuth ; David Brody, Martin H. Barnes Pharmacy,
Inc. ; Dubow Drug Co.; David L. Posner & Stewart Mesirow ; Sol Mansky ; Harold D.
Erickson ; Day Drug Co ; and Robert E. Martin Drug Co.
102 NLRB No. 169.
STINEWAY DRUG CO., INC. 1631
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman Herzog and Members Houston and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The sole issue raised by the parties is whether the bargaining
unit should be limited in scope to 20 drug stores and a cafeteria and
commissary directly owned and operated by Stineway Drug Co., Inc.,
herein called "Stineway," or also include 15 individually owned drug
stores known as Stineway Drugs System Stores, herein called "System
stores." Unlike Stineway and the individual owners of the System
stores, the Union would exclude all System stores. However, the
Union is willing to go to election in whatever unit the Board finds
appropriate.
All of the stores, except for one of the System stores,' are located
in Chicago, Illinois. One System store is located in the Chicago
downtown area known as the "Loop," while the other 14 System stores
are situated in various outlying areas. Many of the Stineway stores
are in the "Loop," but some are also in outlying areas. Fourteen of
the System stores were formerly Stineway stores; all of the individual
owners are former managers of Stineway stores. To assist its former
managers to become store owners, Stineway loaned them the neces-
sary funds to purchase the equipment, and took back chattel
mortgages.
In addition to this chattel mortgage arrangement, each System store
owner has a contract with Stineway making him a licensee of Stine-
way, with the right to use the style, "Stineway Drugs System Store,"
and the term "licensee" after his name. The contract also provides
that all merchandise must be purchased from Stineway or from a
supplier designated by Stineway, and that all prices and store hours
will be fixed by Stineway. Moreover, the owners must operate the
2 The Union stated at the hearing that it does not have jurisdiction in Oak Park , Illinois,
a Chicago suburb where the only System store outside of Chicago is located , and that it
could not in any event accept members from this store . As a union 's jurisdictional limita-
tion on membership is not a valid reason for excluding employees from a bargaining unit,
we shall not give special consideration to the Union 's position with respect to this store.
F. B. Silverwood, a corporation d/b/a Silverwood 's, 92 NLRB 1114.
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stores in accordance with Stineway practice and policy down to mi-
nute details, including the arrangement of the counters, departments,
and showcases. The owner himself is required to work at least 40
hours per week. Stineway reserves the right regularly to inspect
the premises and the books of the store, and to make inventories at the
expense of the licensee.
The contract further provides that the licensee shall maintain the
necessary and efficient staff required for operation of the store, that
all individuals employed shall be subject to Stineway's approval, and
that Stineway may require the licensee to discharge any employee on
request. The record shows, however, that in practice a System store
almost never hires a new employee without first calling Stineway's
personnel office, which acts as an employment agency for both System
and Stineway stores. In case of emergency or when Stineway's
personnel office is unable to fill a vacancy, both System stores and
Stineway stores do their own hiring, subject to subsequent approval
by the Stineway office. Names of such new employees not recruited
through the personnel office are reported by System stores for ap-
proval. The Stineway personnel office makes up the payroll for all
Stineway store employees, but the payrolls for System store employees
are made up at each store. Approximately one-half of the present
System store employees were engaged by Stineway.
During the past year, there were about 300 temporary (1 day)
transfers of employees between Stineway and System stores, and 10
or 15 permanent transfers. In the same period, Stineway's personnel
office arranged about 24 transfers from one System store to another.
Of these transfers, nearly one-half were permanent. Furthermore,
twice in the past year, when a store owner was ill, Stineway insured
continued operation of the store by installing one of its salaried man-
agers at the expense of the System store.
Rates of pay and hours of work for System store employees gen-
erally follow those of Stineway store employees. Although Stine-
way's personnel chief agreed at the hearing that the System stores
are not bound by the contract to conform to Stineway store practice
as to wages and hours, he cited instances where he had objected to
wages of System store employees as being "out of line," and added
that the System stores usually followed his suggestions in these mat-
ters or appealed to higher authority in the Stineway managerial
hierarchy. He mentioned, however, a recent instance when he was
overruled by a System store owner who paid an "out of line" wage to
a fountain girl because the store could get no one else . The practice
of giving bonuses at Christmas and on other occasions is identical in
both Stineway and System stores. However, System store employees
do not share in the pension plan and free life insurance provided for
Stineway store employees.
STINEWAY DRUG CO., INC. 1633
Past collective bargaining among both groups of employees has
been limited to two contracts now in existence. The Stineway stores
have a collective-bargaining agreement with another union for all
employees classified as porters, a category specifically excluded from
the unit involved in this proceeding. On the other hand, the Union
has a collective-bargaining agreement with one of the System stores
covering the categories of employees involved here. This last con-
tract was negotiated by counsel employed by Stineway without charge
to the System store thus represented, and it was approved by the presi-
dent of Stineway before the System store owner signed the agree-
ment.
On these facts we are satisfied that a unit limited to the employees
of the Stineway stores would be inappropriate for collective-bargain-
ing purposes. Notwithstanding the separate legal ownership of the
two groups of stores, the employees of both are joined by a sub-
stantial community of interests in their conditions of employment.
Thus, they are required to look to the Stineway management for es-
tablishment of their rates of pay, hours of work, tenure of employ-
ment, and general working conditions. The very considerable trans-
fer of employees between Stineway and System stores emphasizes
their common interests. We do not agree with the Union's conten-
tion that the existing contracts, limited to units smaller in scope but
voluntarily established by the parties, preclude a present determina-
tion as to the all-inclusive bargaining unit shown appropriate by the
facts in the record. Because of the highly centralized control over
the general conditions of employment affecting all the employees here
involved, we view Stineway and the various individual owners of the
System stores as a single employer for purposes of collective bargain-
ing with the employees .3
Accordingly we find that all employees of the Stineway Drug Co.,
Inc., and of the Stineway Drugs System Stores, employed in Chicago,
Illinois, and suburbs, in drug stores, cafeterias and commissaries, soda
fountains, luncheonettes or kitchens, including cashiers who handle
food cash receipts only, but excluding drivers, warehousemen, bakers,
hosts and hostesses, general office and clerical employees, pharmacists,
pharmacists' assistants, porters who perform exclusively porter or a
combination of porter and deliveryman functions, guards, professional
employees, managers, assistant managers, and all supervisors as de-
fined in the Act, constitute a unit appropriate for purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act 4
[Text of Direction of Election omitted from publication in this
volume.]
The Taubman Corporation, 77 NLRB 846.
The composition of the unit was stipulated by the parties.