SuperX Drugs of Texas, Inc.

National Labor Relations Board - Board Decisions

May 23, 1975

217 N.L.R.B. 1103 (N.L.R.B. 1975)

SUPERX-DRUGS OF TEXAS, INC.
SuperX Drugs of Texas, Inc. and Retail, Wholesale
and Department Store Union , AFL-CIO, Peti-
tioner. Case 10-RC-9905
May 23, 1975
DECISION ON REVIEW AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On May 17, 1974, the Regional Director for Region
10 issued a Decision and Direction of Election in the
above-entitled proceeding in which he found appropri-
ate a-unit of pharmacists employed at six of the Em-
ployer's drugstores located in the Knoxville, Tennes-
see, area, rejecting the, Employer's contention that
certain of the pharmacists involved are supervisors as
defined in the Act. Thereafter, in accordance with the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the Employer filed a timely
request for review of the Regional Director's decision
on the grounds that in concluding that the 13 pharma-
cists in question are not supervisors he departed from
precedent and made findings of fact which are clearly
erroneous.
On June 24, 1974, by telegraphic order, the request
for review was granted and the election stayed pending
decision on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review and makes
the following findings:
The 6 drugstores of the Employer here involved are
part of a 12-store district subdivision of its nationwide
chain of approximately 500 stores. The store managers
and the district manager to whom they report are
concededly supervisors. In issue is the supervisory
status of about 13 professional pharmacists and "assist-
ant store managers-registered" employed at these
stores on a regular full-time basis. It was agreed that
pharmacists in both classifications have the same duties
and responsibilities, the distinction between them being
merely a matter of better benefits based on service and
skills.' Our review of the record persuades us, in
agreement with the Employer, that they are supervisors
as defined in the Act.
The Employer's drugstores are open an average of 80
to 85 hours per week and the store managers are pre-
In addressing the issue of their supervisory status, we shall therefore
,refer to both professional pharmacists and assistant managers-registered
simply as pharmacists However, this reference does not include part-time,
relief, or intern pharmacists, apparently three in number, as the parties agree
they are not supervisors as defined in the Act
1103
sent 45 to 50 of those hours. The rest -of the time one
or two of the disputed pharmacists are placed in charge
of the store's operations. The employee complements at
the 6 stores vary from 10 to 20 employees.2 The regu-
lar full-time pharmacists work approximately 44 hours
per week and are engaged principally in the filling of
medical prescriptions for customers. However, for sub-
stantial portions of their scheduled hours the store
manager is not present and they work either alone or
in pairs.
At such times they are responsible for store opera-
tions. Thus, examination of a typical 2-week schedule
of their hours reveals that they are _in charge of their
stores for periods ranging from 18 to 71 hours of the
total of 88 hours worked by them.'
It is clear that during the periods of time when they
are in charge the disputed pharmacists do not possess
or exercise the authority to hire, fire, or promote em-
ployees. However, at such times they do have the au-
thority to suspend employees for the balance of their
shift; to allow or refuse to allow employees to leave
work for the remainder of their shift; when the occasion
warrants, to assign specific tasks to store employees; in
the exercise of their independent judgment to call in
replacement employees from a list maintained in the
store; and generally to be responsible for the efficient
operation of the store.' Further, they approve register
overrings in excess of certain amounts, approve cus-
tomer checks, okay sales refunds, handle customer
complaints, and verify day's end cash receipts. They
possess keys and safe combinations, and on occasion
are responsible for the opening and-closing of the store.
They also process employee discount purchases, take
action against shoplifters, and sign and approve pay-
rolls.
Not only are the disputed pharmacists expected to
perform such duties, they are in fact rated by their store
manager and district manager as to how well they do
2 The testimony reveals that each store has at least one cosmetician, one
stocker, one merchandiser or one combination stocker/merchandiser (in
some stores the manager also acts as merchandiser), and from 5 to 20
salespeople (the average store has 10 to 15 salespeople) -
3 For periods of 18 to 35 hours a pharmacist alone is in charge; for periods
of 27 to 71 hours he shares responsibility for store operations with another
pharmacist or, in two instances, with an "assistant manager-nonregistered "
4 Pharmacist Whaley testified he felt he could grant or refuse to grant time
off to an employee depending on the circumstances, and that he had in fact
done so Pharmacists Bright and Lovelace testified in a similar fashion
Pharmacists Whaley and Bright testified that they felt empowered to have
an employee leave his assigned task and help out in another area of the store,
and noted there had been instances when they had done so All three of the
above pharmacists stated they were authorized to call in replacement em-
ployees In this regard each of them indicated he would not take such action
automatically, but would first assess the situation and determine if he felt
extra help was necessary. District Manager Denton testified that pharma-
cists do relate their opinions of other employees' work both to him and to
their store managers Both Pharmacists Whaley and Bright indicated that if
they saw employees loafing or not performing properly they would instruct
them to return to their work. The pharmacists' possession of these and
related authorities was corroborated by the testimony of both the district
manager and the employee relations manager.
217 NLRB No. 186
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so. Under the Employer's performance and promota-
bility review, they are rated as to how well they admin-
ister discipline,' whether other employees follow their
directions, whether they are effectively in charge of the
store in the manager's absence, and whether other em-
ployees seek them out for guidance or counsel.' The
results of these reviews are shown to the pharmacists
being rated, who then sign them.
We conclude, upon the foregoing and our considera-
tion of the entire record, that in view oft-he wide range
of authority given to them during the regular and sub-
stantial periods of time they are left in charge of store
operations the disputed professional pharmacists and
assistant managers-registered are supervisors as de-
fined in the Act.' We therefore exclude them from the
unit and, as the Petitioner did not indicate that, in the
alternative, it wished to represent a unit confined to the
part-time, relief, and intern pharmacists, we shall dis-
miss the petition herein.
5 Contrary to our dissenting colleague, we find ample evidence that the
pharmacists have the authority to administer discipline The Employer's
employee relations manager unequivocally testified that SuperX profes-
sional pharmacists and assistant managers-registered have the authority to
discipline, reprimand, and suspend employees. He related that some 6 to 8
years ago he addressed all the employees in the Alcoa store (one here
involved) with regard to the question of supervision and stated he felt
thereafter that the hourly employees knew that the pharmacists were "their
boss." He testified that prior to the district manager's postpetition speech
he felt only one or two of the pharmacists were unaware of the extent of their
authority He further testified that the authorities listed in the speech were
no different from what they had always been and did not either change or
upgrade the authority of the pharmacists. The Employer's district manager
likewise testified that as a matter of longstanding company policy pharma-
cists have had the authority to discipline and suspend other employees He
also stated that pharmacists-are empowered to reprimand store employees
and are responsible for enforcing company rules. He noted that he informs
all new pharmacists that they will be in charge of the store in the manager's
absence. While he could not recall whether he himself had specifically told
the pharmacists they could send an employee home, he stated that he was
told by three of the store managers that they had informed their pharmacists
of their authority to suspend employees. He also noted that prior to becom-
ing district manager, when he was manager of the Alcoa store, a pharmacist
there had suspended an employee on three different occasions for refusing
to run the cash register He also related an instance where an employee in
the Tazewell Pike store (also here involved) had complained to him that
Pharmacist Campbell was being too strict with the employees in the store
Pharmacist Whaley, one of the five pharmacists who testified, stated that he
understood that enforcement of company rules against other employees was
part of his job and that he always assumed he had authority over other store
employees. He also testified that prior to the petition he had been told
specifically by his store manager that he had the authority to suspend an
employee Pharmacist Lovelace testified that prior to the petition he always
assumed he had authority over store employees and could suspend an em-
ployee if the situation warranted it. Pharmacist Bright stated that he consid-
ered himself "where the buck stops" and testified with respect to handling
a discipline problem that he would take what action was necessary to keep
the store running He also stated that prior to the district manager's speech
he knew he had the authority to discipline store employees and was told by
his store manager that he could formally write them up.
6 This review procedure has been in existence for some 3 years.
7 Sav-On Drugs, Inc, 138 NLRB 1032, 1035 (1962); see Walgreen Louisi-
ana Co., Inc., 186 NLRB 129; 182 NLRB 541 (1970). Contrary to the
Regional Director, we do not view the district manager's act of informing
pharmacists of their supervisory authority after the petition was filed as an
admission that such authority was first granted at that time.
ORDER
It is hereby ordered that the petition be, and it hereby
is, dismissed.
MEMBER FANNING, dissenting:
Unlike my colleagues, I am not persuaded that the
pharmacists and assistant managers-registered are
supervisors as defined in the Act and that the Regional
Director incorrectly directed an election in the unit
sought.
As stated by my colleagues, it is clear that the phar-
macists in dispute do not possess or exercise the au-
thority to hire, fire, or promote employees. Addition-
ally, there is no evidence they adjust grievances,
schedule vacations, interview or rate job applicants, or
evaluate other employees! Accordingly, -I am unable
to appreciate what my colleagues refer to as the "wide
range of authority" given to the pharmacists. If they
have any power of discipline-certainly not established
by this record-it appears to be rarely, if ever, exercised
and only in unique circumstances.' Not only was
there testimony by pharmacists that they were unaware
of any authority to discipline employees prior to the
district manager's postpetition speech, but the district
manager testified that he did not remember whether he
had ever told the pharmacists of their authority to
discipline before he spoke to them after the petition was
filed. He also testified that since he had been district
manager, a period of 3-1/2 years, he could not recall a
single instance when a pharmacist or assistant manag-
er-registered had sent an employee home for the rest of
the shift in any of the six stores.
After the petition was filed, the district manager
delivered a speech, which had been read to him over the
phone, to pharmacists and assistant managers-regis-
tered. Allegedly the speech was delivered because it
was apparent "that some of [the disputed employees]
had less than a clear understanding of what [the
Employer] always expected [of them] as one [sic] of [the
8 In fn. 4, my colleagues relate testimony in support of their conclusion
that the pharmacists possess supervisory authority. I regard such "au-
thority" as mere routine direction exercised only in the absence of the store
manager and which is attributable not to the supervisory authority of the
pharmacists but to their professional status and attendant maturity and
wisdom.
Although District Manager Denton testified that pharmacists relate their
opinions of other employees' work to him and to their store managers, there
is no evidence in the record of any action ever taken based upon a phar-
macist's opinion of another employee Indeed, Pharmacist Bright testified
that he knew of no instance in which his recommendation that someone be
fired had resulted in the discharge of such person Accordingly, I do not
consider this expression of opinion to be a meaningful evaluation by a
pharmacist of another employee's work.
9 Although my colleagues, in In 5, state that they find "ample evidence"
that the pharmacists have the authority to administer discipline, they cite
only one specific example where discipline was actually imposed by a phar-
macist. That incident took place at least 7 years ago-well before the Em-
ployer's district manager (who related the incident) was promoted to his
present position.
SUPERX DRUGS OF TEXAS, INC. 1105
Employer's} key employees to do." Viewed in the most
charitable manner, this speech demonstrates further
that the disputed employees were not aware of their
supervisory authority. Viewed less charitably, but per-
haps more realistically, this speech constitutes an at-
tempt by the Employer to "beef-up"" the authority
and responsibility of the pharmacists and, as the Re-
gional Director properly found, must be viewed with
suspicion.
Although my colleagues point out that the disputed
pharmacists are in charge of the store for periods rang-
ing from 18 to 71 hours of the total of 88 hours worked
by them each 2-week period, I note that most of the
pharmacists worked only 18-19 hours per 2-week
period when no store manager, assistant manager, or
other pharmacists was present. Moreover, as found by
the Regional Director, they spend between 85 and 95
percent of their time filling prescriptions and working
strictly in the pharmacy department of the store. All
employees know what work is expected of them and
generally perform their duties on their own. What
emerges from these facts is a picture of a store operat-
ing with salespeople and cosmeticians performing their
routine work while the pharmacist spends almost all his
time in the pharmacy. Obviously, major problems that
arise are postponed until the manager arrives. I hardly
consider calling in replacement employees from a list
maintained in the store to be the "exercise of their
independent judgment."
The review procedure for rating pharmacists appears
to be a ' method for evaluation of a pharmacist qua
pharmacist, not as a supervisor. Of the 12 categories or
10 See Ross PortaPlant, Inc., 166NLRB 494 (1967).
11 E g., sales performance , working relationships , drive, ambition
12 I interpret the use of the word "discipline" herein to be synonymous
with "orderliness" rather than the conventional discipline meted out by a
supervisor. I am led to this interpretation by the definition of an unsatisfac-
tory pharmacist as one who is a "negative influence on employees, who
avoid or ignore him. Creates disruption, which causes low morale in produc-
tivity."
13 Or "key employees" as they were referred to in the postpetition speech
"factors" to be treated," no category considers the
pharmacist's performance as a supervisor or his as-
sumption of authority over employees. The closest fac-
tor to evaluating the supervisory function is "leader-
ship." An outstanding pharmacist is one who is a
"strong leader, special asset to his manager in em-
ployees relations, discipline12 and assuring produc-
tivity. Employees trust him and seek him out for-advice
and direction." I would be more easily persuaded that
these pharmacists are supervisors if the review sheet
read "employees trust him and respect his directions
and assignments" rather than "seek him out for advice
and direction" which is a more appropriate considera-
tion of a leading and trusted employee.13
If these employees are required to exercise "discre-
tion in judgment," then they may be "professional em-
ployees" as defined in Section 2(12) of the Act, rather
than supervisors under Section 2(11). In other cases
where we have found pharmacists to be supervisors, we
have been presented with instances where the disputed
pharmacists clearly possessed more authority than the
employees herein. For example, in Walgreen Louisiana
Co., Inc., 186 NLRB 129 (1970), the pharmacists in
question was responsible for, inter alia, interviewing job
applicants and making recommendations on their suit-
ability, as well as making recommendations on promo-
tions.
Here, we have pharmacists who do not hire, fire,
reward, promote, schedule vacations, adjust griev-
ances, interview applicants, or rate other employees. It
is not established that they have any type of discipli-
nary powers-particularly since the district manager
admitted he- did not know of any instance within his
3-1/2-year tenure as district manager when a pharma-
cist so much as sent home an employee for the day. I
am distressed that my colleagues seek to stretch Wal-
green to encompass these pharmacists. By their deci-
sion here, my colleagues are making the rights and
protections of the statute an illusion for pharmacists. I
agree with the Regional Director.