Walgreen Co.

National Labor Relations Board - Board Decisions

Jan 31, 1977

227 N.L.R.B. 1853 (N.L.R.B. 1977)

WALGREEN CO.
Walgreen Co. and Edward F. Kowal . Case 38-CA-
2683
January 31, 1977
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On September 17, 1976, Administrative Law Judge
Irwin H. Socoloff issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General Counsel
and Charging Party filed briefs in support of the
Administrative Law Judge's Decision.
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 has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, fmdings,1 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Walgreen Co., Pekin, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 1(b):
"(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act to engage in
concerted activities for their mutual aid and protec-
tion or to refrain from such activity."
2. Substitute "Officer-in-Charge for Subregion
38" for the references in paragraphs 2(d) and (e) to
"Regional Director for Region 38."
3. Substitute the attached notice for that of the
Administrative Law Judge.
I The Administrative Law Judge 's reference to "the Regional Director for
Region 38" in the first sentence of the first paragraph of his Decision is
hereby corrected to read "Officer-in-Charge for Subregion 38 "
2 In par. l(b) of his recommended Order the Admi nistrative Law Judge
uses the narrow cease-and -desist language , "like or related," rather than the
broad injunctive language, "m any other manner." As discharges for
engaging in protected concerted activity affect "the very heart of the Act,"
they warrant the use of the broad injunctive order . See N.LR.B v Entwistle
Mfg Co, 120 F.2d 532, 536 (C A 4, 1941); Waco Insulation, Inc, 223 NLRB
1486 (1976) Accordingly , we shall modify the recommended Order to
require Respondent to cease and desist from in any other manner infringing
upon employee rights
227 NLRB No. 271
APPENDIX
1853
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge employees for engaging
in concerted activities for their mutual aid or
protection.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed in the National Labor
Relations Act.
WE WILL offer Edward F. Kowall immediate
and full reinstatement to his former position or, if
such position no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights or privileges.
WE WILL make Edward F. Kowal whole for any
loss of earnings because of the discrimination
against him, plus 6-percent interest.
WALGREEN CO.
DECISION
STATEMENT OF THE CASE
IRwIN H. SocoLOFF, Administrative Law Judge: Upon a
charge filed March 3, 1976, by Edward F. Kowal, an
individual, against Walgreen Co., herein called the Respon-
dent, the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 13, issued a
complaint dated April 22, 1976, alleging violations by the
Respondent of Section 8(a)(1) and Section 2(6) and (7) of
the National Labor Relations Act, as amended, herein
called the Act. Respondent, by its answer, denied the
commission of any unfair labor practices. Pursuant to
notice a hearing was held before me in Peoria, Illinois, on
June 16, 1976. All parties were represented by counsel and
were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence. There-
after, the parties filed briefs which have been duly consid-
ered.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Walgreen Co. is an Illinois corporation engaged in the
retail sale of pharmaceutical and sundry items at its store
located in Pekin, Illinois , and at other locations in the
United States. During the year preceding issuance of the
complaint, a representative period, Respondent purchased
and received goods and materials , valued in excess of
$50,000, at its Pekin, Illinois, store which were shipped
directly to it from points located outside the State of
Illinois. In this same period of time, Respondent had gross
1854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sales in excess of $500 ,000. I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
There is no labor organization involved in this case.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent operates four retail stores in the Peoria,
Illinois , area, three of which are located in Peoria itself,
while the fourth is situated in Pekin, Illinois . On December
8, 1975, the pharmacists employed in those stores gathered
at a local restaurant and discussed, inter alia their concerns
with respect to wages, hours, and working conditions. In
attendance at that meeting was one "Butch" Daugherty, a
pharmacist, who is also the manager of one of Respondent's
Peoria stores, and an acknowleged supervisor within the
meaning of the Act. General Counsel contends, and
Respondent denies, that Daugherty's presence at said
meeting constituted an act of unlawful surveillance by
Respondent of its employees' activities in violation of
Section 8(a)(1) of the Act.
On February 20, 1976, pharmacist Edward F. Kowal, a
principal organizer of, and spokesman at, the December 8
meeting, was discharged. General Counsel and Charging
Party assert that the discharge was in reprisal for protected
concerted activity engaged in by Kowal at, and subsequent
to, the December 8 gathering. Respondent contends that:
(1) Kowal was discharged for cause; (2) in any event, he
was not engaged in concerted activity at the time of the
discharge; and (3) since , on every second Sunday, Kowal
was placed in "sole charge" of the Pekin store, he was
statutory supervisor, not entitled to the protection of the
Act.
B. The December 8, 1975, Meeting'
Edward Kowal worked as a pharmacist at Respondent's
Pekin , Illinois, store from August 1974 until his discharge
on February 20, 1976.2 In November 1975, he suggested to
fellow pharmacist Ronald Roegge that a meeting be held
among the pharmacists working at the four area Walgreen
stores so that those employees could meet each other and
discuss their grievances with respect to wages, hours, and
working conditions . Roegge agreed , and, thereafter, took
the initiative in arranging such a meeting which , as noted,
occurred on December 8. Roegge issued invitations to the
pharmacists , chief pharmacists , pharmacist interns, store
i Unless otherwise indicated, the factfindmgs contained in this section are
based on the credited testimony of Edward Kowal , as well as the generally
confirmatory testimony of pharmacist Ronald Roegge . To the extent that
there are minor differences in their respective descriptions of events, I have
accepted Kowal 's version as the more accurate account. Roegge was not an
evasive witness and I have evaluated his testimony in that light
2 Kowal arrived in Pekin following his transfer from a Walgreen store
located in Chicago The transfer was at his request Kowal had previously
worked for Respondent from June 1962 until January 1964 , as a pharmacist,
from January 1967 until July 1970, as a pharmacist , assistant store manager,
and, finally, as a store manager, and from December 1971 until the August
1974 transfer to Pekin, as a pharmacist, assistant store manager , and store
manager The first interruption in his tenure was necessitated by military
managers , and the district manager. Ultimately, the meet-
mg was attended by nine pharmacists, including two chief
pharmacists 3 and pharmacist-store manager Daugherty. At
the outset, after noting Daugherty's presence, Kowal asked
Roegge why Daugherty was there. Before Roegge could
respond, Daugherty asserted: "I'm a pharmacist, too, so
anything that you would stand to gain would be beneficial
to me." Neither Kowal nor Roegge responded, and
Daugherty was not asked to leave.
After food and beverage, accompanied by general
conversation, Kowal introduced the topics of wages, hours,
and relief help during vacation periods. The pharmacists
discussed those matters and agreed to seek a wage increase
(from $7.75 to $8.50 or $9 per hour), reduced hours (from 44
to 40 per week), and relief help (in order to avoid working
12-hour shifts during vacation and other periods). At
Kowal's suggestion , they decided that each pharmacist
would individually approach the district manager with
those requests when the latter visited the stores. Kowal also
urged that the group meet again in February, and that idea
was also accepted.
As the meeting closed, Daugherty picked up the check
and stated that it was "on the Walgreen Company" and
would be charged to the four stores. When Kowal attempt-
ed to pay his share, Daugherty said: "I have authorization
to pick up the tab."
I conclude that the General Counsel's contention, that
Daugherty's presence at the December 8 meeting consti-
tuted an act of unlawful surveillance by Respondent, must
be rejected. Daugherty, among others of Respondent's
supervisors, including the district manager, was an express
invitee. He was not asked to leave, and he did not engage in
disruptive conduct. Moreover, Daugherty informed the
employees that he was attending the meeting as a pharma-
cist. Certainly, there is no evidence that his attendance was
at the behest of Respondent. In these circumstances,
neither his mere presence, nor his decision, on behalf of
Respondent, to pay for the food and drink, can be
construed as acts tending to interfere with the exercise of
Section 7 rights. I find and conclude that Respondent did
not violate the Act in that regard.4
C. The Discharge of Edward F. Kowal5
Following the pharmacists' meeting, and shortly before
Christmas 1975, Kowal saw then District Manager Zarkow-
ski, informed him of the meeting, and stated that the area
pharmacists, as a group, were raising certain issues with
respect to wages, hours, and relief help. Zarkowski stated
that management personnel would hold a meeting with
respect to the subject of wages. As to relief help, Zarkowski
service and the second occurred when he pursued a personal business
venture.
3 According to the credited uncontradicted testomony of Girard A. De
Lisle, Respondent's professional services representative, chief pharmacists,
inter olio, have the authority to fire employees working in the pharmacy
departments On that basis, I find that such chief pharmacists are supervisors
within the meaning of the Act
4 Fraley & Schilling, Inc, 211 NLRB 422 (1974), Eldo-Craft Boat Co, Inc,
166 NLRB 280 (1967)
S Unless otherwise indicated, the factfindings contained in this section are
based upon the testimony of Kowal, and that of Respondent 's district
manager, Waldo Narr
WALGREEN CO. 1855
informed Kowal that the store was not transacting suffi-
cient business to justify it.
In January 1976 Kowal approached the new district
manager , Waldo Nan, as Nan was moving into his office at
the Pekin store. Kowal told Nan that the Peoria and Pekin
pharmacists had met, and were seeking better wages, hours,
and working conditions. Nan stated that Walgreen officials
would meet on the wage issue . He questioned the economic
feasibility of relief help.
About this same time, Kowal's wife sent a letter to
Respondent's professional services office, asking for relief
help for the pharmacists. The letter noted:
I know the Union is in force in Chicago and not here
(yet) but I really think this is unfair.
In response , M. L. Barnd, director of professional services,
informed Mrs. Kowal that the matter would be investi-
gated. Thereafter, both Mrs. Kowal's letter and Barnd's
response were shown to District Manager Nan.
On February 2, 1976, Store Manager George Enerson
told Kowal that Nan was upset about Kowal's toll calls to
his home during the month of January, amounting to $7 or
$8 in telephone bills. Kowal volunteered to reimburse
Respondent and, on February 3, 1976, issued his check for
$8 and handed it to Enerson. Kowal further agreed to cease
making personal calls from the pharmacy telephone and,
thereafter, complied with that promise.
About I week later, on February 9, 1976, while conduct-
ing a routine supervision trip, Nan entered the Pekin store
pharmacy and checked the inventory. He told Kowal that
he thought that there was an excess of certain items, but
readily accepted Kowal's explanations. According to Kow-
al:
And this started to aggravate me and antagonize me
and I told Mr. Nan, I says, "Before you start nickel and
diming me with my inventory, I suggest you come
across with some of our requests concerning wages,
hours and vacation help."
Kowal further stated that Walgreen's financial problems
were at the top and not at the store level. Narr's response
was that he thought Kowal had a bad attitude toward the
Company and that he, Nan, could not understand why a
man with such a dislike for a company proceeded to stay
with it. Kowal then asked Nan to refrain from making
passive threats and Nan stated that Kowal was speaking in
a loud tone of voice, permitting customers to hear him and,
also, was in violation of company policy by smoking in the
pharmacy. Kowal answered that he was not going to stand
there for 8 to 12 hours without eating or smoking. Further,
unless relief help was provided during vacation periods,
Kowal stated that he would work 8 hours and then "I'll
close the goddamn window" and go home. Nan reiterated
that he thought Kowal had a bad attitude and that, since
Kowal so disliked the Company, Nan could not under-
stand why Kowal stayed. Nan further informed Kowal that
he should register his complaints with the store manager
and the district manager, and not with fellow employees
who could do nothing about them.
On February 20, 1976, Nan summoned Kowal to the
office and, in the presence of Store Manager Enerson, Nan
proceeded to discuss with Kowal various points which Nan
had noted on a disciplinary slip or evaluation sheet. Nan
complimented Kowal with respect to his appearance, and
his skills as a pharmacist, but criticized him for discussing
his problems with other employees. He told Kowal that he
was too defensive and unable to accept criticism. Nan
further stated that it showed poor "profit sense" to ask for a
wage increase at a time when the store was not doing well,
and to request relief help when the pharmacy did insuffi-
cient business to justify it. Kowal was further criticized for
smoking in the pharmacy and for a "gross violation of
Company policy" in making unauthorized long-distance
telephone calls. Nan also referred to certain unspecified
customer complaints. Finally, he again informed Kowal
that he, Nan, could not understand why a man with
Kowal's bad attitude toward, and dislike for, the Company
would stay. Toward the end of the meeting, Kowal asked
Nan if the latter expected Kowal to sign the evaluation
form. Nan responded, stating that if Kowal did sign the
form he would be granted an additional 2 weeks to improve
his performance. On the other hand, stated Nan, "Well, if
you do not sign it your services will no longer be needed."
Kowal declined to sign it, turned over his store keys, and
left.
The record evidence clearly establishes that, at the
December 8 meeting, and in their subsequent conversations
with the district managers , Kowal and his fellow pharma-
cistss were engaged in concerted activity, protected under
Section 7 of the Act. It is equally clear, from the testimony
of both Kowal and Nan, that Kowal's activities in that
regard formed the basis for much of the criticism leveled at
him by Nan at the February 20 termination meeting. Thus,
Nan utilized the wage and relief help demands as evidence
of "poor profit sense ." He chastized Kowal for discussing
pharmacy problems with his fellow employees. Attempts at
securing better working conditions were interpreted by
Nan as evidence of a poor attitude toward Respondent.
In addition to the foregoing, I am of the view that the
criticisms pertaining to personal telephone calls, smoking in
the pharmacy area, and customer complaints, were pretex-
tual in nature, designed to mask the true reasons for the
discharge. Thus, Store Manager Enerson testified that, both
before and after February 20, the rule prohibiting smoking
in the pharmacy area was not strictly enforced. Pharmacist
Ramsa, who succeeded Kowal immediately after the
February 20 discharge, testified that she often smoked both
inside and alongside the pharmacy, in the presence of
Enerson, without incident. Kowal testified that both the
store manager and assistant manager repeatedly smoked in
the pharmacy area . The testimony of those three witnesses
was similar with respect to personal use of the pharmacy
telephone.
As to customer complaints, Nan claimed that his
information in that regard came from Enerson. Yet,
Enerson, in his testimony, could not cite a single instance of
6 Narr testified that all of the area pharmacists raised the wage issue with
him, although, only Kowal raised it repeatedly. Kowal was also the only
pharmacist to discuss hours and relief help with Narr.
1856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a customer complaint against Kowal. Enerson further
testified that, prior to February 20, he had not found it
necessary to bring to Narr's attention any complaints about
Kowal. In addition, according to Enerson, Kowal was an
excellent pharmacist. During his tenure at the Pekin store,
the average number of daily prescriptions filled at the
pharmacy rose from 35 to 40, to 70 to 75. Nan, in his
testimony, termed this a "substantial increase."
Nan's testimony is suspect in yet another regard. Thus,
he testified that he had no intention of terminating Kowal
prior to the February 20 meeting, and did so only because
of Kowal's refusal to sign the evaluation form. Yet,
according to the credited rebuttal testimony of Julie
Ramsa , Nan informed her, some 10 days before February
20, that she might be transferred to the Pekin store to
replace a pharmacist who had displayed a bad attitude
toward customers and toward management.
In light of Kowal's obvious leadership role in the
pharmacists' attempts to improve their wages and working
conditions; Narr's awareness of, and demonstrated antipa-
thy toward, that role: the pretextual nature of many of
Nan's criticisms of Kowal; and Kowal's long and success-
ful employment relationship with Respondent, and his
conceded excellence as a pharmacist, the conclusion is
warranted that Nan decided to discharge Kowal in reprisal
for his activities, in concert with his fellow employees, in
seeking improved wages and working conditions. I further
conclude that the February 20 meeting was held, not for the
purpose of evaluation, but to effectuate this unlawfully
motivated discharge. The discharge was, thus, in violation
of Section 8(ax l) of the Act.7
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), I shall
recommend that it be ordered to cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
r 1 further reject Respondent 's assertion that Kowal was a supervisor
within the meaning of Sec . 2(11) of the Act at the time of his discharge That
contention is premised on Enerson's testimony that, on every second
Sunday, Kowal was in "sole charge " of the store with responsibility for cash,
cash "pulls," and the attendance and performance of the employees
scheduled to work that day However , Sunday work schedules were prepared
by Enerson and, when an employee failed to report to work , a replacement
list, also prepared by Enerson , was utilized . Enerson also prepared, in
advance , a list of work assignments for each employee . Thus, in actuality,
Kowal played little , if any, role in the assignment of work I conclude that the
CONCLUSIONS OF LAW
1. Walgreen Co. is an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. By discharging Edward F. Kowal on February 20,
1976, because he engaged in protected concerted activities,
Respondent has interfered with, restrained, and coerced
employees in the exercise of rights guaranteed in Section 7
of the Act, and has thereby engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
4. Respondent did not violate the Act by engaging in
surveillance of employee activities.
Upon the foregoing findings of fact, conclusions of law,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 8
Respondent Walgreen Co., Pekin, Illinois, its officers,
agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging employees because they engage in
concerted activities for their mutual aid and protection.
(b) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act to engage in concerted
activities for their mutual aid and protection or to refrain
from such activity.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Edward F. Kowal immediate and full
reinstatement to his former position or, if that position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges.
(b) Make Edward F. Kowal whole for any loss of pay he
may have suffered by reason of the Respondent's discrimi-
nation against him by payment to him of a sum of money
equal to that which he normally would have earned as
wages from the date of the discrimination to the date of
Respondent's offer of reinstatement, less his net earnings
during such period, in accordance with the formula
prescribed in F. W. Woolworth, Company, 90 NLRB 289
(1950), with interest thereon at the rate of 6 percent per
annum, as set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1%2).
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
record evidence fails to establish that Kowal possessed authority to give
responsible direction to the work force , or otherwise engage in supervisory
activities . At most, on every second Sunday , he performed the function of a
"work leader." See Hawaiian Telephone Company, 186 NLRB 1(1970).
6 In the event no exceptions are filed , as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102.48
of the Rules Regulations, be adopted by the Board and become its findings,
conclusions and Order, and all objections thereto shall be deemed waived for
all purposes.
WALGREEN CO. 1857
payroll records and all other records necessary to analyze
the amount of backpay due under the terms of this Order.
(d) Post at its establishment in Pekin , Illinois, copies of
the attached notice marked "Appendix." 9 Copies of said
notice , on forms provided by the Regional Director for
Region 38 , after being duly signed by Respondent's
authorized representative , shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 38, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
9 In the event that the Board's Order is enforced by a Judgment of a to a Judgment of the United States Court of Appeals Enforcing an Order of
United States Court of Appeals, the words in the notice reading "Posted by the National Labor Relations Board."
Order of the National Labor Relations Board" shall read "Posted Pursuant