110 N.L.R.B. 949 (N.L.R.B. 1954)

Liggett Drug Co., Inc.

National Labor Relations Board - Board DecisionsNov 19, 1954

110 N.L.R.B. 949 (N.L.R.B. 1954)

LIGGETT DRUG COMPANY, INC. 949 LIGGETT DRUG COMPANY, INC.1 and UNITED TRANSPORT WORKERS OF AMERICA, PETITIONER. Cave No. 10-RC-801. November 19, 1954 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 John S. Patton, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer, a Delaware corporation with its principal office located in New York City, operates approximately 175 retail drug stores in various States. The Petitioner seeks to represent employees at one store located in Miami Beach, Florida. During the 12-month period ending June 1, 1954, the sales at all the Employer' s stores totaled in excess of $10,000,000. During the same period, merchandise, equipment, and supplies valued in excess of $250,000 were shipped to the Miami Beach store from the Employer's warehouse in Atlanta, Georgia. We find, contrary to the contention of the Employer, that the Employer is engaged in commerce and that it would effectuate the policies of the Act to assert jurisdiction over its Miami Beach store in this proceeding. 2. The labor organization involved claims to represent certain employees 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 Petitioner seeks a unit of soda dispensers, sales clerks, food workers, stock clerk, dishwashers, and porters at the Employer's Miami Beach store, excluding supervisors, pharmacists, and clerical employees. The Employer contends that this unit is inappropriate and that the only appropriate unit is one including employees at all stores in its Falkenheimer district, in which the Miami Beach store is located. The Employer would also include pharmacists and clerical employees in such a unit. For managerial and operational purposes, the Employer's stores are divided into 10 districts. The Falkenheimer district contains 18 stores, all but 4 of which are in Florida. The district is headed by a district manager who is responsible for the operation of all stores in the district. He establishes personnel and labor policies for the en- tire district, including wage rates, hours, vacation benefits, sick leave, and the number of employees to be employed at each store. In addi- tion, all hiring, discharge, and wage increases are subject to his ap- proval, and discharges may be made only by him. 1 The Employer's name appears as amended at the hearing. 110 NLRB No. 157. 950 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD The local stores, however, also retain a degree of local autonomy. Each is headed by a store manager who supervises its daily opera- tions. The store managers hire employees and give wage increases, subject to the approval of the district manager. They effectively rec- ommend discharges. The Miami Beach store orders merchandise di- rectly from the Employer's Atlanta, Georgia, warehouse, and records kept at the Miami Beach store are forwarded directly to the Employ- er's New York office, without prior approval of the district manager. While work schedules are made up by the district manager, assign- ments of employees to the schedules are made by the store managers. Although it appears that there is frequent transfer and interchange of employees between stores within the district, it is evident that, be- cause the Miami Beach store is 147 miles from the nearest store in the district, temporary interchange of nonsupervisory employees between that store and other stores in the district would be unlikely. There is no bargaining history at any of the stores in the Falkenheimer dis- trict. In three other districts, districtwide units have been established by consent elections in which the Petitioner was not involved. Under all the circumstances, particularly the geographical separa- tion of the Miami Beach store from other stores in the Falkenheimer district, the absence of bargaining history for the stores in the Fal- kenheimer district, and the degree of local autonomy at the Miami Beach store, we find that a unit of employees at the Miami Beach store is appropriate.2 The pharmacists, whom the Employer would include and the Peti- tioner exclude, must be registered according to State law. They per- form all the duties usually performed by registered pharmacists and were conceded by the Employer's director of personnel to be profes- sional employees. We find that they are professional employees within the meaning of the Act.3 Under Section 9 (b) (1) of the Act, we are precluded from including professional employees in the same unit with nonprofessional employees unless a majority of the profes- sional employees vote for inclusion in such a unit. Ordinarily we would direct a self-determination election among the pharmacists to determine their desires in this respect 4 However, as it appears that the Petitioner has no showing of interest among the pharmacists, we will not conduct a separate election among them but will exclude them from the unit found appropriate herein.5 It appears that the only clerical employee employed in the Miami Beach store is a bookkeeper. In addition to her bookkeeping duties, 2 The United Cigar-Whelan Stores Corporation, 104 NLRB 409; V. J. Elmore 5Â¢, 10Â¢ aM $1 00 Stores , Incorporated ( Store No . 60), 99 NLRB 1505. 2 Walgreen Co of New York, Inc, 97 NLRB 1101, 1105 4 Walgreen Co. of New York, supra. a Sigmund Cohn Mfg. Co , Inc., 75 NLRB 177, 179. WALES-STRIPPIT CORPORATION 951 she also performs the duties of a sales clerk on occasion. In accord- ance with our usual practice for retail stores, we will include her in the unit .6 We find that the following employees of the Employer at its Miami Beach store constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All soda dispensers, food workers, busboys, dishwashers, soda porters, sales- clerks, stock clerks, bookkeeper, and porters, excluding the store mana- ger, assistant store managers, soda managers, assistant soda managers,' pharmacists, supervisors, and guards within the meaning of the Act. [Text of Direction of Election omitted from publication.] s Belk's Department Store of Savannah, Ga., Inc., 93 NLRB 729. 7 The record shows, and the parties agree, that the excluded managers are supervisors within the meaning of the Act. It appears that certain sales clerks are also designated as managers of the departments in which they work. They have no supervisory authority, and no one contends that they are supervisors. We find that they are not supervisors within the meaning of the Act, and they are included in the unit. WALES-STRIPPIT CORPORATION and LODGE 1691, DISTRICT LODGE 76, INTERNATIONAL ASSOCIATION OF MACHINISTS , AFL, PETITIONER. Case No. 3-RC-1447. November 19,1954 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 Murray S. Freeman, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 employees 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 for the following reasons: The Employer contends that its 2-year contract, entered into on September 1, 1953, with Workmen's Security Union, an independent labor organization, is a bar to this proceeding. The Petitioner con- tends that, as the contracting union is.defunct and, therefore, incapable of administering the agreement, the contract is not a bar. The record discloses that on August 3, 1954, pursuant to posted notices, a regular meeting of Workmen's Security Union was attended 110 NLRB No. 153.