 DRUG FAIRCOMMUNITY DRUG CO., INC.525Drug Fair-Community Drug Co.,Inc.andMetropolitanGuild of Pharmacists,Petitioner.Case 5-RC-6872December31, 1969DECISION AND DIRECTION OFELECTIONBY CHAIRMAN MCCULLOCHAND MEMBERSFANNING AND BROWNUpon a petition duly filed under Section 9(c) oftheNational Labor Relations Act, as amended, ahearingwas held before William Shooer, HearingOfficerof the National Labor Relations Board.Following the hearing and pursuant to Section102.67 of the National Labor Relations Board RulesandRegulations and Statements of Procedure,Series 8, as amended, and by direction of theRegionalDirector for Region 5, this case wastransferred to the National Labor Relations Boardfor decision. The Petitioner filed a brief and a replybrief.The Employer filed a brief and an answeringbrief to Petitioner's reply brief.The Board' has reviewed the Hearing Officer'srulingsmade at the hearing and finds that they arefree from prejudicial error. The rulings are herebyaffirmedUpon the entire record in this case, the Boardfinds:1.The Employer is engaged in commerce withinthemeaning of the Act, and it will effectuate thepurposes of the Act to assert jurisdiction herein.2.The labor organization claims to representcertain employees of the Employer.3.A question affecting commerce existsconcerning the representation of employees of theEmployer within the meaning of Section 9(c)(1) andSection 2(6) and (7) of the Act.4.Petitioner seeks to represent all pharmacistsand interns employed by the Employer at all of itsstores located inWashington, D.C., Laurel, Md.,Montgomery and Prince George's counties inMaryland,AlexandriaCity,FairfaxCity,FallsChurch City and Arlington, Fairfax, Loudoun, andPrinceWilliams counties in Virginia, but excludingallother employees, guards and supervise ^ asdefined in the Act. The Employer maintains that theunit requested by the Petitioner is inappropriate,and takes the position that the only appropriate unitwould be employerwide.The Employer is a Maryland corporation with itsgeneral offices and distribution center in Alexandria,Virginia. It operates a chain of retail drug stores intheDistrict of Columbia, Maryland, Virginia, WestVirginia, and Delaware. There are 116 stores in thechain employing some 300 pharmacists and interns,'Pursuant to the provisions of Section 3(b) of the National LaborRelationsAct, as amended, the National Labor Relations Board hasdelegated its powers in connection with this case to a three-member panelbutnotcountinganadditionalnumberofpharmacistswho are also managers or assistant;.Tanagersof their stores, and who the partiesstipulated were supervisors. The unit petitioned forwould include about 82 stores, employing about 200pharmacists and interns, and would exclude about34 remaining stores in the chain, at which 100pharmacistsandinternsareemployed.ThePetitionercontendsthattheincludedstoresconstituteanappropriate unit because they arelocated,withoneexception,withintheFederally-designatedWashington metropolitan area.Ultimate responsibility over all of the Employer'spharmacists resides in three officials: Myron Gerber,Chairman of the Board and Executive VicePresident,EdwardSpearbeck,DirectorofProfessionalRelations, and John Jones, AssistantDirector of Professional Relations. Spearbeck andGerber are professional pharmacists. These threemen do all of the recruiting, hiring, firing, anddiscipliningof pharmacists, and determine theirhours of work, salaries, and fringe benefits. Theyassign the pharmacists to specific stores, and areresponsibleforpermanenttransfers.Theyperiodically visit all of the stores in the chain.Pricingpoliciesforprescriptionsdispensedbypharmacists are centrally determined, and these areuniform throughout the chain.Allpharmacistsreport their prescription sales daily to the centraloffice.Allpayrollchecksarepaidfrom theaccounting department in Alexandria. All stores inthechainaresuppliedfrom the Alexandriadistribution center. Some 90 percent of the drugssold by the stores in the chain is obtained from thedistributioncenter in Alexandria, which supplieseach store on a weekly basis. Some 10 percent ofthe drugs sold are ordered by the pharmacists in theindividual store from a local wholesaler in order tofill gaps in the inventory.The Employer holds periodic meetings of all thepharmacists in the chain. The number of thesemeetings varies from one to several per year. Theyare held in Alexandria. At these meetings, wage andfringebenefitsprogramsarediscussedandannounced.Below the central office, the chain is divided intosevendistricts,eachsupervisedbyadistrictmanager. Five of the seven districts are eitherentirely within or entirely outside the proposed unit.The two divided districts (districts 2 and 5) have,respectively, 6 stores in the proposed unit and 10out, and 16 in and 6 out. While the powers of thedistrictmanagers were not extensively discussed atthehearing,some testimony relating to theirresponsibilitieswas elicited. From this, it wouldappear that district managers supervise pharmacists"no more than as to their being to work on time,their appearance, their manner with customers ...,"according to the testimony of Chairman of theBoardMyron D. Gerber. As to their power todiscipline pharmacists, Gerber testified that district180 NLRB No. 94 526DECISIONS OF NATIONAL LABOR RELATIONS BOARDmanagerswouldinsome instances"pass on" acautionaryword,forexample,inthecaseofrepeated tardiness.Districtmanagers do authorize"reliefarrangements"forpharmacists,namelytemporaryinterchangeof employees to cover, forexample, a night shift or a vacancy one night eachweek in another store.Otherthan as discussed, itappears that neither store managers nor districtmanagers exercise any substantial control over thepharmacists.Petitioner, an independent guild of pharmacistswhosemembership is predominantly employed intheWashington metropolitan area,seeks a unit ofpharmacists,includinginterns,inalloftheEmployer'sstoreslocatedinthegreaterWashington,D.C.- Maryland- Virginia"StandardMetropolitanStatisticalArea,"asdefined by the Executive Office of the PresidentBureau of the Budget,as of March, 1967. Thegeneral concept of a "Metropolitan Area"isone ofan integrated economic and social unit with arecognized large population nucleus.'For the general statistical use of governmentagencies in appraising metropolitan problems, theBureau of the Budget has developed criteria fordefining"metropolitan areas."The purpose of suchdefinition is to establish and label those segments ofthepopulacewhich,on the basis of populationdensity,population character, and integration ofsocial and economic communication,share commonmetropolitan characteristics,needs, and problems.According to these criteria used by the Bureau oftheBudget,3some 200 pharmacists in 84 storeslocated inWashington,D.C.,Montgomery andPrince George's counties in Maryland,the cites ofAlexandria, Fairfax and Falls Church in Virginia,andArlington,Fairfax,LoudounandPrinceWilliamcounties inVirginia,fallwithintherecognized statistical metropolitan area.'During thecourseof the hearing,Petitioneramended itspetition to include one store in Laurel,Maryland,which store was outside of the unit originallyproposed.The Employer has two stores in Laurel.One, located in Prince George's County, is withinand the other,just outside the county line, is outsidetheWashington Statistical Area. They are, however,positioned within a mile of each other.Both of thesestores are in the same administrative district of theEmployer. At the hearing the Employer focused ontheexclusionof the second Laurel store as adramatic example of the allegedly arbitrary natureof the proposed unit. Subsequent to this, Petitioneramended the petition to include it.'P. vii,Standard Metropolitan Statistical Areas,1967, Executive Officeof the President,Bureau of the Budget(U.S. Government Printing Office1967-0.257-095).'See generallyId.pp.1-3,for the criteria followed in establishingstandard metropolitan statistical areas.'At the extremes,the remaining 32 stores in the chain outside of theproposed unit have the following characteristics.To the north,the Dover,Delaware store is 102 miles from Washington.Northwesternmost is thestore inCumberland,Maryland,140miles fromWashington.TheOn the question of permanent and temporaryinterchange of employees, the Employer submittedan exhibit compiled from memory by EdwardSpearbeck,DirectorofProfessionalRelations.Spearbeck also testified at the hearing on thisquestion. From these sources it would appear thatapproximately 75 instances of employees beingtransferred either into or out of the proposed unittook place over the past 10 years, though a majorityof these occurred in the last four years. While thefiguresarenot entirely free from ambiguity, itwouldappearthatofthese75instances,approximately 50 were permanent transfers, andapproximately25were temporary or "relief"transfers.Spearbeck,moreover, testified that thepermanent transfers were primarily transfers tonewly opened stores from older established ones.On these facts, Petitioner contends that the unitsought is appropriate on the grounds set forth by theActingRegionalDirectorinDrugFair-CommunityDrugCo.,Inc.,5-RC-6147(unpublished),when,ina case involving the sameEmployer, he directed an election in a unit ofpharmacistscoextensivewiththeWashingtonmetropolitan area. The Acting Regional Directorreliedon the principle that employees workingwithin the metropolitan area have similar social andeconomic interests, citingCrown Drug Company,108 NLRB 1126.Petitioner points out that pharmacists within theWashingtonmetropolitanareafacesimilareconomic problems and to that extent enjoy acommunity of interest not shared by those outsidethemetropolitan area.Petitioner further cites, as afactor favoring the smaller unit it seeks over thecompany-wide unit urged on us by the Employer, itsown small size, recent organization,lackofprofessionalstaff,andconsequent inability toadequatelyrepresentemployees on the broaderbasis.The Employer contends that the only appropriateunitiscompany-wide, stressingprincipallyitscentralizedadministrativestructurerelatingtopharmacists.TheEmployernotesthatthreecompany officials whose offices are in Alexandriado all of the recruiting, hiring, firing, anddisciplining,andthattheyschedulehours,assignments,andpermanent transfers.Allitspharmacists participate in its fringe benefits, whichare uniform throughout the chain. Contending that acompany-wide unit is the only sensible one in thesecircumstances, the Employer points out that thecompany-wide unit was the one alleged to beappropriate by the General Counsel in a complaintissued inDrug Fair - Community Drug Co., Inc.,Martinsburg,West Virginia, store is 78miles westofWashington. TheMadison Heights,Virginia,store is 180 milessouthwest. The Salisbury,Maryland,store is 124miles northeast of Washington.The Williamsburg,Virginia,storeis 154miles to the south.Eight of the 32 stores are locatedinBaltimore,three inRichmond.On the otherhand,some of the storesoutside the unit would be within a few milesfrom stores in the unit. DRUG FAIR - COMMUNITY DRUG CO.,5275-CA-3037, on August 12, 1965. The Employer alsorefers to unsuccessful attempts in the past toorganize it on a companywide basis, and cites thislabor relations "history"as an additional reason fordismissing this petition for a smaller unit. Moreover,theEmployer argues that a"metropolitan area"unit applies an irrelevant and arbitrary geographicalstandard,since it would leave out of the unit storesno more than1,2, 5 or10 miles from unit stores,while including stores up to 50 miles apart.Finally,theEmployer contends that pharmacists may berepresented separately from its other employees onlyif they are found to be professionals.At the hearingPetitionerdeclinedtostipulatethatthesepharmacists are professionals,and no evidence onthis question was presented.'In essential agreementwith the position of thePetitioner,we find that the proposed metropolitanunitisappropriate. Under the statutory scheme forpromoting the national policy of "encouraging thepractice and procedure of collective bargaining and[of]protecting the exercise by workers of fullfreedomofassociation,self-organization,anddesignation of representatives of their own choosingtheBoard has been given a mandate to"decide in each case whether,inorder to assure toemployees the fullest freedom in exercising therightsguaranteedby this Act, the unit appropriatefor the purposes of collective bargaining shall be theemployer unit,craft unit, plant unit, or subdivisionthereof."'TheEmployer,however,takestheposition that the Board'saffirmativemandate iseffectively circumscribed on the facts of this case bythe stricture of Section 9(c)(5) of the Act, whichprecludes extent of employee organization as thecontrollingjustificationforfindingaunitappropriate. The Employerarguesin its brief:. .. Petitioner'sproposed unit is based solely onextent of organization.There are no objectivecriteriato justifya finding that the Petitioner'sproposed unit may be appropriate because thefactsshowconclusivelythatnoaspectofgeographical location affects a pharmacist's rateof pay, job content or professional duties,fringebenefits or any other facet of his relationship withthe Company.Contrary to the Employer,we believe that theproposedmetropolitan geographical area unit issupported by substantial nonorganizational factors.The Bureau of the Budget has concluded that thearea encompassed by the proposed unit (with thesingle exception of the added store in Laurel) is aseparately definable metropolitan entity, presumablysharingand facing those needs and problemspeculiar to such a community,and enjoying a large'We note that in our past decisions,pharmacists have been considered tobe professionals and as such were entitled to separate representation.Crown DrugCompany,108 NLRB 1126,Longs Stores,Inc.,129 NLRB1495.'Section I of the National Labor Relations Act,as amended'Section 9(b) of the Act.measure of economic and environmental integration.In the legislative history of the 1947 amendments totheAct, Senator Taft, in answering criticism ofSection 9(c)(5), said:Opponents of the bill have stated that it preventsthe establishment of small operational units andeffectively prevents organization of public utilities,insurance companies, and other business whoseoperations are widespread. It is sufficient answerto say that the Board has evolved numerous teststodetermineappropriateunits,suchascommunity of interest of employees involved,extent of common supervision, interchange ofemployees,geographical considerations, etc., anyone of which may justify the finding of a smallunit. 0InCrown Drug Company,'ina factual contextsimilar to that presented here, the Board foundappropriate a unit of 31 drugstores in the greaterKansasCitymetropolitanarea,which includedstores in two states. The employer had a total of 69stores in 3 states. There, too, the employer'soperationswerehighlycentralized,andanemployer-wideunitwouldalsohavebeenappropriate. As we stated in that case, however, ". ..the factors relating to the integration of theEmployer's operations are not alone determinativeof the question."10 The Board cited,inter alia,thesimilarityincommunityof interestsof theemployees obtaining from the social and economicintegration of the large metropolitan area in whichtheyworked.As we stated inMetropolitan LifeInsuranceCompany(Woonsocket,R.I.I:""Multiplant and multistore units which include allemployees in all the plants or stores in a definedarea are commonplace and have proved workable."We reject the Employer's contention that becausethe Board or its representative has earlier found abroader unit appropriate," it may not also find thenarrower unit proposed here appropriate. As theCourt noted inLocal 1325,RetailClerks v.N.L.R. B.,' 3theexistenceof an alternative unit'93 Cong. Rec. 7002 (June 12, 1947); Leg. Hist of LaborManagementRel. Act, 1947, p.1625. (Emphasis supplied.)'108 NLRB 1126."johncarlson@example.org other cases in which the Board has found appropriatemetropolitan geographical units even though they do not coincide with theemployer's administrative Imes, seeWeisMarkets,Inc,142NLRB 708(two citywide units);Barr's Jewelers,131NLRB 235 (storeinNorfolk,Va., excluded from unit of 10 stores located in Philadelphia,Pa. region),MetropolitanLifeInsuranceCompany.138NLRB512 (Sixoffices inCleveland and three suburban offices found appropriate)"156 NLRB1408, 1415, fn. 18."In 1961, the Regional Director directed an election in an employerwideunit in a case involving this same Employer in CaseS-RC-3567(unpublished)Most recently, however,inCase S-RC-6147, the ActingRegional Director directed an election in a metropolitan area-wide unitinvolving this same Employer.The Board denied the Employer's requestfor review of the Acting Regional Director'sdecision and direction ofelection on December 4, 1967-3414 F.2d 1194 (C.A.D C.),denying enforcementto 171 NLRB No. 13. 528DECISIONS OF NATIONAL LABOR RELATIONS BOARDwhich is "appropriate" does not preclude the Boardfrom ordering an election in another unit which isalso appropriate. SeeHaag Drug Co.,169NLRBNo. 111;Dixie BellMills, Inc.,139NLRB 629,631.In sum, and after consideration of the Employer'sarguments regarding its administrative centralizationand the apparently minimal transfer and interchangeexperience throughout the chain, we find that theappropriateness of the metropolitan area unit hereproposed is supported by substantial factors ofeconomic,demographic,socialandgeographicintegration,and shall direct an election therein.We find that the following employees of theEmployer constitute a unit appropriate for purposesof collectivebargainingwithin themeaning ofSection 9(b) of the Act:All pharmacists and interns employed by theEmployer at all its stores located in Washington,D.C.,Laurel,Md.,Montgomery and PrinceGeorge's counties in Maryland,Alexandria City,Fairfax City, Falls Church City, and Arlington,Fairfax,Loudoun and Prince William counties inVirginia,butexcludingallotheremployees,guards, and supervisors as definedin the Act.[Direction of Election"omitted from publication.]"In order to assure that all eligiblevoters mayhave theopportunity tobe informed of the issues in the exerciseof their statutory right to vote, allparties to the election should have access to alistof votersand theiraddresseswhichmay beused to communicatewith themExcelsiorUnderwearInc,156 NLRB 1236;N.L R B v Wyman-Gordon Company,394 U S 759. Accordingly,it isherebydirected that an election eligibilitylist, containing the names and addresses of all eligiblevoters, must be filedby the Employerwith the Regional Director for Region5 within 7 days ofthe date of this Decision and Directionof Election.The RegionalDirectorshallmake the list available to all parties to the electionNo extension oftime to file this list shall be grantedby theRegional Director except inextraordinary circumstances.Failure tocomplywith this requirement shallbe grounds for setting aside the electionwhenever proper objections arefiled
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