The Smith-Dorsey Co.

In the Matter of THE SMITH-DORSEY COMPANY and UNITED RETAIL, WHOLESALE & DEPARTMENT STORE EMPLOYEES OF AMERICA, C. I. O. Case No. 17-R-1069.-Decided April 20,19-115 Mr. Frank D. Williams, of Lincoln, Nebr., for the Company. Mr. Frank W. Cronin, of Omaha, Nebr., for the Union. Mr. Jack Mantel, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon an amended petition duly filed by United Retail, Wholesale & Department Store Employees of America, C. I. 0., herein called the Union, alleging that a question affecting commerce had arisen con- cerning the representation of employees of The Smith-Dorsey Com- pany, Lincoln, Nebraska, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Margaret L. Fassig, Trial Examiner. Said hearing was held at Lincoln, Nebraska, on March 6, 1945. The Company and the Union appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Smith-Dorsey Company is a Nebraska corporation having its principal office and place of business in Lincoln, Nebraska, where it is engaged in the business of manufacturing pharmaceutical specialties for the medical profession. The Company, in the course and conduct American Federation of Labor, Lincoln Central Labor Union , was duly served , but did not enter an appearance or participate in the proceeding. 61 N. L. R. B., No. 102. 659 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of its business, purchases drugs and chemicals, all of which are shipped to its plant from points outside the State of Nebraska. Approximately 95 percent of the Company's sales, which are valued in excess of $50,000 annually, is made to points outside the State of Nebraska. The Company admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED United Retail, Wholesale & Department ,Store Employees of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Com- pany. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the exclusive bargaining representative of its employees until the Union has been certified by the Board in an appropriate unit. A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the Union represents a substantial number of em- ployees in the unit hereinafter found appropriate.2 We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Union contends that all production and maintenance employees of the Company, including scientific personnel and clerical employees, but excluding certain supervisory employees, constitute an appropriate bargaining unit. The Company would exclude from the unit the scientific personnel, clerical employees, and all supervisory employees. Scientific personnel: The Company has 8 employees in this group, 4 of whom the Union agrees to exclude from the unit because of their executive or supervisory duties. The Union would include 3 control chemists and Milo Kottas, who is a manufacturing pharmacist. The Company would exclude them because their qualifications and duties are distinct and apart from those of the remaining employees. The control chemists work in the analytical laboratory under the super- vision of the chief control chemist,- who is a registered pharmacist. 2 The Board agent reported that the Union submitted 60 membership cards, 50 of which bore the names of persons appearing on the Company 's pay roll of February 22, 1945, which listed 57 employees in the unit hereinafter found appropriate The Trial Examiner further reported that the Union submitted 4 additional cards in support of its claim of interest in the clerical employees , and that 3 of the cards bore the names of persons appearing on a current pay roll submitted by the Company at, the hearing, which listed 14 clerical employees THE SMITH-DORSEY COMPANY 661 They assay all raw materials which enter into the manufacture of pharmaceutical preparations for identity and quality. They identify the materials, testing them for purity, and when the finished products go to the control laboratory, they are tested for conformity to label. Although the chemists need not be registered pharmacists, they must have a college degree of bachelor of science or be a college graduate having majored in chemistry. Since the record discloses that the background, interests, and functions of the control chemists are of a professional and technical nature, we shall, in accordance with our usual policy, exclude these technical employees from the unit.' Milo Kottas, referred to in the record as a manufacturing pharma- cist, is in charge of filling all orders for liquid pharmaceuticals, and has no regular assistants, although he is occasionally assisted by one of the production employees. Kottas is a registered pharmacist having a bachelor of science degree in pharmacy, which is required by local law in order to perform some of his duties, such as filling and checking prescriptions. The Union's basis for his inclusion is the fact that he does some manual labor, such as moving vats of raw materials used in the preparation of finished products. Because the background and duties of this employee, like those of the control chemists, are of a professional and technical nature, we shall exclude him. Clerical employees: There are 14 clerical employees whom the Union would include in the unit of production and maintenance em- ployees. Twelve of the employees are in the general office and are engaged in clerical duties such as writing orders, billing, bookkeeping and stenographic work. They are physically segregated in the per- formance of their duties from the plant production and maintenance employees, with the exception of 1 office clerical employee, who daily distributes reports throughout the plant, which requires only a mini- mum of her time. The 2 other clerical employees work in the sepa- rate office of Dr. Buckey, who is in charge of all scientific operations. One of them writes tickets containing formulas, which are sent to the manufacturing departments. This employee also maintains and pre- pares reports relating to the use of narcotics and alcohol as required by Federal and State regulations. The other clerk in Dr. Buckey's office writes advertising copy, copy for labels, prepares new cata- logues, and performs necessary stenographic duties. We see no rea- son to depart from the Board's general policy of not including clerical employees in the same unit as production and maintenance employees.4 Accordingly, we shall exclude the clerical employees. Supervisoryy employees: The Company and the Union agree that the chief control chemist and 4 foremen should be excluded from the unit See Matter of Sharp d Dohme, Inc, 56 N L R. B 1471, 1478. See Matter of Boston Edison Company, 51 N L R B. 118. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of their supervisory duties. The Company also employs 4 foreladies, referred to on the pay roll as supervisors, whom the Union would include on the ground that they are working group leaders. The foreladies are in charge of from 3 to 12 employees in their respec- tive groups. They instruct new employees; lay out and direct the work of their departments; spend about half of their time working along with the other employees under their supervision; decide vaca- tion schedules where conflicts arise; receive a higher rate of pay than their subordinates ; and possess authority to recommend effectively the discharge of employees for whom they are responsible. Since the record shows that the foreladies come within the Board's usual defini- tion of supervisory employees, we shall exclude them. We find that all production and maintenance employees of the Com- pany, excluding scientific personnel, clerical employees, foremen, and foreladies, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with The Smith-Dorsey Company, Lincoln, Nebraska, an election by secret ballot shall be con- ducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Seventeenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during THE SMITH-DORSEY COMPANY 663 the said pay-roll period because they were ill or on vacation or tempo- rarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be represented by United Retail, Wholesale & Department Store Employees of America, C. I. 0., for the purposes of collective bargaining.