E. R. Squibb & Sons

In the Matter of E. R. SQUIBB & SONS and UNITED GAS, COKE & CHEMICAL WORKERS, C. 1. 0., LoCAL 138 Case No. ?-R-6085.-Decided April 19, 19116 Messrs. George H Sibley and Burton Zorn, both of New York City, for the Company. Mr. Frederick Hamilton, of Long Island City, N. Y., and Neuberger, Nhapiro & Rabinowitz, by Mr. 1'ictor Rabinowitz, of New York City, for the Union. Mr. F. G. Dunn, of counsel to the Board. DECISION AND CERTIFICATION OF REPRESENTATIVES STATEMENT Or TILE CASE Upon a petition duly filed by United Gas, Coke & Chemical Workers, C, I. 0., Local 138, herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of em- ployees of E. R. Squibb & Sons, Brooklyn, New York, herein called the Company, the National Labor Relations Board on January 30, 1946, conducted a pre-hearing election pursuant to Article III, Section .ij of the Board's Rules and Regulations, among employees of the Company in the alleged appropriate unit, to determine whether or not they desired to be represented by the Union for the purposes of collective bargaining. At the close of the election a Tally of Ballots was furnished the parties. The Tally shows that there were approximately 22 eligible ^ oters laid that 21 of these eligible voters cast valid ballots, of which 20 were cast for the Union, and 1 against the Union. Thereafter, pursuant to Article III, Section 10,2 of the Rules and Regulations, the Board provided for an appropriate hearing upon due notice before Jerome I. Maclit, Trial Examiner. The hearing was held at New York City, on February 26, 1946. The Company and the Union appeared and participated. All parties were afforded full op- portunity to be heard, to exaluine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the hearing, the Coin- i By amendment of November 27, 1945, this section of the Rules now permits the con- duct of a sec!et ballot of emplotees prior to hearing in cases which present no substantial 7vsues 2 As amended November 27, 1945, this Section provides that in instances of pie -hearing elections. all issues, including issues with respect to the conduct of the election shall be heard at the subsequent hearing 67:N' L R B., No 72 557 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany moved to dismiss the petition because the election was held prior to the hearing, claiming that the procedure was improper, inconsistent and at variance with the provisions of Section 9 of the Act. Ruling on said motion was reserved by the Trial Examiner for the Board. The Company further contended that even if the pre-hearing election was proper, the opening and counting of ballots prior to the hearing "was calculated to defeat the purpose of the Act and make the later hearing a complete nullity." Although the Company sought permis- sion, and was given an opportunity, to support these points by a brief, no brief has been submitted. The amendment to Article III, Section 3, of the Board's Rules and Regulations, which permits an election to be held by the Regional Director either before or after a hearing, was designed to facilitate the determination of the question of representation in cases where no substantial issue under the Act was present. No sound reason has been advanced to show wherein this procedure, including the counting of the ballots prior to the hearing is violative of Section 9 of the Act or operates to the substantial prejudice of any party by depriving it of a full opportunity for an "appropriate hearing" prior to a certification of representatives.3 The Board has certified a bargaining representa- tive after such a pre-hearing election in a recent case.4 The motion to dismiss is accordingly denied. The Company also moved to dismiss the petition on the grounds set forth in Section IV, infra. Ruling on this motion was also reserved by the Trial Examiner for the Board. For reasons hereinafter stated, that motion also is hereby denied. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY E. R. Squibb & Sons is a New York Corporation having a plant located at 25 Columbia Heights, Brooklyn, New York, which is in- volved in the instant case, where it is engaged in the manufacture, sale, and distribution of drugs, chemicals, pharmaceuticals, biologicals, and home necessities. Its purchases of various raw materials utilized in the manufacture of drugs during the year 1945 were in excess of $1,000,000, approximately 75 percent of which was shipped from points outside thq State of New York to its Brooklyn plant. The principal finished products made by the Company are.penicillin, vita- min products, and various pharmaceuticals and biological products. Cf Inland Empire District Council Lumber and Sawmill Workers Union V. Millis, et al, 32511 S 697 4 Matter of Cozier Wood Package Company, 66 N. L. R B, 862. E. R. SQUIBB & SONS 559 Its sales of the finished products for the year of 1945, were in excess of $1,000,000, approximately 75 percent of which was shipped from its Brooklyn plant to points outside the State of New York. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED United Gas, Coke & Chemical Workers, C. 1. 0., Local 138, is a labor organization, admitting to membership employees of the Company, 111. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the exclusive bargaining representative of the employees of the Company until the Union has been certified by the Board in an appropriate unit. 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 seeks a unit composed of all the guards in the plant but excluding the chief guard. The Company moved to dismiss the peti- tion on the grounds that the guards, because of their particular duties, do not constitute an appropriate unit, and for the further reason that the petitioning union also has a contract with the Company covering its production and maintenance employees. The Company recognized the abundance of decisions by the Board finding units composed of plant guards to be appropriate, but maintains that the guards herein, because of the extent of their responsibility, and by reason of their close and intimate association with the problems of management, should not be considered an appropriate unit. The guards herein perform the duties normally associated with their position. They guard the company gates, and patrol the company property, including covering entrances, identifying authorized employees and visitors, excluding trespassers, watching for fire hazards, enforcing safety regulations and other company rules, and in general, protecting the Company's property and its employees. It would appear that the guards are monitorial in their relationship to the Company's other employees. They are, however, neither confidential nor supervisory employees within our customary usage of the terms. The contentions in this respect made by the Company have been passed on in many recent decisions of the Board.' The Company's further contention that the unit is inappropriate because the guards belong to the same local as the production employees, is also without merit. The Board & Matter of Fairchild Engine and Airplane Corporation, 53 N L. R B 395 ; Allegheny.. Laodlum Steel Corporation, 64 N. L . R 13 1055 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has frequently held that this fact does not bar the employees from the benefits of the Act for the purposes of collective bargaining.,, There- fore the motion to dismiss is hereby denied. The unit sought here includes three sergeants and three corporals whose duties, hours of work, conditions of employment, and pay, are with minor exceptions substantially the same as the other guards. It was stipulated by the parties that they were eligible to vote in the election and there was no objection to their inclusion by either party at the hearing. There is no evidence to indicate they fall within the definition of a supervisory employee; we shall, accordingly, include them in the unit. We find that all guards at the Brooklyn, New York, laboratory of the Company, including corporals and sergeants, but excluding the chief guard 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, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETEHAIIINATION^ OF REPRESENTATIVES The results of the election held previous to the hearing show that the Union has secured a majority of the valid votes cast and we shall certify the Union as the collective bargaining representative of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVES 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 111, Sections 9 and 10, of National Labor Relations Board Rules and Regulations-Series 3, as amended, IT IS HEREBY CERTIFIED that, United Gas, Coke & Chemical WTorkers, C. I. 0., Local 138, has been designated and selected by a majority of the guards employed by E. R. Squibb & Sons, Brooklyn, New York, including corporals and sergeants but excluding the chief guard, and all employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, as their representative for the purposes of collective bargaining, and that pursuant to Section 9 (c) of the Act, the said organization is the exclusive representative of all such em- ployees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employmlent, and other conditions of employment. <. hatter of Foote lIro4 Gear ci Machine Coporat2on, 52 N L R B 861 , Matter of General Chemical Co,npanp,-64 N L It B 357