Foster D. Snell, Inc.

In the Matter of FOSTER D. SNELL, INC. and METROPOLITAN FEDERA- TION OF ARCHITECTS, ENGINEERS, CHEMISTS & TECHNICIANS, LOCAL 231, UNITED OFFICE & PROFESSIONAL WORKERS OF AMERICA, C. I. O. Case No. 2-R-6345.-Decided July 2., 1946 Mr. Carl P. Lothrop, of New York City, for the Company. Neuburger, Shapiro c& Rabinowitz, by Mr. Sam Neuburger, of New York City, for the Union. Mr. Seymour M. Alpert, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon an amended petition duly filed by Metropolitan Federation of Architects, Engineers, Chemists & Technicians, Local 231, United Office & Professional Workers of America, C. I. 0., herein called the Union, alleging that a question affecting commerce had arisen concern- ing the representation of employees of Foster D. Snell, Inc., herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Richard J. Hickey, Trial Examiner. The hearing was held at New York City, on May 21, 1946. 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. At the hearing the Company moved to dismiss the petition on the ground that the Board lacks jurisdiction. The motion was re- ferred to the Board for ruling thereon. For reasons stated in Section I, infra, the motion 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. The Company's request for oral argument is denied. Upon the entire record in the case, the Board makes the following: 69 N. L. K. R., No. 92. 764 FOSTER D. SNELL, INC. FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY 765 Foster D. Snell, Inc., a New York corporation with its principal office and place of business in Brooklyn, New York, is engaged in fur- nishing to its clients scientific and technical advisory services. It makes chemical and physical analyses of samples of materials and products submitted by its clients, conducts research and renders reports thereon. In addition to this work which is carried on in its laboratory and other facilities in Brooklyn, some company representatives are at times sent to plants of clients to instruct the latter's personnel in the operation of a new manufacturing process. Many of the Company's approximately 322 clients are engaged in interstate commerce, about 189 have offices and plants located within the State of New York, about 122 have offices and plants located in other States, and about 11 have offices and plants located in foreign countries. About 60 percent of the materials and products tested by the Company is shipped to the Company's plant by clients from their respective plants. Most of these materials and products are retained and about 5 percent is returned. The principal source of the Company's income consists of fees received from these clients for the services rendered. During the period from July 19, 1945, to December 31, 1945, the Company received approximately $131,000 in such fees, of which about 381/2 percent came from clients. located outside the State of New York. During the year ending arch 31, 1946, the Company purchased approximately $3,300 worth of equipment, of which about 11 percent represented shipments to the Company's plant from points outside the State of New York. And during the year ending March 31, 1946, the Company expended approximately $1,700 for listings in various trade journals which are sold and distributed throughout the United States. In its motion to dismiss the Company contends, in effect, that it is not engaged in interstate commerce ; that it was not intended that the Act embrace employers engaged in the practice of the recognized pro- fession of chemistry; and that the assertion of jurisdiction by the Board would be unconstitutional. We do not agree. The facts set forth above establish that a substantial portion of the products tested,. reports made, and supplies and materials used by the Company are transported in interstate commerce; that the Company performs services which form an essential part of the manufacturing processes of its many clients who are directly engaged in interstate commerce: and that the interruption of performance of the Company's services 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by reason of a labor dispute would interfere with the free flow in interstate commerce of its clients' products. Accordingly, we are persuaded that the Company's operations meet the jurisdictional tests outlined in the Act, and established by the courts,' and find, contrary to the Company's contention, that it is engaged in commerce within the meaning of the National Labor Relations Act. H. TIIE ORGANIZATION INVOLVED Metropolitan Federation of Architects, Engineers, Chemists & Technicians, Local No. 231, United Office & Professional Workers of America is a labor organization affiliated with the Congress of Indus- trial Organizations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused the Union's request to recognize it as the representative of employees in the unit sought herein on the ground that the Company is not subject to the jurisdiction of the Board. 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 We find, in accordance with the stipulation of the parties, that all technical employees of the Company's Brooklyn, New York, plant, including chemists, bacteriologists, engineers and technicians, but excluding office and management employees, service and maintenance employees, and all 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 employees 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. 'Matter of Electrical Testing Laboratories , Inc., 65 N. L. R. B. 1239 ; Matter of U. S. Testing Co . Inc., 5 N. L. R. B. 696; Polish National Alliance of the United States of America v. N. L. R. B., 322 U. S . 643; N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U. S. 1. FOSTER D. SNELL, INC. DIRECTION OF ELECTION 767 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 Foster D. Snell, Inc., Brooklyn, New York, 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 Second 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 em- ployees 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 said pay-roll period because they were ill or on vacation, or temporarily 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 elec- tion, to determine whether or not they desire to be represented by Metrop9litan Federation of Architects, Engineers, Chemists & Tech- nicians, Local 231, United Office &'Professional Workers of America, C. I. 0., for the purposes of collective bargaining.