Park Drug Co.

In the Matter of PARK DRUG COMPANY and LOCAL No. 12084, DISTRICT No. 50, UNITED MINE WORKERS OF AMERICA Case No. R-1453.-Decided September 1, 1939 Drug Products Manufacturing Industry-Investigation of Representatives. controversy concerning representation of employees : rival organizations ; em- ployer refuses to recognize petitioning union until it is certified by the Board- Unit Appropriate for Collective Bargaining: working foremen, production, print- ing, and shipping employees at the Company's New York City Plant, excluding executive, supervisory, art and office employees, drivers and helpers, and sales- men; stipulation as to-Election Ordered: rival organization permitted to with- draw from ballot if it so desires, upon notice to Board within 5 clays from date of Direction-Certification of Representatives. Mrs. Hilda Shea, for the Board. Mr. William Esbitt, of New York City, for the Company. Mr. Herman Edelsberg and Mr. David Elliot, of New York City,, for Local No. 12084. Miss Marcia Hertzmarle, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 17, 1939, Local No. 12084, District No. 50, United Mine Workers of America, herein called Local No. 12084, filed with the- Regional Director for the Second Region (New York City) a peti- tion alleging that a question affecting commerce had arisen concern- ing the representation of employees of Park Drug Company, New York City, herein called the Company, and requesting an investiga- tion and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 14, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regu- lations-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. 15 N. L. R. B., No. 2. 8 PARK DRUG COMPANY 9 On July 17, 1939, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, upon Local No. 12084, and upon Federal Labor Union, Local 20734, A. F. of L., herein called Local 20734, a labor organization claiming to repre- sent employees of the Company directly affected by the investiga- tion. On July 28, 1939, all parties were. notified by telegram from the Regional Director of a change in the hour set for hearing, and, on July 31, 1939, all parties were again notified by telegram of a ,change in the place for holding the hearing.*' Pursuant to the notices, a hearing was held on July 31. and Au- gust 1, 1939, at New York City, before Herbert Wenzel, the Trial Examiner duly designated by the Board. The Board, the Company, .and Local No. 12084 were represented by counsel and. participated in the hearing. Local 20734, by telegram of July 31, 1939, advised that it would not be represented at the hearing and stated that its refusal to appear was predicated upon a protest against the Board's :action in ordering an investigation at all. Full opportunity to be heard, to examine, and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded -all parties. During the course of the hearing no objections were made to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner on certain motions and finds that no prejudicial -errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Park Drug Company is a New York corporation having its prin- cipal office and place of business in New York City. It is engaged in the manufacture, packaging, sale, and distribution of drug prod- nicts. The company maintains a factory known as the New York City Plant in which it normally employs approximately 63 persons. Dur- ing the period from December 1, 1938, to June 1, 1939, the Company purchased from outside the State of New York 60 per cent of its raw materials valued at approximately $60,000. During the same period it sold and shipped from its New York City Plant to points outside the State of New York 40 per cent of its finished products at an approximate value of $75,000. I Copies of all notices were sent also to William Esbitt, attorney for the Company, and to Herman Edelsberg, attorney for Local 12084. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED Local No. 12084, District No. 50, United Mine Workers of America, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership all employees of the Coin- pany except executives, art and office employees , and salesmen. Federal Labor Union, Local 20734, is a labor organization affiliated with the American Federation of Labor, also admitting to member- ship employees of the Company except executives , art and office employees, and salesmen. III. THE QUESTION CONCERNING REPRESENTATION On March 29, 1938, Local 20734 entered into. a closed-shop con- tract of no stated duration with the Company. On July 21, 1938, additions were made to the existing contract and it was provided that the agreement should expire on July 27, 1939. Beginning in October 1938, Local No. 12084 began obtaining mem- bers among the Company's employees and on May 17, 1939, filed its petition with the Board for investigation and certification. It did not request recognition by the Company prior to that time be- cause of the existing closed-shop contract with Local 20734. How- ever, the District Representative of Local No. 12084 testified that he had met the president of the Company at the office of the Board and had informed him that Local No. 12084 represented a majority of the employees and desired to negotiate with the Company. The, Company has refused to deal with either union until it obtains a certification by the Board. We find that a question has arisen concerning representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Company and Local No. 12084 stipulated that all of the working foremen, production, maintenance, printing, and shipping employees in the Company's New York City Plant, except executive, supervisory, art and office employees, drivers and helpers, and sales- PARK DRUG COMPANY 1l._ men, constitute a unit appropriate for the purposes of collective bargaining. At the hearing it was agreed to withdraw from the. unit John Pleines, a maintenance man, who is a member of a car- penters' union. The contracts between Local 20734 and the Company- include all employees of the Company except office and supervisory employees and salesmen. However, since Local 20734 did not appear,, and since the Company and Local No. 12084 have stipulated as to the appropriate unit, we see no reason for not accepting the unit so agreed upon. We find that all working foremen, production, printing, and ship- ping employees at the Company's New York City Plant, excluding- executive, supervisory, art and office employees, drivers and helpers,. and salesmen, constitute a unit appropriate for the purposes of col- lective bargaining and that said unit will insure to the employees of- the Company the full benefit of their right to self-organization and collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES Local No. 12084 introduced in evidence 42 membership cards of persons admittedly employees of the Company. It also introduced a list containing 46 names of persons who, by signing the list, re- affirmed their membership in that local. The Company does not question the majority representation by Local No. 12084. However,, all employees of the Company must have been members of Local 20734 under the closed-shop contract. We shall direct an election"by secret ballot to resolve the question concerning representation.2 We find that the question which has arisen concerning the repre- sentation of employees of the Company can best be resolved by the holding of an election by secret ballot. We shall direct that those eligible to vote shall be employees within the appropriate unit during- the pay-roll period immediately preceding our Direction. of Election. Local 20734 has not indicated whether or not it desires to appear- on the ballot. We shall direct that it be placed thereon, and if within 5 days from the date of our Direction, it notifies the Board that it does not desire to be represented on the ballot, we shall amend. our Direction accordingly. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. - A question affecting commerce has arisen concerning the repre- sentation of employees of Park Drug Company, New York City,. 2 Matter of The Cudahy Packing Company and United Packinghouse Workers of America, et at., 13 N . L. R. B. 526. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'Within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. The working foremen, production , printing, and shipping em- ployees at the Company 's New York City Plant, excluding executive, supervisory, art and office employees , drivers and helpers, and ,sales- men, constitute a unit appropriate for the purposes of collective bar- :gaining, within the meaning of Section 9 (b) of the Act. 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 Rela- tions Act and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with Park Drug 'Company , New York City , an election by secret ballot shall be conducted within fifteen ( 15) 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, Section 9, of said Rules and Regulations, among all working foremen , produc- tion, printing, and shipping employees at the New York City Plant ,of Park Drug Company whose names appear upon the pay roll ,of the 'Company for the pay -roll period immediately preceding this Direction, including employees who did not work during such payroll period because they were ill or on vacation and employees who were then or have since been temporarily laid off , but excluding ,executive, supervisory, art and office employees, drivers and helpers, and salesmen , and excluding those who have since quit or been dis- charged for cause, to determine whether they desire to be represented ,by Local No. 12084, District No. 50, United Mine Workers of America, affiliated with the Congress of Industrial Organizations, or by Federal Labor Union, Local 20734 , affiliated with the American Federation of Labor, for the purposes of collective bargaining , or by neither. SAME TITLE CERTIFICATION OF REPRESENTATIVES .October 4, 1939 On September 1, 1939, the National Labor Relations Board, herein -called the Board , issued in the above-entitled proceeding a Decision and Direction of Election. The Direction of Election provided that PARK DRUG COMPANY 13 an election by secret ballot be conducted within fifteen (.15) days from the date of the Direction among all working foremen, produc- tion, printing, and shipping employees at the New York City Plant of Park Drug Company whose names appeared upon the pay roll of the Company for the pay-roll period immediately preceding Sep- tember 1, 1939, including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or had since been temporarily laid off, but, excluding executive, supervisory, art and office employees, drivers and helpers, and salesmen, and excluding those who had since quit or been dis- charged for cause, to determine whether they desired to be repre- sented for the purposes of collective bargaining by Local No. 12084,. District No. 50, United Mine Workers of America, affiliated with the Congress of Industrial Organizations, or by Federal Labor Union,. Local 20734, affiliated with the American Federation of Labor, or by neither. Pursuant to the Direction of Election, an election by secret ballot was conducted on September 12, 1939, at New York City, under the direction and supervision of the Regional Director for the Second Region (New York City). On September 14, 1939, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, issued and duly served upon the parties an Election Report containing a tally of the ballots. No objections or exceptions to the Election Report have- been filed by any of the parties. The Regional Director reported the following results of the, balloting : Total number eligible to vote-------------------------------- 47 Total number of ballots cast--------------------------------- 46 Total number of votes in favor of Local No. 12084, District No. 50, United Mine Workers of America------------------ 46 Total number of votes in favor of Federal Labor Union, Local . 20734 ----------------------------------------------------- 0 Total number of votes in favor of neither organization-------- 0 Total number of blank votes--------------------------------- 0 Total number of void ballots-------------------------------- 0 Total number of challenged votes---------------------------- 0 By virtue of and pursuant to the power vested in the National! Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations Series 2, IT is HEREBY CERTIFIED that Local No. 12084, District No. 50, United' Mine Workers of America, affiliated with the Congress of Industrial Organizations, has been selected by a majority of the working fore-- 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men, production, printing, and shipping employees at the New York City Plant of Park Drug Company, New York City , exclusive of executive, supervisory, art and office employees , drivers and helpers, .and salesmen, as their representative for the purposes of collective bargaining, and that pursuant to Section 9 (a) of the National Labor Relations Act, Local No. 12084, District No. 50, United Mine Work- ers of America, affiliated with the Congress of Industrial Organi- zations, is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 15 N. L. It. B., No. 2a.