Allied Laboratories, Inc.

In the Matter of ALLIED LABORATORIES, INC., (PITMAN-MOORE DI- VISION) and INDIANAPOLIS SPECIALTY UNION #465, AFFILIATED WITH THE INTERNATIONAL PRINTING PRESSMEN AND ASSISTANTS' UNION AFFILIATED WITH AFL In the Matter of ALLIED LABORATORIES, INC. (PITMAN-MOORE DI- VISION) and PITMAN-MOORE EMPLOYEES' INDEPENDENT UNION Cases Nos. R-1763 and R-174, respectively. Decided April 25, 1940 Pharmaceutical and Biological Products Manufacturing Industry-Investiga- tion of Representatives : controversy concerning representation of employees : rival organizations; controversy concerning appropriate unit; employer refuses to recognize petitioning unions until certification by Board-Units Appropriate for Collective Bargaining: controversy as to whether single or two-plant unit of production employees, excluding supervisory and clerical employees, salesmen and student salesmen, appropriate ; desires of employees to determine ; dispute as to inclusion of shipping-department employees, chemists, watchmen and cer- tain maintenance and clerical employees; shipping-department and maintenance employees included ; chemists, watchmen and clerical employees excluded-Blec- tions Ordered: two separate elections to determine appropriate unit or units and representatives thereof. Mr. Arthur R. Donovan, for the Board. Mr. James A. Ross, of Indianapolis, Ind., for the Company. Mr. Richard H. Oberreich, of Indianapolis, Ind., for the Inter- national. Mr. Howard M. Meyer, of Indianapolis, Ind., for the Independent. Mr. Harold M. Weston, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On February 16, 1940, Indianapolis Specialty Union #465, affili- ated with the International Printing Pressmen and Assistants' Union, herein called the International, filed with the Regional Director for the Eleventh Region (Indianapolis, Indiana) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Allied Laboratories, Inc., Indianapolis, Indiana, herein 23 N. L. It. B., No. 14. 184 ALLIED LABORATORIES, INC. 185 called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On February 23, 1940, Pitman-Moore Employees' Independent Union, herein called the Independent, filed with the Regional Director for the Eleventh Region a petition alleging that a question had arisen concerning representation of employees at the Indianapolis and Zionsville, Indiana, plants of the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On March 1, 1940, 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 Regulations-Series 2, as amended, ordered an investigation upon the petitions and author- ized the Regional Director to conduct it and to provide for an appro- priate hearing upon due notice, and, acting- pursuant to Article III, Section 10 (c) (2) of the said Rules and Regulations, ordered that the two cases be consolidated. On March 7, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the Inter- national, upon the Independent, upon the Regional Director of the American Federation of Labor, and upon the Regional Director of the Congress of Industrial Organizations. Pursuant to the notice, a hearing was held on March 14 and 15, 1940, at Indianapolis, Indiana, before John T. Lindsay, the Trial Examiner duly designated by the Board. The Board, the Company, the Inter- national, and the Independent were represented by counsel and par- ticipated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Allied Laboratories, Inc., a Delaware corporation , having its prin- cipal office in Kansas City, Missouri, is engaged in the manufacture of pharmaceutical and biological products at its plants in Zionsville and Indianapolis , Indiana. The Company also maintains plants at Kansas City, Missouri, Sioux City, Iowa, and Sioux Falls, South Dakota. Only its Zionsville and Indianapolis plants are involved in the instant proceedings. The raw materials used by the Company at its Indiana plants con- sist principally of crude drugs, chemicals, sugar, alcohol, and animals. During the past fiscal period more than 50 per cent of such raw 186 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD materials were obtained from points outside the State of Indiana. During the same period the Company's total output at its Indiana plants amounted to approximately $2,000,000, of which 88 per cent represented shipments to destinations outside the State of Indiana. At the time of the hearing, the Company employed approximately 164 employees at its Indianapolis plant and about 95 employees at its Zionsville plant. II. THE ORGANIZATIONS INVOLVED Indianapolis Specialty Union #465 is a labor organization affili- ated with the International Printing Pressmen and Assistants' Union, which, in turn, is affiliated with the American Federation of Labor, and admits to membership employees of the Company. Pitman-Moore Employees' Independent Union is an unaffiliated labor' organization, admitting to membership all employees of the Company's Indianapolis and Zionsville plants, "excepting those who, by reason of their relationship to the employer are barred from mem- bership by law or by any ruling of any Government Agency having jurisdiction of such subject matter." III. THE QUESTION CONCERNING REPRESENTATION Although the Independent and the International have each re- quested the Company for recognition as the exclusive collective bar- gaining representative of its employees in units claimed by the respective organizations to be appropriate for the purposes of col- lective bargaining, the Company has insisted that it would accord such recognition only to a union certified 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 OR UNITS The International contends that the appropriate unit consists of all production employees in the Company's Indianapolis plant, ex- cluding supervisory, clerical, and shipping employees, and salesmen, student salesmen , and research chemists. ALLIED LABORATORIES,-INC. 187 It is the Independent's position that all production and mainte- 11 nance employees of the Company's Zionsville and Indianapolis plants, excluding supervisory and clerical employees, salesmen, and student salesmen, constitute an appropriate unit. It is apparent that the most important dispute between the two unions is as to whether the two plants of the Company should be deemed to constitute a single bargaining unit. The Indianapolis and Zionsville plants are fifteen miles apart, manufacture different products, and use different raw materials. At the Indianapolis plant, pharmaceutical products are produced and the employees work primarily with drugs and chemicals, whereas the employees at the Zionsville plant manufacture biological products such as vac- cines, serums and the like, and work with bacteria, viruses and animals. There does not appear to be any appreciable interchange of employees, raw materials, or semi-manufactured goods between the plants. Carl N. Angst, the Company's general manager, testified, how- ever, that the operations of the Indianapolis and Zionsville plants actually could be performed under one roof and that the sole reason for maintaining separate plants was the difficulty of housing at Indianapolis the approximately 2,000 animals used for experimental and manufacturing purposes at Zionsville. While each plant has its own superintendent or director, both are under the executive super- vision of a general manager who controls their policies and labor relations and whose office is at the Indianapolis plant. At meetings attended by the general manager and the directors of the Indiana plants, the conferees direct their consideration to the management of both plants. The financial and office management, sales, adver- tising, printing, and order departments, all located at Indianapolis, serve both plants.' Finished products of both plants are shipped by the Indianapolis shipping department. The Zionsville plant's biological products are tested chemically at the Indianapolis plant while certain of the pharmaceutical products of the latter plant receive animal tests at Zionsville that are important in determining the safety with which they may be used. There is no substantial distinction between the wage rates prevailing at the two plants.' It also appears that there is no history of collective bargaining on behalf of employees of either the Indianapolis or the Zionsville plants. The record does not reveal the precise extent to which the ' This is substantially true also of the receiving and purchasing departments , located In Indianapolis. 2 The Independent also points to the fact that when in January 1940, the International was beginning to organize , its Special Representative mailed notices to employees of both the Indianapolis and Zionsville plants , inviting them to attend an organizational meeting on January 13, 1940. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contesting labor organizations represent employees at each of the plants in question. As far as the record shows the Independent may have an overwhelming majority at the Zionsville plant, while the International may have a similarly large majority at the Indian- apolis plant. From the foregoing it appears that the two plants might properly be considered either as two separate bargaining units or as a single unit. Under the circumstances we will be guided by the desires of the employees themselves. Since the record is not sufficiently clear as to the employees' wishes, elections are necessary to make this determination. Thus, balloting shall be conducted among employees of the Indianapolis plant to determine whether they desire to be represented for purposes of collective bargaining by the Interna- tional, by the Independent, or by neither union. Employees of the Zionsville plant will express their wishes as to representation by the Independent or by no union. If the Independent receives a major- ity of the votes cast by employees of each of the plants, both plants will constitute a single appropriate unit. If the International receives a majority of the votes cast by employees in the Indianapolis plant, it will constitute a separate appropriate unit. There remains for consideration the question of whether certain specific groups of employees in the Indianapolis plant should be included in the unit or units. Although both unions are in accord as to the inclusion of production workers, laborers, janitors and ele- vator operators in the respective units which they seek, the Interna- tional would exclude the shipping-department employees from its proposed unit of employees at the Indianapolis plant. The Interna- tional's position as to shipping-department employees is apparently inconsistent with its claim that a broad industrial unit, including laborers, janitors, and elevator operators, is appropriate. Shipping- department employees on occasion have been solicited to join the International. There is no substantial showing that the working conditions or employment problems of shipping-department employ- ees differ materially from those of other employees whom the Inter- national would include in its proposed unit. We find no basis for excluding shipping-department employees from any,unit of produc- tion employees at the Indianapolis plant. The International would also exclude watchmen at the Indianapolis plant from its proposed unit. Since watchmen occupy a status dif- fering somewhat from that of the other employees, have different interests, and perform different functions, we will not here include 'them in a unit with production employees. The same considerations apply, to a stronger degree, to the chemists at the Indianapolis plant, ALLIED LABORATORIES, INC. 189 whom the International seeks to have excluded. We shall exclude the chemists.-3 We shall also, in accordance with the International's wishes, exclude Winifred Overman, who is a clerical employee in the Indianapolis plant's manufacturing department. The Independent, which re- quests Overman's inclusion within the unit, has introduced no evi- dence to show wherein the nature of her work differs from that of the other clerical workers who are excluded. The unions did not agree upon the status of Rollin Bruner, listed as a clerk in the office of the Indianapolis plant, although they have agreed to exclude all other employees in that department. The rec- ord reveals that Bruner is a salaried clerical employee with a desk in the main office. We shall exclude him from the unit. ' Although the International agrees with the Independent that Han- son Hogan, listed as a maintenance worker at the Indianapolis plant, should be included in the bargaining unit or units, it seeks to exclude Allen Hyatt, who also is listed as a maintenance worker at the Indi- anapolis plant. We shall include Hyatt. The Independent contends that supervisory and clerical employees at the Zionsville plant should be excluded from its proposed unit and on a Company pay roll introduced in evidence has specifically desig- nated the desired exclusions.4 The Company has assumed no posi- tion with respect to such employees. The Independent's designations appear to be perfectly consistent and proper, and we shall, in accord- ance with our usual practice, exclude such supervisory and clerical employees from the bargaining unit or units. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing, there were introduced in evidence statements of the Board's Regional Director concerning the respective claims of representation made by the Independent and by the International. These statements reveal that the Company's pay roll of March 9, 1940, includes 40 employees whose names appear on the February 1940 membership roster and dues record of the International, and 123 employees who had signed application cards for membership in the Independent. Under the circumstances, since each of the two contesting labor organizations has proved substantial adherence among the employees in the respective bargaining unit claimed to be 8 Unlike the employees included within the proposed bargaining units, all of whom are paid on an hourly basis , the chemists receive salaries and are men and women of con- siderable education or technical training. * In addition to those employees listed on the pay roll as supervisory and clerical workers, the Independent would exclude, apparently because of the supervisory nature of their positions , D. S Steele, a veterinarian, and the following bacteriologists : Alfred H. Brueckner, Paul Purwin , George S. Schilling, Lucile Wade and E . S. Yotter. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate, the question of representation which has arisen can best be resolved in elections by secret ballot. We shall accordingly direct that such elections be held. All persons employed during the pay-roll period immediately preceding the date of the Direction of Elections herein, including employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or shall have since been temporarily laid off, but excluding those who shall have since quit or been discharged for cause, shall be eligible to vote. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CON CLUSION OF LAW A question affecting commerce has arisen concerning the representa- tion of employees of Allied Laboratories, Inc., at its Indianapolis; Indiana, and Zionsville, Indiana, plants, within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. DIRECTION OF ELECTIONS 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, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purpose of collective bargaining with Allied Laboratories, Inc., elections by secret ballot shall be conducted 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 Eleventh 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 the employees of Allied Laboratories, Inc., within the two groups de- scribed below who were employed during the pay-roll period immedi- ately preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or shall have since been tempo-, rarily laid off, but excluding supervisory and clerical employees, and employees who shall have since quit or been discharged for cause : (a) All production and maintenance employees in the Indianapolis plant, excluding salesmen, student salesmen, watchmen, and chemists, to determine whether they desire to be represented for the purposes ALLIED LABORATORIES, INC. 191 of collective bargaining by Indianapolis Specialty Union #465, affili- ated with the International Printing Pressmen and Assistants' Union, by Pitman-Moore Employees' Independent Union, or by neither; (b) All production and maintenance employees in the Zionsville plant, to determine whether or not they desire to be represented for the purposes of collective bargaining by Pitman-Moore Employees' Independent Union. MR. EDWIN S. SMITH, dissenting: I dissent from the decision of the majority. The facts in this case show a close relationship between the two plants. The general management, policies, and labor relations of both are subject to the same executive control. Departments located at the Indianapolis plant serve both plants with respect to financial and office management, sales, advertising, printing, marketing, ship- ping, receiving, and purchasing. Each plant is dependent upon the other for the tests that are necessary to determine the safety-and thus the marketability-of the finished products. Practically the same wage rates prevail at both plants.' The Independent organized the Company's Indianapolis and Zionsville employees on a two-plant basis and the International itself, when first commencing its organizational activities, invited employees of both plants to attend an organizational meeting. No reason appears why collective bargaining in behalf of employees of both plants , should not proceed upon the basis of the single unit proposed by the Independent. I believe such a unit is better adapted than two separate units to secure to the employees equality of bargaining power with the Company.6 5 See my dissenting opinion in Matter of Colorado Builders' Supply Company and Inter- national Association of Biidge, Stiuctural and Oinamental Icon Workers , Shopinen's Local Union No 507, 18 N L R B 29 6 See my dissenting opinion in Matter of United States Rubber Company and Rubber Workers Federal Labor Union, Local #220L, affiliated with the American Federation of Labor, et at, 20 N L R B 473