Schieffelin & Co.

In the Matter of SCHIEFFELIN & COMPANY and FEDERAL LABOR UNION LOCAL 20734, A. F. OF L. Case No. R-2599.Decided'September 8, 1941 Jurisdiction : Pharmaceutical products manufacturing and drug wholesaling industry. Investigation and Certification of Representatives : existence of question: Com- pany did not answer union's letter notifying it of union's claim to representation; election necessary. Unit Appropriate for Collective Bargaining : separate unit limited to ware- housing division comprising pickers, packers, shippers, receiving clerks, check- ers, runners, chasers, porters, bundle, parcel post, and stock boys, and freight elevator men, excluding clerical and office workers, department heads and supervisory and managerial employees; bargaining history on an industrial basis held not determinative. Mr. N. William Welling and Mr. Sturgess S. Wilson, of New York City, for the Company. Mr. Jacques Buitenleant, Mr. Arnold Cohen, and Mr. George Oneto, of New York City, for Local 20734. Mr. Leonard S. Leventhal, of New York City, for the Federation. Mr. Eugene M. Purver, of counsel to the Board. • DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On March 4, 1941, Federal Labor Union, Local 20734, of the American Federation of Labor, herein called Local 20734, filed with the Regional Director for the Second Region (New York City) a petition alleging that a question affecting commerce has arisen con- cerning the representation of employees of Schieffelin & Company, New York City, herein called the Company, and requesting an in- vestigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On April 18, 1941, 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 and 35 N. L. R. B., No. 57. 290 SCHIEFFELIN & COMPANY 291 authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due-notice. On April 21, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, Local 20734,. and 16-26 Cooper Square Federation of Drug Employees, herein called the Federation, a labor organization claiming to represent em- ployees directly affected by the investigation. Pursuant to notice, a hearing was held on May 1, 2, and 5, 1941, at New York City, be- fore Daniel Baker, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, Local 20734, and the Federation were represented by counsel and participated 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. At the close of the hearing, the Federation moved that the petition be dismissed for the reason, among others, that the unit desired by Local 20734 is inappropriate. The Trial Examiner reserved ruling thereon. For reasons hereinafter apparent, the motion is hereby denied. During the course of the hearing, the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Ex; aminer and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On May 17, 1941, the Federation filed a brief which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Schieffelin & Company, a New York corporation with its principal office and place of business at New York City, is engaged in the manu- facture of pharmaceutical and allied products and in the wholesaling of drugs. The principal materials purchased by the Company for use in connection with its operations consist of drugs, chemicals, and oils, of which more than 50 per cent in value, amounting- annually in excess of $200,000, are acquired from points outside the State of New York. Of the products manufactured and processed by the Com- pahy, more than 25 per cent., amounting in value annually to over $200,000, are shipped to points outside the State of New York. H. THE ORGANIZATIONS INVOLVED Federal Labor ' Union Local No. 20734 is a labor organization affiliated with the American Federation of Labor. It admits to mem• bership employees of the Company. 451270-42-N of .-35-20 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 16-26 Cooper Square Federation of Drug Employees is an unaffili- ated labor organization admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION In its petition Local 20734 alleges that on February 24, 1941, the Company was notified of its majority status and that the Company "fails, omits and refuses to deal or confer with the said Union." The record shows that Local 20734's president sent a letter to the Company making the same claim but apparently received no reply. A report prepared by the Regional Director and introduced into evidence at the hearing shows that Local 20734 represents a substantial number of the employees within the unit hereinafter found to be appropriate.' We find that a question has arisen concerning the 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. TIIE APPROPRIATE UNIT Local 20734 contends that the appropriate unit consists of pickers, packers, shipping and receiving clerks, checkers, runners, chasers, porters, bundle, parcel post, and stock boys, and freight elevator men, excluding clerical and office workers, department heads, and super- visory or managerial employees. This unit in effect covers and is limited to the warehousing division. The Federation contends that the appropriate unit consists of all the employees of the Company. The Company makes no claim in this respect. Local 20734 assigned as its reason for thus limiting the unit the fact that it had-organzied these employees and that it had previously won a consent election to represent employees in substantially the ' The report of the Regional Director shows that Local 20734 submitted to him 84 authorization, cards, 0 of which were undated , the remaining 78 being dated during Feb- ruary 1941 Fifty of the 79 signatures which appeared to be genuine original signatures are names of persons on the March 20, 1941, pay roll. The Federation submitted mem- bership records containing 88 names, 57 of which are of members whose names appear on the March 20, 1941, pay roll. There are approximately 90 employees within the unit hereinafter found to be appropriate. SCHIEFFELIN & COMPANY 293 same unit. The Federation, in support of its contention for the broader unit, claimed that for 4 years it had successfully bargained with the Company on behalf of all employees. Bargaining negotia- tions between the Company and the Federation were had under the following circumstances : On July 12, 193'T, a consent election was held under the Board's auspices among the "pickers, packers, aislemen, shipping and receiving clerks, runners, checkers, porters, bundle and parcel post boys and elevator men in the warehouse division of the Company" excluding any person acting in a supervisory capacity. Local 20734, the only labor organization on the ballot, received 57 of the 91 ballots counted? No agreement was reached between Local 20734 and the Company for the employees in this unit. Shortly after the consent election, the Federation was formed "to represent all of the}ehiployees'of Schielfelin & Company in collective bargaining with the employer." On August 3, 1937, the Company agreed to bargain with the Federation as representative of the employees "in all the departments of the Company exclusive of the warehouse department." On August 19, 1937, the Company and the Federation entered into a contract whereby the Federation was recognized as sole bargaining agent for employees in the warehouse department. On August 31, 1937, it petitioned the Board to designate it as bargaining agent for a unit consisting of "97 warehousemen," which was essentially the same unit as that in which the consent election had been conducted. This petition was denied by the Board on September 18, 1937.$ On'July 1, 1938, the Company and the Federation executed a con- tract recognizing the Federation as sole bargaining agent for "the employees of the Company," and on June 30, 1939, and July 3, 1940, in new contracts, the Company reaffirmed its recognition of the Fed- eration as sole bargaining agent for the employees of the Company. The last contract expired on June 30, 1941. The last contract made no distinction as to working conditions between any classes of em- ployees except watchmen, who were to be paid on an hourly, rather than a salary, basis. Provision was made for individual bargaining in respect to the wages of each employee in the Company, except that in the case of warehouse employees, it was specifically stated that they would receive "not less than the prevailing rates paid for similar work to warehouse employees by other representative wholesale drug houses in the City of New York." We do not consider the bargaining history of the Federation as determinative of the unit, since the Company, by entering into nego- tiations with the Federation, disregarded the consent election of July 127 1937, in which Local 20734 was chosen as the bargaining represent- Case No . II-R-311. ' Case No. II-R-472. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ative for the warehouse employees. Further, we note that the last contract entered into' by the Company with the Federation provides for a basis of payment to the warehousemen which differs from that of the other employees, thereby differentiating between these two groups of employees. The Company's business is carried on in a 7-story building, of which the basement and the first five floors, except for a small portion of the second floor and part of the fifth floor, constitute a warehouse. There are approximately 400 employees employed by the Company, of whom approximately 90 are in the warehousing division. The work of the warehousing division consists of receiving, storing, picking, packing, and shipping out of drugs in response to orders from cus- tomers. The employees within the warehousing division perform the following functions : Upon the receipt of a voucher bearing a cus- tomer's order, the pickers pick the merchandise that the voucher or original order calls for and send the articles to the assembly depart- ment, where the checkers examine the goods and compare them with the vouchers to see whether the goods are properly assembled 4 The packers then pack the orders and send them to the shipping depart- ment, from which the merchandise is shipped. Shipping and receiv- ing clerks are responsible for the receiving and shipping of goods; par- cel post boys take some merchandise from the shipping department of the warehouse to the Post Office. Freight elevator men operate- the freight elevator, and assist in moving goods within the warehouse. Runners are errand boys engaged in picking up merchandise at, and delivering materials to, various drug houses and in bringing ma- terials to the warehouse which are turned over to the chasers, who dis- tribute them to the proper department. The porters assist in moving goods within the warehouse as well as clean the building. Manufacturing and processing are conducted on the sixth and sev- enth floors of the building. Work in this department consists of producing pharmaceuticals and other druggists' items which the Com- pany puts out under its own trademark. Some rebottling is done in this department as well as in the warehousing division. In the labora- tory on the fifth floor tests are conducted. We find that the pickers, packers, shippers, receiving clerks, check- ers, runners, chasers, porters, bundle, parcel post, and stock boys, and freight elevator men, excluding clerical and office workers, depart- ment heads and supervisory and managerial employees in the ware- housing division of the Company at New York City, constitute a unit appropriate for the purposes of collective bargaining. We further find that said unit will insure to employees of the Company the full 4 Two of the checkers take telephone orders during the morning and work as checkers in the afternoon. SCHIEFFELIN & COMPANY 295 benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. We shall direct that the employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Di- rection of Election herein, subject to such limitations and additions are set forth in the Direction, 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: CONCLUSIONS OF LAW _ 1. A question affecting commerce has arisen concerning the rep- resentation of employees of'Schieffelin & Company, New York City, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The pickers, packers, shippers, receiving clerks, checkers, runners, chasers, porters, bundle, parcel post, and stock boys, and freight ele- vator men, excluding clerical and office workers, department heads, and supervisory and managerial employees in the warehousing division, constitute a unit appropriate for the purposes of collective bargain- ing, within the meaning of Section 9 (b) of the National Labor Relations 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 Relations Act, 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 authorized by the Board to ascertain representatives for the purposes of collective bargaining with Schieffelin & Company, New York City, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Election, under the di- ection and supervision of the Regional Director for the Second Region, acting in this matter as agent for the National Labor Rela-, tions Board, and subject to Article III, Section 9, of said Rules and Regulations, among pickers, packers, shippers, receiving clerks, check- ers, runners, chasers, porters, bundle,,parcel post, and stock boys, and freight elevator men in the warehousing division of the Company at New York City, who were employed during the pay-roll period imme- 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diately preceding the date of this Direction of Election, including employees who did not work during such pay-roll period because they were-ill,or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding clerical and office workers, department heads, and supervisory and managerial employees in the warehousing department and those who have since quit or been discharged for cause, to determine whether they desire to be represented for the purposes of collective bargaining by Federal Labor Union Local 20734, affiliated with the American Federation of Labor, or by 16=26 Cooper Square Federation of Drug Employees, or by neither. [SAME TITLE AMENDMENT TO DIRECTION OF ELECTION October 8, 1941 On September 8, 1941, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding, the election to be conducted as early as possible but not later than thirty (30) days from the date of the Direction of Election, under the direction and supervision of the Regional Director for the Second Region. The Board, having been advised by the Regional Director that a longer period within which to hold the election is necessary, hereby amends the Direction of Elec- tion by striking therefrom the words "not later than thirty (30) days from the date of this Direction of Election," and substituting therefor the words "not later than forty-five (45) days from the date of this Direction of Election." The Board has also been advised by the Regional Director that 16-26 Cooper Square Federation of Drug Employees has requested that its name be withdrawn from the ballot. The request is hereby granted and the Direction of Election is hereby further amended by striking therefrom the words "to determine whether they desire to be represented for the purposes of collective bargaining by Federal Labor Union Local 20734, affiliated with thee American Federation of Labor, or by 16-26 Cooper Square Federation 'of Drug Employees, or by neither," and substituting therefor the words "to determine whether or not they desire to be represented by Federal Labor Union Local 20734, affiliated with the American Federation of Labor, for the purposes of collective bargaining." 35 N. L. R. B., No. 57a.