E. R. Squibb & Sons

National Labor Relations Board - Board Decisions

Apr 19, 1946

67 N.L.R.B. 557 (N.L.R.B. 1946)

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