Endo Products, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1946

68 N.L.R.B. 783 (N.L.R.B. 1946)

In the Matter of ENDO PRODUCTS, INC. and FEDERATION OF ARCHITECTS,
ENGINEERS, CHEMISTS AND TECHNICIANS, CHAPTER 231, UNITED
OFFICE AND PROFESSIONAL WORKERS OF AMERICA, C. I. O.
Case No 2-R-6272.-Decided June 20, 1946
Yaspan & Thaw , by Messrs . Joseph Yaspan and Benjamin S. Thaw,
of New York City, for the Company.
Mr. Thomas R Sullivan , of New York City , for the Union.
Mr. Conrad A Wickham , Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Federation of Architects, Engineers,
Chemists and Technicians, Chapter 231, United Office and Professional
Workers of America, C. I. O.,1 herein called the Union, alleging that
a question affecting commerce had arisen concerning the representation
of employees of Endo Products, Inc., Richmond Hill, New York, 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 April 4, 5, `and
8, 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. 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 motion for oral argument is
hereby denied.
' The Trial Examiner granted the Union's motion to amend the petition to set forth the
Union's name as above.
68 N. L. R. B., No. 105.
783
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Endo Products, Inc., a New York corporation having its principal
office and plant at 84-40 101st Street, Richmond Hill, New York, is
engaged in the manufacture of medicinal and pharmaceutical products.
During the past year the Company's purchases of raw materials were in
excess of $250,000, of which approximately 33 percent was shipped
to its plant from outside the State of New York. The Company' s sales
of its finished products were in excess of $1,000,000, of which 50 per-
cent was shipped to points outside the State of New York.
The Company admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II THE ORGANIZATION INVOLVED
Federation of Architects, Engineers, Chemists and Technicians, Chap-
ter 231, United Office and Professional Workers of America, is a labor
organization, affiliated with the Congress of Industrial Organizations,
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of certain of its employees on the
ground that the unit is inappropriate.
A statement of a Board agent, introduced into evidence at the hearing,
indicates that the Union represents a substantial number of employees in
the unit hereinafter found appropriate .2
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 of all the technical employees of the Company,
including, save for certain specific exceptions hereinafter noted, all the
Company's research, raw material production, and control analysis em-
ployees, but excluding all production and maintenance, clerical, shipping
' The Field Examiner reported that the Union has submitted 21 membership cards bearing
the names of employees of the Company, and that there are approximately 24 employees in
the appropriate unit.
ENDO PRODUCTS, INC. 785
and receiving, sales, and supervisory employees. The Company contends
that the unit sought is inappropriate in that all of the employees therein
are engaged in functions which are essentially a part of the production
process; that they should, therefore, properly be included in a unit of
all production and maintenance employees. There is no previous col-
lective bargaining history with respect to any of the Company's
employees.
The Company has two adjoining buildings, known as Buildings Nos.
1 and 2, throughout which are carried on the research and manufactur-
ing processes of its medicinal and pharmaceutical products. These
products are produced in one of three final forms-liquid, ampule or
tablet. Irrespective of their finished state, however, they all follow the
same general manufacturing process and are subjected at various points
in the procedure to the same degree of biological and chemical control.
In general, the productive operation is as follows: Raw materials, having
either been purchased outside or manufactured by the Company accord-
ing to established working recipes, are (1) subjected to certain control
tests, (2) converted to bulk form, (3) control tested, (4) placed into
final form, (5) sterilized (if ampule), (6) control tested, (7) inspected,
and (8) packed, labeled and shipped out. The control tests are routine
in nature and follow prescribed recipes as set up by the heads of the
two control laboratories. Although the control laboratories are separated
from the manufacturing rooms, the tests are an integral part of the pro-
ductive process, which would necessarily cease if the tests could not be
made.
As indicated above, the unit here sought consists of the employees
engaged in research, raw material production, and control analysis.
The Company's research work is carried on by the head of the chemi-
cal laboratory and two research chemists, all professional chemists.3
These men have broad authority and are left much to their own re-
sources in the conduct of their work. They take an effective part in the
hiring, disciplining, and discharging of employees working under them.
Each has a personal assistant4 who is a college graduate in chemistry
and assists him in research relative to the preparation of new com-
pounds, vitamins, and new or improved methods of production. Although
these assistants have no independent authority, their work requires a
knowledge of chemistry. The Union would include all but the head of
the chemical laboratory in the unit.
Raw material producers include six graduate chemists,6 one grad-
uate chemical engineer,e two non-graduate chemists who possess
' Drs. Weiner, Weiss, and Schoen , respectively.
4 Aaron Feldstein, Seymour Katmowitz, and Saul Sokol , respectively.
' Jefim Braude, Harold Barth , Ralph Salkin , Samuel Darby, Elliot Shapiro, and Joe
Zagkowski.
4 Moe Johnson.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considerable experience in the field in consequence of their work with
the Company and who are currently taking courses in chemistry,7 three
assistants with no technical education who have acquired sufficient ex-
perience to perform duties similar to some of the graduate chemists,"
and one equipment handler.' One of the graduate chemists 10 is in charge
of the production of estrogenic hormone, while the graduate chemical
engineer is superintendent of Building No. 2, and as such is in charge
of the installation and maintenance of equipment, projects related to the
conversion of laboratory methods to a larger scale, and the production
of one raw material. These two men assign tasks to those under them
and can effectively recommend changes in their status. All of the others,
with the exception of the equipment handler, are engaged in the pro-
duction of various chemical compounds and the intermediates leading
to their synthesis. Their work follows predetermined recipes from which
no departure is authorized without consultation of the appropriate
research chemist. But for the two specifically noted, none of these men
possess supervisory authority within the customary meaning of the term.
The Union would include all of them in the unit except the three
assistants and the equipment handler.
Control analysis is conducted in the Company's two control labora-
tories set up for testing its products at various stages of production.
The heads of these laboratories are concededly supervisory and all
parties would exclude them.11 In the chemical control laboratory are a
licensed pharmacist and three college graduates in chemistry 12 who are
engaged in various types of chemical control analysis in accordance
with prescribed recipes. In the biological control laboratory are four
college graduates in biology 13 who perform, according to predetermined
recipes, the biological assay of different products, the sterilization of
finished products and pyrogen tests. These employees possess no super-
visory authority within the customary meaning of the term. The Union
would include them in the unit.
In addition to the employees discussed above, the Company has over
100 others engaged in ampule and tablet production, shipping, receiving,
stock, and maintenance. It has recently hired a superintendent of ampule
production 14 who will be in charge of approximately 60 employees and
will possess authority to effectively change their status. The Union would
also include him.
' Charles Young and Andrew Horonick.
, William Herzog , Fred Hoffman, and Joe Gargano.
• Ralph Concilino.
to Ralph Salkin.
13 Drs . Klein and Sacks , respectively.
11 Dr. Paul F'ehder, Muriel Schiffrin , Meyer Meyers , and Benjamin Sragg.
1, Ruth Goldin , Zona Gros,bard, Annette Lew, and Lillian Murav.
14 Andrew Pizzel.
ENDO PRODUCTS, INC. 787
Pertinent general characteristics of the Company's employees are as
follows :
Pay: All personnel are on a weekly salary basis save the execu-
tives, heads of departments, research chemists and the new super-
intendent of ampule production, who receive an annual salary.
Minimum salaries range from $30 to $33 per week for all Com-
pany employees but ampule workers, packers and labellers and bottle
washers, whose minima are from $20 to $23 per week.15 Currently,
with but one exception, the salaries of all the employees engaged
in research, raw material production and control analysis are well
above the established minima.
Hours : All employees are on a 40 hour, 5 day week basis.
Education : Although possession of a college degree is not speci-
fied by the Company as a requisite for positions in research, raw
material production and control analysis work, all prospective can-
didates are screened by Dr. Gorden, professional chemist and vice-
president of the Company, before hiring. All other Company em-
ployees are screened and hired by the secretary-treasurer of the
Company, who has no technical background.
Interchange of personnel : There is no interchange between re-
search, raw material production and control analysis employees
and other of the Company' s employees.
The Union contends that the employees in the unit it seeks are tech-
nicians, and therefore constitute an appropriate bargaining unit. The
Company, on the other hand, argues that they possess no technical
status as distinguished from its tablet compressors, mixers and coaters,
its sterilizers, or its ampule fillers and examiners. In support of its con-
tention the Company indicates that all these employees are required to
follow predetermined working formulas or instructions; that the nature
15 Minimum weekly salaries are as follows:
Group sought by the Union:
Research assistants-no stated minimum; the lowest paid man
currently receives $33 weekly.
Chemical control analysts ..................... .. ... . .. Minimum $32 weekly
Biological control analysts .... ...... .............. . .... .. 30
Raw material producers ........... ..................... ... 32
Other company employees-
Shipping, Receiving and Stock ....... . .. . ... 30
Maintenance (operators, elevator operators, and handymen).. .. 32
Tablet compressors ........... .......... . ...... . .... . 33
Tablet mixers ........ ............................ ........ .. 32
Tablet coaters ..... ................... .... ...... ....... 33
Sterilizers .... ........... .... ....... .. 33 ..
Ampule fillers and sealers .... ... .......................... " 23 "
Ampule washers .............. ........... ................. .. 22 ,.
Ampule examiners ............... ... . ...... ... . ... .. 23 "
Bottle washers .................. . ..... .. . .... .... 22 "
Packers and labellers (all types) .... .......... ............. 22 "
696966--46-51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their work merely requires a certain amount of manual dexterity and
the ability to follow directions. It has also attempted to demonstrate
that the Union was initially of the same opinion, in view of the fact
that an attempt was made to organize employees in the second group.
Despite the Company's contentions, it is clear that a distinction exists
between the two groups of employees. With but few exceptions, the
employees in the unit sought are all college graduates in their particular
fields of endeavor. In addition, they are subjected to special screening
by the vice-president of the Company, who has admitted that he is
interested in determining the extent of their chemical training. This
screening process is not applied to any other company employees. This
evidence impels the conclusion that these positions generally require
knowledge of a technical nature, and that the company policy is to
obtain men with specialized chemical training to fill them. We have
recently held that employees in a like capacity engaged in chemical
control work were properly included in a technical unit.'6 We are also
of the opinion that those here engaged in the Company's research and
raw material production work possess a similar status. Although it is
apparent that a few apathetic attempts were made to attract other com-
pany employees to the Union, these occurred only after the Company's
refusal of recognition with regard to the unit here sought, apparently
in an effort to strengthen the Union's position. We are satisfied that
the Union's initial organizational attempts were limited to the present
unit. We find, therefore, that the unit requested, with certain exceptions
hereinafter noted, is appropriate for the purposes of collective bar-
gaining.
The Company contends that its research chemists, its superintendent
of ampule production, the superintendent of Building No. 2, and the
chemist in charge of estrogenic hormone production are supervisory
employees.17 We agree with the Company and shall exclude them from
the unit.
The Union desires to exclude from the unit the equipment handler
and the three assistants who lack technical education. The Company
agrees to the exclusion of the first but takes no specific position concern-
ing the others.
The equipment handler has no technical training and his duties are
unquestionably non-technical in nature. We shall exclude him from the
unit. The three assistants, although lacking formal technical education,
have been trained on the job and perform duties in the production of
raw chemicals similar to those performed by some of the graduate
chemists engaged in this work. We find that their duties are of a tech-
nical nature and shall therefore include them in the unit.
is Matter of General Chemical Company, 64 N. L. R. B. 357.
17 Dr. Schoen, Dr. Weiss, Piszell, Johnson and Salkrn, respectively.
ENDO PRODUCTS, INC. 789
We find that all of the Company's research, raw material produc-
tion, and biological and chemical control analysis employees at its plant
in Richmond Hill, New York,"' excluding all production and main-
tenance, clerical, shipping, receiving and stock employees, all equipment
handlers,19 research chemists, and heads of departments, the superin-
tendent of ampule production, the superintendent of Building No. 2,
the chemist in charge of estrogenic hormone production, and all or
any other supervisory employees with authority to hire, promote, dis-
charge, 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.
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 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 Endo Products,
Inc., Richmond Hill, New York, 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, 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 employees
in the unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this Direc-
tion, including employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, and in-
cluding 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
18 Including William Herzog , Fred Hoffman and Joe Gargano.
19 Such as Ralph Concilino.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of reinstated prior to the date of the election , to determine whether or
not they desire to be represented by Federation of Architects , Engineers,
Chemists and Technicians, Chapter 31, United Office and Professional
Workers of America, C. I. 0., for the purposes of collective bargaining.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.