Mckesson & Robbins, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1945

63 N.L.R.B. 88 (N.L.R.B. 1945)

In the Matter of McKESSON & ROBBINS, INC. and DRUG TRADE SALES-
MEN'S UNION,' C. I. O.
Case No. 2-R-5480.-Decided July 31, 1945
Mr. Frederic JVingersky, of New York City, for the Company.
Mr. Mac !Mattis, of New York City, for the C. I. O.
Mr. Stanley B. Korengold, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Drug Trade Salesmen's Union, C. I.
0., herein called.the C. I. 0., alleging that it question affecting coin-
merce had arisen concerning the representation of employees of Mc-
Kesson & Robbins Inc., Brooklyn, New York, herein called the Com-
pany, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Robert A. Levett, Trial Ex-
aminer. Said hearing was held at New York City, on May 14, 1945.
The Company and the C. I. O. 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 an opportunity to file briefs with the Board.
Upon the entire record in tl1e case, the Board makes the following:
0
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
McKesson & Robbins , Inc., a Maryland corporation , with its prin-
cipal office in New York City, is engaged in the wholesaling of
pharmaceuticals , cosmetics , and toiletries , in the manufacture and
1 The Federal Labor Union , A F. of L Local 20734, herein called the Federal Union, did
not appear at the hearing although it was duly served with notice thereof.
63 N. L . R. B., No. 8.
88
McKESSON & ROBBINS, INC. 89
packaging of drug products, and in the importing and wholesaling
of wines and liquors. The Company has numerous branch offices
and divisions throughout the United States; however, we are here
concerned with only its Brooklyn Division, located at Brooklyn, New
York. During the past year the Brooklyn Division used drugs,
.chemicals, and packaging supplies valued in excess of $1,000,000, of
which about 90 percent was shipped to the Company from points
outside the State of New York. During the same period the Com-
pany handled and distributed commodities valued in excess of
$1,000,000, of which about 90 percent was shipped 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
Drug Trade Salesmen's Union, affiliated with the Congress of In-
dustrial Organizations, is a labor organization admitting to member-
ship employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
By letter dated March 10, 1945, the C. I. O. informed the Company
that it desired recognition as the exclusive bargaining representative
of the salesmen employed at the Company's Brooklyn Division. The
Company made no response to this letter and on March 13, 1945, the
C. I. O. filed a petition with the Board seeking certification in a unit
of salesmen. The Company also received a communication from the
Federal Union claiming bargaining rights for the salesmen involved,
on the basis of its existing contract with the Company. This contract,
however, covers only the Company's warehouse employees and does
not include salesmen as such. Nor can it be argued that the salesmen
are, in fact, warehouse employees. Although the salesmen have been
working about 8 hours per week in the warehouse, the record discloses
that such work has been of a temporary nature and in addition to their
regular sales duties.2 Accordingly, we find that the contract between
the Company and the Federal Union does not cover the employees
involved herein and, consequently, constitutes no bar to the instant
proceeding.
2 Because of an urgent help shortage , the salesmen have been asked to work a few hours
per week in the warehouse . However, the salesmen do not punch a clock like the other
warehouse employees , they are paid on a different basis from the regular warehouse
workers, and they remain under the authority of their sales manager rather than the ware-
house foreman. Although the Federal Union 's contract with the Company is a closed shop
contract, the union has never required the salesmen to become members; nor has the
union at any time previously attempted to bargain for the salesmen.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the C. I. 0. represents a substantial number of
employees in the unit hereinafter found appropriate.3
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 C. I. 0. seeks a unit consisting of all salesmen employed at the
Company's Brooklyn Division. The Company takes no position, agree-
ing to abide by the Board's decision as to the appropriate unit. The
record discloses that the Company's Brooklyn Division employs nine
salesmen whose work consists primarily of calling on druggists, dis-
playing merchandise, and taking orders for the purchase thereof.
Each salesman is given a specific territory within which there are
approximately 40 drug stores whose accounts he services. The orders
taken by the salesmen are mailed in to the office where they are proc-
essed by the various clerical departments and are then sent to the
warehouse to be filled and shipped out. The salesmen also arrange
for regular telephone inquiries by certain warehouse workers who
solicit orders by telephone. All such orders are credited to the sales-
man who has that account.
The record also indicates that the working conditions of the sales-
men are entirely different from those of the Company's warehouse
employees. The warehouse employees are paid on an hourly basis
.and work solely within the warehouse. The salesmen, on the other
hand, are paid on a commission basis and generally work outside the
premises of the Company. The warehouse employees are paid every
week, whereas the salesmen are paid semimonthly. Furthermore, the
salesmen's average earnings exceed those of the warehouse employees.
The rights of the warehouse employees concerning vacations, holidays,
and grievances are governed by the Federal Union's contract with the
Company. The salesmen do not enjoy these same employment bene-
fits. It further appears that the C. I. 0. has contracts with other
companies in the industry, covering similar, units of salesmen. In
view of these facts, we are of the opinion that the duties and interests
of the salesmen are sufficiently different from those of the warehouse
employees to warrant the establishment of a separate salesmen's unit
for the purposes of collective bargaining.4
8 The Field Examiner reported that out of nine employees in the unit petitioned for, the
C. I. O. submitted nine applications for membership cards , all of which checked with per-
sons listed on the Company's April 0, 1945, pay roll. All nine cards were dated March 1945.
4 Cf. Matter of New England Grocery Supply Company, 55 N. L R. B. 334; Matter of
Standard Wholesale Company, 47 N. L. R. B. 920.
McKESSON & ROBBINS, INC. 91
We find that all salesmen employed at the Company's Brooklyn
Division, excluding the sales manager and all other supervisory em-
ployees with authority to hire, promote, discharge, discipline, or other-
wise 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
In view of the fact that the Federal Union failed to appear at the
hearing and has presented no evidence of representation among the
salesmen involved, we shall not accord it a place on the ballot.6
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees 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 Direc-
tion.
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 Re-
lations 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 McKesson & Rob-
bins, Inc., Broollyn, 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 the em-
ployees in the unit found appropriate in Section IV, above, who were
employed during the pay-roll period immediately preceding the date
of this Direction, including employees who did not work during said
pay-roll period because they were ill or on vacation or temporarily
laid off, and including employees in the armed forces of the United
States who present themselves in person at the polls, but excluding
any who have since quit or been discharged for cause and have not
been rehired or reinstated prior to the date of the election, to determine
whether or not they desire to be represented by Drug Trade Salesmen's
Union, C. I. O.,s for the purposes of collective bargaining.
6 See Matter of Westinghouse Electric d Manufacturing Company, 62 N. L. R B. 137
Matter of Chicago Flexible Shaft Company , 60 N L . R B. 848
6 The request of the C. I. 0 that it be designated on the ballot otherwise than as herein
set forth is hereby referred to the Regional Director to whom the Board has delegated
discretionary authority in matters relating to the conduct of the election.