Merck and Co., Inc.

National Labor Relations Board - Board Decisions

Feb 24, 1953

102 N.L.R.B. 1612 (N.L.R.B. 1953)

1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that all production and maintenance em-
ployees8 at the Employer's Le Moyne (Mobile County), Alabama,
plant, including chauffeurs and the laboratory testers, but excluding
office employees, clerical employees (other than plant clerks in the
service division of the engineering department), guards, all other
laboratory employees, technical employees, professional employees,
leading men, and all other supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
5. The Employer moved to postpone the election on the ground that
the unit is expanding and that therefore a present election is unwar-
ranted. At the time of the hearing on December 17, 1952, the activi-
ties of the plant, recently constructed, consisted largely in the experi-
mental operation of 1 of 4 eventual identical production units, and in
other preliminary work, such as installing additional machinery for
the other units, and procuring and training a nucleus of production
personnel. There were then approximately 165-170 employees. By
the time the plant gradually reaches the proposed capacity produc-
tion, sometime in March 1953, the Employer expects to double the
number of production and maintenance workers. However, the Em-
ployer's witness said that this objective, as well as the possible cre-
ation of new job classifications, was dependent on unforeseen condi-
tions of production or operational developments.
As the present group of employees in the unit constitutes a sub-
stantial and representative segment of the eventual complement to be
employed, and as the Employer's plan to create new job categories is
uncertain and speculative, we see no reason for departing from the
Board's usual policy of directing an immediate election.9
[Text of Direction of Election omitted from publication in this
volume.]
8 Contrary to Petitioners ' request, the Employer would limit the unit to "hourly paid"
production and maintenance employees . In accordance with Board policy, we have deleted
this phrase from the unit description . Ford Motor Company, Aircraft Engine Davision„
96 NLRB 1075.
D Precision Manufacturing Co., 88 NLRB 509; Watson Brothers Transportation Company,
Inc., 89 NLRB 71.
MERCK AND CO., INC. and UNITED GAS, COKE & CHEMICAL WORKERS
OF AMERICA, CIO, PETITIONER. Case No. 2-RC-5030. February 24,
1953
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before I. L. Broadwin, hearing
102 NLRB No. 163.
MERCK AND CO., INC. 1613
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Houston and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. The Employer and the Intervenor, Employees Organization, Inc.,
of Merck & Co.,1 contend that no question of representation exists be-
cause a memorandum of agreement between the Employer and the
Intervenor executed on July 30, 1952, before receipt of the Petitioner's
demand for recognition, constitutes a bar to the instant petition.
The Employer and the Intervenor have bargained collectively for
the past 14 years. The most recent contract between them, cover-
ing the employees herein sought by the Petitioner, was for the period
from June 3, 1950, to July 1, 1952. Toward the end of May or early
in June 1952, the Intervenor submitted to the Employer a list of
proposed changes to be embodied in a new contract. The Employer
responded with counterproposals, but negotiations proved unsuccess-
ful. At a union meeting on July 2, 1952, the employees voted a strike,
which began on July 11. On July 15, 1952, Federal and State con-
ciliators met with representatives of the Intervenor and the Employer,
in an effort to end the strike.
On July 22, 1952, representatives of management and the president,
chairman of delegates, and other members of the Intervenor' s nego-
tiating committee initialed a "Memorandum of Agreement." This
document provided that the recently terminated contract was to be
"replaced by an agreement effective this date of signing and to run
until October 1, 1953, subject to the following conditions." There
followed a recital of terms on a number of previously disputed issues,
and the two concluding paragraphs read as follows :
6. The proposals which have been agreed to between the com-
pany and the union will be incorporated in the new contract and
the substance and intent of the Company's written counter-pro-
posals shall become part of the contract after the language has
been agreed upon by the representative Counsel.
7. The Committee agrees to recommend the foregoing for ac-
ceptance by the membership. It is understood that this Memoran-
IInternational Chemical Workers Union, AFL, was also permitted to intervene but on
the second day of the hearing disclaimed interest in the proceeding and withdrew from the
hearing.
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dum Agreement is subject to ratification by the membership.
Following the vote of acceptance the strike will be terminated
and work will be resumed as scheduled by the Company.
A special membership meeting was called for the night of the 23rd
to consider ratification of the memorandum agreement,2 but the mem-
bers present rejected it by a vote of 755 to 1V,
Another membership meeting was called for July 29 at 8 p. m.
Hoping to utilize this meeting as a means of ending the strike, a
representative of the State Mediation Board inquired and was told
by the Employer that, except for a single change,4 the terms of the
rejected memorandum of July 22 were still open for the employees'
acceptance. At the meeting on July 29, the new terms' were read
and discussed, and the Mediation Board conducted a vote to determine
whether or not the employees would accept the Company's terms and
return to work. After the balloting, however, a representative of
the Mediation Board announced that the ballots would be destroyed
because of irregularities in the voting. Thereafter the Intervenor's
vice president and those members of its executive board who were still
present 6 gathered together and decided that an attempt would be
made to seek a conference with management that night, or if that
proved impossible, first thing in the morning. The vice president
testified that he announced this decision to the approximately 200
members still in the hall and told them they would be advised in the
morning of the results.?
Between 8 and 8: 45 the next morning, the Intervenor's chairman of
delegates arranged a meeting between the Employer and the Inter-
venor's executive committee. The conference began at 8:45 a. m.
Shortly before 10 o'clock the union representatives informed the
Employer that the committee had accepted the Employer' s terms,
and that they "were going out to tell a group of the membership who
were waiting in the parking lot." They said that "they were putting
the situation to these gentlemen and if they ratified it the men would
signify by coming back to work." It was agreed that the committee
2 The Intervenor 's constitution provides that the president and the chairman of delegates
"shall sign all contracts and agreements only after receiving authorization from the
majority of the members present at a regular or special meeting."
s There are approximately 1,600 members in the bargaining unit
' The Employer would then agree only to one contract reopening , instead of two as pro-
vided in the July 22 memorandum.
5 These included several matters not contained in the memorandum , such as the
Employer 's oral announcement , noted in writing by the conciliators, that there would be
a variation from seniority practices in an impending layoff of chemical operators, by
giving preference in continued employment to those who had abandoned the strike.
6 The Intervenor 's president had left the meeting before the balloting. Some of the
executive committee members also were no longer present
'Some witnesses testified that the vice president told those remaining in the hall to
meet the next morning at the main gate to await a report on the conference with manage-
ment and asked them to pass word of this on to other members.
MERCK AND CO., INC. 1615
would meet with management later in the morning "to finalize the
discussion."
The Intervenor's president and several other officers went into the
parking lot opposite the main gates, where a crowd variously esti-
mated at from 200 to 450 employees had gathered. The president
first expressed his opposition to the contract and, together with the
vice president, left the lot. The secretary then read the Employer's
proposals in the same form in which they had been presented to the
membership meeting the night before. Some questions were asked 8
by the employees and, as testified by the secretary, "somebody asked
what they should do, and Clos [the Intervenor's chairman of dele-
gates] replied `there is the gate, go back to work if you want to."'
All but a handful of the group in the parking lot rushed to the gates
and went in .9
At 11 o'clock that morning the Intervenor's executive committee,
its president absent, met with the Employer, initialed the proposed
articles of a new contract, and executed a "memorandum of Agree-
ment" dated July 29, 1952, identical in all but one provision with the
earlier rejected agreement, including the condition that the agreement
was subject to ratification by the membership. The Intervenor's sec-
retary executed a certification on the memorandum that it had been
so ratified, and signing of the memorandum by the Employer and the
Intervenor's representatives who were present was completed by 1: 30
p. m. Later that afternoon the Employer received the Petitioner's
telegram requesting recognition. A formal contract bearing the date
of July 30, 1952, was thereafter signed on various dates between
August 7 and 13, by representatives of the Employer and the Inter-
venor, but not including the Intervenor's president.
The Intervenor and the Employer assert that the gathering of em-
ployees in the parking lot outside the plant gates on the morning of
July 30, 1952, was a membership meeting at which the employees
took action to ratify the terms of the memorandum of agreement, and
thus made the memorandum a valid and binding contract which bars
the petition in this case. In support of this contention they urge
that, in the absence of any formal adjournment of the meeting held
on the night of July 29, and in the light of the vice president's an-
nouncement that the employees might come to the plant gate the next
8 The questions asked did not principally concern the terms of the proposed contract, but
rather the Employer's proposals as to matters outside the terms of the written memo-
randum, 1. e., what treatment the Employer proposed to accord to certain employees whom
it accused of engaging in improper conduct during the course of the strike, and whether
the Employer still proposed not to adhere to seniority practices in the impending 1a3 off
of chemical operators.
8 Approximately 600 members of the unit had already reported for work at their normal
hours between 7: 30 and 9 o'clock that morning (of this number 250 had also worked on
the 29th and 150 on the 28th ). After the return of the group from the parking lot about
300 more returned in the course of the day
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
morning and learn the results of a further conference with manage-
ment, the gathering in the parking lot on July 30 was merely a con-
tinuation of the previous evening's meeting. In the alternative, they
contend that the gathering in the parking lot was a separate meeting
called by the executive committee under certain emergency powers
granted by the Intervenor's constitution 10 In either event, they
further assert that the action of those employees who were present
outside the plant gates on the morning of July 30 in entering the plant
to resume work, constituted a ratification of the memorandum which
satisfied its terms.
We do not believe, however, that the gathering of employees out-
side the plant gates on the morning of July 30, or their conduct on this
occasion, was sufficient to satisfy the requirement of ratification by the
union membership, as specified in the memorandum. The record dis-
closes that, after the reading of the Employer's terms, and some ques-
tioning by the employees, the employees were invited to return to
work, and most of them did in fact reenter the plant. However, no
general or formal notice had been given for the gathering at the plant
gates. No record or minutes of this meeting, if such it was, appear
to have been kept. No formal vote was taken, nor does the record
clearly establish that there was any vote specifically on the issue of
ratification of the terms of the proposed contract. The group pres-
ent before the plant gates constituted a minor portion of those within
the bargaining unit. Their action in reentering the plant, and thus
abandoning the strike, was not substantially different from the action
of many employees who had returned to work earlier that morning
and during the 2 preceding days, as well as others not then present
who returned to work later during that same day.
In the light of the entire record, we find that the memorandum of
agreement of July 30, 1952, was not ratified by the Intervenor's mem-
bership according to its terms, and is not a bar to the petition in this
case.
We find that a question of representation affecting commerce has
arisen concerning the representation of employees of the Employer
within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of
the Act.
10 Section 6, Article 5, of the Intervenor 's constitution and bylaws granted authority to
the executive committee "In case of an emergency . .. to act where it is not practical or
possible to convene a special meeting , or because of time limitation to arrange for a general
membership meeting." It is clear , however, that this provision refers to the committee's
authority , in an emergency, to act independently of a called meeting, rather than to the
committee's authority to call a meeting . None of the parties in fact contends that the
executive committee 's approval itself validated the memorandum of agreement , but rather
that there was a membership meeting , however it may have been convened , that took the
necessary action to ratify the memorandum.
SNIVELY GROVES, INC. 1617
4. In accordance with the agreement of the parties we find the
following described unit to be appropriate for purposes of collective
bargaining within the meaning of Section 9 (b) of the Act:
All production and maintenance employees at the Employer's plant
at Rahway, New Jersey, including sheet metal workers or tinsmiths,
cafeteria employees, and truckdrivers, but excluding all mechanics
in the plant with the occupational classification of carpenter, pipe-
fitter, electrician, welder, all power plant employees presently classi-
fied as coal-passer, fireman, assistant watch engineer, watch engineer
in charge, outside engineer, oiler and water treater, all clerical, time-
keeping, technical (including laboratory assistants), professional,
efficiency, and personnel employees, managerial employees, watch-
men and guards, and all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
SNIVELY GROVES, INC. and CITRUS AND ALLIED WORKERS, LOCAL 234,
WINTER HAVEN, FLORIDA, INTERNATIONAL UNION OF UNITED BREw-
ERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS OF
AMERICA, CIO, PETITIONER. Case No. 10-RC-1733. February 24,
1953
Supplemental Decision and Certification of Results of Election
Pursuant to the Decision and Direction of Election issued on
April 11, 1952,1 an election was conducted in this proceeding on May
2, 1952, under the direction and supervision of the Regional Director
for the Tenth Region among employees in the unit heretofore found
appropriate. The tally of ballots shows that, of approximately 551
eligible voters, 195 cast valid ballots for, and 305 cast valid ballots
against, the Petitioner; and that 3 ballots were challenged. On May
7, 1952, the Petitioner's International filed 8 objections to conduct
affecting the results of the election.
Acting pursuant to the Board's Rules and Regulations, the Regional
Director investigated the issues raised by the objections, and, on De-
cember 8, 1952, issued his report on election, objections to election, and
recommendations to the Board. The Regional Director found that
7 of the 8 objections were without merit and raised no material or sub-
stantial issue with respect to the results of the election. The Regional
Director therefore recommended that these objections be overruled.
He found, however, that objection 5 had merit and raised material and
substantial issues with respect to the results of the election. He
i )S NLRB 1146.
102 NLRB No. 162.