Schieffelin & Co.

National Labor Relations Board - Board Decisions

Sep 8, 1941

35 N.L.R.B. 290 (N.L.R.B. 1941)

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.