Schiefflin & Co.

National Labor Relations Board - Board Decisions

Jun 18, 1946

68 N.L.R.B. 673 (N.L.R.B. 1946)

In the Matter of SCHIEFFLIN & COMPANY and DRUG TRADE SALESMEN'S
UNION, CIO
Case No. 2-R-6262.-Decided June 18, 1946
Messrs. N. William Welling and S. S. Wilson, of New York City,
for the Company.
Mr. Mac Mattis, of New York City, for the CIO.
Buitenkant & Cohen, by Messrs. Arnold Cohen and Samuel Sander-
man, of New York City, for the AFL.
Mr F. G Dunn, 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, CIO,
herein called the CIO, alleging that a question affecting commerce
had arisen concerning the representation of employees of Schiefilin &
Company, New York City, herein called the Company, the National
Tabor Relations Board provided for an appropriate hearing upon due
notice before .John J. Cuneo, Trial Examiner. The hearing was held
at New York City, on May 2, 1946. The Company, the C. I. 0., and
Federal Labor Union, Local 20734, A. F. of L., herein called AFL,
who was allowed to intervene by the Trial Examiner,' 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.
f 16-26 Cooper Square Federation of Drug Employees , herein called the Federation, was
sei ved with notice but did not appear at the hearing . In a letter addressed to the Regional
Office of the Board , the Federation stated that it was not interested in the instant case
because the salesmen were voted out of the Federation in January 1946, and were specifically
excluded under their prevent contract with the Company.
68 N I..R B. No 94.
673
674 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
Schiefflin & Company is a corporation organized under the laws of
the State of New York, maintaining its principal office and plant in New
York City where it is engaged in the manufacture and wholesaling of
drugs, chemicals, and pharmaceuticals. During the yearly period ending
on or about April 1, 1946, the Company purchased drugs, chemicals,
and packaging materials valued in excess of $1,000,000, of which ap-
proximately 33 percent was shipped to its plant from points outside the
State of New York. During the same period, the Company's sales of
drugs, chemicals, and pharmaceuticals were valued in excess of
$1,000,000, of which approximately 25 percent was shipped from its plant
to points outside the State of New York.
The Company admits that it is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Drug Trade Salesmen's Union is a labor organization, affiliated with
the Congress of Industrial Organizations, admitting to membership-
employees of the Company.
Federal Labor Union, Local 20734, is a labor organization, affiliated
with the American Federation of Labor, admitting to membership em-
ployees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On January 18, 1946, the CIO sent a letter to the Company, claim-
ing to represent a majority of the Company' s wholesale salesmen and
requested recognition as their bargaining agent . The Company replied
on January 22, 1946, refusing to recognize the CIO, because the
Federation had been certified as the exclusive bargaining agent of the
wholesale salesmen , and the contract between the Federation and the
Company would not expire until March 1, 1946.
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 CIO seeks a unit comprised of the Company's wholesale salesmen,
excluding liquor salesmen and the sales manager. The AFL contends
SCHIEFFLIN & COMPANY 675
that the wholesale salesmen should be merged with the warehouse em-
ployees in a single unit. The Company contends that these employees are
a part of a broader unit heretofore found appropriate by the Board.
The Federation has had a series of yearly contracts with the Com-
pany since 1937, covering substantially all of its employees excepting
those employed in the warehouse. However, as indicated above, in
January 1946, the Federation voted the salesmen out of its union and
specifically excluded them in their present contract with the Company.3
The AFL contends that the salesmen should logically form a part of
the warehousemen's unit inasmuch as they worked in the warehouse for
3 months in 1943 during the manpower shortage and paid dues to the
AFL. However, the record indicates that this was an emergency arrange-
ment to fill outstanding orders for a short period of time and that the
salesmen have confined themselves to the selling of drugs.4
The working conditions of the salesmen are different from those of
other employees in the plant, including those of the warehousemen. They
spend most of their time outside the plant, coming in only 3 mornings a
week to check telephone calls and to contact the credit and adjustment
departments concerning their accounts. Other employees work a standard
day, punching a time clock morning and evening. The salesmen are paid
on a commission basis each month, whereas other employees receive regu-
lar salaries each week. Their commissions average from $3,000 to $10,000
per year, which earnings exceed those of other employees. The sales-
men have virtually no contact with either the employees of the warehouse
,division or other employees of the Company. In view of the fact that
there is a marked difference in the hours, wages, and working conditions
of the salesmen compared with the other employees, and the fact that
they are no longer represented by the Federation, we are of the opinion
that a separate salesmen's unit is appropriate.5
We find that all wholesale salesmen, excluding liquor salesmen, the
sales manager, and all other supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action , constitute
4 The A. F. L. was certified as the bargaining agent for the warehouse employees in 1941
Matter of Schie$lan & Company, 35 N. L. R B 290
3 The C. I O. sought a similar unit of salesmen in 1945 and the Board dismissed its petition
because of the long bargaining history in a broader unit with the Federation who was then
opposing the separate unit of salesmen . Matter of Schsefflin & Company, 63 N L. R. B 871
The A F. L. had a closed - shop agreement with a check -off provision and for that reason
the salesmen were issued temporary A. F. L. cards and had dues deducted from their com-
missions during this 3 -month period . It was carried out with the consent of the Federation,
who still represented the salesmen , collected dues from them, and handled their grievances
L Matter of Heidbrink Division of the Ohio Chemical & Manufacturing Company , 64 N L. R. B
776; Matter of McKesson & Robbins, Inc ., 63 N L. R B. 88
696966-46-44
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
Inasmuch as we have found that the employees in the appropriate
unit have never been covered by the AFL's contract with the Com-
pany, and that union has made no current showing of representation
among the salesmen,6 it will not be accorded a place on the ballot.'
We shall direct that the question concerning representation which has
arisen be resolved by an election by secret ballot among the employees
• in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein, sub-
ject 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 Schiefflin & Com-
pany, 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, 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 elnrloyed during the
pay-roll period immediately preceding the date of this Direction, in-
cluding employees who did not work during said pay-roll period because
they were ill or on vacation or temporarily laid off, and including em-
ployees 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 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, CIO, for the
purposes of collective bargaining.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.
d The A F L made no showing of representation except for the dues paying records for
the 3-month period in 1943 when the salesmen worked in the warehouse and were temporarily
subiect to the check-off provisions of the A. F. L.'s contract.
' Matter of Marine Basin Company, 65 N. L. R. B. 970; Matter of Chicago Flexible Shaft
Company, 60 N. L. R. B. 848.