E. J. Barry, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1945

63 N.L.R.B. 744 (N.L.R.B. 1945)

In the Matter of E. J. BARRY, INC. and DRUG TRADE SALESMEN'S—
UNION, C. I. O.
Case, No. 2-R-6666.=Decided August 31, 1945
Mr. Henry Braverman, of New York City, for the Company.
Mr. Mac Mattis, of New York City, for —the Union.
Mr. David V. Easton, 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 Union, alleging that a question affecting
commerce had arisen concerning the representation of employees of
E. J. Barry, Inc., New York City, herein called the Company, the
National Labor Relations Board provided for an appropriate hearing
upon due notice before Henry J. Kent, Trial Examiner. Said hearing
was held at New York City on July 13, 1945. The Company and the
Union appeared 1 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 the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
E. J. Barry, Inc., a New York corporation, is engaged in the whole-
sale drug business, consisting primarily of servicing retail drug
stores. Its office and principal place of business is located in New
York City. The Company annually purchases merchandise valued in
excess of $500,000, of which 55 percent is obtained from points outside
i Federal Labor Union , Local No. 10734 , A. F. of L, although duly notified did not appear
at the hearing
63 N. L. R. B., No. 108.
744
E. J. BARRY, INC. 745
the State of New York. The annual sales of the Company exceed
$500,000 in value, of which 14 to 15 percent is shipped to points out-
side that State.
Contrary to its contention, we find that the Company 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 mem-
bership 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
until the Union has been certified by the Board in an appropriate
unit.
A statement of a Field Examiner for the Board, introduced into
evidence at the hearing, indicates that the Union represents a substan-
tial number of employees in the unit hereinafter found appropriate.'
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 comprised solely of the Company's sales-
men. The Company contends that the unit is inappropriate.
The record shows that the Company's salesmen perform the usual
duties of their work classification under the supervision of the Com-
pany's sales manager. They are compensated by the Company on a
commission basis, and are required to work exclusively for it. We
are of the opinion that the salesmen are a well-defined, homogeneous
group of the Company's employees, who may properly be bargained
for collectively.'
We find that all salesmen of the Company, excluding supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively rec-
ommend such action, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of
the Act.
s See N. L. R. B. V. Faanblatt, 306 U. S. 601.
' The Field Examiner reported that the Union submitted six designations and that there
were six employees in the unit sought herein.
4 See Matter of Pitrepac Corporation, et at, 55 N L. R. B 1386 See also N. L. R. B.
v. Hearst Publication, et at, 322 U S. 111.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 the,em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion 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 IhI, 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 E. J. Barry, Inc.,
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 Direc-
tor for the Second Region, acting in this matter as agent for the Na-
tional Labor Relations Board, and subject to Article III, Sections 10
and 11, of said Rules and Regulations, among the employees 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 offy
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 re-
hired 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, affiliated with the Congress of Industrial Organizations, for
the purposes of collective bargaining.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.