Park Drug Co.

National Labor Relations Board - Board Decisions

Dec 5, 1942

45 N.L.R.B. 1083 (N.L.R.B. 1942)

I
In `the Matter of PARK DRUG COMPANY and ' LOCAL ,121, UNITRD^:GAS,
COKE & CHEMICAL WORKERS OF AMERICA
Case No. R-41-1196.-Decided-December 5, 194.
Jurisdiction : drugs manufacturing industry.
Investigation and Certification of Representatives : existence of question : re-
fusal to accord recognition to petitioner because of existence of a contract with
rival union and suggestion that petitioner secure certification of the Board;
contract held no bar when petitioner gave notice of its claim prior to automatic
renewal date: election necessary.
Unit Appropriate for Collective Bargaining : all production, office, maintenance,
and technical employees, with specified exclusions; agreement as to.
Mr. Jack Hart,' of New York City, for the Company.
Mr. Alexander E. Racolin, of New York City, for the Chemical
Workers.
Mrs. Augusta Spaulding, of counsel to the Board.
i
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Local 121, United Gas, Coke & Chemical
Workers of America, herein called the Chemical Workers, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Park Drug Company, New York City,
herein called the Company, .the National Labor Relations Board pro-
vided for an, appropriate hearing upon due notice before ' Cyril W.
'O'Gorman, Trial Examiner. Said hearing was held at New York
-City on November 5, 1942. The Company and the Chemical Workers
appeared and participated.' All parties were afforded full oppor-
tunity, to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. The Trial Examiner's rul-
ings made at the hearing are free from prejudicial error and are
hereby affirmed.
1 Local # 12165, District 50, United Mine Workers of America , herein called District 50,
although served with notice, did not appear.
45 N. L. R. B., No. 154
1083
1084, 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
Park Drug Company is engaged in-the manufacture, sale, and dis-
tribution of drugs and sundry allied products at New York City.
During the 6 months preceding November 1, 1942, the Company
brought to the plant from points outside the State of New York raw
materials valued at approximately $15,000. During the same period,
the, Company shipped from its plant to points outside the State of
New York products valued at approximately $200,000, which repre-
sented 30 percent of the total value of finished products sold by the
Company during that period . The Company admits that it is en-
gaged in commerce within the meaning of the National Labor
Relations Act.
II. THE ORGANIZATIONS INVOLVED
Local 121, United Gas, Coke & Chemical Workers of Amer-icii-; is
a labor organization, admitting to, membership employees- of the
Company.
Local .# 121G5, District 50, United-Mine Workers of America, is a
labor organization admitting to- membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
On September--22, 1941;-tile Company recognized -District '50 as
bargaining agent of its production , office, and technical' employees
- and entered into a closed-shop contract covering such . employees.
The contract provides that it be in force until September 20, 1942,
and renewable thereafter for an additional year unless terminated
by 30 days ' previous notice. On August 18, 1942, at a meeting of
District 50, employees of the Company voted unanimously to with-
draw from District 50 and to affiliate with the Chemical ' Workers.
On August 21, 1942, the Chemical Workers asked the Company to
recognize it as bargaining agent for the Company 's employees. The
Company refused, contending that its contract with District 50 pre-
cluded the Company from recognizing another labor •organization-
as bargaining agent, and requested that the Chemical Workers obtain
the certification of the Board. Thereupon the Chemical Workers
filed the . petition in this proceeding . Since the Chemical - Workers
made its claim to representation prior to the automatic renewal of
the contract , we find that the contract between the Company and
PARK DRUG COMPANY -'' 1085
District 50, constitutes no --bar- to a determination of representatives
at this time.
,A statement prepared by the Regional Director and introduced into
evidence at the hearing indicates that the Chemical • Workers repre-
sents a substantial number of employees in the appropriate unit .2
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
We find, iin accordance with the agreement .of the parties, that
all production, !office, maintenance, and technical -employees,, including
truck - drivers and their -helpers, shipping clerks, -stock clerks,, and
working foreman and 'working foreladies, but excluding all salesmen
and ,executive employees, constitute ,a unit,appropriate for--the spur-
poses ,of 'collective ,bargaining -within the meaning, of Section -9 ,(b)
of the Acts
V. THE DETER-MINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of the Company's employees can 'best be resolved by an
election by secret.'ballot.
In September 1942, District 50 claimed to represent the Company's
employees. Although District 50 did not appear at the hearing, the
record,:dos, not, affirmatively disclose that District, 50 has relinquished
this claim. Under these circumstances, if District 50 notifies the
Regional Director within 5 days of the date of the issuance of the
Direction of Election herein that it desires to participate in the elec-
tion, we shall permit District 50 to appear upon the ballot and shall
accordingly amend the Direction of Election.
Those eligible to vote in the election shall be all employees of the
Company in the unit found appropriate in Section IV, above, who
were employed,during the pay-roll period immediately preceding the
date of the Direction of Election, subject to the limitations and
additions set forth therein.
-,
The Chemical workers submitted a petition, dated August 18; 1942, by which the
signers designated the Chemical workers as their bargaining agent. Of the 76, names
listed on the petition, 67 appear to be the genuine signatures of employees of the Company
on the pay roll of September 28, 1942 . Theie are approximately 80 employees in the
appropriate unit.
8 Employees included in the unit herein found appropriate for bargaining were deemed
to be included in the contract between the Company and District 50, covering "production,
office and technical employees ." Only executive employees have the power to lire and
discharge production employees
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION OF ELECTION I
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is,
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Park Drug 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, Sec-
tion 10, of said Rules and Regulations, among all employees of the
Company within the unit found appropriate in Section IV, above,,
who were employed during the pay-roll period immediately preced-
ing the date of this Direction, including employees who did not'work
during said 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 employees who have since quit
or been discharged for cause, to determine whether or not they desire
to be represented by Local 121, United Gas, Coke & Chemical Workers,
of, America, for the purposes of collective bargaining.