Park Drug Co.

National Labor Relations Board - Board Decisions

Jan 8, 1959

122 N.L.R.B. 878 (N.L.R.B. 1959)

878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the case closed on that day. Absent a pending case, this office cannot
render advisory opinions, as such. However, on the basis of the information
contained in your letter, it appears that the answer to your present problem
is contained in a case decided in 1954 by the Supreme Court of the United
States; namely, Ray Brooks vs. N.L.R.B., 345 U.S. 96, affirming 204 F. 2d
899, where it was held that for a period of at least one year after a certifi-
cation of a bargaining representative by the Board, an employer is required
to bargain in good faith with the representative even in the face of a petition
signed by a majority of employees repudiating said representative. This case,.
in effect, affirmed the National Labor Relations Board's "one-year certification
rule" which had been followed for some time prior to this Supreme Court:
decision. Since the Ray Brooks case, the Board has continued to follow this.
practice.
If you have further inquiries concerning this matter, may we suggest that
you contact Mr. Herbert B. Mintz, who is one of our Board Agents in Miami.
His address and telephone number are: 1540 N.W. 132nd Street, phone-
Nurray 1-6252.
Very truly yours,
HCT:vbd
HAROLD A. BOIRE,
Regional Director.
Park Drug Company and Joseph Garone , Petitioner and District
65, Retail , Wholesale and Department Store Union , AFL-CIO..
Case No. P-RD-408. January 8, 1959
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 Max Schwartz,
hearing 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 Leedom and Members Rodgers and
Jenkins].
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 organization involved claims to represent certain
employees of the Employer.'
3. The Union moved to dismiss the petition herein on the ground
that it had been filed and sponsored by the Employer. The Union
attacked the validity of the petition because it was filed by Garone,
an alleged supervisor, and also attacked the Petitioner's showing
of interest because it was secured with the assistance of five other
alleged supervisors. We find no merit in the Union's contention
and deny its motion.
The petition herein was validly filed because, as detailed in para-
graph 4 of this Decision, the record shows, and we find, that the
1 The Petitioner asserts that the Union is no longer the bargaining representative of
certain employees of the Employer as defined in Section 9(a) of the Act. The Union is
currently recognized by the Employer as the exclusive representative of such employees,
'122 NLRB No. 100.
PARK DRUG COMPANY 8791
Petitioner and the other five alleged supervisors are employees, and
not supervisors, within the meaning of the Act. Further, as to the
validity of the Petitioner's showing of interest, it is well established
Board policy that in proceedings under Section 9 of the Act, a
petitioner's showing of interest is an administrative matter for
Board determination and is not litigible in such proceedings.2 The
same rule obtains where it is alleged that there is supervisory par-
ticipation in, or influence upon, the acquisition of a petitioner's
showing of interest. Georgia Kraft Company, 120 NLRB 806.
Although the Georgia Kraft case involved an attack upon a showing
of interest in support of a petition for certification filed by a union,
the principle therein enunciated is applicable to all petitions filed
under Section 9 of the Act, including the instant decertification
petition.'
Accordingly, we find that a question affecting commerce exists
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.
4. The parties agree that a unit of office, production, and mainte-
nance employees, more specifically set forth below, at the Employer's
New York City, New York, pharmaceutical products manufacturing
plant is appropriate, and that it contains the same categories of em-
ployees as have been included in the Union's contracts. The only
unit issue concerns the status of Garone, the Petitioner herein, and
five other individuals, all of whom the Union contends are super-
visors as defined in the Act.
Of the 29 employees herein involved, 23 do production, shipping,
and maintenance work under Supervisor Henkin, and 6 do office
work under Supervisor Bischoff. Five of the six alleged supervisors,
"working foremen," 4 Garone, Sepulveda, Crespo, Weinstein, and
Pade, in production, shipping, maintenance, have been with the
Employer for at least 11 years. They work with crews of from one
to seven employees engaged in routine and repetitive printing ; in
the preparation of liquids, ointment, tablets, and capsules; and in
shipping and receiving. Although the crews work on several floors,
Henkin visits them four or five times daily, for 15 minutes to an
hour at a time; he checks work progress and assigns work directly,
or indirectly by orders to the "working foremen" for transmittal
to the crews. The sixth alleged supervisor, Taylor, an office assistant
to Bischoff, operates the switchboard, makes routine work assign-
ments whenever Bischoff is outside the office or otherwise occupied,
and may also request an employee to attend the switchboard during
2 0. D. Jennings & Company, 68 NLRB 516; Burry Biscuit Company, 76 NLRB 640.
b See, Republic Steel Corporation , 102 NLRB 717, footnote 1.
4 These individuals are called "foremen" and "working foremen" by the employees in
their charge , and have been collectively designated as "the basic crew" in the bargaining
contracts.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her infrequent absences. None of the six hires or discharges em-
ployees or effectively recommends changes in employee status. Their
higher pay reflects longer job tenure. All have long been incluuded
in the Union's contract unit. The "working foremen" have served
on union negotiating committees, and at least one of them has served
for several years as shop steward for the Union. Under these cir
-cumstances, and on the entire record, we find that Garone,Sepul
veda, Crespo, Weinstein, Pade, and Taylor are merely more experi-
enced employees who act as conduits between the supervisors and
the employees, routinely directing employees, and that they are not
supervisors as defined in the Act. United States Gypsum Company,
119 NLRB 1415 (machine operators) ; New Pacific Lumber Co., 119
NLRB 1307. Accordingly, we include them in the unit.
The record is inadequate to determine whether Frymer and Pages,
classified as executive employees, have been excluded from the recog-
nized unit.. As established Board precedent requires that the unit
for decertification be coextensive in scope with the existing unit, and
as their status as managerial or confidential employees is conjectural,
we shall permit them to vote subject to challenge by the Board agent.
Seaporeel Metals, Inc., 115 NLRB 960.
Accordingly, we find that all office, production, and maintenance
employees at the Employer's New York City, New York, pharma-
ceutical products manufacturing plant, including the bookkeeper,
clerk-typists, the switchboard operator, stenographers , machine op-
erators, pricing clerks, payroll clerks, packing employees, porters,
shipping and trucking employees, maintenance employees , the raw
materials clerk, and employees in the tablets and capsules , labeling
and filling, and liquid and ointments departments, b ut excluding
salesmen, confidential employees, and supervisors as defined in the
Act, constitute a unit appropriate for purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
[Text of Direction of Election omitted from publication.]
National Dairy Products Corporation , Sealtest Southern Dairies
Division and General Truck Drivers , Chauffeurs, Warehouse-
men & Helpers, Local 270 (Ind .), Petitioner. Case No. 15-RC-
1611. January 8, 1959
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election issued November
25, 1957,1 an election by secret ballot was conducted on December 13,
l Unpublished.
122 NLRB No. ]09.