The Smith-Dorsey Co.

National Labor Relations Board - Board Decisions

Apr 20, 1945

61 N.L.R.B. 659 (N.L.R.B. 1945)

In the Matter of THE SMITH-DORSEY COMPANY and UNITED RETAIL,
WHOLESALE & DEPARTMENT STORE EMPLOYEES OF AMERICA, C. I. O.
Case No. 17-R-1069.-Decided April 20,19-115
Mr. Frank D. Williams, of Lincoln, Nebr., for the Company.
Mr. Frank W. Cronin, of Omaha, Nebr., for the Union.
Mr. Jack Mantel, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by United Retail, Wholesale &
Department Store Employees of America, C. I. 0., herein called the
Union, alleging that a question affecting commerce had arisen con-
cerning the representation of employees of The Smith-Dorsey Com-
pany, Lincoln, Nebraska, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing upon
due notice before Margaret L. Fassig, Trial Examiner. Said hearing
was held at Lincoln, Nebraska, on March 6, 1945. The Company and
the Union 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 an opportunity to file
briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Smith-Dorsey Company is a Nebraska corporation having its
principal office and place of business in Lincoln, Nebraska, where it is
engaged in the business of manufacturing pharmaceutical specialties
for the medical profession. The Company, in the course and conduct
American Federation of Labor , Lincoln Central Labor Union , was duly served , but did
not enter an appearance or participate in the proceeding.
61 N. L. R. B., No. 102. 659
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of its business, purchases drugs and chemicals, all of which are shipped
to its plant from points outside the State of Nebraska. Approximately
95 percent of the Company's sales, which are valued in excess of $50,000
annually, is made to points outside the State of Nebraska.
The Company admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Retail, Wholesale & Department ,Store Employees of
America, affiliated with the Congress of Industrial Organizations, is a
labor organization admitting to membership employees of the Com-
pany.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as
the exclusive bargaining representative of its employees until the
Union has been certified by the Board in an appropriate unit.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found appropriate.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
The Union contends that all production and maintenance employees
of the Company, including scientific personnel and clerical employees,
but excluding certain supervisory employees, constitute an appropriate
bargaining unit. The Company would exclude from the unit the
scientific personnel, clerical employees, and all supervisory employees.
Scientific personnel: The Company has 8 employees in this group,
4 of whom the Union agrees to exclude from the unit because of their
executive or supervisory duties. The Union would include 3 control
chemists and Milo Kottas, who is a manufacturing pharmacist. The
Company would exclude them because their qualifications and duties
are distinct and apart from those of the remaining employees. The
control chemists work in the analytical laboratory under the super-
vision of the chief control chemist,- who is a registered pharmacist.
2 The Board agent reported that the Union submitted 60 membership cards, 50 of which
bore the names of persons appearing on the Company ' s pay roll of February 22, 1945,
which listed 57 employees in the unit hereinafter found appropriate
The Trial Examiner further reported that the Union submitted 4 additional cards in
support of its claim of interest in the clerical employees , and that 3 of the cards bore
the names of persons appearing on a current pay roll submitted by the Company at, the
hearing , which listed 14 clerical employees
THE SMITH-DORSEY COMPANY 661
They assay all raw materials which enter into the manufacture of
pharmaceutical preparations for identity and quality. They identify
the materials, testing them for purity, and when the finished products
go to the control laboratory, they are tested for conformity to label.
Although the chemists need not be registered pharmacists, they must
have a college degree of bachelor of science or be a college graduate
having majored in chemistry. Since the record discloses that the
background, interests, and functions of the control chemists are of a
professional and technical nature, we shall, in accordance with our
usual policy, exclude these technical employees from the unit.'
Milo Kottas, referred to in the record as a manufacturing pharma-
cist, is in charge of filling all orders for liquid pharmaceuticals, and
has no regular assistants, although he is occasionally assisted by one of
the production employees. Kottas is a registered pharmacist having
a bachelor of science degree in pharmacy, which is required by local
law in order to perform some of his duties, such as filling and checking
prescriptions. The Union's basis for his inclusion is the fact that he
does some manual labor, such as moving vats of raw materials used in
the preparation of finished products. Because the background and
duties of this employee, like those of the control chemists, are of a
professional and technical nature, we shall exclude him.
Clerical employees: There are 14 clerical employees whom the
Union would include in the unit of production and maintenance em-
ployees. Twelve of the employees are in the general office and are
engaged in clerical duties such as writing orders, billing, bookkeeping
and stenographic work. They are physically segregated in the per-
formance of their duties from the plant production and maintenance
employees, with the exception of 1 office clerical employee, who daily
distributes reports throughout the plant, which requires only a mini-
mum of her time. The 2 other clerical employees work in the sepa-
rate office of Dr. Buckey, who is in charge of all scientific operations.
One of them writes tickets containing formulas, which are sent to the
manufacturing departments. This employee also maintains and pre-
pares reports relating to the use of narcotics and alcohol as required
by Federal and State regulations. The other clerk in Dr. Buckey's
office writes advertising copy, copy for labels, prepares new cata-
logues, and performs necessary stenographic duties. We see no rea-
son to depart from the Board's general policy of not including clerical
employees in the same unit as production and maintenance employees.4
Accordingly, we shall exclude the clerical employees.
Supervisoryy employees: The Company and the Union agree that the
chief control chemist and 4 foremen should be excluded from the unit
See Matter of Sharp d Dohme, Inc, 56 N L R. B 1471, 1478.
See Matter of Boston Edison Company, 51 N L R B. 118.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of their supervisory duties. The Company also employs 4
foreladies, referred to on the pay roll as supervisors, whom the Union
would include on the ground that they are working group leaders.
The foreladies are in charge of from 3 to 12 employees in their respec-
tive groups. They instruct new employees; lay out and direct the
work of their departments; spend about half of their time working
along with the other employees under their supervision; decide vaca-
tion schedules where conflicts arise; receive a higher rate of pay than
their subordinates ; and possess authority to recommend effectively
the discharge of employees for whom they are responsible. Since the
record shows that the foreladies come within the Board's usual defini-
tion of supervisory employees, we shall exclude them.
We find that all production and maintenance employees of the Com-
pany, excluding scientific personnel, clerical employees, foremen, and
foreladies, 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 a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
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
Election 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 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 The Smith-Dorsey
Company, Lincoln, Nebraska, an election by secret ballot shall be con-
ducted 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 Seventeenth 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 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
THE SMITH-DORSEY COMPANY 663
the said pay-roll period because they were ill or on vacation or tempo-
rarily laid off, and including employees 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
United Retail, Wholesale & Department Store Employees of America,
C. I. 0., for the purposes of collective bargaining.