Washington Dental Supply Co.

National Labor Relations Board - Board Decisions

Oct 31, 1940

27 N.L.R.B. 1161 (N.L.R.B. 1940)

In the Matter of WASHINGTON DENTAL SUPPLY CO. and DENTAL
WORKERS UNION , LOCAL No. 20753, AFFILIATED WITH THE AMERICAN
FEDERATION OF LABOR
Case No. R-2092.-Decided October 31, 1940
Jurisdiction : dental supply selling industry.
Investigation and Certification of Representatives : existence of question: re
fusal to accord recognition to union; election necessary.
Unit Appropriate for Collective Bargaining : all employees , excluding super-
visory employees who have the right to hire or discharge , outside salesmen
who spend at least 50 per cent of their time on the outside , clerical employees,
and the ledger clerk.
Mr. Arthur G. Barnett, of Seattle, Wash., for the Company.
Mr. Harry McLellan, of Seattle, Wash., for the Union.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On September 5 and 16, 1940, respectively, Dental Workers Union,
Local No. 20753, affiliated with the American Federation of Labor,
herein called the Union, filed with the Regional Director for the
Nineteenth Region (Seattle, Washington) a petition and an amended
petition alleging that a question affecting commerce had arisen
concerning the representation- of employees of Washington Dental
Supply Co.,.Seattle, Washington, herein called the Company, and re-
questing an investigation and certification of representatives pursuant
to Section 9 (c) of the National Labor Relations Act, 49 Stat.. 449,
herein called the Act. On September 26, 1940, the National Labor
Relations Board, herein called the Board, acting pursuant to Section
9 (c) of the Act, and Article III, Section 3, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, ordered
an investigation and authorized the Regional Director to conduct it
and to provide for an appropriate hearing upon due notice.
On October 1, 1940, the Regional Director issued his notice of
hearing, copies of which' were duly served upon the Company and
27 N. L. R. B., No. 189.
1161
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union. Pursuant to notice, a hearing was held on October
14, 1940, at Seattle, Washington, before Thomas P. Graham, Jr.,
the Trial Examiner duly designated by the Board. The Company
was represented by counsel, the Union by its business representative;
both participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties. During the course
of the hearing the Trial Examiner made several rulings on motions
and pn objections to the admission of evidence. The Board has
reviewed the rulings of the Trial Examiner and finds that no preju-
dicial errors were committed. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Washington Dental Supply Co. is a Washington corporation with
its principal office and place of business in Seattle, Washington, where
it is engaged in the sale of dental supplies. The Company purchases
dental supplies valued in excess of $50,000 annually, approximately
90 per cent of which are shipped to it from points outside the State of
Washington., During the first 7 months of 1940 the Company sold
products valued at approximately $136,000, approximately 3.6 per cent
of which were shipped by it to points outside the State of Washington.
II. THE ORGANIZATION INVOLVED
Dental Workers Union, Local No. 20753, is a labor organization
affiliated with the American Federation of Labor. It admits to
membership all employees of the Company exclusive of supervisory
employees who have the right to hire or discharge, outside salesmen,
and clerical employees.
III. THE QUESTION CONCERNING REPRESENTATION
The Union has requested the Company to bargain with it as the
exclusive representative of its employees. The Company has refused
to recognize the Union as the exclusive bargaining agent for its em-
ployees until the Board has designated the appropriate bargaining
unit and found that the Company is engaged in interstate commerce
within the meaning of the Act. A statement of a Field Examiner
of the Board introduced at the hearing shows that the Union repre-
sents a substantial number of employees in the unit alleged,by it to be
appropriate.'
I The Field Examiner's statement shows that four employees of the nine employees in the
alleged appropriate unit on the September 16, 1940 , pay roll of the Company have desig-
nated the Union as then iepresentative.
WASHINGTON DENTAL SUPPLY CO. 1163
We find that a question has arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States
and tends to lead to labor' disputes burdening and obstructing corn-
merce and the free flow of commerce.
V. TIIE APPROPRIATE UNIT
The Union urges that all employees of the Company exclusive of
supervisory employees who have the right to hire or discharge, outside
salesmen, and clerical employees, constitute an appropriate unit. The
only controversy concerning the unit concerns A. L. Pearson, Elmer
Dawson,- Hazel Norton, and A. E. Burke, Jr., outside salesmen, and
S. Odyne, ledger clerk.
A. L. Pearson, Elmer Dawson, Hazel Norton, and A. E. Burke, Jr.,
are classified by the Company as outside salesmen, used inside at
times. The Union desires their exclusion from the unit and the
Company their inclusion. The parties are in agreement as to the
exclusion of two outside salesmen employed by the Company- on a
commission basis. The Union clarified its position as to' the outside
salesmen, used inside at times, by stating that if they spend 50 per
cent of their time on the outside it desired their exclusion. The
Union further stated that it did not desire to represent these em-
ployees because they are not eligible to membership in the Union
and because it is virtually impossible to regulate the hours and
working conditions of outside salesmen. These employees are paid
by the Company on a salary basis and although they spend some time
selling at the Company's place of business, particularly Saturday
mornings, it appears from the record that they spend the majority of
their time selling on the outside. Under these circumstances we shall
exclude Pearson, Dawson, Norton, and A. E. Burke, Jr., from the unit.
S. Odyne is classified by the Company as a ledger clerk. The Union
seeks to exclude him from the unit on the ground that he is a clerical
employee and the Company desires that he be included in the unit.
The business representative of the Union testified that the ledger
clerk is eligible to membership in another union and therefore would
not be eligible to join the Union. The record shows that his work
is purely clerical and it will be noted that the Company does not
1164 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
i
of the Act.
object to the exclusion of the other clerical workers. Under these
circumstances, we shall exclude the ledger clerk from the unit.'
We find that all employees of the Company, excluding supervisory
employees who have the right to hire or discharge, outside salesmen
who spend at least 50 per cent of their time on the outside, clerical
employees, and the ledger clerk, constitute a unit appropriate for the
purposes of collective bargaining and that such unit will insure to
employees of the Company full benefit' of their right to self-organiza-
tion and to, collective bargaining and otherwise effectuate the policies
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of employees of the Company can best be resolved by an
,election by secret ballot. We shall direct that the employees eligible
to vote shall be those employees in the appropriate unit who were
employed by the Company during'the pay-roll period immediately
preceding the date of the Direction herein, including employees who
did not work during such pay-roll period because they were ill or
on vacation and employees who were then or have since been-tempo-
rarily laid off, but excluding those who have since quit or been
discharged for cause.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Washington Dental Supply Co., Seattle,
Washington, within the meaning of Section 9 (c) and Section 2 (6)`
and (7) of the National Labor Relations Act.
2. All employees of the Company, excluding supervisory employees
who have the right to hire or discharge, outside salesmen who spend
at least 50 per cent of their time on the outside, clerical employees,
and the ledger clerk, constitute a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of the
National Labor Relations Act.
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 Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, it is hereby
WASHINGTON DENTAL SUPPLY CO. 1165
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Washington Dental Supply Co., Seattle, Washington, 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 Nineteenth
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Section 9, of the said Rules
and Regulations, among all employees of the Company who were
employed during the pay-roll period immediately preceding the date
of this Direction, including employees who did not work during such
pay-roll period because they were ill or on vacation and employees
who were then or have since been temporarily laid off, but excluding
supervisory employees who have the right to hire and discharge,
outside salesmen who spend at least 50 per cent of their time on
the outside, clerical employees, the ledger clerk, and employees who
have since quit or been discharged for cause, to determine whether
or not they desire to be represented by Dental Workers Union, Local
No. 20753, affiliated with the American Federation of Labor, for the
purposes of collective bargaining.