R. P. Scherer Corp.

National Labor Relations Board - Board Decisions

Aug 28, 1951

95 N.L.R.B. 1426 (N.L.R.B. 1951)

1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permitting the three remaining employees in this group to vote in
the election. The record shows that the Employer does not presently
contemplate rehiring any of these employees. Accordingly, apart
from the alleged discrimination, no basis exists for finding any of
these eight employees eligible to vote.
As for the five employees who are alleged to have been discrimi-
natorily discharged, in accordance with our usual practice, while the
unfair labor practice charges involving these employees are pending,
we shall direct the Regional Director to challenge and segregate the
ballot of each of these five individuals. Their ballots will not be
counted unless determinative of the results of the election. In the
latter event, the final disposition of this case will await the outcome
of the unfair labor practice proceedings, which are still under inves-
tigation u By allowing these persons to vote, we are not to be taken
as having passed in any way on the legality or illegality of their
discharge.
The Employer employs some part-time "extras" in its farm service
stations who are on call for work, subject to the convenience of the
Employer, and have no regular work schedule. We find, in accordance
with the agreement of the parties, that they do not possess a sufficient
interest to entitle them to vote in the election herein directed.7 In
addition, the Employer employs some part-time employees in its main
plant who are students working during summer vacations. They
have no definite place of work, and their employment will probably
be terminated when the next school term begins. The parties took
no position as to the inclusion of these employees. In view of the
temporary nature of their part-time employment, we find that they
do not possess a sufficient interest to entitle them to vote in the election
herein directed."
[Text of Direction of Election omitted from publication in this
volume.]
" John S. Barnes Corporation , 88 NLRB 871.
7 The Great Atlantse t( Pacific Tea Company, 85 NLRB 680.
8 General Electric Company, 80 NLRB 174.
R. P. SCHERER CORPORATION , HYPOSPRAY DIVISION and INTERNATIONAL
ASSOCIATION OF MACHINISTS , DISTRICT 60. Case No. 7-RC-1338.
August 28,1951
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 Emil C. Farkas, hear-
95 NLRB No. 187.
It. P. SCHERER CORPORATION 1427
ing officer.' The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
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 organizations involved claim to represent certain em=
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer' within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of, the Act.
4. The appropriate unit:
Petitioner requests a unit of all employees engaged in working in
the Hypospray Division with 'the usual exclusions. The Intervenor,
United Gas, Coke and Chemical Workers^of"America (CIO), known
as the United Chemical Workers, contends there is no basis for a
separate unit consisting of the Hypospray Division and urges that the
employees of the latter be added to the unit of the Gelatin Products
Division, which it currently represents. The Employer agrees with
the Petitioner as to the appropriateness of a separate unit of the
Hypospray Division but also agrees with the Intervenor that an elec-
tion at this time would be premature.
The Operations of the Employer
The Employer is a Michigan corporation with plant and offices in
Detroit. Its operations are divided into three divisions : (1) The
Gelatin Products Division, which is engaged in the manufacture and
sale of soft elastic gelatin capsules, tubes,. and enclosures containing
medicaments, vitamins, foods, and, other products and which employs
some 800 workers; (2) the Fine Chemicals Division, which is engaged,
in the manufacture of synthetic, organic chemicals, and employs some
50 workers; and (3) the Hypospray Division which alone is the sub-
ject of this petition.
The Hypospray Division has been engaged for a number of years in
experimenting with the development of a new product known as the
Hypospray Jet Injector and metapules used in conjunction therewith.
The injector is an instrument used for the injection of medicaments
beneath the skin of a human being without.the use of a hypodermic
needle. The metapule is a measured dosage container for the medica-
ment to be administered and is an operational part of the jet injector
which cannot be used independently of the latter. At the present time,
the Division does not manufacture the injector, but is engaged in as-
sembling some 30 parts of the instrument, which are now manu-
f actured outside the, plant. The metapule is being manufactured by
the Division.
961974-52-vol. 95-91
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Hypospray Division now occupies a part of the Employer's
warehouse, a single-story structure physically connected with the
other buildings of the plant and formerly used for storing steel, raw
materials, and various equipment. This division, the supervisory
structure of which has not yet been established, is presently under the
direction of a special assistant to the general plant superintendent
and has yet to be assigned all the functions for which it is intended.'
The Employer's representative testified that these conditions -were
only temporary and that if the contemplated expansion materializes,
the Hypospray Division will operate on an entirely independent and
self-sufficient basis. Moreover, the evidence shows that the employees
in the Hypospray Division are on a separate payroll at the present
time. However, general working conditions and employee benefits
are substantially the same for all employees of the Employer.
The Hypospray Division contains 38 employees who cover 8 job
classifications and are engaged in the assembling of the jet injector
and the making of the metapules. Of these employees, the first was
hired in, August 1949; another was hired -in December of that year;
several more were added in May 1950; and the remainder have been
employed,, since the latter date. The product manufactured by the
Hypospray Division was not actually put on the market until May
1951 and then only to a very limited extent .2 The record shows that
further expansion will;depend on how. the medical profession and the
public throughout the country accept the new product. If it is well
received, the Employer will increase its personnel to about 100 in the
next 6 to 12 months. Thereafter it is the hope of the Employer that
the product will be manufactured on a mass-production basis requiring
entirely new machinery and tools. Should this prospect materialize,
the Division will have from 400 to 600 production workers, with a re-
-sulting increase in job classifications from 8 to 40 in number.
Bargaining History
In 1943, following a Board-directed election,3 the Intervenor was
certified as bargaining representative and has since bargained : for a
unit of production and maintenance employees 4 of the Employer,
which was then doing business under the name of Gelatin Products
3 At the present time, several departments in the other divisions are engaged in
performing functions for the Hypospray Division . The engineering department is design-
ing tools and equipment for future use; the machine shop in the Gelatin Products Division.
is making these tools and is also presently servicing the machines used' for the making
of the metapules and the shipping and maintenance ' departments of that Division' are
performing shipping and maintenance functions for the Hypospray Division. .
' The sale_ of the product is presently limited to the medical profession in only two
counties in-the State of Ohio.
8 49 NLRB 172.
4 The 1943 direction of election specifically excluded the fine chemicals department, later
known as the Fine Chemicals Division.
R. P. SCHERER CORPORATION 1429'
Company. Subsequently, the name of the Employer was changed
to its present designation. Thereafter the major operations were
divided into the Gelatin Products Division and the Fine Chemicals
Division.5 The Hypospray Division is the most recent operation of tha
Employer. However, the employees of this operation as well as those
of the Fine Chemicals Division have never had a bargaining repre-
sentative.
On the basis of the above, we find merit in the Petitioner's and
Employer's position that the Hypospray Division may constitute a
separate appropriate unit. It is clear from the record that the em-
ployees in this division are engaged in the making of a new and
different product from that produced by the other divisions in the
plant. The employees therein work in a segregated area, are under
separate immediate supervision, and constitute a clearly identifiable,
homogeneous group such as the Board frequently finds is entitled. to,
separate representation. Accordingly, we find that the employees of
the Hypospray Division may constitute a separate unit.
On the other hand, because of the community interest based on
similarity of working conditions and employee benefits and in view
of the Intervenor's request to represent the Hypospray employees as
part of a larger unit,6 we also find that the Hypospray employees
may, if they wish, be added to the existing unit of .the Gelatin Products
Division, constituting the bulk of the employees in the plant, and cur-
rently represented by the Intervenor. We shall, therefore, make no
determination with respect to the Hypospray Division employees at
this time, but shall first ascertain the desire of these employees as ex-'
pressed in the election to be directed herein. If a majority of the
employees in the Hypospray Division vote for the Petitioner, they will
be taken to have indicated their desire to constitute a separate appro-
priate unit. If a majority vote for the Intervenor, they will be taken
to have indicated their desire to be added to the existing unit.
5. In support of the Employer's motion to postpone an election in
this proceeding; the Employer and the Intervenor urge that an election
at this time would be premature, as the product made by the Hypo-
spray employees is still in an experimental stage and the unit is ex-
panding and will continue to expand for the next 6 to 12 months.
We do not agree. It is clear from the record that the present number
of employees constitutes about 40 percent of the number which. the
Employer expects to employ in the next year, and that during this
period the job classifications will not differ materially from the pres-
ent tasks. Beyond that period, the Employer is entirely uncertain
as to whether or not the product will be made on a mass-production
° The last contract between the Employer and the Intervenor was executed in: 1950:.
° See footnote 1, supra.
1430 DECISIONS: OF' NATIONAL LABOR RELATIONS BOARD
basis which will necessitate basic changes in job classifications and
manufacturing methods.
Under these circumstances, we find that the present complement
.of 40 percent of the production and maintenance employees of the
IIypospray Division is a substantial and representative segment of
employees to be employed. in the foreseeable future.7 As the expec-
tations of employment beyond.. that date appear to be uncertain,
speculative, and contingent upon unpredictable factors- in the future,
we see no reason for departing from our usual policy of directing an
immediate election. Accordingly, we shall deny the motion to post-
pone the election.
[Text of Direction of Election omitted from publication in this
volume.]
CHAIRMAN HERZOG and MEMBER STYLES took no part in the con-
sideration of the above Decision and Direction of Election.
7 Cadillac ilfotor Car Division . 94 NLRB 217 . Cf. Tucker Corporation , 79 NLRB
1262.' In that case the number of employees . at the time of the hearing was about 9
percent of the ultimate number contemplated liy the Employer and there was insufficient
evidence for a finding that even that number would remain stable in the immediate future.
In the present case, the evidence showed that the present number constituted 40 percent
of the force to be employed within the next 12 months ' period. Cf. also Coast Pacific
Lumber Company, 78 NLRB 1245 , and Westinghouse Electric Corporation , 85 NLRB 1519.
F. B. ROGERS SILVER COMPANY , and PLAYTHINGS, JEWELRY AND Nov-
ELTY WORKERS INTERNATIONAL UNION, CIO, PETITIONER. Case No.
1-RC-1W. August 28, 1951
Second Supplemental Decision and Direction
On May 18, 1951, pursuant to a Supplemental Decision, Order, and
Second Direction of Election issued .by the Board on May 2,.1951,1
an election by secret ballot was conducted under the direction and
supervision of the Regional Director for the First Region, among the
employees of the Employer in the unit found appropriate in the
original Decision 2 in this case.. The tally of ballots furnished to .the
parties after the election showed that 113 voters cast ballots, of which
52 were for the Petitioner, 44 were against the Petitioner, 16 were
challenged, and 1 was'void.
As the challenged ballots were sufficient in number to affect the re-
sults of the election, the Regional Director conducted an investigation
194 NLRB 205. ,
2-1%lay 2, 1950 , not reported in printed volumes-of Board decisions.
95 NLRB No. 191.