Liggett Drug Co., Inc.

National Labor Relations Board - Board Decisions

Apr 10, 1947

73 N.L.R.B. 312 (N.L.R.B. 1947)

In the Matter of LIGGETT DRUG COIMPANY, INC., EIiPLOYER and LOCAL
25, UNITED RETAIL, WHOLESALE, AND DEPARTMENT STORE EM-
PLOYEES, CIO, PETITIONER
Cease No.. -R-6930.-Decided April 10, 1947
Mr. Harry H. Dracos, of New York City, for the Employer.
Sheehan cC Harold, by Mr. John J. Sheehan, of New York City, for
the Petitioner..
Buxitenkant di Cohen, of New York City, by Mr. ilrnlold Cohen, for
the Intervenor.
Mr. Philip Licari, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at New
York City, on October 17, 22 and 23, 1946, before Sidney Reitman,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed?
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Liggett Drug Company, Inc., a Delaware corporation, is engaged
in the sale and distribution of drugs in various parts of the United
States. In connection with its operations, the Employer maintains
warehouses in New York City, Boston, Massachusetts, and Chicago,
Illinois. Only the Employer's New York City warehouse is involved
in this proceeding. During the year preceding August 20, 1946, the
Employer purchased and stored at its New York warehouse drugs
and other items valued in excess of $1,000,000, of which approximately
I Subsequent to the hearing, the Allied Trades Council, AFL requested that it"he sub-
stituted as successor in interest to Federal Labor Union, Local 20734, AFL, which originally
had intervened in this proceeding On March 14, 1947, the Board issued an order to show
cause why the foregoing request should not be granted Inasmuch as none of the parties
have expressed any opposition thereto within the time specified in the order, the request
is her eby granted
73 N. L. R. B, No 57
312
LIGGETT DRUG COMPANY, INC. 313
75 percent was shipped from sources outside the State of New York.
During the same period, the Employer shipped from its New York
City warehouse products valued in excess of $1,000,000, of which
approximately 75 percent was shipped to points outside the State.
We find that the Employer is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
Official Trades Council, affiliated with the American Federation of
Labor, herein called the Intervenor, is a labor organization, claiming
to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner and the Intervenor
as the exclusive bargaining representative of employees of the Em-
ployer until either has been certified by the Board in an appropriate
unit.
We find that a question affecting commerce has arisen concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Petitioner seeks a unit of all warehouse, maintenance, and
clerical employees at the Employer's New York City warehouse. The
Intervenor maintains that the appropriate unit is the one established by
the Federal Labor Union, Local 20734, AFL's 1945 "members only"
contract between the Employer and the Intervenor's predecessor.2
Although the Employer is substantially in accord with the extent of
the unit sought by the Petitioner, it would exclude certain employees in
the general office or clerical department.
In 1937, the Employer entered into a "members only" contract with
the Liggett Drug Company Warehouse Employees Union, herein
called the Independent, which defined the unit as "all persons doing
clerical work and persons physically handling freight, wherein are'
included packers, order pickers, checkers, aisle clerks, receiving clerks,
elevator and lowerator operators who manually handle freight, build-
ing and maintenance employees, and watchmen." At the termination
In this contract , the parties thereto defined the unit as follows
All employees in the classification of persons physically handling freight , including
packers, order pickers , checkers, aisle clerks , receiving clerks, and elevator and lower-
ater operators who manually handle freight
314 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
of the contract with the Independent, on August 15,1945, the Employer
entered into a "members only" contract with the Intervenor's prede-
cessor in which the unit agreed to was substantially different from that
defined in the Independent's contract, in that it was confined to em-
ployees handling freight.'
In view of the fact that the previous collective bargaining agree-
ments have been "members only" contracts and that the units defined
therein have been substantially different, we are of the opinion that
there has been no conclusive history of collective bargaining, and there-
fore, we do not accord it controlling weight in the determination of the
appropriate unit in this case.'
The following categories of employees are in dispute:
Office Clericals: The Employer's operations are conducted in two
main divisions, namely the clerical department and the freight
handling and maintenance department. The clerical department em-
ployees are engaged solely in general office clerical work.5 They are,
in the main, segregated on the second floor of the Employer's ware-
house, are under separate supervision from the rest of the warehouse
employees and have different working hours. The Employer and the
Petitioner seek to include in the appropriate unit the telephone oper-
ator, typist telephone relief operator, order writers, purchasing
stenographer, and purchasing order filer; the Intervenor desires their
exclusion. The Employer and the Intervenor desire the exclusion
from the appropriate unit of cashiers, manager order writers and
reorder buyers, whereas, the Petitioner seeks their inclusion. In view
of the foregoing and our usual policy of excluding general office cler-
icals from plant-wide units, we shall exclude all employees working
in the clerical department from the unit hereinafter found appro-
priate.
The Building Accourntt Department: 6 The employees in this depart-
ment perform maintenance work and their functions are closely inte-
grated with those of the general warehouse employees. The Em-
ployer and the Petitioner would include them in the appropriate unit;
the Intervenor would exclude them. Where, as here, a plant-wide
unit is sought and a close relationship and integration between the
work of general warehouse employees and maintenance workers exist
and there is no cogent reason for the separation of the two groups; the
See footnote 1. supra
a See Matter of Hamilton Schen 6. 1V0sh Shoe Company, 66 N L R B 146 , Matter of
Kansas Power el Light Company, 64 N L R B 915
5The categories of employees working in the clerical department are as follows cashiers,
reorder buyers, telephone operators, t'pist telephone relief operators, eider writers, pur-
chasing stenographer, and purchasing order filers There is also a manager of der «riter, who
is in charge of 10 order waters and who is clearly a supervisory employee within the mean-
ing of the Boards definition thei eof
6 This department is composed of maintenance employees consisting of porters, firemen,
general hunch men, matron for the ladies' rest room, carton salvager, relief man, for the
maintenance department, paper bales, passenger elevator, and box repairers,
r LIGGETT DRUG COMPANY, INC.
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315
Board has usually included maintenance employees in plant-wide
units.` Accordingly, we shall include all employees in the building
account department in the appropriate unit.
Factory Clerks : 8 The Employer and the Petitioner seek the inclu-
sion of these employees; the Intervenor desires their exclusion. Al-
though the employees in this category perform clerical functions and
do no manual work, their work is closely integrated with the handling
of stock and is performed under the sane supervision as the manual
workers and in close association with the general warehouse employees.
We are of the opinion that the duties and interests of these employees
warrant their inclusion in the unit; we shall include them.9
Ji7atchmen: There are three watchmen who are neither armed nor
deputized and perform no monitorial duties. They keep the Em-
ployer's property under surveillance and prevent unauthorized per-
sons from entering or leaving the premises. The Employer and the
Petitioner would include watchmen in the unit; the Intervenor would
exclude them. We shall, in accordance with our usual policy, include
watchmen in the appropriate unit.
Assistant Foremen: The Employer has four assistant foremen who
generally supervise the work of the employees in their respective de-
partments. The record discloses that they may effectively recommend
the hiring and discharge or the change in status of employees working
under them. The Petitioner and the Employer seek their inclusion
in the unit, whereas, the Intervenor desires their exclusion. We shall
exclude them from the unit as supervisory employees.
We find that all warehouse employees at the Employer's New York
City warehouse, including factory clerks, building account depart-
ment employees, and watchmen, but excluding employees in the cleri-
cal department, assistant foremen, 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.
DIRECTION OF' ELECTION 10
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Liggett Drug Company, Inc.,
an election by secret ballot shall be conducted as early as possible, but
See Matter of The Connecticut Malleable Casting Company , 66 N L R B 506 ; Matter
of Goodyear Tire & Rubber Cooipang of Kansas, Inc , 65 N L R B 532
8This categoiy includes cigar inventors- tat stamp recorde,, censors , bill of lading clerk-
shipping checkers and iecoidcis , shipping sheet v,riters and typists damaged goods depart-
ment
0 See Matter of Goodman Manufacturing Company/, 5S N L It B 641 , Matter of The
Champion Paper and Fibre Company , 63 N 1 , It B 445
10 Any participant in the election herein may, upon its prompt request to , and approval
thereof by, the Regional Luectoi , have its name removed from the ballot
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not later than thirty (30) days from thedate 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 Rela-
tions Board, and subject to Sections 203.55 and 203.56, of National
Labor Relations Board Rules and Regulations-Series 4, 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
said pay-roll period because they were ill or on vacation or temporarily
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 Local 25,
United Retail, Wholesale, and Department Store Employees, CIO,
or by Allied Trades Council, A. F. L., for the purposes of collective
bargaining, or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.