The Colorado Milling and Elevator Co.

In the Matter of THE COLORADO MILLING AND ELEVATOR COMPANY," EMPLOYER and AMERICAN FEDERATION OF GRAIN MILLERS, AFL, PETITIONER Case No. 30-RC-00.-Decided December 16, 1949 DECISION AND DIRECTION OF ELECTIONS Upon a petition -duly filed, a hearing was held before Clyde F. Waers, 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 National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Reynolds and Gray]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organization involved claims 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; the determination of representatives: The Petitioner seeks to represent a unit composed of all the Em- ployer's central laboratory employees at Denver, Colorado, excluding office and clerical employees, janitors, all other employees, and super- visors. Although the Employer takes no position concerning the appropriateness of the requested unit, it asserts that at least three of its central laboratory employees 2 are professional employees within the meaning of Section 2 (12) of the Act, and should therefore be placed in a separate voting group in order to comply with the pro- visions of Section 9 (b) (1) of the Acts If the Board decides that 1 The name of the Employer appears as amended at the hearing. 2 Marilyn A. Beckord, Annette Strong , and Fred L. Sipes. $ Section 9 (b) (1) provides "That the Board shall not decide that any unit is appro- priate for . . . [ the] purposes [ of collective bargaining ] if such unit includes both pro- fessional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit." 87 NLRB No. 119. 1091 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any of the employees in the requested unit are professional employees, the Petitioner apparently desires to represent: them in the- same unit with the other central laboratory employees, if the professionals vote in favor of such inclusion. The Employer operates flour mills and grain elevators in seven Western States in connection with its milling and grain enterprise. Its central laboratory, where the employees involved herein are em- ployed, consists of 2 divisions that function, respectively, as a quality control laboratory for the Employer's 4 Denver flour mills and as a central control laboratory for all its field operations. The first, or analytical laboratory division, makes chemical analyses of feeds and flours for the-purpose of ascertaining the presence of .factors commonly accepted by the commercial trade as constituting the specifications for these products. The second, or baking control and research division, conducts tests (a) on wheat samples to determine their milling quali- ties, (b) on the resulting experimentally milled flour to ascertain its baking and physical dough characteristics, and (c) on commercial flours to determine their acceptability in the light of baking specifica- tions prescribed by the Employer's customers. Of the approximately 12 employees sought by the Petitioner, 7 are assigned to the analytical laboratory, 2 to the baking control laboratory, and 3 have special assignments. The Chemists There are two employees classified as chemists in the analytical laboratory who work under the general supervision of the chief ana- lyst. These employees are principally engaged in conducting difficult and complicated analyses of flour and feed samples requiring skill and knowledge of an advanced type. Both majored in chemistry, have college degrees, and exercise independent judgment and discretion in connection with the performance of their duties. We find that these two chemists are professional employees within the meaning of the Act 4 Accordingly, we shall include them in a separate voting group composed of professional employees. Four bench chemists also work in the analytical laboratory under the general supervision of the chief analyst. These employees per. form tests and analyses of flour, wheat, and feeds, following well outlined procedures and methods established by the Employer. Although they must have a knowledge of cereal chemistry, none is a college graduate. • . In view of all the foregoing, we believe that the bench ' chemists are not professional employees within the. meaning of the Act:° 4 See Cutter Laboratories, 80 NLRB 213; and The Drackett Company, 86 NLRB 646. 5 See Alpine Trading Co., 77 NLRB 766 ; and The Drackett Company, supra. THE COLORADO MILLING AND ELEVATOR COMPANY 1093 A junior chemist is assigned to the baking control laboratory where lie works under the close supervision of the head of that laboratory. .His principal duties consist of assisting in the preparation of test doughs and the baking of bread to ascertain the baking characteristics .of flours produced by the Employer. Although this employee majored in chemistry and has a college degree, the record does not disclose that he is performing work under the supervision of a pro- fessional person in order to qualify himself to become a professional employee as defined in the Act. In these circumstances, we find that the junior chemist is not a professional employee.6 An employee classified as a cereal chemist works under the general supervision of the supervisor of the baking control and research labo- ratory. Although he is not a college graduate, he has had about 18 years of progressive experience working in laboratories, including .service as chemist-In-charge of the laboratory of a large baking con- cern. Since his employment commenced with the Employer during June 1949, the cereal chemist has performed varied duties such as analyzing flour, wheat, and feeds, and assisting in the experimental milling of "new, unclassified crops wheat." Within the near future, the Employer expects to utilize his services in carrying out it research program, and particularly with respect to "development problems." As the cereal chemist is consistently required to exercise independent judgment in connection with his work, which is predominantly intel- lectual and varied in character, we find that he is a professional em- ployee within the meaning of the Act.7 We shall therefore include him in the professional employees voting group. Miscellaneous Classifications Besides the -several classifications of chemists mentioned above,' a laboratory assistant likewise is assigned to the analytical laboratory. This employee, under close supervision of more experienced staff mem- bers, assists in conducting protein analyses of wheat and flour samples. In addition, a .technical assistant.performing routine tests on flour doughs, and a senior experimental 'miller preparing and milling ex- perimental grain samples, work under the general supervision of the head of the research division. There is also an experimental baker in the baking control laboratory performing routine baking tests. All these employees follow well-outlined procedures and methods pre- scribed by the Employer in carrying out their duties. It is clear that the laboratory assistant, technical assistant, senior experimental mil- ler, and experimental baker do not possess the qualifications of pro- Ibid. ° See Cutter Laboratories, supra; and The Drackett Co., supra. 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fessional,employees within the meaning of Section 2 (12) of the Act." We shall include them in the voting group of nonprofessional em- ployees. We shall direct that separate elections be held in the following voting groups and shall defer our determination as to the scope of the unit until the results of these elections have been ascertained : (a) All laboratory employees employed at the Employer's cen- tral laboratory at Denver, Colorado, excluding all the employees in group (b), office and clerical employees, janitors, all other employees, and supervisors as defined in the Act.9 (b) The chemists (in the analytical laboratory),10 and the cereal chemist:':' employed at the Employer's central laboratory at Denver, Colorado, excluding all other employees and supervisors as defined in the Act. If the employees in voting group (b) vote for the Petitioner, they will be taken to have indicated their desires to be bargained for as part of a unit composed of the Employer's central laboratory em- ployees at Denver, Colorado. DIRECTION OF ELECTIONS As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, separate elections by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under 'the direction and supervision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees in the voting groups described in paragraph numbered 4, above, who were em- ployed during the pay-roll period immediately preceding the date of this Direction of Elections, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those .employees who have since quit or been discharged for cause and have not been rehired or re- instated prior to the date of the elections, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bargain- ing, by American Federation of Grain Millers, AFL. 8 Celanese Corp . of America, 81 NLRB 1041 ; The Drackett Company, supra. 9 Excluded as supervisors are the manager of laboratories , chief analyst , analytical laboratory ; supervisor , baking control and research division ; and the head, baking control laboratory and acting supervisor , research division. 19 Included within this category • are Marilyn A. Beckord 'and Annette Strong. 11 Fred L. Sipes.