S. D. Warren Co.

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It was the consensus of opinion of the parties that the truckdrivers, the plant clerical employees, the janitor, and two leadmen should be included in the production-and maintenance unit. As there is noth- ing in the testimony taken to indicate that these inclusions are inap- propriate, we shall include such employees. We find that the follow- ing employees constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees at the Employer's Jeffer- sonville, Indiana, plant, including machine shop employees, truck- drivers, the plant clerical employees, the janitor, and leadmen, but ex- cluding professional employees, office clerical employees, guards, and supervisors as defined in the Act. [The Board dismissed the petition in Case No. 9-RC-2506.] [Text of Direction of Election omitted from publication.] S. D. Warren Company and Local 1015, United Paperworkers of America, CIO, Petitioner. Case No. 7-.IBC-f853. October 13,1955 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Herbert C. Kane, 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 this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees 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 Petitioner seeks as a single unit the employees in the Em- ployer's five laboratories, all of whom are presently unrepresented and who have been excluded from the existing production and mainte- nance unit. The Petitioner would also represent such employees in any other unit found appropriate by the Board or would add them to its existing production and maintenance unit. The Employer con- tends that a separate laboratory unit is inappropriate; and that the employees in three of the laboratories should be excluded as either confidential, supervisory, or professional. The Employer is engaged in the manufacture of clean and coated printing paper. The employees in the papermill control and the 114 NLRB No. 77. S. D. WARREN COMPANY 411 coating inspection laboratories visually inspect and make quality control tests on processed paper to determine if the paper conforms to predetermined quality standards. The research laboratory employees conduct various tests and experiments for the purpose of developing new materials and products and improving existing ones. In addi- tion, they consult with and advise customers on confidential problems relating to their paper requirements. In the papermill recovery laboratory chemical control tests are performed on liquids used in the pulp cooking process and on the effluent wastes in the recovery boiler process. The one employee in the water filter plant laboratory tests water used in the cooking process to determine the amount of chemical needed as water softener. As these laboratory employees perform similar work and have the common primary function of controlling the quality of the Employer's product by chemical and physical tests during and after the production process, there is a substantial community of interest among them. Further, as stated above, the laboratory employees have been excluded from the production and maintenance unit and are unrepresented. Ac- cordingly, we find that they may be represented in a separate unit, on the,basis that they constitute an appropriate residual unit.' Although the record shows that the data derived from the tests made by the papermill control and coating inspection laboratory em- ployees may form the basis for disciplinary action against machine operators failing to make machine corrections, this does not, as the Employer contends, constitute these employees supervisors, as they neither possess nor exercise the statutory authority of supervisors. Nor are they confidential employees within the Board's definition as there is no showing that they act in a confidential capacity to any per- son who exercises managerial functions in the field of labor relations 2 For the same reason, we also find, contrary to the Employer, that the research laboratory employees are not confidential employees within the Board's definition. However, the record shows that 1 of the re- search laboratory employees has a college degree in chemistry and the other 2 have the equivalent in training and experience, and that they perform work which is not standardized but which requires the ex- ercise of discretion and judgment. In these circumstances, we find, in agreement with the Employer, that the research laboratory employees are professional employees.' However, the Board is prohibited by the Act from including pro- fessional employees in a unit with nonprofessional employees unless the majority' of the professional employees vote for inclusion in such a unit. Accordingly, we must ascertain the desire of the research de- 1 Huron Portland Cement Co, 112 NLRB 1465. 2Ibid, at footnote 1 Huron Portland, Cement Co , supra. There is no contention that these employees are supervisors. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD partment employees as to inclusion in a unit with nonprofessional em- ployees 4 We shall therefore direct separate elections in the following voting groups : 0 A. All laboratory employees at the Employer's Muskegon, Michi- gan, mill, including the employees in the papermill control, pulpmill recovery, coating inspection, and water filter plant laboratories, but excluding the employees in the research laboratory, all other em- ployees, and supervisors as defined in the Act. B. All professional employees in the research laboratory at the Em- ployer's Muskegon, Michigan, mill, but excluding all other employees and supervisors as defined in the Act. The employees in the nonprofessional voting group (A) will be polled as to whether or not they wish the Petitioner to represent them. The employees in the professional voting group (B) will be asked two questions on their ballots : (1) Do you desire to be included in a unit composed of all laboratory employees at the Employer's Mus- kegon, Michigan, mill, for the purposes of collective bargaining? (2) Do you desire to be represented for the purposes of collective bargain- ing by the Petitioner? If a majority of the professional employees in voting group (B) vote "Yes" to the first question, indicating their wish to be included in a unit with the nonprofessional employees, they will be so included. Their votes on the second question will then.be counted together with the vote of the nonprofessional voting group (A) to de- cide the representative for the whole laboratory unit. If, on the other hand, a majority of the professional employees in voting group (B) vote against inclusion, they will not be included with the nonprofes- sional employees. Their votes on,the second question will then be separately counted to decide whether'they want to be. represented by the Petitioner in a separate professional unit. - Our unit determination is based, in part, then, upon the results of the election among the professional employees. However, we now make the following findings in regard to the appropriate unit : (1) If 'a majority of the professional employees vote for inclusion in: the unit with the nonprofessional employees, we find that the fol- lowing employees will constitute a unit appropriate for the purposes of -collective bargaining within the meaning of Section 9 (b) of the Act : All laboratory employees at the Employer's Muskegon, Michigan, mill,' including the employees in the papermill control, pulpmill re- covery, coating inspection, water filter' plant, and research labora- tories, but excluding all other employees and supervisors as defined in the Act. ^ , (2) If a majority of the professional employees do not vote for in- clusion in the laboratory unit with the nonprofessional employees, It Huron Portland Cement Co , supra; Sonotone Corporation, 90 NLRB 1236, 1241. JOLLY GIANT LUMBER CO. 413 we find that the following two groups of employees will constitute separate units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : A. All laboratory employees at the Employer's Muskegon, Michi- gan, mill, including the papermill control, pulpmill recovery, coating inspection, and water filter plant laboratories, but excluding the em- ployees in the research laboratory, all other employees, and super- visors as defined in the Act. B. All professional employees in the research laboratory at the Em- ployer's Muskegon, Michigan, mill, but excluding all other employees and supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] Jolly Giant Lumber Co. and International Woodworkers of America, CIO, Petitioner and Lumber and Sawmill Workers Local Union No. 2799, United Brotherhood of Carpenters and Joiners of America, AFL. Case No. 2O-RC-850. October 13, 1955 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 David E.'Davis, hearing of- ficer. 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. The Intervenor contends that the petition which was filed- on July 14, 1955, is barred (1) by its contract of April 4, 1955, with the Employer's predecessor, or (2) by a memorandum signed by the Em- ployer adopting its predecessor's contract. On April 4, 1955, the Intervenor entered into a contract with the Dolly Varden Lumber Company, to run until April 1, 1956. As the company contemplated selling its business, a memorandum was at- tached to the contract, whereby the parties agreed that the contract would terminate on the date, of sale. On June 17, 1955, the Employer entered into a lease-purchase agree- ment with the Dolly Varden Lumber Company, giving the Employer an option to buy the physical assets of the latter. This agreement was still in effect at the time of the hearing. After a shutdown of the plant, 114 NLRB No. 82.