Dr. Salsbury's Laboratories, Inc.

DR. SALSBURY'S LABORATORIES, INC. 559 lighter, a flame making device, into the mine of Respondent, which has been designated by the United States Bureau of Mines and the Tennessee Department of Mines as a gassy mine, which act is prohibited by ... the Tennessee Code. It may well be that the Respondent considered the United Mine Workers a plague which could prevent the operation of its mine, however, considering Birchfield's testimony that "13 or 14" of the Respondent's employees were in the United Mine Workers' picket line and there is no contention that any of these, except Birchfield, were discharged therefore, and, moreover since there is evidence that employees who had no connection with the United Mine Workers were discharged because they violated safety regulations, it cannot be said that the Respondent sought out adherents of the United Mine Workers for discriminatory discharge. Birchfield's discharge occurred 2 months after the picket line incident. The record discloses that the Respondent had knowledge of Birchfield's "membership" in the United Mine Workers acquired sometime after he was employed in 1955. It is clear that Birchfield knew (as must all the employees) that the Respondent's mine was classified as "gassy"; that smoking and carrying fire-making devices in the mine was both illegal and prohibited by the Respondent's rules; that he was given friendly warning not to smoke on pain of discharge and despite all this he continued to smoke and carry fire-making devices in the mine. Final Conclusions The Trial Examiner is convinced and finds on the entire record that the General Counsel has not sustained his burden of proof and will therefore recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. The operations of the Respondent, Laddie Coal & Mining Co. occur in com- merce, within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent has not engaged in unfair labor practices within the meaning of Section 8(l) and (3) of the Act as alleged in the complaint. [Recommendations omitted from publication.] Dr. Salsbury's Laboratories, Inc. and United Packinghouse Workers of America, AFL-CIO, Petitioner. Case No. 18-RC- 3640. December 18, 1958 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 Kenneth W. Haan, 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 Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Bean, and Fanning]. 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 Sec- tion 9(c) (1) and Section 2(6) and (7) of the Act. 122 NLRB No. 67. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The Petitioner seeks to represent a production and maintenance unit at the Employer's Charles City, Iowa, operation, including laboratory technicians and laborers assigned to the two testing laboratories in the production division and similarly classified employees and laborers assigned to the education and research divi- sion. The Employer contends that the requested unit is inappro- priate asserting that all laboratory technicians, except those classified as technicians C, should be excluded as technical employees, and that shipping and warehousing employees likewise should be excluded. The Employer further contends that the technicians C and the laborers assigned to the laboratory also should be excluded because their interests are more closely allied with those of technicians A and B and that certain of its laboratory laborers together with the laborers on the farm should be excluded as agricultural employees. The Employer finally urges that the unit should be limited to the employees in its maintenance department and in its three "basic" production departments, i.e., the pharmaceutic, the chemical, and the biologic production departments. Although adhering to its request for an overall unit, the Petitioner nevertheless desires to appear on the ballot for any unit or units which the Board may find appropriate. There is no history of collective bargaining. The Employer manufactures poultry pharmaceutics and biologics, and also raises the fowl used for its research purposes. Plant op- erations are administratively divided into five major divisions con- sisting of production, education and research, purchasing and main- tenance, marketing, and comptroller. The three basic production departments constitute the only producing units and are located in three adjacent buildings. The parties agree that the employees in these departments, classified as technicians A, B, and C , are pro- duction employees. The education and research division, hereafter called the research division, has eight departments known as library, patents, organic chemistry, biochemistry, protozoology, helminthology, microbiology, and veterinary pathology. These departments are all located from 1 to 2 miles from the production departments. The disputed em- ployees in this division are the laboratory technicians, also designated as technicians A, B, and C, and the laborers in the science laboratory departments. We shall now consider the unit placement of the employees in dispute. Shipping and warehousing department: This department is housed in separate rooms in the pharmaceutic production building and is under the supervision of the director of production. The employees within this department perform the usual shipping and warehousing duties. The truckdrivers assigned to this department perform only DR. SALSBURY'S LABORATORIES, INC. 561 intraplant driving. All have the same working conditions and receive the same benefits as the production employees. We find that the interests of these employees are closely allied with the other employees whose unit placement is not in dispute. We shall, therefore, include them in the unit. The Alleged Technical Employees Production division: The biologic testing department is engaged in quality control tests of the products during manufacture and also tests the fowl used in connection therewith. One technician A within this department specializes in extracting blood samples from chickens. Two others, classified as technicians B, using a needle and a syringe, innoculate eggs with virus agents and observe the effect upon the embryo of the chicken. A third technician B, with- out the use of any instruments, checks the growth of the culture media. All these employees clean and maintain the laboratory equipment as part of their duties. These technicians receive on-the- job training in simple laboratory procedures. Although they must learn the metric scale while on the job, none is required to have any prior specialized education or training. The quality control testing unit has no technicians classified as technicians A. Four classified as technicians B perform routine tests and chemical analyses of samples from the production division and record the data thus obtained. They need no specialized train- ing prior to employment and learn simple laboratory procedures during short periods of on-the-job training. One technician C assists the others and cleans the glassware used in tests. It is apparent from the foregoing that the routine, repetitive, and sometimes menial, duties of the laboratory technicians in the quality control and biologic testing units do not warrant a finding that they are technical employees within the meaning of the Board's definition. As the nature of their work is similar to that performed by the production and maintenance employees, we shall include them.- Research division: The technicians A within this division handle and feed the fowl used in the laboratory, maintain pure cultures, prepare innoculations for the fowl using standard formulas, mix drugs with poultry feed utilizing prepared formulas, periodically infect the bird through dietary processes, check their food con- sumption, and observe and record abnormalities in their conduct after injections. The technicians B, using standard laboratory tools, weigh and measure fluids, prepare media for cultures, learn the technique of innoculation, mix food, feed and water the fowl ac- 1 Goodyear Clearwater Hill No. 3, 116 NLRB 1768, 1770; United States Gypsum. Com- pany, 118 NLRB 20, 31. 505395-59-vol. 122-37 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cording to established schedules, and regularly weigh and keep records of their growth. One technician B also assists a technician A in the mixing of varying amounts of the Employer's product into the feed in order to achieve a predetermined effect for research purposes. As none of the technicians A and B in the research division are required to have any special educational background, their on-the-job training is relatively short, their duties are routine and repetitive, not requiring a high degree of skill and are performed in accordance with prescribed procedures, we find that they are not technical employees. As the technicians C spend most of their time performing manual work such as cleaning the laboratory and steri- lizing equipment, we likewise find that they are not technical employees. Because of the foregoing and as the parties have agreed to include other technicians with similar duties and skills, we shall include the technicians A, B, and C.2 The Alleged Agricultural Employees There are approximately seven laborers employed at the Em- ployer's farm. They raise the chickens and turkeys used as experi- mental fowl in the laboratories. Other laborers are employed in the laboratories where they care for the live birds used for experimental and testing purposes. They also perform general maintenance work in the laboratories. Section 3(f) of the Fair Labor Standards Act, by which we must be governed in determining the question of cover- age under Section 2(3) of the National Labor Relations Act, defines the term "agriculture" to include, inter alia, "the raising of livestock . . . and any practice . . . performed by a farmer or on a farm as an incident to or in conjunction with such farming operation...." As the farm laborers are engaged exclusively in performing duties on a farm, we find that they are agricultural employees and shall exclude them .3 However, the duties of the laboratory laborers are performed as an incident to the research and testing operations of the Employer rather than as "an incident to or in conjunction with [a] farming operation." We therefore find that the general laborers assigned to the laboratories are not agricultural employees and as their working conditions and interests are similar to those of the other employees within the production and maintenance unit hereafter established, we shall include them in the unit 4 Accordingly, we find that all production and maintenance em- ployees at the Employer's Charles City, Iowa, plants, including the employees in the biologic production, the pharmaceutic production, ' Jones-Dabney Company, 116 NLRB 1556, 1558; Swift & Company, 119 NLRB 1556. 8 Swift and Company, 104 NLRB 922. 4 See The Evansville Union Stockyards Company, 95 NLRB 631; see, also, Swift & Company, supra; cf. Olaa Sugar Company, Limited, 118 NLRB 1442. PERSONAL PRODUCTS CORPORATION 563 and the chemical production departments, the biologic testing and the quality control testing departments, the shipping and ware- housing employees, the employees in the veterinary pathology, the organic chemistry, the biochemistry, the helminthology, the micro- biology, and the protozoology departments,5 but excluding all office clerical employees, technical employees, agricultural laborers, pro- fessional employees," watchmen, guards, and all supervisors' as de- fined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. [Text of Direction of Election omitted from publication.] The parties agreed that the laboratory assistants should be excluded. e The parties stipulated that all veterinarians, chemists , bacteriologists , helmintholo- gists, protozoologists, parasitologists, biochemists, and chemical engineers are professional employees. 7 The parties agreed that Stanley O'Doud, a laboratory assistant , and Gallus Heat are supervisors. Personal Products Corporation and Textile Workers Union of America, AFL-CIO, Petitioner. Case No. 13-RC-5738. Decem- ber 18, 1958 ORDER PERMITTING WITHDRAWAL OF PETITION WITH PREJUDICE On April 16, 1958, the Board issued a Decision and Direction of Election in this case, and by letter dated November 4, 1958, the Petitioner requested leave to withdraw its petition with prejudice. The request to withdraw does not state a reason, but the Board assumes that the request is pursuant to an order of the United States District Court for the Northern District of Illinois, affirmed by the Court of Appeals for the Seventh Circuit (42 LRRM 2605). The Board was not a party to the litigation, which was initiated by the Intervenor in this case. The Board has determined to grant the request to withdraw the petition in this proceeding but desires to make it clear that in permitting withdrawal, the Board does not acquiesce in the decision of the United States District Court or the Court of Appeals. In future litigation of this character where a party to a National Labor Relations Board proceeding seeks to restrain another party from appearing on a ballot as directed by the Board, the Board will expect to be made a party to the court litigation. Moreover, if the Board is not made a party to any such litigation and if the litigation results in a petition being directed by a court to withdraw a petition, the Board will be disposed to deny withdrawal of the petition.' 1 Members Bean and Fanning would permit withdrawal without comment. 122 NLRB No. 84.