DIFCO Laboratories, Inc.

DIFCO LABORATORIES , INC. 887 violated Section 8(b) (2) and (1) (A) of the Act and B & F violated Section 8(a) (3) and (1) of the Act; (2) by causing B & F to refuse employment to Virgil L. Copeland, Local 24 violated Section 8(b) (.2) and (1) (A) of the Act; (3) by the aforementioned contract provisions and hiring pracices between ABC and Local 75 and between Glenn W. North Construction Co., Inc., and Local 75, Local 75 violated Section 8(b) (2) and (1) (A) of the Act; (4) these unfair labor practices occurring in connection with the operations of the businesses involved herein, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce; (5) the evidence adduced is insufficient to establish that Local 75 and B & F operated under an unlawful hiring hall arrangement and practice affecting employees of B & F; (6) the evidence adduced is insufficient to establish that Local 75 caused B & F to refuse employment to Virgil L. Copeland; (7) the evidence ad- duced is insufficient to establish that Local 75 caused Glenn W. North Construction Co., Inc., to refuse employment to Virgil L. Copeland; and (8) the evidence adduced is insufficient to establish that Local 75 caused Newlin-Johnson Development Co. to refuse employment to Virgil L. Copeland. THE REMEDY Having found that Respondents have engaged in unfair labor practices in violation of the Act, the Trial Examiner recommends that Respondents, to effectuate the poli- cies of the Act, cease and desist therefrom and take the affirmative action hereinafter specified. In view of the unfair labor practices found, the Trial Examiner recommends the application of the Brown-Olds 17 remedy to expunge the. effect of the illegal condi- tions of employment imposed upon employees of B & F. No such remedy is recom- mended with respect to the arrangements and practices involving employees of mem- bers of ABC in view of the "clean up," noted above, and the position taken by the General Counsel, noted earlier in this report. No such remedy is requested, or recommended, with respect to arrangements and practices involving employees of Glenn W. North Construction Co., Inc. Also, the parties were not put on notice that such a remedy might be sought with respect to North's employees. In addition, it is presumed that North, as in the past, follows the arrangements existing between Local 75 and ABC and is now following the "cleaned-up" arrangements. The General Counsel seeks an order requiring Local 24 to notify B & F and Copeland that Local 24 has withdrawn its objections to the hiring and continued em- ployment of Copeland by B & F. The evidence herein does not reveal that Local 24 notified B & F that it objected to the hiring and continued employment of Copeland. Furthermore, Copeland was employed by B & F on August 18, 1958, with the full knowledge and consent of Local 24, and thereafter worked for B & F without com- plaint from Local 24 until he was discharged, apparently for cause. Under these circumstances the General Counsel's request now under consideration is hereby rejected. [Recommendations omitted from publication.] 17 United Association of Journeymen & Apprentices of the Plumbing & Pipe fitting Industry, et al. (J. S. Brown-E. F. Olds Plumbing and Heating Corporation), 115 NLRB 594, 597-602. DIFCO Laboratories, Inc. and International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, (UAW) AFL-CIO,' Petitioner. Case No. 7-RC-4557. December 1, 1960 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 John F. Foley, hearing i The name Hof the Petitioner appears as amended at the hearing. 129 NLRB No. 105. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 [Chairman Leedom and Members Fanning and Kimball]. 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 em- ployees of the Employer. 3. A question affecting commmerce exists concerning the representa- tion of employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. The Employer is engaged in the manufacture of biological and bacteriological materials and supplies in Detroit, Michigan. Its pro- duction and maintenance employees, including the manufacturing so- lution, and shipping and finishing departments, janitors, and animal caretakers, are covered by a contract with Petitioner. In this proceed- ing the Petitioner seeks to represent a separate unit of technical employees in departments 35 (tissue culture laboratory), 36 (bac- teriological control laboratory), 42 (research and development laboratory), and 43 (chemical control laboratory), all of whom are unrepresented. In the alternative, the Petitioner will represent these employees in any unit or units found appropriate by the Board. The Employer agrees that departments 36, 42, and 43 constitute an appro- priate technical unit, but contends that the employees of department 35 are essentially production and maintenance employees, and that certain employees specifically discussed below, whom the Petitioner would include, should be excluded as professional employees. Department 35, the tissue culture laboratory manufactures various media solutions by dissolving certain materials in distilled water and then filtering them. The work done in this department is quite similar to that done in the solution and manufacturing departments in that all three produce, filter, cap, sterilize, and package media for sale to customers. The employees of department 35 use the same equipment as the solution department, and, like them, are required to have only a high school education and a week or two of on-the-job training. The supervisor of department 35 is an individual drawn from the produc- tion and maintenance group, and the employees of this department share the same fringe benefits. Department 35 employees spend about one-third of their time washing bottles, test tubes, and other appa- ratus, and are occasionally assigned to perform duties of this nature in departments 36, 42, and 43. From the foregoing it is clear, and we find, that the employees in department 35 are not technical employees DIFCO LABORATORIES, INC. 889 and we shall exclude them from the technical unit 2 These employees are engaged in production work, and therefore constitute a residual group which has been excluded from the production and maintenance unit. As such, they cannot, under established Board policy, be in- cluded in the existing unit, as regae^ta,i uv the employer, without being given an opportunity to vote on % liAher or not they desire to become part of that unit. We shall therefore direct a self-determina- tion election among employees in the following voting group : All em- ployees in department 35, excluding all other employees and supervi- sors as defined in the Act. If a majority of the employees in this voting group vote for the Petitioner, they will be taken to have in di- cated their desire to be included in the existing production and main- tenance unit currently represented by the Petitioner, and the Regional Director conducting the election is instructed to issue a certification of results to that effect. The parties stipulated that two employees, Good and Jacobs, who are assigned to departments 42 and 43, respectively, are professional employees and should be excluded from the technical unit. They dis- agreed, however, on the professional status of the following employees : Boricic, Deluna, and Jankowski work in department 36, bacterio- logical control laboratory, the principal function of which is running assays on cultural media. The department is under the supervision of Dr. Christensen, who is the Employer's director of microbiology and who has a Ph. D. degree in bacteriology and public health. Boricic has college degrees in chemistry and biology, and has had con- siderable experience working in biological laboratories. She has had 2 years' experience with the Employer as a biologist, performing ex- periments and making final assays on products. Her duties also require that she prepare accurate tests for alkali of solutions and see that products measure up to the alkali tests and behave properly. Deluna is also a biologist, with responsibilities much the same as Boricic's. She holds master's degrees in biology and education. Jankowski, a bacteriologist, has completed sufficient college study to qualify foft a degree in bacteriology and biology and has 10 years' experience in these fields with the Employer. She is the working leader of the department and her duties consist primarily of determining the compatibility of various products and interpreting the results obtained from bacteriological assays. It is clear that these three employees perform work that is mainly intellectual, involving the exercise of considerable discretion and judgment, and requiring knowledge acquired in institutions of higher learning. We find, therefore, in agreement with the Employer, that they are professional employees as defined in Section 2(12) of the Act.' As the petitioner 2 See Litton Industries of Maryland , Incorporated, 125 NLRB 722. 3 See Miller Brewing Company, 117 NLRB 1, 2. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is not seeking to represent professional employees, we shall exclude them from the unit. Of the other disputed employees, Giles works in department 36, while Brants, Campbell, Christensen, Dahlstrom, Glantz, Mogensen, Olsztyn, and Ricket work in department 42, the research and develop- ment laboratory. Giles has had 2 years of college biology and experience in clinical and hospital laboratories. Under the direction of Jankowski, her work consists mainly in testing product samples. The disputed employees in department 42 manufacture products which are difficult to handle, and modify and develop new formulas and procedures leading to the development of new products. The work of this department is mainly research, and the employees must keep abreast of scientific literature on products of interest to the company. It is necessary that they have knowledge of chemistry and biology, but none has a college degree, their education ranging from high school to 2 or 3 years of college. All of them have had several years' experience with the Employer. We find, under all the circum- stances, that these nine disputed employees are not professional. Ac- cordingly, we shall include them in the technical unit for which an election is directed below.' We find that the following employees constitute an appropriate unit 5 for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All technical employees in departments 36, 42, and 43 of the Em- ployer's Detroit, Michigan, laboratories, excluding production and maintenance employees, office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] s Aurora Gasoline Company, 128 NLRB 37. 'In view of our finding herein, the Employer's motion to dismiss the petition on the ground that the unit sought is inappropriate is hereby denied. Des Moines Foods, Inc. and Amalgamated Meat Cutters and Butcher Workmen ' of North America, AFL-CIO. Case No. 18-CA-1077. December 8, 1960 DECISION AND ORDER On June 30, 1960, Trial Examiner Eugene F. Frey issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- 129 NLRB No. 106.