Barnes-Hind Pharmaceuticals, Inc.

BARNES-HIND PHARMACEUTICALS, INC. Barnes-Hind Pharmaceuticals, Inc. and Engineers and Scientists Division of Professional , Office and Industrial Union (MEBA-AFL-CIO), Petitioner. Case 20-RC-9053 June 12, 1970 DECISION AND DIRECTION OF ELECTIONS By MEMBERS FANNING , MCCULLOCH, AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Dean H. Francis. Following the hearing and pursuant to Sec- tion 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, and by direction of the Regional Director for Region 20, this case was transferred to the National Labor Relations Board for decision. Thereafter, the Employer filed a timely brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connec- tion with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this case, including the brief filed herein, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists con- cerning the representation of employees of the Em- ployer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. The Employer is engaged in pharmaceutical manufacturing and research and has its principal office in Sunnyvale, California. Its manufacturing employees are represented by the Teamsters. Peti- tioner seeks to represent all employees, excluding office and clerical employees, guards, and super- visors, in the technical department. The technical department consists of the research and develop- ment division (which is subdivided into microbiological research, pharmacology, product development, and pharmaceutical chemistry), the quality control division, the medical affairs division, and the library. The entire operation, technical and manufacturing, at Sunnyvale is located within one building. All the employees of the technical depart- ment, with the exception of persons performing 183 NLRB No. 38 301 physical quality control, are located in the same area, which is separate from the manufacturing area. The Petitioner seeks a unit of about 15 profes- sional scientists, 4 technicians, and 11 nontechnical employees. The chief dispute between the Peti- tioner and the Employer is the composition of the unit. The Petitioner contends that the unit should consist of all of the employees in the technical de- partment in a single unit-professionals, technicals, and nontechnicals (with the noted exclusions). As for the representation of the professionals, the Peti- tioner seeks to represent them either within the overall unit or, if they choose, in a separate unit. The Employer argues that the inclusion of non- technicals in a unit with professionals makes the overall unit, as sought by the Petitioner, inap- propriate and contends that the only appropriate unit is one which consists of professional and technical employees. The Employer's argument is, basically, that the disparity of skills and functions between profes- sional scientists and such nontechnical employees as glassware washers and the animal caretaker is too great to permit their grouping in a single unit. The Board has, in the past, grouped technicians and nontechnicals, Hazelton Laboratories, 136 NLRB 1609, and has also found appropriate the grouping in a single unit of professionals (outside plant en- gineering associates and right-of-way agents) and nontechnical employees (janitors, mail truckdrivers, and elevator operators), New England Telephone and Telegraph Company, 179 NLRB 527. In such a case, the professionals are given, under Section 9(b)(1) of the Act, a choice as to whether or not they want to be included in the unit. We are not persuaded that the differences in ability and function should be the decisive factor in this case, in view of the common overall supervision, com- mon working conditions, and close contact among employees within the technical department. We find the inclusion of all three classifications of em- ployees within the technical department to con- stitute an appropriate unit in this case. The status of certain disputed employees must be resolved. The division head of quality control is Irv- ing Krulevitch, and the section heads under him are A. Gebhart, M. N. Shen, and D. Wright. The sec- tion heads are stipulated to be professional em- ployees, but their supervisory status is in dispute. The evidence discloses that these section heads are responsible for the immediate supervision of the in- dividuals working in their respective laboratories, including the directing and scheduling of work and the evaluation of the results of the work relative to production. Their authority includes the excercise 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of independent judgment in assigning work, in ar- ranging overtime, and in scheduling vacations. While the testimony of the section heads reveals that they are unclear as to their own authority to hire and fire, they did testify to having interviewed all prospective employees and thereafter expressing general opinions to Krulevitch. Krulevitch testified that while he makes the final decision as to hiring, he would not hire someone who had received a negative report from a section head. The section heads also evaluate performance of their subor- dinates in connection with salary reviews, and they attend weekly management meetings at which, inter alia, personnel problems are discussed. We find, on the basis of the responsible direction exercised by Gebhart, Shen, and Wright over their subordinates, and the other factors discussed above, that they are supervisors and should be excluded from the unit. R. G. Wilderman is a research chemist in the product development section of the research and development division. Wilderman is also stipulated to be a professional, but the Employer argues that he is a supervisor and has managerial responsibili- ties and, therefore, should be excluded from the unit. Wilderman performs independently in operating the pilot plant, a small scale production operation. Wilderman has, in the past, had summer assistants whom he has supervised and also has had full-time assistants, the last for a brief period almost 1 year before the hearing. The Employer asserts that there is an effort being made at present to find him a per- manent assistant. Wilderman also sporadically asks for assistance and is temporarily assigned an em- ployee for whom he schedules work. Until such time as Wilderman actually does engage in per- manent supervision, we would not find him to be a supervisor. Nearly 1 year elapsed without Wil- derman being assigned a permanent assistant, and there is no certainty that he will ever have another. We further find that Wilderman does not have the sort of managerial responsibility which would war- rant his being excluded as a manager. The record discloses that he is involved in determining procedures for making large quantities of products,. evaluating manufacturing processes and new products, and formulating new products suggested to him or which he might originate. None of these tasks necessitate making an independent deter- mination as to the expenditure of corporate funds as a matter of policy rather than merely as a con- comitant of a particular job function, or an inde- pendent determination by Wilderman of what products will be produced.' In fact, Russell Phares, director of the research and development division, testified that G. J. Baley, manager of the product development section, makes decisions with respect to the financial commitment of the Employer on any of the projects Wilderman works on. We shall, therefore, include Wilderman in the unit. H. Merritt, R. Parker, and R. Genovese are mem- bers of the packaging components control group. The Employer argues that their interests are not al- lied with other employees in the technical depart- ment and that they should be excluded from the unit sought by Petitioner. These employees spend the majority of their time in packaging control, which involves the checking of dimensions of, and printed copy on, bottles, tubes, and boxes. The rest of their time is spent in taking samples from raw materials and chemicals being received in the plant, which are then for- warded to others for testing, and in the inspection of production lines and facilities. An examination of the record shows that the work of these em- ployees is similar to work done by others in the quality control division of the technical depart- ment. For example, there is, in the raw material section, a nontechnical employee who weighs materials and assists in minor calculations. While the packaging control lab is located in the manufac- turing area of the building, its members are super- vised by Wright, a section head in the quality con- trol section of the technical department, who also supervises the raw material section. These three employees have contact with other technical de- partment employees when they deliver samples to the laboratory for testing. Since all the employees of the production depart- ment are represented by another union which does not claim these employees, they would possibly be the only ones without representation if they are not included in this unit. Because these employees are assigned to and work under the supervision of the technical department, and perform work of a technical nature for that department, we include the three employees in the packaging component control group in the unit. The weighing room technician, Ray Ibarra, re- ports directly to the production manager, John Kaspar, and is responsible for weighing chemicals for production personnel. He works in the weighing room, which is located in the production area. This classification was formerly covered by the Team- sters contract for production employees, but was al- legedly removed from such coverage by agreement with that union. This job has no connection with ' Westinghouse Electric Corporation, 163 NLRB 723 BARNES-HIND PHARMACEUTICALS, INC. the technical department, and we exclude this clas- sification from the unit.2 C. M. Davis, a junior pharmacologist, works in the pharmacology division of the technical depart- ment, under D. E. Lauck. Davis attended college for 3 years. His present work involves the per- formance of pharmaceutical evaluations, such as determining the toxicities of compounds and their effects, and the independent planning and execu- tion of experimental procedures. He keeps himself informed of scientific developments by reading per- tinent literature. Since Davis' work is largely of an intellectual nature, requiring knowledge acquired in institutions of higher learning, and requiring the exercising of discretion and judgment, we find, in agreement with the Employer, that he is a profes- sional employee as defined in Section 2(12) of the Act. Difco Laboratories, Inc., 129 NLRB 887. In accordance with our determinations herein and the various stipulations of the parties, we shall direct separate elections in the following voting groups: (a) All nonsupervisory employees of the Em- ployer's technical department, in job classifications set forth in appendix A, but excluding profes- sionals, supervisors, clericals, guards, and all other employees. (b) All professionals in the Employer's technical department, in job classifications set forth in appen- dix B, but excluding supervisors, clericals, guards, and all other employees. The employees in the professional voting group (b) will be asked two questions on their ballot: (1) Do you desire to be included in the same unit as other employees in the Employer's technical department for the purposes of collective bargain- ing? (2) Do you desire to be represented for the pur- poses of collective bargaining by Engineers and Scientists Division of Professional, Office and In- dustrial Union, affiliated with MEBA-AFL-CIO? If a majority of the professional employees in vot- ing group (b) vote "Yes" to the first question, in- dicating their wish to be included in a unit with the nonprofessional employees, they will be so in- cluded. Their votes on the second question will ' We note that since the close of the hearing and the date for filing briefs in this case , the Employer has furnished us with a letter from Teamsters Union Local No 287 stating that this job , which it lists as a "Com- pounder," comes under its jurisdiction Furthermore , the Union in the in- stant case has stated that it has no objection to Ibarra's exclusion from the proposed unit on the basis of his inclusion in a unit covered by the Team- sters contract We pass no judgment on the propriety of Ibarra's inclusion in the bargaining unit represented by the Teamsters ' In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the elections should have access to lists of voters and their ad- 303 then be counted together with the votes of the non- professional voting group ( a) to decide the representative for the whole unit. If, on the other hand, a majority of the professional employees in voting group ( b) do not vote for inclusion , they will not be included with the nonprofessional em- ployees, and their votes on the second question will then be separately counted to decide whether they want Engineers and Scientists Division of Profes- sional, Office and Industrial Union, affiliated with MEBA-AFL-CIO, to represent them in a separate professional unit. Our unit determination is based in part, then, upon the results of the elections. However, we now make the following findings in regard to the ap- propriate unit: (1) If a majority of the professional employees vote for inclusion in a unit with nonprofessional employees , we find that the following employees will constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9( b) of the Act: All nonsupervisory employees of the Em- ployer's technical department , in job classifica- tions set forth in appendix A, attached hereto, and all professionals , in job classifications set forth in appendix B, attached hereto , but ex- cluding supervisors , clericals, guards , and all other employees. (2) If a majority of the professional employees do not vote for inclusion in the unit with nonprofes- sional employees, we find that the following two groups of employees will constitute separate units appropriate for collective bargaining within the meaning of Section 9(b) of the Act: (a) All nonsupervisory employees of the Em- ployer 's technical department, in job classifications set forth in appendix A, but excluding profes- sionals, supervisors , clericals, guards , and all other employees. (b) All professionals in the Employer 's technical department, in job classifications set forth in appen- dix B, but excluding supervisors , clericals , guards, and all other employees. [Direction of Elections3 omitted from publica- tion.] dresses which may be used to communicate with them Excelsior Un- derxear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S 759 Accordingly, it is hereby directed that election eligibility lists, contain- ing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 20 within 7 days of the date of this Decision and Direction of Elections The Regional Director shall make the lists available to all parties to the elections No extension of time to file these lists shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the elections whenever proper objections are filed 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix A Animal Caretaker Animal Technician Jr. Lab Technician Lab Assistant Lab Glassware Washer Lab Technician Snr. Lab Technician Appendix B Chemist Jr. Pharmacologist Research Chemist