Barnes-Hind Pharmaceuticals, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1970

183 N.L.R.B. 301 (N.L.R.B. 1970)

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