Cutter Laboratories

National Labor Relations Board - Board Decisions

Nov 9, 1948

80 N.L.R.B. 213 (N.L.R.B. 1948)

In the Matter of CUTTER LABORATORIES , EMPLOYER and W. R . HARDIE,
ET AL., PETITIONER and Bio-LAB UNION OF LOCAL 225, UNITED
OFFICE AND PROFESSIONAL WORKERS OF AMERICA, C. I. 0., UNION
Case No. 20-RD-13.-Decided November 9, 1948
DECISION
AND
DIRECTION OF ELECTION
Upon an amended decertification petition duly filed, a hearing was
held before a hearing officer of the National Labor Relations Board.
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The Petitioners, employees of the Employer, assert that the
Union is no longer the representative, as defined by Section 9 (a) of
the amended Act, of those of the Employer's employees designated in
the petition.2
The Union, a labor organization affiliated with the Congress of
Industrial Organizations, is the currently recognized bargaining rep-
' At the hearing, the Union moved to dismiss the petition herein on the ground that the
Board has no authority under the Act to break up established bargaining units by de-
certifying a group of professional employees . The hearing officer referred this motion
to the Board . For the reasons set forth below, me deny the Union 's motion.
* Chairman Herzog and Members Houston and Murdock.
2 These employees are : all professional employees of the Employer at Berkeley, Cali-
fornia, excluding all other employees. Professional employees are defined as those em-
ployees who are classified in the agreement between the Employer and the Union as Pro-
fessional A, B, C, or D, corresponding to Code No P-4, P-3, P-2, or P-1, and whose
rates of pay are in accordance with this professional schedule.
80 N. L. R. B , No. 44.
213
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resentative of all the Employer's employees at the Berkeley, Califor-
nia, plant, excluding administrative employees, confidential employees,
part-time employees, salesmen, and supervisors.3
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 appropriate unit:
The Petitioners request that a decertification election be held among
the professional employees of the Employer, contending that such
employees constitute an appropriate unit separate from the established
contract unit. The employees for whom the Petitioners seek an elec-
tion are employed as chemists, chemical engineers, bacteriologists,
biologists, and physicists. The Union contends that the only appro-
priate unit is the over-all plant unit. The Employer desires to leave
the determination of the unit to the Board.
The Board has heretofore held, in determining the propriety of a
proposed unit in decertification cases like the case now before us,
that the same principles of severance must be applied as in certifica-
tion cases .4 The question is whether, under ordinary representation
principles, we would permit the employees in the proposed unit to be
severed from the established contract unit. This requires a determi-
nation as to whether the employees in question are professional em-
ployees within the meaning of the amended Act; if they are, they
may constitute an appropriate bargaining unit, and may be severed
from the plant- wide unit.
The Employer is engaged in the business of manufacturing human
and veterinary biologicals, penicillin, and allied products. This pro-
ceeding involves 35 professional employees out of a total of approxi-
mately 425 employees at the Employer's only manufacturing plant in
Berkeley, California. When hiring professional employees, the Em-
ployer lays particular stress on the college background and the research
experience of the applicant. All but 2 of the professional employees
herein involved hold college degrees in specialized, scientific fields.
Of the 2 employees without college degrees, 1 had acquired the neces-
sary college credits but was prevented by military service from
receiving a degree, and also had 2 years of specialized work with the
Employer; the other had 2 years of college work toward a degree in
chemistry and 6 years of specialized work with the Employer.
The professional employees are employed in the research depart-
ment, the control division, and the production division of the Em-
S The Union and its predecessors have represented all the employees of the Employer
since certification in 1944. The parties stipulated that the present contract between the
Union and the Employer , entered into on July 23 , 1948, is not a bar to this proceeding.
4 Matter of Illinois Bell Telephone Company , 77 N. L. R. B. 1073.
CUTTER LABORATORIES 215
ployer's plant. Those professionals employed in the research depart-
ment ( 22 of the 35 involved in this proceeding ) are engaged in research
projects leading to the development of new products and processes,
and the improvement of products and processes currently used by the
Employer. The supervisors of the subdivisions of the research de-
partment are men of professional standing . The 8 professional em-
ployees in the control division work under a professional supervisor.
They test the products of the Employer to maintain standards of
safety, purity, and potency. Some of these tests may be conducted
by non-professional employees , but the record indicates that such
tests are conducted under the supervision and direction of a profes-
sional employee. The 5 professional employees in the production
division were described in the record as "trouble shooters." These
employees work under the direct supervision of the production super-
visors, who may assign them to projects as needed; however, all pro-
fessional advice comes from professional personnel in the research
department. The professional employees assigned to the production
division are required to exercise skill, discretion , and judgment in han-
dling the problems assigned to them.
All but two of the professional employees herein involved are "off-
the-clock," i. e., they are paid by the month, need not punch a time
clock or keep regular hours, but may govern their own time depending
upon the project assigned them. The two professional employees
paid by the hour and "on-the-clock" are recent employees still serving
a probationary period. Non-professional employees are hourly paid.
On the basis of the entire record in this case , we find that all pro-
fessional employees of the Employer , excluding supervisors , are pro-
fessional employees within the meaning of the amended Act, and may
constitute a unit appropriate for the purposes of collective bargaining.
Accordingly, we shall direct that an election by secret ballot be held
among the professional employees of the Employer. If the employees
in this voting group do not select the Union, the Union will be de-
certified as to them; if, on the other hand, they select the Union, they
will be taken to have indicated their desire to be included in a unit
with all the non-professional employees in the Employer's plant now
represented by the Union.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Cutter Laboratories, Berkeley,
California, an election by secret ballot shall be conducted as early as
possible , but not later than thirty (30) days from the date of this
Direction, under the direction and supervision of the Regional Direc-
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tor for the Twentieth Region, and subject to Sections 203.61 and
203.62 of National Labor Relations Board Rules and Regulations-
Series 5, as amended, among the employees in the voting group de-
scribed in paragraph 4, above, who were employed during the pay-roll
period immediately preceding the date of this Direction, including
employees who did not work during said pay-roll period because they
were ill or on vacation or temporarily laid off, but excluding those
employees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the election, and
also excluding employees on strike who are not entitled to reinstate-
ment, to determine whether or not they desire to be represented by
Bio-Lab Union of Local 225, United Office and Professional Workers
of America, C. I. 0., for the purposes of collective bargaining.