Miller Brewing Co.

National Labor Relations Board - Board Decisions

Jan 4, 1957

117 N.L.R.B. 1 (N.L.R.B. 1957)

Miller Brewing Company and Technical Engineers Association
(Independent ), Petitioner. Case No. 13-RC-5053. January 4,
•1957
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Frances P. Dom,
hearing officer. The hearing officer's rulings. made at the hearing are
free from prejudicial error and are hereby affirmed.
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 organizations involved claim to represent certain em-
ployees of the Employer.'
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 Petitioner seeks a unit of professional and nonprofessional
employees in the laboratory at the Employer's Milwaukee, Wisconsin,
beer plant.2 All parties agree that the laboratory is composed of both
professional and nonprofessional employees, and that the professionals
should be given an opportunity to vote on whether or not they wish to
be included in a unit with the nonprofessional employees. The Em-
ployer and the Petitioner disagree only with respect to the profes-
sional status of the bacteriologist II and control chemist categories,
the Employer contending that they are professionals, while the Peti-
tioner argues that they are not. The Intervenors take no position with
respect to any of the categories, but indicate that they will abide by
the rulings of the Board.
Employees who are classified as bacteriologist I, research chemist I,
process chemist, statistical quality control analyst, and research
chemist II must have a college degree or its equivalent in their respec-
tive fields. They are engaged in research or other work which is pre-
dominantly intellectual in character and requires the exercise of dis-
1International Union, United Brewery , Cereal, Soft Drink & Distillery Workers, Local
No 9, AFL-CIO, herein called Brewery Workers , and Office Employees International Union,
Local No. 9, AFL-CIO, herein called Office Employees , intervened at the hearing on the
basis of a showing of interest among the employees involved herein.
2 Petitioner also indicated its willingness to represent professionals and nonprofessionals
in separate units
117 NLRB No. 1.
423 7 84-57-vol 117-2 1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cretion and judgment. The Employer and the Petitioner agree, and
we find, that these employees are professionals within the meaning
of the Act. We shall therefore place them in the professional voting
group.
Employees who are classified as malt technician, process control
technician, product technician I, material control technician, and
statistical quality control clerk, are, for the most part, required to have
only high school training. The malt technicians and the product
technicians I are the only employees in this group who are required to
have 1 or 2 years of college training in chemistry. All these employees
perform routine or semitechnical tests in the laboratory. The Em-
ployer and the Petitioner agree, and we find, that these employees
are not professionals within the meaning of the Act. We shall there-
fore place them in the nonprofessional voting group.3
Bacteriologist II: There are three employees in this classification.
They are required to have a B. S. degree in bacteriology or in an ac-
ceptable related field and 6 to 9 months of practical experience. They
work under the general supervision of the quality control manager and
their principal function is to analyze plant samples to insure and main-
tain effective bacteriological control. In performing this work, they
select and aseptically collect air, yeast, wort, beer, and water samples
from production areas for bacteriological analysis; periodically ana-
lyze samples obtained in accordance with developed techniques of
bacteriological control; periodically inspect tanks, hoses, valves, and
other process equipment and working areas to insure desired sterility;
obtain special samples for bacteriological examination as required;
maintain pure culture yeast strains for production; conduct yeast cell
isolation and laboratory propagation for inoculation in pure culture
apparatus; and perform investigations on bactericides, fungicides,
and sterilizing solutions to determine acceptability for production
use. They must also evaluate the results of their analyses. An error
on their part in failing to detect bacteriological infection could result
in lowering the quality of the beer produced, or a possible major
production loss.
It is clear from the foregoing that the work of the bacteriologists II
is mainly intellectual. The techniques, skills, judgments, and decisions
they must make cannot be made by a person without a knowledge of
bacteriology. It is also clear that their work involves the exercise
of considerable discretion and judgment, and requires the type of
knowledge customarily acquired in scientific courses in institutions of
higher learning. We find therefore that the bacteriologists II are
8 As the record discloses that the Employer does not presently have, or contemplate the
immediate hiring of, employees in the classifications of taste technician , bacteriologist tech-
nician, and product technician II, we shall make no determination as to their unit place-
ment at this time.
MILLER BREWING-COMPANY 3
professional employees within the meaning of Section 2 (12) (a) of
the Act 4
Control chemist: There are six employees in this classification.
They are required to have a B. S. degree in chemistry or in an ac-
ceptable related field, and from 1 to 2 years of experience as a labora-
tory technician. They, like the bacteriologists II, work under the
general supervision of the quality control manager performing chemi-
cal and physical analyses on process samples to insure that control
operations are being carried out in accordance with established stand-
ard operating procedures. They periodically analyze samples, follow-
ing developed procedures and techniques 5 to determine adherence to
prescribed tolerances; record and graph results as required; guide and
coordinate the work of technical personnel assigned to them to insure
the completion of all desired analyses in accordance with approved op-
erating procedures; investigate and process to completion special proj-
ects upon assignment and prepare required reports; insure that proper
personnel are promptly informed of any major deviation in operations
from the established quality control limits; operate and maintain in
good working order all equipment assigned to the laboratory; and
recommend methods for improving operating procedures. The Em-
ployer's chief chemist testified that control chemists must have a
knowledge of quantitative and qualitative chemistry; that the charac-
ter of the work which they perform is a basic control operation on
which the Employer's competitive position rests; and that the work
is intellectual and varied in character and requires the exercise of con-
siderable discretion and judgment.
In its brief the Petitioner argues that the job descriptions for control
chemists and process control technicians are almost identical and that
the work performed by the control chemists is, therefore, no more pro-
fessional than that performed by the technicians. We find no merit
in this contention. Control chemists and process control technicians
are naturally concerned basically with the same work and their job de-
scriptions so state--that of chemical and physical analysis on product
samples to insure that control operations are being followed; however,
the control chemists, who guide and are responsible for the accuracy of
the work of the technicians, are clearly required to have a higher degree
of training than the technicians. On the basis of the foregoing, and
on the record as a whole, we are persuaded that the work of the con-
trol chemists is mainly intellectual, involves the exercise of consider-
' Cf. Seattle Gas Company, 108 NLRB 1265, 1266.
'Although these duties are described as "routine" in the manual job description for
control chemists , the record shows that this description refers to chemical routines and
techniques learned in college qualitative and quantitative chemistry courses, and the chem-
ical procedures and techniques which have been developed and put into practice in the
laboratory
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able discretion and judgment, and requires the type of knowledge
customarily acquired in institutions of higher learning. We find
therefore that the control chemists are professional employees within
the meaning of Section 2 (12) (a) of the Act.6
We find that the following employees may constitute a unit appro-
priate for the purpose of collective bargaining within the meaning of
Section 9 (.b) of the Act :
All laboratory employees at the Employer's Milwaukee, Wisconsin,
beer plant, excluding production employees, office and plant clerical
employees, guards, and supervisors as defined in the Act.
As a result of our findings as to the professional status of the em-
ployees in the disputed classifications, it appears that the unit as set
out above includes 17 professional employees and 25 nonprofessional
employees. However, the Board is prohibited by Section 9 (b) (1)''
of the Act from including professional employees in a unit with em-
ployees who are not professional unless a majority of the professional
employees vote for inclusion in such a unit. Accordingly, we must
ascertain the desires of the professional employees as to inclusion in
a unit with nonprofessional employees. We shall therefore direct
separate elections in the following voting groups: (a) All nonprofes-
sional laboratory employees at the Employer's Milwaukee, Wisconsin,
plant, excluding professional employees, production employees, office
.and plant clerical employees, guards, and supervisors as defined in
the Act; and (b) all professional employees (bacteriologist I, research
chemists I, process chemists, control chemists, statistical quality con-
trol analysts, bacteriologists II, and research chemists II) in the lab-
oratory at the Employer's Milwaukee, Wisconsin, plant, excluding all
other laboratory employees, production employees, office and plant
clerical employees, guards, and supervisors as defined in the Act. The
employees in the nonprofessional voting group (a) will be polled as to
which, if either, of the competing unions they wish to represent them.
The employees in the professional voting group (b) will be asked
two questions on their ballot : 8 (1) Do you desire the professional
employees to be included with the nonprofessional laboratory em-
ployees in a unit composed of all employees in the laboratory at the
Employer's Milwaukee, Wisconsin, plant, for the purposes of collec-
tive bargaining? (2) Do you desire to be represented for purposes
of collective bargaining by the Technical Engineers Association (In-
dependent), the Brewery Workers, the Office Employees, or by no
8 Swift & Company, Technical Products Plant, Hammond , Indiana, 98 NLRB 746, 747.
7 Section 9 (b) (1) states that the Board shall not "decide that any unit is appropriate
(for the purposes of collective bargaining ) if such unit includes both professional employees
and employees who are not professional employees unless a majority of such professional
employees vote for inclusion in such unit."
8 See Sonotone Corporation, 90 NLRB 1236, 1240.
MILLER BREWING COMPANY 5
union? If a majority of the professional employees in voting group
(b) vote "Yes" to the first question, indicating their wish to be in-
cluded in a unit with the nonprofessional employees, they will be so
included. Their votes on the second question will then be counted
together with the votes of the nonprofessional voting group (a) to
decide the representative for the whole laboratory unit. If, on the
other hand, a majority of the professional employees in voting group
(b) vote against inclusion, they will not be included with the non-
professional employees. Their votes on the second question will then
be separately counted to decide which union, if any, they want to rep-
resent them in a separate professional unit. There is no indication in
the record that any of the unions would be unwilling to represent the
professional employees separately, if these employees vote for separate
representation. However, if any union does not desire to represent
the professional employees in a separate unit even if those employees
vote for such representation, that union may notify the Regional Di-
rector to that effect within ten (10) days of the date of this Decision
and Direction of Elections.
Our unit determination is based, in part, then, upon the results of
the election among the professional employees. However, we now
make the following findings in regard to the appropriate unit.
1. If a majority of the professional employees vote for inclusion in
the laboratory unit with the nonprofessional employees, we find that
the following employees will constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act :
All laboratory employees at the Employer's Milwaukee, Wisconsin,
plant, excluding production employees, office and plant clerical em-
ployees, guards, and supervisors as defined in the Act.
2. If a majority of the professional employees do not vote for in-
clusion in the laboratory unit with the nonprofessional employees,
we find that the following two groups of employees will constitute
separate units appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act:
(a) All nonprofessional laboratory employees at the Employer's
Milwaukee, Wisconsin, plant, excluding professional employees, pro-
duction employees, office and plant clerical employees, guards, and
supervisors as defined in the Act.
(b) All professional employees in the laboratory at the Employer's
Milwaukee, Wisconsin, plant, excluding all other laboratory em-
ployees, production employees, office and plant clerical employees,
guards, and supervisors as defined in the Act.
[Text of Direction of Elections omitted from publication.]