The Colorado Milling and Elevator Co.

National Labor Relations Board - Board Decisions

Dec 16, 1949

87 N.L.R.B. 1091 (N.L.R.B. 1949)

In the Matter of THE COLORADO MILLING AND ELEVATOR COMPANY,"
EMPLOYER and AMERICAN FEDERATION OF GRAIN MILLERS, AFL,
PETITIONER
Case No. 30-RC-00.-Decided December 16, 1949
DECISION
AND
DIRECTION OF ELECTIONS
Upon a petition -duly filed, a hearing was held before Clyde F.
Waers, hearing 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Reynolds and Gray].
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 labor organization involved claims 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 appropriate unit; the determination of representatives:
The Petitioner seeks to represent a unit composed of all the Em-
ployer's central laboratory employees at Denver, Colorado, excluding
office and clerical employees, janitors, all other employees, and super-
visors. Although the Employer takes no position concerning the
appropriateness of the requested unit, it asserts that at least three of
its central laboratory employees 2 are professional employees within
the meaning of Section 2 (12) of the Act, and should therefore be
placed in a separate voting group in order to comply with the pro-
visions of Section 9 (b) (1) of the Acts If the Board decides that
1 The name of the Employer appears as amended at the hearing.
2 Marilyn A. Beckord, Annette Strong , and Fred L . Sipes.
$ Section 9 (b) (1) provides "That the Board shall not decide that any unit is appro-
priate for . . . [ the] purposes [ of collective bargaining ] if such unit includes both pro-
fessional employees and employees who are not professional employees unless a majority of
such professional employees vote for inclusion in such unit."
87 NLRB No. 119. 1091
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any of the employees in the requested unit are professional employees,
the Petitioner apparently desires to represent: them in the- same unit
with the other central laboratory employees, if the professionals vote
in favor of such inclusion.
The Employer operates flour mills and grain elevators in seven
Western States in connection with its milling and grain enterprise.
Its central laboratory, where the employees involved herein are em-
ployed, consists of 2 divisions that function, respectively, as a quality
control laboratory for the Employer's 4 Denver flour mills and as a
central control laboratory for all its field operations. The first, or
analytical laboratory division, makes chemical analyses of feeds and
flours for the-purpose of ascertaining the presence of .factors commonly
accepted by the commercial trade as constituting the specifications for
these products. The second, or baking control and research division,
conducts tests (a) on wheat samples to determine their milling quali-
ties, (b) on the resulting experimentally milled flour to ascertain its
baking and physical dough characteristics, and (c) on commercial
flours to determine their acceptability in the light of baking specifica-
tions prescribed by the Employer's customers. Of the approximately
12 employees sought by the Petitioner, 7 are assigned to the analytical
laboratory, 2 to the baking control laboratory, and 3 have special
assignments.
The Chemists
There are two employees classified as chemists in the analytical
laboratory who work under the general supervision of the chief ana-
lyst. These employees are principally engaged in conducting difficult
and complicated analyses of flour and feed samples requiring skill and
knowledge of an advanced type. Both majored in chemistry, have
college degrees, and exercise independent judgment and discretion in
connection with the performance of their duties. We find that these
two chemists are professional employees within the meaning of the
Act 4 Accordingly, we shall include them in a separate voting group
composed of professional employees.
Four bench chemists also work in the analytical laboratory under
the general supervision of the chief analyst. These employees per.
form tests and analyses of flour, wheat, and feeds, following well
outlined procedures and methods established by the Employer.
Although they must have a knowledge of cereal chemistry, none is a
college graduate. • . In view of all the foregoing, we believe that the
bench ' chemists are not professional employees within the. meaning
of the Act:°
4 See Cutter Laboratories, 80 NLRB 213; and The Drackett Company, 86 NLRB 646.
5 See Alpine Trading Co., 77 NLRB 766 ; and The Drackett Company, supra.
THE COLORADO MILLING AND ELEVATOR COMPANY 1093
A junior chemist is assigned to the baking control laboratory where
lie works under the close supervision of the head of that laboratory.
.His principal duties consist of assisting in the preparation of test
doughs and the baking of bread to ascertain the baking characteristics
.of flours produced by the Employer. Although this employee
majored in chemistry and has a college degree, the record does not
disclose that he is performing work under the supervision of a pro-
fessional person in order to qualify himself to become a professional
employee as defined in the Act. In these circumstances, we find that
the junior chemist is not a professional employee.6
An employee classified as a cereal chemist works under the general
supervision of the supervisor of the baking control and research labo-
ratory. Although he is not a college graduate, he has had about 18
years of progressive experience working in laboratories, including
.service as chemist-In-charge of the laboratory of a large baking con-
cern. Since his employment commenced with the Employer during
June 1949, the cereal chemist has performed varied duties such as
analyzing flour, wheat, and feeds, and assisting in the experimental
milling of "new, unclassified crops wheat." Within the near future,
the Employer expects to utilize his services in carrying out it research
program, and particularly with respect to "development problems."
As the cereal chemist is consistently required to exercise independent
judgment in connection with his work, which is predominantly intel-
lectual and varied in character, we find that he is a professional em-
ployee within the meaning of the Act.7 We shall therefore include
him in the professional employees voting group.
Miscellaneous Classifications
Besides the -several classifications of chemists mentioned above,' a
laboratory assistant likewise is assigned to the analytical laboratory.
This employee, under close supervision of more experienced staff mem-
bers, assists in conducting protein analyses of wheat and flour samples.
In addition, a .technical assistant.performing routine tests on flour
doughs, and a senior experimental 'miller preparing and milling ex-
perimental grain samples, work under the general supervision of the
head of the research division. There is also an experimental baker
in the baking control laboratory performing routine baking tests. All
these employees follow well-outlined procedures and methods pre-
scribed by the Employer in carrying out their duties. It is clear that
the laboratory assistant, technical assistant, senior experimental mil-
ler, and experimental baker do not possess the qualifications of pro-
Ibid.
° See Cutter Laboratories, supra; and The Drackett Co., supra.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fessional,employees within the meaning of Section 2 (12) of the Act."
We shall include them in the voting group of nonprofessional em-
ployees.
We shall direct that separate elections be held in the following
voting groups and shall defer our determination as to the scope of the
unit until the results of these elections have been ascertained :
(a) All laboratory employees employed at the Employer's cen-
tral laboratory at Denver, Colorado, excluding all the employees in
group (b), office and clerical employees, janitors, all other employees,
and supervisors as defined in the Act.9
(b) The chemists (in the analytical laboratory),10 and the cereal
chemist:':' employed at the Employer's central laboratory at Denver,
Colorado, excluding all other employees and supervisors as defined
in the Act.
If the employees in voting group (b) vote for the Petitioner, they
will be taken to have indicated their desires to be bargained for as
part of a unit composed of the Employer's central laboratory em-
ployees at Denver, Colorado.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, separate elections
by secret ballot shall be conducted as early as possible, but not later
than 30 days from the date of this Direction, under 'the direction and
supervision of the Regional Director for the Region in which this case
was heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
voting groups described in paragraph numbered 4, above, who were em-
ployed during the pay-roll period immediately preceding the date of
this Direction of Elections, 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 re-
instated prior to the date of the elections, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented, for purposes of collective bargain-
ing, by American Federation of Grain Millers, AFL.
8 Celanese Corp . of America, 81 NLRB 1041 ; The Drackett Company, supra.
9 Excluded as supervisors are the manager of laboratories , chief analyst , analytical
laboratory ; supervisor , baking control and research division ; and the head, baking control
laboratory and acting supervisor , research division.
19 Included within this category • are Marilyn A. Beckord 'and Annette Strong.
11 Fred L. Sipes.