Commercial Testing & Engineering Co.

682 DECISIONS OF NATI()NAL LABOR RELATIONS BOARD Commercial Testing & Engineering Co. and Chauf- feurs, Teamsters & Helpers Local Union 175, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 9-RC- 13104 March 26, 1980 DECISION ON REVIEW AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On November 20, 1979, the Regional Director for Region 9 issued a Decision and Direction of Election in the above-entitled proceeding in which he found appropriate a unit of all preparation em- ployees employed at the Employer's Charleston, West Virginia, facility. Thereafter, in accordance with Section 102.67 of the National Labor Rela- tions Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Regional Director's decision on the grounds that the petitioned-for unit is inappropriate and should include laboratory department and mine laboratory employees, but should not include two individuals within the preparation department due to their alleged supervisory status. By telegraphic order dated December 14, 1979, the Employer's request for review was granted. Thereafter, the Employer filed a brief on review.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this case and makes the following findings: On October 1, 1979, the Petitioner filed a peti- tion seeking to represent a unit consisting of "all drivers, warehousemen, laborers and working fore- men located at the Employer's place of business in Charleston, West Virginia." The requested unit was thereafter clarified to include only the Em- ployer's preparation employees. The Employer, an Illinois corporation, is en- gaged in the collection, preparation, and testing of coal samples for various customers at its Charles- ton, West Virginia, facility, as well as at two satel- lite facilities located at mine sites 20 miles from Charleston. The Charleston facility consists of two buildings: a cinder block structure where prepara- tion employees begin the processing of coal; and a main building located about 45 yards away where preparation employees perform additional tests, and where the laboratory employees and office employ- ' The election was conducted on January 3, 1980, and the ballots were impounded 248 NLRB No. 96 ees also are situated. In charge of the Employer's Charleston operation are Jack White, divisional manager of the Appalachian Division; Tom Bra- zeau, manager of the Charleston office; and Ed Snellings, production supervisor. It is undisputed that these three individuals are supervisors. Customers' coal samples are either delivered to the Employer's facility or picked up by truck from remote sites by preparation employees, one or two of whom perform this task each day. A form is then completed, indicating the tests to be per- formed on the sample. Thereafter, preparation em- ployees prepare the coal by crushing and screening it into small pieces. The preparation employees then typically perform tests to determine the densi- ty, and thus the quality, of the coal, including a float and sink test whereby the coal is immersed in solutions of various densities, and a froth flotation test whereby the coal is immersed in an air-water mixture. In each test, that portion of the coal which floats or rises is weighed and recorded. The final standard test performed by the preparation employees consists of further grinding of the coal samples to determine its hardness according to a grindability index. After the completion of these tests, the coal samples are pulverized and placed on a tray to be delivered to the laboratory by a prep- aration employee. The tests performed by the laboratory employees consist entirely of placing weighed samples of the coal in automated equipment, activating the equip- ment, and recording the results either by visual in- spection or by referring to numerical readouts. Some of the tests require the samples to be reweighed at the end. As a result of these tests, the coal samples' moisture, sulfur, ash, volatile content, and various other properties are determined. The data is then given to the production supervisor, who feeds this information into the Employer's computer for further processing. There are no particular skills or educational re- quirements necessary to become either a prepara- tion or laboratory employee, although a high school education is preferred for the laboratory po- sitions. Employees in each department are trained on the job, and are eventually trained to perform all assignments in their respective department. Such training may take up to a year to establish full pro- ficiency. Although there have been no transfers be- tween the two departments within the past several years, two individuals in the preparation depart- ment were offered transfers to the laboratory and began to work there, but after a short period of time declined the offer, and returned to the prep- aration department. --- COMMERCIAL TESTING & ENGINEERING CO. 683 Contact between the two groups of employees occurs about three times daily when preparation employees deliver samples to the laboratory, as well as less frequently when laboratory employees return used sample containers or request additional quantities of a particular sample of coal. Further in- formal contact occurs in the main building where the soda and coffee machines are located. There are eight individuals classified within the preparation department, and seven persons within the laboratory department. Both groups of employ- ees share many of the same general working condi- tions. They all receive the same fringe benefits, and work on an hourly basis. Preparation employees average $4.25 per hour in wages, while laboratory employees average slightly more, $4.40 to $4.50 per hour. The preparation employees' work shift is from 7 a.m. to 3 p.m. and they use a timeclock in the cinder block building; while the laboratory em- ployees' hours are from 7:30 a.m. to 3:30 p.m., and their timeclock is in the main building. Finally, the preparation employees' uniforms consist of green pants and shirts, while the laboratory employees wear blue smocks over their street clothes. The Employer also employs two persons classi- fied as mine laboratory employees. They work at separate mine sites located approximately 20 miles from the Charleston facility, and perform the same work at those locations as that done by the prep- aration and laboratory employees. The test results are then forwarded to Charleston where they are entered into the computer. When these employees are on vacation, their coal samples are delivered di- rectly to Charleston for processing. Both mine lab- oratory employees were hired in Charleston, and were either trained there or trained at the mine site by a Charleston employee. While they infrequently visit Charleston, they maintain contact with it on a weekly or biweekly basis, and are supervised by Divisional Manager White, who visits them at least twice a year. Like the Charleston employees, they are paid on an hourly basis. In his decision, the Regional Director found that the preparation employees had a sufficiently sepa- rate community of interest to warrant their inclu- sion in a separate unit. He based this conclusion in part on the finding that they performed a distinct preparatory function, their limited contact with the laboratory employees, and the absence of inter- change between the two groups. Upon consideration of the record in this case, we agree with the Employer's contention that a unit limited to only the preparation employees is inap- propriate. The Employer's sole activity at its Charleston facility is the testing of coal samples. In the context of this limited operation, we disagree with the Regional Director's finding that prepara- tion employees perform a distinct function. In addi- tion to the initial preparatory steps, these employ- ees also test the coal samples for density as well as hardness. Such tests are functionally indistinct from the additional tests performed by the laboratory employees to establish the remaining physical prop- erties of the coal samples, and both are integral to the Employer's system for the testing of coal sam- ples. Neither group of employees is required to have special skills in order to perform their func- tions, and both groups receive roughly equivalent wages on an hourly basis and identical fringe bene- fits. The short distance between the main building and the cinder block structure, approximately 45 yards, while perhaps sufficient to justify the use of separate timeclocks for the two groups, does not serve to establish a separate community of interest, particularly where testing by preparation employ- ees is performed in both structures. Additionally, the record indicates that preparation employees are in daily contact with the laboratory employees. In light of the integrated nature of the functions of these two groups of employees, as well as their re- curring contacts, we find that the laboratory and the preparation employees share a closely related community of interest so as to necessitate their in- clusion in a combined unit.2 We further find that this combined unit also should include the two mine laboratory employees. Both such employees are supervised by Division Manager White from the Charleston facility, per- form the same tasks as the preparation and labora- tory employees, and their work is tranferred to Charleston during their vacation absences. They are paid on an hourly basis and receive the same fringe benefits. Accordingly, we reject the Region- al Director's conclusion that they have a total lack of work-related interest with the Charleston-based employees, and find that they should be included in the combined unit of employees performing similar functions. A further issue was raised on review regarding the supervisory status of Carl Hicks, classified as the preparation department supervisor, and Rich- ard Surface, classified as the assistant preparation department supervisor. Hicks is in charge of the operation of this depart- ment, and is responsible for assigning work and co- a The Regional Director found that Greg While performed various functions within the laboratory and preparation departments, but that the record was insufficient to show if he shared a substantial community of interest with the preparation employees. Consequently, the Regional Di- rector ordered that he be permitted to vote a challenged ballot should he appear at the polls. In light of our finding that a combined unit is the minimum appropriate unit, we find that this challenge procedure is un- necessary We note that he spends a small percentage of his time per- forming office clerical duties 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ordinating activities with those of the laboratory department. His duties also include dispatching em- ployees to pick up samples, reassigning employees to test rush samples, and maintaining equipment and supplies. While he frequently consults with Di- visional Manager White and Charleston Office Manager Brazeau, his powers are not contingent on prior consultation with them. He is authorized to discipline and discharge preparation employees, and has exercised such authority on several occa- sions, including firing two employees and threaten- ing a third with discharge as a result of the latter's disregard for standard testing procedures. He at- tends management meetings, is consulted regarding wage increases, authorizes overtime, and grants time off from work. Surface acts as Hicks' assistant and as his substi- tute while Hicks is on vacation or on a field assign- ment. However, he is also authorized to exercise his full range of responsibility even when Hicks is present. His authority to terminate preparation em- ployees was established as a result of an incident that occurred several months prior to the hearing, after he recommended to Manager Brazeau that an employee be fired. Subsequent to the employee's discharge, Divisional Manager White asked Surface if he had fired the employee. Surface denied that he had, and stated that he could not fire him. White replied that Surface had the authority to fire the employee. While the Regional Director correctly noted that Hicks and Surface spend much of their time per- forming unit work, and that many of their duties are with respect to routine matters, it is uncontro- verted that both of them have authority to disci- pline and discharge employees under them, and that they have been specifically advised of this au- thority. Accordingly, we find that both Hicks and Surface are supervisors and should be excluded from the unit found appropriate herein. 3 For the reasons stated above, we conclude that the following employees of the Employer consti- tute a unit appropriate for the purposes of collec- tive bargaining within the meaning of the Act: All preparation department and laboratory de- partment employees of the Employer em- ployed at its Charleston, West Virginia, plant, and all related mine laboratory employees, but excluding all office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. As the unit herein found appropriate is different from that found appropriate by the Regional Direc- tor for Region 9, this case shall be remanded to the Regional Director for the further processing of the representation election petition in a manner consis- tent with the conclusions reached herein. ORDER It is hereby ordered that the petition be, and it hereby is, remanded to the Regional Director for Region 9 for further processing in a manner consis- tent with this Decision on Review and Order. 3 The supervisory status of the laboratory department supervisor, Naomi Davis, was also raised at the hearing. The Employer contends that she has less authority than Hicks or Surface, and that she does not have supervisory status. The Petitioner contended that she should be ex- cluded from the unit together with all other laboratory employees, but presented no evidence with regard to her supervisory status or lack thereof. The record is insufficient to determine whether Naomi Davis is a supervisor. Accordingly, she shall be permitted to vote a challenged ballot.