Shelley Processing Co.

110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ruby Company, d/b/a Shelley Processing Company 1 and' American Federation of Grain Millers , AFL-CIO, Petitioner. Case No. 19-RC-2566. 'September 22, 1960 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed under Section 9 (c) of the National Labor- Relations Act, a hearing 2 was held before Dan Boyd, hearing officer. The hearing officer's rulings made at the hearing are free from prej- udicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Rodgers and Jenkins]. 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 represen- tation of employees of the Employer within the meaning of Sections- 9(c) (1) and2(6) and (7) of the Act. 4. The Employer is engaged in a potato processing operation at its. Burley, Idaho, location. The Petitioner seeks a unit of all production and maintenance employees, including laboratory and technical em- ployees. General Teamsters, Warehousemen & Helpers Local Union No. 483, which intervened on the basis of a contractual interest,3 has represented a production and maintenance unit excluding the labora- tory and technical employees. The Employer and Intervenor contend that the existing contractual unit is appropriate, and the Employer- further contends that the laboratory employees are engaged in secret and confidential work. The record indicates that the Employer employs approximately 18 laboratory and technical employees on a three-shift basis when it is in full, operation, which number decreases to 2 employees during the summer months. These employees make various tests on the, Employer's product for flavor, consistency, blue value, sulphide, etc. The tests are routine in nature, and the procedures are set forth in a manual provided by the Employer. No technical or formal training requirements are necessary for this classification. The Employer con- ducts its own training program of approximately 1 week's duration 1 The name of the Employer appears as amended at the hearing. 2 By order of the Regional Director this case was consolidated for hearing with Case• No. 19-RC-2503. We hereby sever these cases for decisional purposes 3 The contract was not urged as a bar. 129 NLRB No. 15. SHELLEY PROCESSING COMPANY 111 to train these employees, who are transferred and promoted from, among production employees. In these circumstances, we find that the laboratory and technical employees are not employed in a confidential capacity,4 are not techni- cal employees, and have substantially the same interests as the pro- duction and maintenance employees.' In view of their prior exclusion from the overall unit, under Board policy they are entitled to a sepa- rate vote as to whether they wish to be included in such unit. In the event they do not vote to be merged with the existing unit and, in addition, the existing unit votes for representation, the laboratory and technical employees may also constitute a separate residual unit of rank-and-file employees. Accordingly, we shall direct separate elections in the two voting groups of employees at the Employer's Burley, Idaho, plant, as described below, excluding from each voting group professional, office clerical, and temporary construction em- ployees,' guards, and supervisors as defined in the Act : Voting group 1-All production and maintenance employees, ex- cluding the employees in voting group 2. Voting group 2-All laboratory and technical employees, excluding all employees in voting group 1. If a majority of employees in each voting group vote for Petitioner, both groups shall be merged into a single overall unit, which unit we find appropriate in the circumstances. If a majority of the employees in the existing unit vote either for Intervenor or Petitioner and a majority in the unrepresented group reject the Petitioner, we find that the employees in the existing unit constitute an appropriate unit. If, however, a majority in the existing unit vote for Intervenor, and a majority in the unrepresented group vote for Petitioner, we find that each group is a separate appropriate unit. If a majority of the employees in the existing unit vote for no union, the employees in both voting groups shall remain unrepresented regardless of the, vote in the currently unrepresented group. The Regional Director, is instructed to issue a certification or certifications as decided by the results of the elections? 5. The Employer's Burley operation is characterized by peak periods of employment; at the time of the hearing 2 out of a peak force of 18 laboratory and technical employees were working, and the Employer's plant was not in operation. In agreement with the, parties, Nye shall in accordance with our usual practice in seasonal in- 4 Hvron Portland Cement Co , 112 NLRB 1465, footnote 1 "Albert Lea Cooperative Creamery its4ocbation . 119 NLRB 817, 823. We find , in agreement with the parties, that as there are no temporary construction employees currently employed , and the Employer utilizes production employees and inde- pendent contractors to perform such work, this classification is prnnerly excluded 7 Waikiki Biltmnore Inc, d/b/a The Waikiki Biltmore Hotel, 127 NLRB 82; Cook Paint and Varnish Company, 127 NLRB 1098. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dustries, direct that an election be held at or about the peak of the season,. on a date to be determined by the Regional Director, among the employees in the appropriate voting groups who are employed during the payroll period immediately preceding the date of the issuance of notice of election by the Regional Director. [Text of Direction of Elections omitted from publication.] Dickten & Masch Mfg. Company and Tool and Die Makers Lodge No. 78, International Association of Machinists, AFL- CIO. Cases Nos. 13-CA-0867 and 13-CA-3120. September 29, 1960 DECISION AND ORDER On December 22,1959, Trial Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in these cases, including the Intermediate Report, the excep- tions and the brief, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations with the modifications and addi- tions hereinafter indicated. We find, in agreement with the Trial Examiner, that since May 29, 1958, the Respondent has refused to bargain in good faith with the Union as the certified bargaining representative for an appropriate unit consisting of toolroom employees, in violation of Section 8(a) (5) and (1) of the National Labor Relations Act. Specifically, the Re- spondent violated Section 8 (a) (5) and (1) by: (1) refusing to bargain with the Union concerning the Rucker Share of Production Plan; (2) by unilaterally establishing a wage rate of $3 an hour for tool repair work; and (3) by terminating all negotiations on Decem- ber 2, 1958, and refusing to meet with the Union thereafter. By refusing to meet with the Union, the Respondent made it impossible -for the parties to reach agreement on the issues involved in the strike 1 The Respondent requested oral argument The request is hereby denied as the record, including the exceptions and brief, adequately presents the issues and positions pf the parties. 129 NLRB No. 18.