S. D. Warren Co.

204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employers at the location affected by the alleged conduct are taken into consideration for jurisdictional purposes, along with the opera- tions of the primary employer.' However, there is no indication in this case of any effect upon the secondary employers' construction site activities from Petitioner's picketing. Even as to secondary employer Seifert, the general contractor, not more than $25,000 of its purchases which constituted direct and indirect inflow to the site would have been affected by the Petitioner's picketing. Thus, as to the primary em- ployer there is no direct inflow and no showing as to the quantity of indirect inflow; further, there is no indication as to the extent of the effects, if any at all, from the Petitioner's picketing upon the con- struction site operations of the secondary employers. Under these circumstances, the Board is unable to make a meaningful jurisdictional determination herein. Accordingly, considering that the Board's Rules and Regulations, Series 8, as amended, provide in Section 102.13 for a determination based upon the petition, responses, and submission of briefs, and that they do not provide for a hearing, as requested by Petitioner, to develop further information, the parties are advised that, on the alle- gations here present, the Board is unable to conclude whether or not it would assert jurisdiction herein. 2 Matthews Construction Company, 142 NLRB 435 ; Weibel Excavating Company, 137 NLRB 1788 ; cf. Golding and Jones, Inc, at al., and B B & G Developers , 139 NLRB 1370. S. D. Warren Company and International Association of Machin- ists, AFL-CIO; International Brotherhood of Electrical Work- ers, AFL-CIO; United Brotherhood of Carpenters and Joiners of America, AFL-CIO; International Brotherhood of Firemen and Oilers, AFL-CIO, Joint-Petitioners. Case No. 1-RC-7215. August 23, 1963 DECISION ON REVIEW On April 4, 1963, the Regional Director for the First Region issued a Decision and Direction of Election in the above-entitled proceeding. Thereafter, the Employer, in accordance with Section 102.67 of the Board's Rules and Regulations, Series 8, as amended, filed with the Board a timely request for review of such Decision and Direction of Election with a supporting brief on the ground that the unit found ap- propriate by the Regional Director raised substantial questions of law and policy. The Joint-Petitioners filed a brief in support of the Regional Director's findings. The Board, by telegraphic Order dated May 1, 1963, granted the request for review and stayed the election. 144 NLRB No. 25. S. D. WARREN COMPANY 205 The Board 1'has considered the entire record in the case with respect to the Regional Director's determination under review together with the briefs of the parties and makes the following findings : On the basis of the Joint-Petitione'rs' 'general request for a unit of maintenance employees, the Regional Director found appropriate a unit limited to the engineering division, consisting of all employees in the following departments or sections : 2 Instrumentation and Steam Distribution, Power Boilers and New Boiler House, Bark Burner Boiler, Chemical, Smelting and Recovery Unit, Mechanical Power Maintenance, Steam Engi- neers, Oilers, Electrical Stations, Paint Shop, Belt Shop, Machine Shop, Electrical Shop, Grinder Room, Rigger Shop, Carpenter Shop, Piping Shop, Mason Shop, Tin Shop, Welding Shop, Laborers and Truckmen ; and employees located at the Dundee, Eel Weir and Saccarappa Hydroelectric Stations, Janitorial and Custodial employees of the Engineering Division, and Leadmen in the respective departments and locations listed above; but excluding all other employees ; employees of the Engineering Division permanently assigned to other Divisions of the Mill, Research Division employees, Dispatcher, Assistant Dispatchers, Telephone Operators, Office Clerical and Plant Clerical em- ployees, Technical employees, Professional employees, Foremen, Guards and Supervisors as defined in the Act. The Employer contends that the unit found appropriate is heterogene- ous in nature and is neither an appropriate maintenance nor a depart- mental unit. It further contends that the operations of the mill are too integrated to permit separate bargaining units, and that only an overall production and maintenance unit is appropriate. The Enkployer's mill, located at Westbrook, Maine, is engaged in the manufacture and sale of fine printing and speciality papers and has had no history of collective bargaining. The mill comprises a series of continuous connected buildings, covering approximately 4 miles and includes three hydroelectric plants which are located from approximately 1 to 12 miles from the mill and supply the power for its manufacturing process. Of the approximately 2,700 hourly rated production and maintenance employees, approximately 400 are in the unit found appropriate by the Regional Director. The mill's operations, like that of similar paper manufacturing operations, may be described as a "continuous process" of chemical 1 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 McCulloch and Members Fanning and Leedom]. 2 As amended in Order Correcting Decision and Direction of Election issued on April 13, 1963. The parties agreed that employees of project engineering , design engineering, and construction engineering sections , as well as dispatcher, assistant dispatcher, telephone operators, and office clericals , be excluded. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and machine operations, with each manufacturing operation related to the preceding one. The mill is divided administratively into the following described 10 separately supervised divisions. The Wood- lands, pulp mill, beater machine, coating, finishing, lithoplating, roll storage and transportation, and research divisions are concerned di- rectly with the production and manufacture of paper. The adminis- tration and control division provides office and clerical support. The work of the engineering division, as detailed below, is devoted to ap- proximately one-third maintenance, one-third new construction, and one-third utilities and related operations.' Most employees in the production departments are classified as ma- chine watchers or tenders and spend a major part of their time in the varied aspects of the paper production process. As an incident of their work, these employees also make minor and routine mechanical repairs. Some employees, classified within their respective depart- ments as paper machine maintenance employees, repairmen, oilers, and mechanics, spend full, or a high percentage, of their time doing repair or preventative maintenance work. This work can be char- acterized as incidental to the production process. The research de- partment as its name implies develops and tests new processes and equipment. Included in this department are approximately 13 em- ployees who do specialized mechanical and maintenance work on new and experimental equipment when it is first placed in operation in the mill. In their combined efforts the employees in the production and research departments perform approximately 50 percent of the total maintenance work, the balance being performed by employees of the engineering division. The record indicates that the mill operates around-the-clock, with four different types of work shifts and several departmental varia- tions. Most of the employees directly engaged in the papermaking process are on a bonus and incentive system and work on other than daytime shifts. The Employer maintains a millwide seniority policy predicated upon skill and ability in addition to length of service. However, since there have been no recent layoffs, the record is specula- tive as to how "bumping rights" would be exercised among the various departments. All the hourly rated employees enjoy similar vacation, holiday, grievance procedure, life insurance and pension plans, and retirement benefits, and use the same locker and canteen facilities. Employees do not punch timeclocks, but keep and report their own s The chemical , smelting, and recovery unit in the engineering division is concerned with the recovery of usable chemicals from spent chemicals in a form suitable for further work- ing and could conceivably be considered part of the productive process. The unit also produces steam for productive departments and has employee classifications similar to the utility operations. Approximately 20 employees are employed in this unit. The record does not indicate the amount of time or the specific employees involved in the two opera- tions. Thus the chemical recovery unit is at most only a minor operation in the overall department. S. D. WARREN COMPANY 207 hours. Although the record shows that there are transfers among the production departments and the engineering division, the record does not reveal the frequency of such transfers or the basis upon which such transfers are made. The engineering division, like each of the other divisions, has its own separate line of supervision, running from top management through the multiple departments included therein. However, it differs in major respects from the other divisions. (1) The engineer- ing division is primarily staffed with employees trained to perform the more highly skilled craft and maintenance duties required in main- taining the mill's operations and in the expansion of the mill's facili- ties. These skilled employees are separately based and work out of various craft shops, such as metal working, carpentry and millwright, rigging, pipefitting, painting, and masonry, which are located in vari- ous parts of the mill. The Employer does not have a formal appren- ticeship program, but has an on-the-job training program by means of which a "helper" advances through various steps within a given job classification under an established progression schedule. (2) The work of the division is primarily devoted to maintenance and con- struction, performing approximately 50 percent of the mill's main- tenance and 85 percent of the new construction work. Major maintenance jobs are carried out almost entirely under the engineer- ing division's supervision. When a maintenance job is beyond the capability of maintenance employees in the various production de- partments a request for specialized workmen is made to the division. When an engineering division crew works in a production area, they are under the nominal supervision of the production supervisor in the area of work and may utilize production maintenance personnel to assist, depending upon the nature of the work to be performed. Although the record shows that at lower levels the maintenance skills of many of the employees in production departments are related, it is clear that the bulk of the highly skilled craftsmen are in the engineer- ing division. The specialized equipment in the various craft shops in the division is not utilized by employees doing maintenance work in other divisions 4 Included in the engineering division are the utility operations which supply the mill's electricity and steam. In common with other em- ployees in the division, utility employees do not operate production machines and do not participate in the Employer's incentive bonus plan. Around the first week in July of each year it is the Employer's prac- tice to close the plant for approximately 1 week, at which time the * Seventeen skilled maintenance employees (2 oilers, 5 carpenters , 1 welder, and 9 ma- chinists ) are permanently assigned from engineering to the papermill and woodyard divi- sions For all practical purposes , these assigned employees are not part of the engineering division and were excluded by the Regional Director in his unit finding. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engineering division works throughout the mill rebuilding, replacing, and repairing mill machinery and buildings, and engages in new con- struction work. In 1962 approximately 100 employees from other divisions worked under the supervision of the engineering division in the performance of this work. In all the circumstances of this case, including the absence of any bargaining history and the fact that the engineering division is a distinct administrative subdivision of the Employer, having a func- tional base of maintenance, construction, and utility work and em- ploying primarily skilled employees who work out of their respective craft shops and do not work directly in the productive process, we agree with the Regional Director's conclusion that such unit limited to the engineering division, as described above, is appropriate for collective-bargaining purposes. In reaching this result we are not unmindful of the fact that there is some overlapping of work skills among some of the employees doing maintenance work in the produc- tion divisions and some of the lesser skilled employees in the engineer- ing division. However, we do not believe that in the circumstances of this case that this factor is sufficient to destroy the homogeneity and mutuality of interests of employees in the engineering division .5 Nor do we believe that the record shows such a degree of integration between the engineering and other divisions as to preclude the estab- lishment of a unit other than one plantwide in scope. Accordingly, the case is hereby remanded to the Regional Director for the First Region for the purpose of holding an election pursuant to his Decision and Direction of Election, except that the payroll period for determining eligibility shall be that immediately preceding the date below. MEMBER LEEDOM, dissenting : I do not agree with my colleagues that the unit of employees in the Employer's engineering division, as described in the majority, opinion, is appropriate for collective-bargaining purposes. This unit fails to conform to any kind of unit heretofore found appropriate by the Board, for it is neither craft, departmental, residual, nor his- torical. It is rather a heterogeneous grouping of some, but not all, the employees in the division. The sole common denominator of the included employees is the fact that they have been assigned admin- istratively to the same division, a catchall division at best. , The Board has consistently held that a departmental unit need not include employees of similar skills that are outside the department. See General Dynamics Teleoommunicd- tions, a Division of General Dynamics ,Corporation, 140 NLRB 1286; Kennard Corpora- tion, 114 NLRB 150 ; American Bosch firma Corporation, 115 NLRB 226. Nor do we believe that the hydroelectric stations should be excluded on the basis of public interest because they supply heat to a local hospital and church and could conceivably control the generation of power by a local public utility company in view of the record clearly indicat- ing that the stations are under the Employer's control and operation. S. D. WARREN COMPANY 209 The unit description itself, and my colleagues' findings, demonstrate the heterogeneity of this unit. Thus, as my colleagues point out, "The work of the engineering division ... is devoted to approximately one-third maintenance, one-third new construction, and one-third utilities and related operations." One of the "related operations," ap- parently, is the chemical, smelting and recovery unit which, according to our colleagues, "could conceivably be considered part of the produc- tive process." Thus, there is ample demonstration that the unit lacks functional homogeneity. Nor is there a homogeneity of skills, as the skills of the employees in the unit run the gamut from those of skilled craftsmen to those of unskilled laborers, with all shades and varieties of skills in between. The unit, moreover, does not meet the test of an appropriate multicraft maintenance unit, as it includes many em- ployees who are not engaged in maintenance work, and excludes em- ployees who perform approximately 50 percent of the total mechanical maintenance work in the mill. Likewise, as there is no history of bargaining, the unit cannot be justified on historical grounds; and as there are other unrepresented employees, it is clearly not a residual unit. Thus there is left to support the unit nothing but the tenuous bond of administrative assignment. Yet even if I assume that administra- tive assignment without more could be deemed a common bond suffi- ciently strong to justify a unit finding, the unit here would still be without adequate foundation. For it does not include all who are linked by this same bond; i.e., the 17 skilled maintenance employees attached to the papermill and woodyard divisions, and various clerical and other employees, are excluded. Although these 17 skilled employees may, as my colleagues aver, "for all practical purposes" be functionally part of other divisions, they are still administratively part of the engineering division and thus partake of the only mutual interest which binds together all the other employees in the unit now found appropriate.6 In my opinion, the picture is the same irrespective of, the, camera angle-an arbitrary grouping with no rational foundation. If the foundation is deemed to be solely administrative organization, the unit excludes employees in the division who should be included. If the foundation is deemed to be either skills, or functions, or both, without regard to administrative organization, the unit excludes em- ployees outside the division who have the same skills or functions, and includes employees within the division with diverse skills and func- 9 Similarly , it is clear that the parties have agreed to exclude certain employees ad- ministratively part of the engineering division, as office clerical, technical , and professional employees, because they regarded these employees as functionally distinct from the other employees sought. But the basis for their agreement is not the basis for my colleagues' unit finding Hence, it is doubtful that the parties ' agreement is entitled to much weight, proceeding as it does on a basis which my colleagues eschew. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions. If the foundation is deemed to be skills and/or functions within an administrative unit, there are still employees in this so- called appropriate unit who do not belong because of their diverse skills and functions. As the unit found appropriate cannot be supported on any rota- tional basis, I dissent from my colleagues' refusal to set aside the Regional Director's unit determination. R.C. Can Company and United Steelworkers of America, AFL- CIO. Case No. 16-CA-1651. August 26, 1963 DECISION AND ORDER On March 18, 1963, Trial Examiner John P. von Rohr issued his Intermediate 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 attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report. The General Counsel also filed exceptions, a supporting brief, and a reply brief.' 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 [Members Rodgers, Fanning, and Brown]. 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 In- termediate Report and the entire record in the case, including the exceptions, brief, and reply brief, and hereby adopts the findings,' i On April 24, 1963, the General Counsel moved for leave to file a reply brief . By letter dated April 29, 1963, General Counsel's motion was granted and the reply brief was re- ferred to the Board for consideration . Thereafter, on June 5, 1963, Respondent moved for leave to file a response to General Counsel's reply brief . Respondent also moved to strike part of General Counsel's reply brief. On June 10, 1963, the General Counsel filed an opposition to Respondent's motion for leave to file a response to General Counsel's reply brief and the motion to strike a part thereof. By wire dated June 10, 1963, Re- spondent's response to General Counsel's reply brief was accepted and referred to the Board for consideration. In addition, Respondent's motion to strike a part of the reply brief and General Counsel's opposition thereto were referred to the Board for a ruling thereon. In essence, Respondent contends -that that portion of General Counsel's reply brief whereby General Counsel "objects and excepts to the Trial Examiner 's failure to make a specific finding . that Respondent violated Section 8 ( a) (5)" constitutes a late excep- tion. We agree. The last day for filing exceptions was April 15. General Counsel's brief was dated April 24. As these exceptions are clearly late, we will grant Respondent's mo- tion to strike that portion of the reply brief relating to these belated exceptions. 9 Respondent excepted to the Trial Examiner's reliance on Lee's testimony as to the efforts of Lee and U.S. Conciliator White to arrange further negotiating sessions after February 26, 1962. Lee testified in great detail as to his contacts with White during this period and as to what White reported to him. Inasmuch as Lee's testimony as to what White told him was received in evidence without objection by Respondent 's counsel, we find no merit in this exception. 144 NLRB No. 26.