Maryland Cup Corp.

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Maryland Cup Corporation and United Papermakers and Paperworkers , AFL-CIO & CLC, Petitioner. Case 5-RC-7113 May 22, 1970 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Barton S. Widom. Fol- lowing the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regula- tions and Statements of Procedure, Series 8, as amended, and by direction of the Regional Director for Region 5, this case was transferred to the National Labor Rela- tions Board for decision. Both the Employer and the Petitioner filed briefs.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel. The Board has reviewed the Hearing Officer' s rulings made at the hearing and finds no prejudicial error. The rulings 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 and it will effectuate the policies of the Act to assert jurisdiction herein. . , - 2. The labor organizations involved claim"to represent certain employees of the Employer. "1 rr 3. A question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The Employer is engaged in the manufacture of paper cups, plastic lids, ice cream cones, paper and plastic drinking straws , conical cups , ice cream cone jackets, matches, and machinery for producing these items . Its operations are located throughout the United States. Petitioner seeks a single plant unit consisting of the production and maintenance employees at Employer's Owings Mills plant located in suburban Baltimore, Mary- land. Employer contends that such a unit is inappropriate and that the only appropriate unit is a multiplant unit consisting of all of its facilities in the Baltimore metropol- itan area. Petitioner also contends that working leaders are supervisors within the meaning of Section 2(11) of the Act and therefore should be excluded from the appropriate unit. Employer contends that working lead- ers are rank-and-file employees and therefore should be included in any appropriate unit. ' The Intervenor, International Union of District 50, Allied and Techni- cal Workers of the United States and Canada, did not file a brief Similar issues were presented to the Board in Mary- land Cup Corporation, 171 NLRB No. 71,2 dated May 13, 1968. In that case the Board found that a unit of all production and. maintenance employees at the 301 North High Street plant in Baltimore was an appropriate unit, as against Employer's contention that only a unit encompassing all operations in the Balitmore metropolitan area, including the Owings Mills plant, would be appropriate. The Board also found that working leaders were not supervisors within the meaning of Section 2(11) of the Act and therefore included them in the unit, as against a contention3 that they were supervisors and therefore should be excluded from the unit.4 By stipulation of the parties, the record in the High Street plant case was incorporated by reference in the record of the instant proceeding. Also by stipulation of the parties, the record in Case 5-RC-6442 was incorpo- rated by reference in the record of the instant proceeding. In that case, the Acting Regional Director, on July 25, 1968, directed an election in a unit of production and maintenance employees at the Owings Mills plant, basing his determination on the Board's findings in the High Street plant case.5 In support of its contention that a single plant unit is appropriate, Petitioner relies on the Board's finding in the High Street plant case that a single plant unit was appropriate, contending that the issue was fully litigated in that case. Employer contends that the Board erred in the 1968 High Street plant case and again contends that the Board should find that only a multiplant unit' would be appropriate, basing its contentions on the following factors : common ownership, management,, and control; common personnel and labor relations poli- cy; common overall supervision; substantially 'uniform- wages and working conditions; uniformity of job• classi- fication and job' functions; and' operational integration' and interdependence. The Owings Mills plant is Employer's main plant in the Baltimore area and is engaged in the manufacture of cups and lids for cups. Approximately 1300 employees are employed at this location. In addition, Employer maintains its centralized corporation headquarters at this location." The remainder of Employer's facilities in the Balti- more metropolitan area continue largely as they were at the time of the High Street plant case. Employer continues to operate its Hilgartner warehouse, its Eutaw Street plant, and its High Street plant.7 Since the 1968 ' Subsequently referred to herein as the High Street plant case. By the Intervenor herein There is no dispute in the instant proceedings as to the inclusion or exclusion of the remaining classifications at issue in the High Street plant case Neither the election at High Street nor the election at Owings Mills resulted in selection of a representative for collective bargaining " Employer 's centralized systems of accounting, payroll, purchasing, traffic control , sales, product promotion , production planning, inventory control, and general administrative and personnel functions are all located at the Owings Mills plant All of these facilities are located from 12 to 15 miles from the Owings Mills plant. 182 NLRB No. 106 MARYLAND CUP CORP. hearings it has added a straw facility to its Eutaw Street, plant.0 There have also been some changes in Employer's corporate structure since 1968, none of which have any bearing on the issues herein." The Owings Mills plant is the largest of the Employer's plants in the Baltimore area. It is under the direct supervision of a plant manager whose exclusive job is to supervise 'its operation. He is assisted by shift superintendents, department managers, foremen, and working leaders.10 The relationship of the Owings Mills plant to Employer's other plants in the Baltimore area remains essentially as it was in 1968. Some of the Owings Mills operations continue to be similar to some of those at the Eutaw and High Street plants. Because of this' similarity, some of the classifications of the employees at the Owings Mills plant continue to be identical or substantially identical to those of employees performing the same job in other plants. Wages and fringe benefits continue to be identical for all of Employ- er's employees in the Baltimore area who are similarly situated. Employees transferring from one plant to anoth- er continue to retain their previously earned seniority. All of the Employer's plants in the Baltimore area, including the Owings Mills plant, continue to be serviced by the same crews of mechanics and electrical repairmen. Employees, in somewhat increased but not substantial numbers, continue to work on a temporary basis in plants other than those they are permanently assigned to. As noted in the Board's 1968 Decision, the Board has held that a single plant unit is presumptively appropriate where there is no bargaining history in a more comprehensive unit and no functional integration with`the operations of other facilities in a degree sufficient to'obliterate" separate plant identity. We have again examined all of the circumstances surrounding Employ- er's Baltimore operation and conclude, as we did in the case of the High Street plant, that although the work functions of the Owings Mills plant are parallel to some of those of the High Street and Eutaw Street plants, nevertheless the Owings Mills plant functions with a substantial degree of autonomy under separate immediate supervision. As in the case of the High Street plant, we cannot conclude that the production process of the Maryland plants is so functionally integrated as to destroy the separate identity of the Owings Mills " Although it is physically attached' to the Eutaw Street plant, it has a different address (500 W. West Street), as it faces on a different street This addition was under construction in 1968 " As the Board did in 1968 , we, for the purposes of these proceedings, treat all entities involved as a single employer herein called Maryland Cup Changes in the corporate structure are as follows: Maryland Baking Company no longer , exists as a separate entity but is now part of Maryland Cup Corporation. Maryland Paper Products Company no longer exists under this separate name but is now the straw manufac- turing section of Maryland Cup Corporation Maryland Match Company, previously a division of Maryland Paper Products Company, is now Maryland Match Corporation, a wholly owned subsidiary of Maryland Cup Corporation. 1" The supervisory status of the working leaders is discussed infra. The parties agree that the shift superintendents , department managers, and foremen are supervisors - 687 operation." We have again taken into consideration all of the various factors present in this case, such as the degree of centralized managerial control, the amount of employee interchange, and the use of traveling mechanics and electrical repairman crews, 12 and find no more reason at this present time than existed previous- ly to regard these factors as sufficient to alter the separate identity and community of interest that exists among Owings Mills employees or sufficient to rebut the pre- sumptive appropriateness of a unit of the Owings Mills employees. For the foregoing reasons, and particularly in view of the separate location of the plant sought, the autonomous daily operations of the Owings Mills plant, the lack of substantial employee interchange, the homogeneous character and separate identity of the Owings Mills employee group, and the absence of a contrary bargaining history, we find that the production and maintenance employees at the Employer's Owings Mills, Baltimore, Maryland, plant constitute a separate appropriate unit.13 There remains for consideration the question of wheth- er the working leaders are supervisors within the meaning of Section 2(11) and therefore should be excluded from the appropriate unit. As noted above, Petitioner con- tends, contrary to the Board's finding in the High Street case, that the working leaders" are supervisors. Employ- er contends that the Board's finding that these employees are not supervisors is correct. In the High Street case, the evidence concerning the supervisory status of these employees was supplied entirely through the Employer's Personnel Director David Levi. Levi testified that working leaders are the most highly skilled or experienced men, receive from 10 to 20 cents per hour more than the next highest paid men in their respective groups, and are engaged 90 per cent of their time in actual work performance, as distinguished from leadership duties. He further tes- tified that, although they act as conduits for orders 11 In 1968, the Board stated that the fact that Owings Mills orders and supplies High Street with raw materials and makes a product (lids) which complements the 'High Street product does not preclude a finding that the High Street plant is not so functionally integrated as to destroy its separate identity In our opinion, the reverse of this finding is also true. The fact that these items are supplied by Owings Mills to the High Street plant does not detract from our finding that the Owings Mills plant is not so functionally integrated with the High Street plant as to destroy its separate identity 12 Since 1968, Employer has added a centralized parts room at Owings Mills to take care of the parts needed for all the plants in the area. It is also seeking to establish a common identification system for all parts We do not regard this change as being of more than minor significance. 13 As the Board has repeatedly stated in other cases, and in the High Street plant case, the fact that a different or larger unit may also be appropriate is not controlling if the smaller unit sought also constitutes an appropriate unit. As we have found that Owings Mills is an appropriate unit, we also find no merit in the Employer 's argument that as the Petitioner was engaging in active organizational efforts at its High Street plant at the same time it was organizing the Owings Mills plant we are precluded for that reason from finding the Owings Mills plant an appropriate unit . Accordingly, Employer' s motion to dismiss on that ground is hereby denied. 11 The maintenance mechanic leader classification, which was in exist- ence in 1968, has been dropped Employees who formerly held that classification are now classified as working leaders 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from shift foremen, they have no authority to hire, fire, transfer , discipline, or grant time off or make recom- mendations regarding these matters , and they do not exercise independent judgment or responsible direction of work of other employees Petitioner was not a party in that case In the instant proceeding , Petitioner presented contra- ry testimony from several rank-and-file employees, including a former work leader Their testimony indicates that work leaders do grant employees time off , excuse absences , discipline employees , and transfer employees from one place to another , all without consultation with their supervisors 15 Employer did not present any work leaders or foremen as witnesses In fact it did not directly dispute the testimony of Petitioner 's witnesses that working leaders exercised the authority the Petition- er's witnesses attributed to them , but merely asserted that if they did exercise such authority they had exceeded the authority given to them by the Employer Petitioner's witness also sharply disagreed with Employer's witnesses concerning the amount of physical work done by working leaders, Petitioner 's witnesses stating that working lead- ers actually did very little physical work In support of its contentions , Petitioner also relies on what it views as a disproportionately high number of rank-and-file employees per supervisor , as defined by the Employer , and asserts that this indicates that the working leaders are in fact supervisors Employer claims that it has 79 supervisors for its approximately 1300 rank-and-file employees "' The figure of 79 supervi- sors includes approximately 20 supervisors who are at higher levels and do not directly supervise rank-and- file employees on a daily basis In addition to contending that the overall ratio is high , Petitioner suggests that the ratio is particularly out of proportion when particular departments are examined For example , in the packag- ing department there are a total of 380 employees and only 3 supervisors , according to the Employer, for a ratio of 1 supervisor for every 126 66 employees If the 7 working leaders are added to the number of supervisors the ratio becomes 1 to 37 which appears to be a more reasonable proportion In the cold cup forming department there are 119 employees and only 2 supervisors , according to the Employer , for a ratio of 1 supervisor for every 59 50 employees and one of the supervisors also supervises two other departments with 109 employees If the 6 working leaders are included as supervisors the ratio again drops considerably In the quality control department there are 63 employees and only 1 supervisor, according to the Employer, for a ratio of I supervisor for 63 employees If the 3 working leaders are included as supervisors the ratio again drops considerably The employee -supervisor ratio is at its highest in these departments In other depart- ments the ratio varies from a high (24 to 1) to very low (2 to 1) Petitioner also points to the fact that there are very few supervisors on the second and third shifts, the number being so low that employees on those shifts stated that it was very unusual for them to see a salaried supervisor and they regarded the work- ing leader as their "boss" While the record is not entirely clear it is more complete than the previous record before us, and we conclude , upon a weighing of all the evidence, that working leaders do exercise the type of independent judgment and responsible direction of the work of other employees that indicates supervisory authority Accord- ingly , we find that the working leaders are supervisors, and shall exclude them from the unit found appropriate herein Accordingly, we find that the following employees constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act All production and maintenance employees , including truckdrivers and warehouse employees , located at the Owings Mills plant , 10100 Reisterstown Road , Baltimore, Maryland, excluding all office clerical employees, work- ing leaders , foremen , and other supervisors and guards as defined in the Act, as amended [Direction of Election " omitted from publication ] 'g In addition the ex working leader James McCraw testified that he had the authority and in fact did discharge an employee and had the authority to recommend raises However on cross examination he did not seem sure of his authority in these respects and accordingly we do not rely on this testimony The 1 300 includes the 76 working leaders " In order to assure that eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc 156 NLRB 1236 N L R B v Wyman Gordon Company 394 U S 759 Accordingly it is hereby directed that an election eligibility list containing the names and addresses of all the eligible voters must be filed by the Employer with the Regional Director for Region 5 within 7 days of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed