Lily-Tulip Cup Corp.

LILY-TULIP CUP CORP. Lily-Tulip Cup Corporation and Local Union 453, International Brotherhood of Electrical Workers, AFL-CIO, Petitioner. Case 17-RC-5816 June 26, 1969 DECISION ON REVIEW By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On November 29, 1968, the Regional Director for Region 17 issued a Decision and Direction of Election in the above-entitled proceeding in which he found appropriate a unit of maintenance employees at the Employer' s Springfield, Missouri , facility, including therein employees of the Maintenance, Plant & Grounds, and Powerhouse Departments, as requested by the Petitioner, as well as machine attendants assigned to a number of production departments, and rejecting the Employer's contention that because of the integration of its operations, a maintenance unit was inappropriate. Because of his substantial enlargement of the requested unit, the Regional Director provided the Petitioner opportunity to submit , within 10 days of his Decision, additional showing of interest to support an election in the enlarged unit. On December 10, the Employer, having been advised the previous day that the Petitioner had submitted an adequate showing of interest, filed with the Regional Director a request for administrative determination as to whether said showing was obtained subsequent to the date of the hearing herein, September 6, 1968. The Regional Director denied such request on December 19. Thereafter, in accordance with Section 102.67 of the National Labor Relations 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 he made factual findings which are clearly erroneous and that, in making his unit finding, he departed from officially reported precedent. The Employer also filed a separate request for review of the Regional Director' s ruling on its request for administrative determination. By telegraphic order dated January 28, 1969, the National Labor Relations Board granted the Employer' s requests for review and stayed the election pending its decision on review . Thereafter, the Employer and the Petitioner filed briefs on review . The Petitioner' s parent, the International Brotherhood of Electrical Workers, AFL-CIO, herein called the IBEW, requested permission to file an amicus curiae brief on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. 71 The Board has considered the entire record in this case with respect to the issues under review,' including the briefs on review filed by the parties and the amicus curiae, and hereby affirms the Regional Director's Decision, attached hereto, with the following modifications: The Employer contends that the only appropriate unit for the plant involved is an overall production and maintenance unit. It argues that the Regional Director's inclusion of machine attendants in the Petitioner's requested unit lends support to its position because the machine attendants are permanently assigned to production departments and work in close contact with production employees. The Petitioner, in its brief on review, argues, in effect, that the unit it petitioned for is an appropriate departmental unit, remarking, with respect to the inclusion of the machine attendants in such unit, that it was "the Board's responsibility to place employees in an appropriate unit to guarantee them their rights under the Act regardless of the contentions of the Employer or Union." The Petitioner further urges, in light of the additional showing of interest it submitted, that the unit as enlarged by the Regional Director is also appropriate. The IBEW joins in the latter position. However, it submits, in the alternative, that if the Board disagrees with the Regional Director's inclusion of machine attendants, the originally requested unit should be found appropriate in this case. The principal issue treated herein, and the only matter on which we modify the Regional Director's Decision, is his inclusion of machine attendants in the unit found appropriate. The record indicates that the machine attendants spend about 75 percent of their shift time making adjustments on machines in their production departments in order to maintain quality of the product. When not making adjustments they usually patrol the machines assigned to them to make sure they are functioning properly. The number of machines assigned to each attendant varies from 3 or 4 to 20, depending on the department and the complexity of the machines. If they detect mechanical malfunctioning requiring repair or maintenance, they advise their foreman. If such work is minor and they can spare the time from their adjustment responsibilities, the attendants are authorized to do the work themselves. Otherwise - and in all cases where the repair or maintenance needed is major - it is done by personnel assigned to the maintenance department. The machine attendants also, in some instances, convert machines to equip them to handle varying products. Some conversions are made by maintenance men, at times with the assistance of machine attendants. Parts needed for conversions 'In view of our unit finding below , the issues raised by the Employer's request for review of the Regional Director's ruling on its request for administrative determination are rendered moot. 177 NLRB No. 3 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are obtained from the conversion room located in the maintenance area. The record indicates that most conversions are accomplished on overtime. It appears that on all shifts machine attendants report to production foremen. There was testimony that they are also subject to the immediate supervision of maintenance department supervisors.' However, it does not affirmatively appear that the maintenance supervision extends beyond the minor maintenance and repairs and the conversion work done by the machine attendants. The record indicates that upon completion of his probationary period a machine attendant is rated as to acceptability for permanent employment in the classification by those maintenance and production supervisors who have immediate supervision over him and that the final decision is made by the maintenance department superintendent. Again, it is not shown that such participation by the maintenance department in rating the acceptability of machine attendants extends beyond the minor maintenance tasks he performs. Upon the foregoing and the entire record in this case, we conclude, contrary to the Regional Director, that the machine attendants spend the great majority of their time performing a production function and should not be included in the maintenance unit.' The fact that machine attendants also occasionally perform maintenance functions, such as minor repairs and maintenance of the machines they adjust, and make some of the conversions of these machines, either alone or as assistants to maintenance men, mostly during overtime hours, does not, in our opinion, require their inclusion in a unit of maintenance employees. We conclude further, under the facts of this case and for the reasons set forth by the Regional Director in finding a maintenance unit appropriate, that the Petitioner's originally requested unit of maintenance employees in three distinct administrative departments of the Employer's plant, constitutes an appropriate unit.' Although certain employees in other departments such as the production department servicemen and the cafeteria utility men as found by the Regional Director, and the machine attendants as found herein, as part of their duties perform clean-up and supply functions similar to those performed by some of the utility men in Plant & Grounds, such factors in the circumstances herein are insufficient to destroy the homogenity and mutuality of interests of maintenance employees in the Maintenance, Plant & 'Under the maintenance department superintendent, there are three shift foreman (one for each shift) and seven maintenance supervisors (five on the day shift, and two on the second shift). 'Compare, for example, Sawyer Biscuit Company, 108 NLRB 1124 (machine setup men); E. I. DuPont de Nemours and Company, 117 NLRB 1048, 1050 (production employees performing inspections and making minor repairs). 'See S. D. Warren Company, 144 NLRB 204, 206. IS D. Warren, supra. General Electric Company, 167 NLRB No. 49 Grounds, and Powerhouse Departments.' Accordingly, we shall remand the case to the Regional Director in order that he may conduct an election pursuant to his Decision and Direction of Election, as modified herein, except that the eligibility payroll period therefor shall be that preceeding the date below.7 `Contrary to the Employer' s contention, the record supports the Regional Director' s finding that there is no interchange between maintenance employees in these three departments and employees in other departments . The fact that permanent transfers have been made by employees between these departments, or that the machine attendants, if they take the requested training courses, become eligible for openings in maintenance man class II, does not militate against the unit found appropriate herein. 'In order to assure that all 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 directed that a corrected 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 17 within 7 days of the date of this Decision on Review. 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 riled. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before a hearing officer of the National Labor Relations Board. 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 Act, the Board has delegated its powers in connection with this case to the undersigned Regional Director. Upon the entire record in this case, the Regional Director finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claim(s) to represent certain employees of the Employer. 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 following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:' 'The Employer manufactures various plastic and paper containers at the only facility involved herein, located in Springfield, Missouri. The enterprise employs some 1621 production and maintenance employees, LILY-TULIP CUP CORP. 73 All maintenance employees employed at Springfield, Missouri facility of Lily-Tulip Cup Corporation , including Maintenance Department employees (Maintenance Men Class I, Maintenance operates on a 24-hour basis 6 days each week , and occupies a plant and separate warehouse located on several acres. None of the employees are presently represented by a labor organization , nor is there any history of collective bargaining at the plant since it opened in 1952 There is a number of operating departments which cover production proper, maintenance functions , warehousing, and a cafeteria The Petitioner contends for a maintenance unit and would include in it the Employer's maintenance department, the powerhouse , and the plant & grounds department The Employer asserts that such a unit is inappropriate since its operations are integrated and that, in any event, there are employees other than those sought by the Petitioner who are likewise engaged in maintenance work . This latter group, according to the Employer, comprises individuals classified as machine attendants and department servicemen , both of which groups are represented in a number of departments other than those specifically sought by the Petitioner, and the utility men assigned to the cafeteria department The Employer also argues that the Petitioner's unit contention is based on extent of organization only, and that the petition must be dismissed for that reason I find no merit in this last contention as the record in its entirety shows, and I so find , that there exists in this plant a distinct maintenance group, separate and identifiable from production and other employees , which is appropriate for the purposes of collective bargaining Turning now to the composition of the maintenance unit here involved, I find as follows: The maintenance department employs approximately 46 individuals (35 in the maintenance man I and maintenance man Il classifications ; 4 spare parts attendants, and 7 helpers and oilers). This department has its own departmental and lower level supervisors . Like all departments at the plant, hiring or transfer into the department must have the approval of the departmental supervisor. Production and maintenance department employees do not interchange jobs or share job functions . There is a maintenance area, separated by a wall from the production area proper, which houses a machine shop containing lathes, dull presses , and other machine and bench tools common to such an operation . About / maintenance men class I and class II are permanently assigned to the machine shop where they make new parts and perform major overhauls The remainder of the maintenance men class I and class II generally work with their tool carts in various production areas throughout the plant, performing mechanical maintenance work . Both classifications are skilled, and neither performs production work . The major difference between the two classifications is that the maintenance man class I is somewhat more skilled and requires a certain period of employment in the maintenance man class II classification as a prerequisite The spare parts attendants spend their entire respective shifts in the spare parts room , a fenced enclosure located in the maintenance area They issue and keep account of tools and parts used by the maintenance men, the machine attendants, and the powerhouse employees . They work under the supervision of the maintenance supervisor and the maintenance foreman of their respective shifts They virtually never come into direct contact with production employees or the production operation . The helpers and oilers are preventive maintenance employees who regularly follow prescribed routes throughout the plant oiling and greasing moving machinery They are supervised by maintenance supervisors and do no production work The powerhouse consists of 16 employees in three classifications (4 shift engineers , 8 watch engineers, and 4 junior operating engineers) This department is generally supervised by Chief Engineer Benson , who also oversees the plant & grounds department , and by Foreman Dave Carr, whose authority extends only over the three powerhouse classifications. The powerhouse department cares for the various powerlines and power accessories used at the plant, except for electrical work which is handled pursuant to contract by another employer. The shift engineers work separate shifts and are responsible for checking the accessory equipment every two hours and recording the result . This equipment is located throughout the plant and in tunnels under the plant and warehouse Generally, the shift engineer will make minor adjustments ; but if the problem is serious the shift engineer and the watch engineers, or the watch engineers alone, will attend to it, Two watch engineers work on each shift. They receive their assignments from the boiler room or Chief Engineer Benson's office. Apporximately 50 percent of their average day is spent Men Class II, Spare Parts Attendants, and Helpers and Oilers), Plant & Grounds Department employees (Groundsmen, Utility Men-Steam, and Utility Men), Powerhouse Department employees (Shift Engineers, Watch Engineers, and Junior Operating Engineers), and Machine Attendants; troubleshooting on the various steam, vacuum, water, and air lines which serve production machinery ; another 25 percent is spent on pumping liquid wax and plastic used in production through various pipes from railroad cars to storage containers , and the remaining 25 percent in checking and adjusting the various power lines . Occasionally , the watch engineers perform minor upkeep maintenance on material handling equipment used in the warehouse The junior operating engineers (also called firemen at the plant) work only in the boiler room During his respective shift, each junior operating engineer answers the plant telephone for trouble calls and informs the watch engineer or shift engineer of the problem , fires boilers, and, generally , maintains the boiler room equipment The plant & grounds department (2 groundsmen; 6 utility men steam, 10 utility men) is immediately supervised by foreman Cliff Kubat who works under Chief Engineer Benson's direction . The groundsmen primarily care for the several acres of lawn and shrubs on which the facility is located During the winter they remove snow and ice and work inside the plant doing general cleaning work and replacing light fixtures One groundsman regularly operates a floor sweeper in the production area 2 days per week Utility men steam operate certain machines on the production floor. These machines, designed specifically for the Employer 's plant, clean the floors to achieve the sanitary conditions necessary in a plant manufacturing food and drinking containers The utility men generally work only the first shift and perform unskilled cleanup duties inside the plant , and in offices and restrooms. During extremely inclement weather, they may be upgraded to groundsmen to help remove ice and snow from the premises. On occasion , utility men, along with the lowest level classifications in other departments, are given the opportunity to work overtime in the warehouse Even though the Employer's operations are to some extent integrated, the above facts establish the existence of an identifiable maintenance unit headquartered in distinct work areas, managed by its own supervisors, distinguished departmentally by management , possessed of vaned skills, divorced from production work and interchange with production employees, and solely responsible for maintaining the Employer's premises and equipment Under these circumstances, a maintenance unit including the three departments discussed is appropriate However, it now becomes necessary to determine the unit placement of the three classifications named by the Employer as also performing maintenance functions. As already stated, they are machine attendants, department servicemen, and utility men in the cafeteria. There are about 95 machine attendants who work in production areas and who are assigned to the GEM , nestrite & tubs, P B, & Cone, plastics and cover & lids departments They convert machines from one type of operation to another This requires the attendant to obtain the required parts from the used parts room, located in the maintenance area, and apparently interchange the parts, using various hand tools . They also withdraw parts and tools from the spare parts room mentioned above. On occasion, a machine attendant will do minor work in the machine shop Most of their time, however, is spent keeping the machines to which they are individually assigned in continuous operation This responsibility involves adjusting the machines for certain types of production and levels of quality, eliminating squeaks and minor malfunctions, and replacing bearings and worn parts The machine attendants are immediately supervised by both production and maintenance foremen, but the maintenance superintendent is responsible for passing on their promotion from probationary to permanent employment and any ultimate decisions concerning their supervision The machine attendants perform no production work; however, they sometimes work together with maintenance men class I or II , especially on repairs performed during overtime. There are also a number of repairs , such as bearing and worn part replacements, which are performed either by the machine attendant assigned to the machine involved, or a maintenance man class II, depending basically upon which individual has the time; Also, the Employer offers machine attendants a three-course educational series on mechanics which is also offered to the maintenance men Any machine attendant who is enrolled in , or has completed, the third course in the series, is eligible for transfer into the maintenance man class II classification This is the only line of progression into the maintenance 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD EXCLUDING office clerical employees ; production employees; professional employees, guards, and employees. [Direction of Election' publication.] ' ° omitted from man classification at the plant . Based on the foregoing factors, I find merit in the Employer's position . The maintenance attendants will be included in the unit . (See Gerber Products Company, 162 NLRB No. 14.) The department serviceman classification is the entry level job in each of the departments which have machine attendants assigned to them as well as the punting department. Each department serviceman is assigned to a specific production area and is supervised only by production supervisors. They are responsible for bringing supplies to the production area from the supply areas, stacking boxes, moving bins which feed into production machines, and cleaning machines and the immediate area around them. I cannot accept the Employer's argument that the department servicemen are substantially identical to the utility man classification . While the department servicemen's function of cleaning the production machinery and the area immediately adjacent thereto has certain janitorial or custodial aspects, it is of the same type of "maintenance" which customarily is performed by employees working with machinery as a matter of routine and does not involve any operation designed to remedy malfunctions of machinery or its failure to operate at all. In this respect it is also significant that in all these cases (except with regard to the printing department) there are machine attendants, who are responsible for the basic steps of maintenance proper , as set out above. Considering all the functions of the department servicemen , it is clear that they are properly part of the production group . They will be excluded from the maintenance unit found herein to be appropriate The four cafeteria utility men clean the cafeteria, dining room, and kitchen areas. They work only in this area and apparently are supervised by cafeteria supervisors They do not share duties with plant & grounds or other unit employees, and there is no identification between them and the latter group Such identification as they may have with other employees appears to be limited to other cafeteria employees . They will be excluded. The record shows that the Employer employs 5 women as "Matrons." Since the record is silent on the duties of these employees and since the supervisors as defined in the Act; and all other matron classification is normally included in a maintenance unit, the matrons may vote subject to challenge. 'Since the unit found herein to be appropriate is substantially larger than the unit petitioned for, the Petitioner may, within 10 (ten) days from the date of this Decision and Direction of Election, either withdraw from this proceeding by written notice to the Regional Director, or else submit an additional showing of interest with respect to the enlarged unit Absent such additional showing of interest no election will be conducted herein 'An election eligibility list, containing the names and addresses of all the eligible voters , must be filed by the Employer with the Regional Director within 7 days after the date of this Decision and Direction of Election. The list may initially be used by the Regional Director to assist in determining an adequate showing of interest The Regional Director shall make the list available to all parties to the election when he shall have determined that an adequate showing of interest among the employees in the unit found appropriate has been established, In order to be timely filed, such list must be received in the Regional Office , 610 Federal Building, 601 East 12th Street , Kansas City, Missouri 64106, on or before December 6, 1968, Under National Labor Relations Board procedures, no extension of time to file this list may be granted except in extraordinary circumstances, nor shall the filing of a request for review operate to stay the filing of such list. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear, Inc, 156 NLRB 1236. An original and one copy should be submitted. 'If any party wishes to request review, such request should be received by the Board in Washington, D. C., on or before December 12, 1968. See Sec. 102.67 of the Board's Rules and Regulations.