General Mills, Inc.

554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rainbow Crafts, Inc., a Subsidiary of General Mills, Inc.' and Kutol Products Co.' and District No. 34 of the International Association of Machinists and Aerospace Workers, AFL-CIO,3 Petitioner Kenner Products Company, a Subsidiary of General Mills, Inc,' and International Union, Allied Indus- trial Workers of America, AFL-CIO,' Petitioner. Cases 9-RC-8571 and 9-AC-27 May 26, 1971 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, BROWN, AND KENNEDY Upon a petition in Case 9-RC-8571 duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer James E. Horner on July 20 and 28, 1970. The Regional Director directed that an election be conducted in a unit consisting of the employees of both Rainbow and Kutol.' On September 21, 1970, Rainbow filed a Re- quest for Review of the unit finding which was denied by the Board on October 9, 1970. On October 28, 1970, the election was held, a tally of which showed that of approximately 234 eligible voters, 159 cast ballots, of which 61 were for, and 65 against, the Machinists, and 33 votes were challenged. Objections to the election were filed by both Rainbow and Kutol. On December 17, 1970, the Regional Director issued a Supplemental Decision, Order, and Direction of Second Election in which he sustained certain objections of the joint em- ployers, Kutol and Rainbow, set aside the first election, and directed that a second election be conducted among the employees in the unit previously found ap- propriate. Thereafter, on January 12, 1971, Kenner filed a motion for reconsideration of the Regional Director's Supplemental Decision, Order, and Direc- tion of Second Election contending, inter alia, that Kutol's oral contract with Rainbow was being phased out, that all of Rainbow's operations and employees had been consolidated into those of Kenner, that Ken- ner would soon be the remaining Employer of em- Hereinafter referred to as Rainbow Hereinafter referred to as Kutol Hereinafter referred to as Machinists ° Hereinafter referred to as Kenner Hereinafter referred to as Industrial Workers ° The unit is as follows All production and maintenance employees, quality control inspectors and shipping and receiving employees employed in Rainbow's plants # 1 through #4 in Norwood, Ohio, plant #5 in Even- dale, Ohio, and its warehouse in Cincinnati (Oakley) Ohio, including pro- duction employees jointly employed by Rainbow and Kutol, and employees engaged in packaging operations for Rainbow at Kutol's plant in Norwood, Ohio, but excluding employees engaged in soap production at Kutol's Nor- wood, Ohio plant, all office clerical employees, professional employees, guards and supervisors as defined in the Act ployees in the bargaining unit, and that under Kenner's current collective-bargaining contract with Industrial Workers, Kenner is obligated to recognize that Union as the exclusive bargaining representative of the former Rainbow employees. On January 15, 1971, the Re- gional Director suspended the election and issued an Order To Show Cause why Kenner's motion for recon- sideration should not be granted and/or why the record should not be reopened for the purpose of taking addi- tional evidence on the issues raised by the motion. Both the Machinists and Kenner filed responses to the order, and Kutol, on January 27, 1971, filed a motion for removal on the grounds that it is no longer a party in interest in these proceedings. On February 2, 1971, the Industrial Workers filed an amendment of certification petition (Case 9-AC-27) on the ground that as Rain- bow and Kenner had merged the former Rainbow em- ployees should be considered an accretion to its present unit. In view of the matters raised by Kenner's motion, the Petitioners' responses, and Kutol's motion, the Re- gional Director ordered that a consolidated hearing be held on February 8, 1971. Following the hearing, and pursuant to Section 102.67 of the National Labor Rela- tions Board Rules and Regulations and Statements of Procedure, Series 8, as amended, the Regional Director transferred the case to the National Labor Relations Board for decision. Thereafter, Kenner filed a brief with the Board. 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 powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They 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 purposes of the Act to assert jurisdiction herein. 2. The labor organizations involved claim to repre- sent certain employees of the Employer. 3. Kutol, which prior to January 6, 1971, furnished employees to work in Rainbow plants and performed some contract packaging operations for Rainbow, seeks to be removed from this proceeding on the ground that its oral contract with Rainbow was terminated on January 6, 1971, as a result of Rainbow's merger with Kenner and that there will no longer be any Kutol employees working for Rainbow. Kenner contends that Rainbow as an employer no longer exists because of the corporate merger between Rainbow and Kenner and two other subsidiary corporations of General Mills, Inc., that its motion to be substituted as the successor employer should be granted,7 and that the former Rain- ' As all parties agree to the motion, it is hereby granted 190 NLRB No. 106 RAINBOW CRAFTS, INC bow employees now on the Kenner payroll should be considered an accretion to the bargaining unit cur- rently represented by the Industrial Workers. The Ma- chinists argues that there still is a separate identifiable group of former Rainbow employees within the unit previously determined appropriate and that these em- ployees should be given the opportunity to vote as to whether or not they wish to be represented by it as their collective-bargaining representative. It also contends that these employees have not accreted to the unit cur- rently represented by the Industrial Workers. The In- dustrial Workers contends that its current collective- bargaining contract with Kenner covers the former Rainbow employees8 and it urges the Board to amend its certification in Case 9-RC-3781 and find such em- ployees to be an accretion to its present unit of approxi- mately 1,500 employees. It further names Kenner as the successor employer to all former production and maintenance employees of Rainbow. The facts show that prior to January 6, 1971, Kutol had an oral contractual arrangement with Rainbow whereby Kutol furnished, according to Rainbow's needs, a certain number of Kutol employees to work in Rainbow plants.' Due to the seasonal production ac- tivity at Rainbow, the number of employees furnished by Kutol fluctuated between a maximum of 190 and a minimum of 40 or 50. On January 6, 1971, Rhoden- baugh, president of Kutol, was notified by Crain, vice president and general manager of Rainbow, that the oral contract for Kutol employees would be terminated because of the merger of Rainbow and Kenner. All of the 40 to 50 Kutol employees working for Rainbow on January 6, 1971, were permanently laid off by January 29. On December 31, 1970, Rainbow, Kenner, Craft- master Corporation, and Model Products Corporation, all subsidiary companies of General Mills, Inc., merged into a fifth company, Parker Brothers, Inc., and the name of Parker Brothers was changed to General Mills Fun Group, Inc. The evidence shows that Kenner is now operating as a division of General Mills Fun Group, Inc., and that the 45 Rainbow employees who were working on January 6 are now on the Kenner payroll. The effect of the merger on these employees is slight; although they are now on the Kenner payroll, and Kenner is in charge of all labor relations and per- sonnel requirements, the former Rainbow employees continue to work in their same positions in the former Rainbow plants and produce the same products as they ° The Industrial Workers argues that, according to its contract with Ken- ner, Kenner is obligated to recognize the Union as the exclusive bargaining representative for "all production and maintenance employees who, in the future are employed and placed on the payroll by the company 9 In addition, pursuant to a separate contract, Kutol did contract packag- ing work for Rainbow This work ceased on December 28 or 29, 1970, when the order for packaging was fulfilled 555 did before the merger. These employees are being supervised by former Rainbow supervisors. There has been no interchange of Kenner and Rainbow em- ployees. The merger has, however, affected other as- pects of Rainbow's operations in that all sales are now handled by Kenner, Rainbow's research and develop- ment people now report to Kenner supervisors, and certain Rainbow management personnel are now work- ing at similar positions for Kenner. Both Kenner and the Industrial Workers argue, in essence, that the former Rainbow employees should be considered an accretion to Kenner's collective-bargain- ing unit on the grounds that there is geographic prox- imity of the Rainbow and Kenner plants involved herein (all are in the Cincinnati, Ohio, area); the two companies produce the same products (toys) which are, in some cases, combined for sale; the employees have the same job skills; Kenner controls all plant manage- ment and labor relations policies; and there is a history of collective bargaining in the Kenner plants versus an absence of any collective bargaining in Rainbow plants. We find no merit in this position. The Regional Director has previously determined an appropriate unit for the former Rainbow employees and an election has been held in that unit. As set forth above, the established unit has maintained its separate identity after the merger. Former Rainbow employees continue to work at former Rainbow plants at the same jobs producing the same product under the supervision of former Rainbow supervisors. There has been no in- terchange of Rainbow and Kenner employees. Under these circumstances, neither the corporate changes be- tween Rainbow and Kenner nor the Industrial Work- ers contract with Kenner furnishes sufficient basis for viewing the named production and maintenance work- ers as an accretion to the Kenner unit. However, since the Industrual Workers has shown an interest in repre- senting these employees, we shall order that both the Machinists and the Industrial Workers appear on the ballot for a second election. is 4. For purposes of this proceeding, we find that an election should be directed in the following voting group to determine whether the former Rainbow em- ployees wish to be represented by the Machinists or whether they wish to be represented by the Industrial Workers or by neither:" All production and maintenance employees, qual- ity control inspectors and shipping and receiving employees employed by the Employer in former 10 The Industrial Workers did not request that its name be placed on the ballot If it does not desire to participate in an election at this time in the unit found appropriate, we shall amend our Direction of Election to delete its name from the ballot if it notifies the Regional Director of such desire within 10 days from the date of issuance of this Decision 11 Kutol's motion to remove itself from this proceeding is hereby granted We shall therefore amend the previously determined unit description ac- cordingly 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rainbow plants # 1 through #4 in Norwood, Ohio; plant # 5 in Evendale, Ohio, and its ware- house in Cincinnati (Oakley) Ohio; but excluding all office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. If the majority of the employees in the above- described voting group cast their ballots for the Ma- chinists, they will be taken to have indicated their desire to constitute a separate appropriate unit and the Regional Director is instructed to issue a certification of representative to the Machinists for this unit, which the Board, under the circumstances, finds to be appro- priate for purposes of collective bargaining If the majority of the employees in the voting group cast their ballots for the Industrial Workers, they will be taken to have indicated their desire to be included in the existing unit currently represented by the Industrial Workers and the Regional Director will issue a certification of results of the election to that effect If the majority of the employees in the unit cast their ballots for neither labor organization, they will be taken to have indicated their desire to be unrepresented by any labor organiza- tion appearing on the ballot and the Regional Director will issue a certification of results of election to that effect. ORDER It is hereby ordered that the petition in Case 9-AC- 27 be, and it hereby is, dismissed. [Direction of Second Election12 omitted from publica- tion ] " 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 ad- dresses which may be used to communicate with them Excelsior Under wear Inc. 156 NLRB 1236, NLRB v Wyman-Gordon Co. 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 9, within 7 days after the date of issuance of the Notice of Second Election by the Regional Director 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