The F. & M. Schaefer Brewing Co.

THE F. & M. SCHAEFER BREWING CO. The F. & M. Schaefer Brewing Co. and Teamsters, Chauffeurs, Warehousemen and Helpers, Local 773, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca,' Petitioner and International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Workers of America, AFL-CIO,2 Petitioner and International Union of Operating Engineers, Local 835, AFL-CIO,3 Petitioner. Cases 4-RC-9601, 4-RC-9614, and 4-RC-9677 July 20, 1972 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND PENELLO Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a consolidated hearing was held before Hearing Officer Sarah M. Parker. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and State- ments of Procedure, Series 8, as amended, and by direction of the Regional Director for Region 4, this consolidated matter was transferred to the National Labor Relations Board for decision. Thereafter, briefs were filed by the Teamsters, the Operating Engineers, the Cement Workers, and the Employer. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its authority in this proceeding 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. The Board has considered the entire record in this case, including the briefs of the parties, and hereby makes the following findings: 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. All of the Petitioners and the Intervenor are labor organizations claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing 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 appropriate unit. There is no history of i Herein referred to as the Teamsters 2 Herein referred to as the Brewery Workers 3 Herein referred to as the Operating Engineers United Cement, Lime & Gypsum Workers International Union, AFL-CIO, herein referred to as the Cement Workers, was permitted to intervene in this consolidated proceeding on the basis of a sufficient showing of interest. 323 collective bargaining for the employees sought to be represented here. The Teamsters and the Brewery Workers seek to represent a unit consisting of all production, mainte- nance, utility, brewing, packaging, quality control, warehousing, and shipping and receiving employees, excluding office clerical employees, supervisors, and guards, at the Employer's Lehigh Valley brewery. Cement Workers agrees that a unit of production and maintenance employees is the only appropriate unit, but would include certain clerical employees as plant clericals. Operating Engineers, on the other hand, contends that a unit of all mechanical crafts maintenance employees, including electricians, plumbers, pipefit- ters, carpenters, machinists, utility or operating engineers, painters, refrigeration and air-condition- ing mechanics, instrument repairmen, and helpers, excluding, inter alia, all production employees and all clericals, would also be appropriate. The Employer contends that the only appropriate unit is the overall production and maintenance unit, excluding office clericals, as sought by the Teamsters and Brewery Workers.4 The Employer, a New York corporation, is engaged in the production and sale of beer and malt beverages at a number of locations in the United States, including the Lehigh Valley brewery, located in Fogelsville, Pennsylvania. The Lehigh Valley brewery is the newest of the Employer's breweries and, in fact, is one of the newest such facilities in the country. The brewery began operation on February 1, 1972,5 and completion of the facility was sched- uled for May 15. Upon completion, the facility will have a capacity of 850,000 barrels a year, and will employ 190 production and maintenance employees and 12 clerical employees. At the close of the hearing, 120 production and maintenance employees and 10 clericals had been hired. It is undisputed that the plant will utilize a highly automated and integrated production system, involv- ing the most modern equipment and techniques known to the industry. According to the Employer's general manager, the production process is highly dependent on maintenance services and it would be very difficult to maintain production without the continued assistance of the maintenance employees. At the time of the hearing, there were 45 "mainte- nance men," the only maintenance job classification. 4 Alternatively, the Employer contends that in the event certain clericals are found to be plant clericals, they should nonetheless be excluded because of a lack of community of interest with the production and maintenance employees As yet another basis for exclusion, the Employer urges that all clericals are confidential employees 5 All dates herein are 1972 unless otherwise indicated 198 NLRB No. 49 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Of these, 30 are permanently assigned to locations throughout the production areas. They report direct- ly to their assigned production area daily, where they work together with production employees to correct malfunctions or defects in equipment. When a malfunction occurs, the production employee initial- ly undertakes the repairs within his capabilities. If the repair cannot be accomplished by the production employee alone, he calls on a maintenance employee assigned to that production area for assistance. After the production employee informs the maintenance employee of the nature of the malfunction, the two work together to make the correction . If further difficulty is encountered, a maintenance foreman may be called, in which case the production and maintenance employees work under his supervision. Maintenance employees assigned to specific prod- uction areas spend approximately 90 percent of their time in production areas, returning to the mainte- nance area only to use a lathe , hydraulic press, drill press, or other equipment located in the machine shop. While in the production area, maintenance employees are under the supervision of production foremen, who direct their work and who possess the authority to discipline and grant time off to mainte- nance employees. Except in the case of a major repair, there are no maintenance foremen present in the production area and maintenance employees may go through the entire workday with no contact with a maintenance foreman. The remaining 15 maintenance employees are assigned t9 the powerplant section. Three such employees are assigned to the powerplant during each of four shifts, with the remaining three employees serving as reserves. On each shift, two employees remain in the powerplant, while the third roams throughout the production areas to check on the quality of the utilities being provided . Each week, three powerplant maintenance employees are as- signed to production areas, while three maintenance employees are rotated out of the production areas and into the powerplant . Consequently, every main- tenance employee spends more that 50 percent of his time in the production areas. No maintenance employee is permanently assigned to a maintenance area. While the primary function of the maintenance employee is to assist the production employee in making repairs, the record contains at least 80 examples of duties which are performed interchange- ably by both production and maintenance employees on a regular daily basis throughout the plant. In addition, maintenance employees may be called on to perform the work of production employees in the latter's absence, either because of illness or because the production employee is on a break. However, no permanent interchange of production and mainte- nance employees is anticipated. While the maintenance employees are required to possess some mechanical skills, their work requires little beyond basic mechanical ability and a knowl- edge and understanding of the specific equipment used at the Lehigh Valley plant.6 Major repair work is not performed by maintenance employees but is contracted out when it is considered beyond the competence of the maintenance employees. None of the maintenance employees are journeymen crafts- men, nor have any maintenance employees complet- ed an apprenticeship program. Moreover, no provi- sion has been made for progression to a higher grade for employees completing such a program. Applicants for both production and maintenance jobs are required to have some maintenance or mechanical background. Both are given the same mechanical aptitude test and are required to have a high score.? Both classifications undergo essentially the same training, which is designed to acquaint both production and maintenance employees with the operation and repair of the Employer's equipment. All training is conducted by production foremen. In all significant respects, production and mainte- nance employees enjoy the same benefits and working conditions. All production and maintenance employees are hourly paid. All maintenance employ- ees, regardless of skills or background, receive $4.25 per hour; brewers receive $4 per hour; and packag- ing employees receive either $3.50 or $3.25 per hour. They all work the same hours,8 are maintained on the same payroll, receive the same shift differential, and receive the same health insurance, life insurance, holidays, and vacations. Maintenance employees use one of the two timeclocks used by production employees and share the same lockerroom, dining facilities, parking lot, and plant entrances. In addition, all production and maintenance employees are subject to the same probationary period and are maintained on a common seniority list. Vacations are determined on the basis of seniority without regard to an employee's production or maintenance classifi- cation. Thus, with the exception of the slightly higher rate of pay received by maintenance employees, and the 6 Indeed , some of the work of the maintenance employees involves However, even if they have a background in a particular area, they do not cleaning and custodial-type work work exclusively in that area r Maintenance employees are given special "Skill Inventory" tests, in 8 When the plant is fully operational, production and maintenance addition to the mechanical aptitude test , if they indicate any experience in a employees will work three shifts 8 a .m to 4 p in , 4 p.m to 12 midnight; particular maintenance speciality such as the electrical field or powerplant and 12 midnight to 8 a in THE F. & M. SCHAEFER BREWING CO. 325 fact that production and maintenance employees wear a different color uniform, the record reflects no discernible difference between the benefits and working conditions enjoyed by production and maintenance employees. On the basis of the facts recited above, and the entire record in this case, we can find no basis upon which to conclude that the unit sought by the Operating Engineers constitutes a unit appropriate for purposes of collective bargaining. It is abundantly clear that the maintenance employees do not constitute a distinct and homoge- neous group of skilled journeymen craftsmen per- forming the functions of their craft on a nonrepeti- tive basis. Nor do they constitute a functionally distinct department of employees. The work per- formed by the maintenance employees requires merely the routine and repetitive performance of a variety of lesser maintenance skills requiring only minimal training and a knowledge of the particular equipment used in the Employer's plant. Much of the work of the maintenance employees is also per- formed, albeit to lesser degree, by production employees and any work requiring a high degree of skill and proficiency is contracted out. We also regard as significant the fact that two- thirds of the maintenance employees are assigned directly to production areas where they work in close contact with production employees and are under the supervision of production foremen. Those mainte- nance employees not assigned to production areas are rotated into the production areas, so that all maintenance employees spend between 50 and 90 percent of their time in production areas. While maintenance employees are required to have some maintenance background and to obtain a high score on the mechanical aptitude test, production employees must also meet the same basic standards. And both production and maintenance employees receive substantially similar training, conducted by production foremen. Moreover, the highly integrated nature of the Employer's production process and the absence of any significant difference in terms and conditions of employment indicates that production and mainte- nance employees share a broad community of interest which outweighs any nominal community of 9 The brewery referred to is the Anheuser-Bush brewery in Houston, Texas, in which a craft unit of maintenance electricians was found to be appropriate See Anheuser-Bush, Inc, 170 NLRB 46 However, that case is clearly distinguishable on its facts is See, e g , Anheuser-Bush, Inc, Case 5-RC-7988 (not reported in NLRB volumes), and Pabst Brewing Company, Case l0-RC-8551 (not reported in NLRB volumes) 11 The Operating Engineers stated at the hearing that it did not seek to represent any employees except those described in its petition and that it did not want to participate in an election in any other unit Therefore, the interest which may be enjoyed by maintenance employees. We also do not regard as controlling the Operating Engineers contention that maintenance employees traditionally have enjoyed separate craft representa- tion in the brewing industry. According to the testimony of Charles Klare, national field organizer for the National Conference of Brewery and Soft Drink Workers, which is the beverage division of the Teamsters, during the past 15 to 20 years only one brewery9 has been organized with a separate mainte- nance unit, while during that same period numerous units of production and maintenance employees were found to be approprfate.10 Also, according to the Employer, the shift away from craft units in the brewing industry is due, in part, to the highly automated character of modern breweries which has increased the degree of integration in the brewery's operation and has made production increasingly dependent upon the services of the maintenance employees. In view of the foregoing, we find that a unit limited to maintenance employees is not appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, and we shall dismiss the Operating Engineers petition." Clerical Employees While the Employer, the Teamsters, and the Brewery Workers would exclude all clerical employ- ees from the unit, regardless of whether they are found to be office clericals or plant clericals, the Cement Workers contends that 5 of the Employer's 10 clericals12 should be included as plant clericals because, inter alia, "the benefits which they share in common with other salaried employees is not sufficient to destroy the community of interest which they possess with other production and maintenance employees." For the reasons set forth below, we find that the five disputed clerical employees are office clericals, and we shall, therefore, exclude them from the unit.'3 All clericals are recruited and hired under the same criteria and given the same tests. At the time of employment, the Employer did not know where the individuals would be assigned. Furthermore, all clericals perform the same basic general secretarial Operating Engineers will not appear on the ballot in the election herein directed 72 In dispute are (a) the brewery production clerk, (b) two packaging clerks, (c) the engineering and maintenance clerk, and (d) the quality control clerk Those clericals not in dispute include (a) two personnel clerks, (b) two accounting clerks, and (c) the general manager's clerk 13 In view of our finding that the disputed employees shall be excluded as office clericals, we find it unnecessary to reach the Employer 's alternate contention that all clericals should be excluded as confidential employees. 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duties for the managers to which they are assigned, and they have been and will be interchanged as the need arises; however, no interchange of clericals and production and maintenance employees is anticipat- ed. While production and maintenance employees are subject to an 8-week probationary period, no such probationary period exists for clericals. The perform- ance and salary of each clerical is reviewed individu- ally after the first 6 months and annually thereafter. Salary increases for clericals are granted individually, based on merit. Production and maintenance em- ployees are reviewed as a group; wage increases are uniform and are granted to all production and maintenance employees at the same time. All clericals work from 8:30 a.m. to 5 p.m. Production and maintenance employees work one of three shifts at the times indicated supra. All clericals are salaried and are maintained on the administrative office payroll. Production and mainte- nance employees are carried on a separate payroll, are hourly paid, and punch a timeclock. Clericals, like production and maintenance employees, are paid overtime in accordance with the Fair Labor Standards Act. Production and maintenance employees are re- stricted to two 10-minute coffeebreaks and have staggered lunch periods beginning at 11:30 a.m. Clericals are not restricted as to length or number of coffeebreaks, and they eat lunch in a separate dining room from noon to 12:30 p.m. All clericals receive Blue Cross and Blue Shield and major medical health benefits; production and maintenance employees do not receive the major medical benefits. All clericals receive life insurance equal to 1-1 /2 times their salary; production and maintenance employees receive $2,500 in life insur- ance. All clericals receive 2 weeks' vacation; prod- uction and maintenance employees get 1 week's vacation for the first 3 years and 2 weeks' per year thereafter. All clericals are paid for certain absences; production and maintenance employees get paid only for hours worked. All clericals receive tuition refund benefits and may participate in the Employ- er's "thrift plan"; tuition and "thrift plan" benefits are not available to production and maintenance employees. All clericals, except the brewery clerk, work in the same office area which is physically separate and distinct from the production and maintenance areas. The brewery clerk works in an office on the first floor of the brewhouse, but has little or no contact with production and maintenance employees in the brewhouse. All clericals share centrally located business machines, office supply distribution center, and mail distribution depot. None of the clericals is required to go into production or maintenance areas to perform his or her duties. All clericals work under the direct supervision of the department manager to whom they are assigned; none is under the supervision of a production or maintenance foreman. All clericals attend the same staff meetings; none attends the separate meetings held for production and mainte- nance employees. Clerical employees may be included in a unit of production and maintenance employees where they enjoy interests and working conditions similar to those of production and maintenance employees. However, in the present case we find no rational basis upon which to include the five disputed clericals in a unit of production and maintenance employees. The facts recited above, including the difference in duties, skills, physical location, compen- sation, benefits, supervision, hours, method of review, and evaluation, and virtually every other term and condition of employment, make it obvious that these employees are office clerical employees who do not share any community of interest with production and maintenance employees. We shall therefore exclude them from the unit. Accordingly, we find, on the basis of the entire record in this case, that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production, maintenance, utility, brewing, packaging, quality control, warehousing, and shipping and receiving employees at the Employ- er's Lehigh Valley brewery, excluding all office clerical employees, guards, and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.]