Rohtstein Corp.

ROHTSTEIN CORPORATION Rohtstein Corporation and Bakery and Confectionery Workers International Union of America, Local No. 20, AFL-CIO, Petitioner and Teamsters Local Union No. 25, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Petitioner. Cases 1-RC-14943 and 1-UC-210 November 16, 1977 DECISION ON REVIEW AND DIRECTION OF ELECTION BY MEMBERS JENKINS, PENELLO, AND MURPHY On April 15, 1977, the Regional Director for Region I issued a Decision, Order, and Direction of Election in the above-entitled proceeding. Bakery and Confectionery Workers International Union of America, Local No. 20, AFL-CIO (hereinafter referred to as Local 20), the Petitioner in Case l-RC- 14943, sought a unit of all production and mainte- nance employees at the Employer's manufacturing division, formerly a separate corporation known as Orchard Foods. Teamsters Local Union No. 25, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter referred to as Local 25), the Petitioner in Case 1- UC-210 and an Intervenor in Case I-RC-14943, sought to clarify the unit it currently represents at the Employer's facility to include the former Orchard Foods production and maintenance employees. The Employer's position is that the employees sought by Local 20 are covered by its existing contract with Local 25. Alternatively, the Employer contends that only a unit of all employees at its Woburn facility is appropriate. The Regional Director dismissed the petition for unit clarification, found a unit limited to the former Orchard Foods employees to be appropri- ate, and directed an election in that unit with both Local 20 and Local 25 participating. The Employer filed, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, a timely request for review of the Regional Director's deci- sion. The Employer disputes the factual conclusions of the Regional Director and contends that his determination of the appropriate unit and dismissal of the unit clarification petition departed from Board precedent. By telegraphic order dated May 11, 1977, the Board granted the Employer's request for review. All parties filed briefs on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the I For example, the cooks have assisted in material handling when their services are needed and they are free to leave their pnmary responsibilities. 233 NLRB No. 86 National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Employer manufactures and distributes indus- trial food supplies with its principal office and place of business in Woburn, Massachusetts. Prior to 1973, however, the Employer had no manufacturing capacity. In 1973, a food manufacturing corporation, Orchard Foods, moved into and shared the Employ- er's main facility. The two operations were indepen- dently owned and operated until 1974 when Orchard Foods merged with the Employer. The issue in this case is whether the employees formerly employed by Orchard Foods (hereinafter referred to as the manufacturing employees) consti- tute a separate appropriate unit or whether those employees lack the identifying characteristics war- ranting separate representation and must constitute an accretion to the existing unit (hereinafter referred to as the distributing employees). In 1976, faced with the same question, the Regional Director found the manufacturing employees to constitute a separate appropriate unit and directed an election involving the Petitioners in this case. Neither union received a majority of the ballots cast. Since the merger and the last election, the Employer has endeavored to absorb and integrate the manufacturing operation gradually into the distributing operation. This effort has been most successful in the consolidation of the Employer's administration. The executive structure has been effectively merged. Corporate functions such as personnel, bank accounts, bookkeeping, payroll, health benefits, billing, and ordering have also been integrated and centralized. Despite this administrative centralization, the Regional Director's conclusion that the manufactur- ing and distributing operations have basically re- tained the functional integrity and independence that existed prior to the merger is supported by the record. The manufacturing department processes goods in two ways: the cooking of various syrups and fillings, and the repacking of bulk goods into smaller quantities. There are approximately 40 employees in this department: cooks, filler operators, labelers, material handlers, and maintenance workers. Al- though job functions are somewhat flexible when the need arises,' the cooks oversee the actual manufac- turing process of cooking; the filler operators package the cooked product as it descends from the mezzanine cooking area to the main floor and monitor the movement of liquid raw materials from the storage area to the cooking area; the labelers are primarily concerned with labeling the products, including moving the packaged product to the 545 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labeling area; the material handlers, including two forklift operators, perform most of the moving and loading tasks of the department; and the mainte- nance employees do general maintenance throughout the facility and are responsible for pumping the liquid raw materials into the storage tanks from which they are fed into the cooking vats. The distributing department consists of approxi- mately 75 employees; truckdrivers, helpers, forklift operators, and warehousemen. Their function centers on the unloading, storing, loading, and transporta- tion of goods. They handle raw materials, finished products that have been processed by the manufac- turing department, and other finished products which are received and shipped without any process- ing or repacking. Although the Employer and Local 25 contend that the job tasks and functions of the two departments are sufficiently integrated to warrant accreting the manufacturing employees to the existing unit, the record demonstrates that the employees of each department are still involved in and identified with distinct and essentially dissimilar operations. The majority of the employees in the manufacturing department have as their primary responsibility tasks which are peculiar to the production functions- cooks, filler operators, and labelers. Similarly in the distributing department, half of the employees are truckdrivers whose job function is not similar to that of any employees in the manufacturing department. While those employees in both departments who move, load, and unload goods perform similar physical taks, they are not used interchangeably and their duties are defined by their departments. When the manufacturing operation is open, raw materials used in production are unloaded exclusively by the manufacturing personnel. Similarly, finished pro- cessed products are loaded exclusively by the manufacturing employees. Even where a truck is receiving a mixed load, the manufacturing employees will generally load the processed goods and the distributing employees will load the other products. The only regular and substantial exception to this allocation of tasks occurs after midnight when the manufacturing operation is closed. The distributing operation assumes the tasks of unloading the raw materials needed by the manufacturing operation and loading their processed product. This overlap- ping of tasks necessitates some dovetailing of operation at least to the extent that distributing employees must be aware of the organization of the finished inventory racks and work with the manufac- turing employees so that the correct loads are sent out. Other evidence of employees from one department performing tasks normally performed by employees from another department, however, is limited to the infrequent and the unusual. For example, the task of moving raw materials to the cooking mezzanine, done routinely by manufacturing employees, is performed by a distributing employee only two or three times a month. Evidence of manufacturing employees performing tasks normally done by distributing employees is even scantier. Thus, where, as here, employees with similar job functions are not used interchangeably, but have their duties defined by their department, the inference is that the employees in each department are distinct and independent groups. This independence is corroborated by other differ- ences in operation and working conditions. The manufacturing employees have different hours and wages. The distributing department operates 24 hours a day, while the manufacturing facilities operate for only two shifts. The shift starting times are different. Employees performing similar tasks are not paid the same wages and the weekly pay periods for the two departments are not the same. The manufacturing employees wear special uniforms. Lunch and coffeebreaks are different. The manufacturing operation has its own supervi- sory hierarchy, although the Employer recently created the position of operations manager with authority over all distribution and production func- tions. Despite the technical authority of any supervi- sor over any employee, employees in each depart- ment are responsible to their own departmental supervisors. Even as a matter of corporate policy, management authority is channeled through the departmental supervisory staffs and not across departmental lines. Personnel decisions as to layoffs and overtime are made separately for each department. Within the last year employees were laid off and overtime was cut in the manufacturing department although the distrib- uting department was unaffected. Seniority is also determined separately. Interchange between the two departments has been insignificant. Excluding management positions, few employees have transferred between departments. Apparently there is not even an established proce- dure for applying for such a transfer. Physically, although both departments operate under the same roof, their operations are basically segregated. The manufacturing department is located on one side of the facility. The cooking room is on the mezzanine with the processed produce flowing down to the filling room on the main floor where it is packaged and then labeled and stored in an adjacent holding area which is used exclusively for the manufacturing department. Certain areas are utilized jointly: the primary loading docks which are on the 546 ROHTSTEIN CORPORATION distribution side, the finished inventory racks, and the cold storage facility. Nevertheless, except for the loading docks, those areas are internally segregated by department. Within the cold storage there are separate sections for the materials earmarked for manufacturing. Similarly, in the finished inventory racks, certain aisles are reserved for the processed products. Although officially the various entrances, rest- rooms, and lunch areas are open to all employees, the distributing and manufacturing employees gener- ally use the facilities close to their main working areas. This defacto separation is also illustrated by the two sets of timeclocks; one at the entrance near the cooking area which has the timecards for the manufacturing employees, and one at the other end near the loading docks with the timecards for the distributing employees. Based on the above and the record as a whole, we conclude, in accord with the Regional Director, that the manufacturing employees share a sufficiently distinct community of interest apart from the other employees to constitute a separate appropriate unit. In making this decision, we have considered a number of factors, including the integration of operations, the centralization of managerial and administrative control, geographic proximity, the similarity of working conditions, supervision, skills, and functions, and the degree of interchange among the employees, 2 and we rely on the following conclusions. The manufacturing department has remained functionally a distinct operation within the Employ- er's facility since the merger and the previous unit determination. The manufacturing employees can be identified by their working hours, pay, frontline supervision, seniority status, lunch and coffeebreaks, timeclocks, dress, and general physical working locations. Their job classifications and functions are basically dissimilar from those of the distributing employees. Even the manufacturing employees whose job tasks are functionally interchangeable with those performed by some of the distributing employees have work assignments that are deter- mined by their affiliation with the manufacturing department. There is no significant interchange between the two departments, and layoffs and cuts in overtime were determined for the manufacturing 2 E.g., The Great Atlantic and Pacific Tea Companiv (Famili' Savings Center), 140NLRB 1011, 1021(1963). 3 Rostone Corporation, 196 NLRB 467 (1972); Rainbow Crafts, Inc.. a Subsidiarly of General Mills, Inc. and Kutol Prtoducts Co., 190 NLRB 554 (1971); see Vincent Price laboratories, Inc. and Vincent Price Studio Incorporated, 220 NLRB 1387 ( 1975). department as a separate group. Thus, we find that the manufacturing employees may constitute a separate appropriate unit.3 This conclusion, however, does not preclude a finding that a unit consisting of all employees is also appropriate.4 Although the evidence of some integra- tion of operation, the similarity of some job func- tions, the centralized administrative and managerial control, and the geographic proximity is not suffi- cient to negate the appropriateness of the smaller unit, it does demonstrate a sufficient community of employee interests between the manufacturing and distributing operations to support a finding that an overall unit may be appropriate. Thus, we find that either a unit of the manufactur- ing employees alone or a unit of both the manufac- turing and distributing employees could constitute an appropriate unit.5 Accordingly, no unit determina- tion will be made at this time. Rather, we shall allow the manufacturing employees as a voting group to express their desire to either be represented in a separate unit by Local 20, to be included in the existing unit of distributing employees represented by Local 25, or to remain unrepresented. An election is therefore directed in the following voting group: All production and maintenance employees of the Employer at its Woburn, Massachusetts location but excluding office clerical employees, profes- sional employees, distributing employees current- ly represented by Teamsters Local No. 25, carmen, and guards and supervisors as defined in the Act. If the majority of the employees in the above- described voting group cast their ballots for Local 20, 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 Local 20 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 Local 25, they will be taken to have indicated their desire to be included in the existing unit currently represented by Local 25 and the Regional Director will issue a certification to that 4 E.g., Rosetone Corporation. 196 NLRB 467 (1972). · Since a question concerning representation exists in the group of employees sought to be accreted, the unit clanfication petition was properly dismissed. 547 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 organization appearing on the ballot and the Regional Director will issue a certification of results of election. [Direction of Election and Excelsior footnote omitted from publication.] 548