Dennison Manufacturing Co.

National Labor Relations Board - Board DecisionsSep 29, 1989

296 N.L.R.B. 1034 (N.L.R.B. 1989)

1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Dennison Manufacturing Company and Local No. 1973, District No. 38, International Association of Machinists and Aerospace Workers, AFL- CIO, Petitioner . Case 1-UC-499 September 29, 1989 DECISION ON REVIEW AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On August 2, 1988 , the Regional Director for Region 1 of the National Labor Relations Board issued a decision and clarification of bargaining unit in this proceeding . In his decision the Regional Director concluded that the unit should be clarified to include the position of shredder/sorting floor operator (shredder/sorter operator or shredder/- sorter). Thereafter , in accord with Section 102.67 of the Board 's Rules and Regulations , the Employ- er filed a timely request for review of the Regional Director's decision . The Employer contended that the shredder/sorting floor operators should not be accreted into the existing unit because these em- ployees do not share the same level of skills as the unit employees, that this disparity of skills is re- flected in a substantial wage difference between the unit employees and the shredder/sorting floor op- erators, that there is no mutual job interchange be- tween the shredder/sorting floor operators and the unit employees , and that the two individuals cur- rently working as shredder/sorting floor operators would lose certain benefits by their inclusion within the unit . On November 22, 1988 , the Board granted the Employer 's request for review. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has reviewed the entire record in this case and makes the following findings. The Employer , a Nevada corporation with its principal place of business in Framingham, Massa- chusetts, is engaged in the manufacture, sale, and distribution of paper products . In 1957, Local No. 1973, District No. 38 , International Association of Machinists and Aerospace Workers, AFL-CIO, the Petitioner-Union in this proceeding , was certified as the collective-bargaining representative of cer- tain employees in the Employer 's plant facilities and maintenance departments . The parties' most recent collective-bargaining agreement , effective from June 16, 1985 to June 18, 1988 , describes the unit as including the following job classifications: Machinist, die maker, millwright , carpenter, electrician, plumber or pipe fitter or steam fitter, pattern maker, welder, electric truck repair man , tinsmith , guardman , bent rule man, machine parts inspector , clock and instrument repair man , fireman , stockroom , motor inspec- tor, also motor inspector 's helper, machine tool operator , tool grinder; also, experimental machinist in the Plant Facilities and Mainte- nance Department and Therimage Division of the Framingham Plant , oiler in the Plant Fa- cilities and Maintenance Department , licensed elevator repairman , air conditioning mainte- nance, E .D.M. Specialist , Therimage Subas- sembler and Stockroom attendant . Excluded are all other employees such as office clerical employees, oilers in departments or divisions other than the Plant Facilities and Mainte- nance Department , moveman , gardner, clerks in the Employee 's Store , cleaners, professional employees, guards and supervisors. . . . At the time of the hearing there were approximate- ly 95 employees in this unit , down from between 125 and 130 in prior years . A total of about 2100 employees work at the Framingham facility, which occupies approximately 1-1/2 million square feet of space in 17 buildings. For some years the Employer supplied heat for its building complex and provided power for its machinery and equipment from four fossil fuel boil- ers. In September 1986 a fifth boiler was added (boiler #5), which burns shredded paper and other combustible waste material . All five boilers are lo- cated in a separate powerhouse and are operated by unit employees classified as firemen . The pow- erhouse operates 24 hours a day , 7 days a week, on three shifts. When the Employer operated with four boilers , one fireman was required to be on duty at all times . With the addition of boiler #5, the Employer hired two more firemen because the expanded operation required one fireman to over- see the four fossil fuel boilers and another to oper- ate boiler #5. To provide fuel for boiler #5 the Employer col- lects paper waste material from throughout its fa- cility. Trash receptacles are located in each depart- ment for the separate disposal of combustible/- paper-type materials , metal objects, and plastic waste . Nonunit warehouse employees collect this waste and place combustible matter in containers provided by a waste hauling subcontractor that the subcontractor transports to the powerhouse tipping floor . However , the Employer soon discovered that this process did not filter out all metal and other noncombustible objects, and that , conse- quently , the fireman operating boiler #5 had to devote a substantial part of his time removing ex- traneous material from the paper waste prior to 296 NLRB No. 134 DENNISON MFG. CO. loading it into the shredding machine .' Thus, in October 1986 , the Employer created a new nonunit job classification , the shredder/sorting floor opera- tor, to carry out the sorting and shredding duties brought about by the addition of boiler #5. Under the Employer 's established nonunit job bidding procedure ,2 two nonunit employees , Frederick Bastien and James Richardson , were selected to fill the jobs. They began their duties as shredder/- sorting floor operators on November 22, 1986. As described above, collected combustible waste is delivered to the powerhouse tipping floor from throughout the facility. At that point the shred- der/sorting floor operator , using a bobcat equipped with a front-end loading attachment , sorts through the paper to remove any metal and other noncom- bustible material. Once these materials are re- moved , the combustible matter is lifted by crane into the shredder . After shredding , this matter is stored in a silo. A conveyer belt feeds the shredded waste from the silo into the boiler . Because the waste is delivered to the powerhouse during the first shift, the shredder/sorting operator working the first shift sorts the waste and places it into the pit while the fireman operates the shredder. On the second shift , because the day's waste is already sorted , the shredder/sorting operator runs the shredder and the fireman oversees the boiler oper- ation . Although boiler #5 runs on all three shifts, there is no shredder/sorting operator working on the third shift. The powerhouse procedures in disposing of com- bustible waste require cooperation between the firemen and the shredder/sorting operators. When needed , a fireman will assist the shredder/sorting floor operator in carrying out his duties . Shred- der/sorting operators , however , do not perform any duties assigned to the fireman. When one of the shredder/sorting floor operators was on vaca- tion, a utility mechanic , a unit employee, per- formed the sorting work and operated the bobcat. In addition , powerhouse supervisory employees have also done shredder/sorting work . No nonunit employee other than shredder/sorting floor opera- tor has performed shredder/sorting tasks. ' Testimony establishes that the Employer was encountering recurrent repair costs associated with metal objects breaking gears in the shredder and rendering the machine inoperable 2 The Employer notified the Union that it was creating the shred- der/sorting floor operator classification as a nonunit position prior to placing the job up for bid Separate job bidding procedures exist for unit employees and nonbargaining unit employees Nonunit positions are des- ignated by number Unit positions are identified as such when posted and unit employees have primary bidding rights to those positions The par- ties' most recent collective -bargaining agreement provides that only if a posted unit position is not filled by a unit member may the Employer fill it from outside the unit 1035 The firemen and the shredder/sorting operators are commonly supervised . The chief engineer in the powerhouse , James O'Rourke, who works on a part-time basis , shares supervisory authority over the powerhouse employees with Donald O'Mara, supervisor of department 11. Department 11 is composed of 40 bargaining unit machinists in vari- ous classifications , one of whom is a "resident ma- chinist" assigned to work 5 days a week in the powerhouse. The job description for shredder/sorting floor operators lists the following duties: (1) Receiving waste stream from the divisions and sorting out and disposing of all the non- burnables to a designated area . (2) Operating a fork lift truck" to push burnable materials into the storage pit, and clean daily . (3) Maintain- ing written records to indicate source of all waste shipments received . (4) Operating equip- ment to process butt rolls for the shredders. (5) Operating the crane system to store waste materials in the pit and also to feed the shred- ders. Note some judgement is necessary in de- termining what and how much wastes [sic] are loaded in the shredders . (6) Daily clean-up of shredder area and general clean-up of the Powerhouse area . (7) Assisting waste solvent and solvent recovery technicians as directed. (8) Any other duties assigned by Powerhouse management. According to O'Mara , training required to perform these duties is minimal . He testified that an inexpe- rienced employee could be trained by the Employ- er in all aspects of the job , including operating the bobcat, using the crane, and changing the rotor bit in the shredder,4 within 1 or 2 days. The hourly pay range for shredder/sorting operators (assigned to job class 21 in the Employer 's nonbargaining unit wage system) is from $7 . 87 to $9.64, about the middle of the nonunit scale. The two employees chosen to fill the job of shredder/sorting floor operator had both previous- ly occupied several primarily low-skilled nonunit positions with the Employer . During his 45 years with the Company, Bastien has worked as a move 0 Since the job description was written , the Employer has replaced the forklift truck with a bobcat . Supervisor O'Mara testified that a forklift and a bobcat are similar to operate in that they both involve two foot pedals and two hand controls 4 While the job description does not mention changing the rotor bit teeth , O'Mara testified that the Employer and the Union agreed that this apparently simple process-as well as checking the hydraulic levels and greasing the rotors-could be performed by employees operating the shredder, but that more complicated repairs, dealing with bed knives, gear boxes, pulleys, belts, and drive trains had to be done by the machin- ist assigned to the powerhouse. 1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD boy, electric operator, sealer , trucker, floor check- er, supply man #2, utility man, truckdriver's helper, chauffeur-heavy truck, elevator operator, custodian, and groundskeeper. Neither a high school diploma nor any specialized training in the trades, engineering , or fireman's work was required for any of the positions Bastien has held. Richard- son, who has been with the Employer for 8 years, has done table work, worked as a pickup ship- per/receiver, serviceperson, and shipper. Similarly, none of these jobs required a high school diploma or any special training or skills. Firemen, on the other hand, are subject to exten- sive training and licensing requirements and are paid higher rates. The Employer's job description for its powerhouse firemen lists 33 different duties associated with the operation of the boiler system. These include continuous monitoring of the various equipment and performing routine maintenance and repairs on the machinery. State law requires that during the operation of the boilers a fireman of at least second class rank must be present in the pow- erhouse. Because of its multiple boiler system, however, the Employer imposes an even more stringent standard and requires its firemen to pos- sess a first class license . O'Mara testified that some of its firemen exceed the Employer's requirements and hold third class engineers ' licenses . To qualify for a second class fireman's license one must estab- lish before a state board that he meets certain edu- cational and background requirements relative to the operation of a powerplant. Thereafter, the indi- vidual must work for a minimum of 1 year in a boiler room before applying for a first class fire- man's license . Upon receipt of the first class li- cense , an individual must work for at least another year before sitting for a third class engineer's li- cense . At the time of the hearing the base contrac- tual wage rate for firemen was $11.88 per hour. The Regional Director determined that because the duties of the shredder/sorting floor operators are an integral part of the disposal of combustible waste materials and are performed in close , regular contact with unit employees, because the shred- der/sorting operators are supervised by the same individuals who oversee unit personnel, and be- cause shredder/sorting duties are sometimes per- formed by unit employees, a community of interest exists, sufficient to warrant the inclusion of this newly created classification within the existing bar- gaining unit . Accordingly, he determined that the shredder/sorting floor operators constitute an ac- cretion to the existing bargaining unit and clarified it to include this classification. We do not agree with his analysis or conclusion. The factors the Regional Director relies on in find- ing accretion all relate to the fact that the shredder/sorting operators perform their work in the powerhouse, i.e., close, regular contact with unit employees, shared supervision, mutual involve- ment in the waste disposal process, and instances of work interchange. While these factors are not irrel- evant, we find that, in the circumstances of this case, these attributes flow primarily from geo- graphic proximity and do not provide an adequate basis for accretion. Because the process of accretion does not afford affected employees the opportunity to register their preference for or against representation, the Board follows a restrictive policy in its application. Com- pact Video Services, 284 NLRB 117, 118 (1987). The Board will find accretion appropriate only where the disputed employees display " little or no sepa- rate group identity," as well as demonstrate an "overwhelming community of interest" with the employees in the preexisting unit . Safeway Stores, 256 NLRB 918 (1981). As indicated below, we find that the shredder/sorting operators are part of the waste separation/preparation process that is per- formed by nonunit or subcontractor employees; that the level of their skills, their employee qualifi- cations, their wages, and their assigned duties are sufficiently different from those of employees in the unit, including the firemen in the powerhouse, and that these factors outweigh the community-of- interest factors relied on by the Regional Director. First, because of the specialized nature of boiler operations, it is not unusual for a powerhouse to be physically discrete from other parts of an employ- er's facility. It follows, therefore, that employees whose duties relate to boiler operations have pri- mary, if not exclusive, contact with other power- house employees. It does not follow, however, that merely because of that contact all powerhouse em- ployees must be represented together in the same unit without regard to the types of jobs or duties they perform, their particular job qualifications, or the comparability of their skills . This conclusion is especially apt regarding the powerhouse employees in the instant case. It is apparent from the unit description, the wage levels of unit members compared with those em- ployees not in the unit, and record testimony, that the firemen and the resident machinists are in the 5 Aside from the reference , supra, to the fact that a "resident machin- ist" under O 'Mara's supervision is assigned to work 5 days a week in the powerhouse and that he performs repairs that are beyond the scope of the shredder/sorting operators ' job responsibilities , there is no evidence regarding that unit employee 's specific duties, training , skills, or wage rate . However , the contract rate for the general classification "Machin- ist" is $12 59 , well above the shredder/sorting operator 's rate. DENNISON MFG. CO. unit because , like other unit employees, they are skilled employees , and in the case of the firemen, licensed as well. It thus appears that inclusion in the unit has historically been based on the fact that all its members are considered skilled employees. Further , as illustrated below , it is clear that contact among the various unit employees , and contact be- tween unit and nonunit employees , has not in the past played a part in establishing the composition and scope of the unit . In this regard , the firemen and resident machinist have little contact with unit employees working outside the powerhouse, and vice versa, but do have daily contact with the shredder/sorters working there with them. In the same manner , the various classifications of unit em- ployees not in the powerhouse come into regular, daily contact with nonunit employees in perform- ing their jobs throughout the different plant build- ings, but they do not necessarily have frequent contact with other unit members in job classifica- tions different from their own. This established pat- tern of contact among the Employer's employees regardless of unit or nonunit status, demonstrates the insignificance that such contact has had as a factor in defining the unit. When, as here, the firemen and the resident ma- chinist are included in a unit with other skilled em- ployees with whom they seldom , if ever, come into contact , and they and these other unit employees have frequent contact with different nonunit em- ployees, we perceive scant basis for relying on con- tact (or lack of contact) to determine the placement of employees in the unit. Thus, the fact that the shredder/sorters have day -to-day contact with unit employees working in the powerhouse simply re- flects the place of their assignment rather than a community of interest with those unit employees. Such contact lacks significance , in the absence of evidence that the shredder/sorters held jobs similar to those of the firemen and the resident machinist, or at the least had skills and qualifications more like those unit employees possess . In short, because the shredder/sorters are unskilled employees whose function and duties require no previous experience or knowledge and little on-the-job training , we find that the amount of contact they have with the unit employees in the powerhouse is not a factor that can support a determination that the shred- der/sorters must be included in the unit. In discounting the significance of employee con- tact as a material factor in this case, we acknowl- edge that the functional integration necessary in running the powerhouse has resulted in all the powerhouse employees having developed a close, cooperative working relationship . Importantly, however, the record shows that while instances of 1037 job interchange occur because of this operational integration, it is the firemen who can and do per- form shredder/sorting work, and not vice versa (i.e., the shredder/sorting operators do not perform the firemen's job). Because the shredder/sorters are not technically qualified or licensed to operate the boilers, job interchange is strictly one way . There- fore, while we find it unremarkable that firemen may perform shredding and sorting work , in order to maintain the efficient flow of fuel for boiler #5, and as part of their general responsibility for boiler operations , we find it both relevant and significant to our analysis of the accretion issue that the shredder/sorting operators never perform work normally performed by a unit classification.6 In addition , while we recognize that the shredder/sorting operators share supervision with unit employees , we find that this is more likely a result of management convenience in dealing with the physical isolation of the powerhouse rather than a recognition of employee homogeneity. While this supervisory environment will have an effect on the daily worklife of all employees in- volved in boiler operations , we find that it, like other practical commonalities attributable to geo- graphic proximity , is not to be afforded substantial weight in the circumstances of this case. Further, we find it significant that the shred- der/sorting operators' duties constitute the last part of a waste separation procedure that begins at the department floor level . That process, described above, is carried out by nonunit personnel (as well as a subcontractor) and results in the delivery of primarily combustible waste to the powerhouse, where the shredder/sorter takes the final steps in ensuring that no noncombustibles enter the shred- ding machine . Thus, while the shredder/sorting op- erators' job, because of logistical necessity , is per- formed alongside unit employees, it represents the culmination of the waste separation/preparation process otherwise carried out by nonunit employ- ees, rather than the initial action of employees in- volved in the operation of the boilers.7 Finally, the shredder/sorting operators' wage rates also show their jobs to be more comparable to those of nonunit employees than to unit jobs. As listed above, their pay falls in the middle of the nonunit scale , and considerably below that of the 6 We also note that the only other unit employee cited as having per- formed shredder/sorting work is the "Utility Mechanic ," whose job duties are not disclosed in the record , but whose hourly pay rate of $10.30 makes him the second lowest paid among the 34 unit classifica- tions ' In other words , the shredder sorters are engaged in the process that leads to the preparation of paper products as a fuel ; the firemen are en- gaged in the operation of the boilers That at times a fireman also be- comes involved in the paper fuel process does not blur this distinction 1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD workers with whom they work most closely. In fact , the bargaining unit classification having the lowest contract wage rate is still higher than the upper range of the shredder/sorting operator. We find, then , that this factor , too, emphasizes more dissimilarity with the unit than commonality. Based on the foregoing, we find that the shredder/sorting operators do not meet the stand- ards required to find an accretion appropriate. In light of factors that significantly differentiate the shredder/sorters from unit employees-particularly the absence of mutual job interchange and the dis- parities in skill level, training, and wage scales- combined with the functional integration of the shredder/sorting operation with the underlying waste separation process performed by nonunit per- sonnel-we find that the shredder/sorting floor op- erators do not share a sufficient community of in- terest with unit employees to warrant their accre- tion into the bargaining unit . Accordingly, we dis- miss the petition. ORDER The petiton for unit clarification is dismissed.