Maryland Cup Corp.

National Labor Relations Board - Board Decisions

May 22, 1970

182 N.L.R.B. 686 (N.L.R.B. 1970)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maryland Cup Corporation and United Papermakers and
Paperworkers , AFL-CIO & CLC, Petitioner. Case
5-RC-7113
May 22, 1970
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Barton S. Widom. Fol-
lowing the hearing and pursuant to Section 102.67 of
the National Labor Relations Board Rules and Regula-
tions and Statements of Procedure, Series 8, as amended,
and by direction of the Regional Director for Region
5, this case was transferred to the National Labor Rela-
tions Board for decision. Both the Employer and the
Petitioner filed briefs.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the Hearing Officer' s rulings
made at the hearing and finds no prejudicial error.
The rulings 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 policies
of the Act to assert jurisdiction herein. . , -
2. The labor organizations involved claim"to represent
certain employees of the Employer. "1 rr
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 Employer is engaged in the manufacture of
paper cups, plastic lids, ice cream cones, paper and
plastic drinking straws , conical cups , ice cream cone
jackets, matches, and machinery for producing these
items . Its operations are located throughout the United
States.
Petitioner seeks a single plant unit consisting of the
production and maintenance employees at Employer's
Owings Mills plant located in suburban Baltimore, Mary-
land. Employer contends that such a unit is inappropriate
and that the only appropriate unit is a multiplant unit
consisting of all of its facilities in the Baltimore metropol-
itan area. Petitioner also contends that working leaders
are supervisors within the meaning of Section 2(11)
of the Act and therefore should be excluded from the
appropriate unit. Employer contends that working lead-
ers are rank-and-file employees and therefore should
be included in any appropriate unit.
' The Intervenor, International Union of District 50, Allied and Techni-
cal Workers of the United States and Canada, did not file a brief
Similar issues were presented to the Board in Mary-
land Cup Corporation, 171 NLRB No. 71,2 dated May
13, 1968. In that case the Board found that a unit
of all production and. maintenance employees at the
301 North High Street plant in Baltimore was an
appropriate unit, as against Employer's contention that
only a unit encompassing all operations in the Balitmore
metropolitan area, including the Owings Mills plant,
would be appropriate. The Board also found that working
leaders were not supervisors within the meaning of
Section 2(11) of the Act and therefore included them
in the unit, as against a contention3 that they were
supervisors and therefore should be excluded from the
unit.4
By stipulation of the parties, the record in the High
Street plant case was incorporated by reference in the
record of the instant proceeding. Also by stipulation
of the parties, the record in Case 5-RC-6442 was incorpo-
rated by reference in the record of the instant proceeding.
In that case, the Acting Regional Director, on July
25, 1968, directed an election in a unit of production
and maintenance employees at the Owings Mills plant,
basing his determination on the Board's findings in the
High Street plant case.5
In support of its contention that a single plant unit
is appropriate, Petitioner relies on the Board's finding
in the High Street plant case that a single plant unit
was appropriate, contending that the issue was fully
litigated in that case. Employer contends that the Board
erred in the 1968 High Street plant case and again
contends that the Board should find that only a multiplant
unit' would be appropriate, basing its contentions on
the following factors : common ownership, management,,
and control; common personnel and labor relations poli-
cy; common overall supervision; substantially 'uniform-
wages and working conditions; uniformity of job• classi-
fication and job' functions; and' operational integration'
and interdependence.
The Owings Mills plant is Employer's main plant
in the Baltimore area and is engaged in the manufacture
of cups and lids for cups. Approximately 1300 employees
are employed at this location. In addition, Employer
maintains its centralized corporation headquarters at
this location."
The remainder of Employer's facilities in the Balti-
more metropolitan area continue largely as they were
at the time of the High Street plant case. Employer
continues to operate its Hilgartner warehouse, its Eutaw
Street plant, and its High Street plant.7 Since the 1968
' Subsequently referred to herein as the High Street plant case.
By the Intervenor herein
There is no dispute in the instant proceedings as to the inclusion
or exclusion of the remaining classifications at issue in the High Street
plant case
Neither the election at High Street nor the election at Owings
Mills resulted in selection of a representative for collective bargaining
" Employer 's centralized systems of accounting, payroll, purchasing,
traffic control , sales, product promotion , production planning , inventory
control, and general administrative and personnel functions are all located
at the Owings Mills plant
All of these facilities are located from 12 to 15 miles from the
Owings Mills plant.
182 NLRB No. 106
MARYLAND CUP CORP.
hearings it has added a straw facility to its Eutaw
Street, plant.0 There have also been some changes in
Employer's corporate structure since 1968, none of
which have any bearing on the issues herein."
The Owings Mills plant is the largest of the Employer's
plants in the Baltimore area. It is under the direct
supervision of a plant manager whose exclusive job
is to supervise 'its operation. He is assisted by shift
superintendents, department managers, foremen, and
working leaders.10 The relationship of the Owings Mills
plant to Employer's other plants in the Baltimore area
remains essentially as it was in 1968. Some of the
Owings Mills operations continue to be similar to some
of those at the Eutaw and High Street plants. Because
of this' similarity, some of the classifications of the
employees at the Owings Mills plant continue to be
identical or substantially identical to those of employees
performing the same job in other plants. Wages and
fringe benefits continue to be identical for all of Employ-
er's employees in the Baltimore area who are similarly
situated. Employees transferring from one plant to anoth-
er continue to retain their previously earned seniority.
All of the Employer's plants in the Baltimore area,
including the Owings Mills plant, continue to be serviced
by the same crews of mechanics and electrical repairmen.
Employees, in somewhat increased but not substantial
numbers, continue to work on a temporary basis in
plants other than those they are permanently assigned
to.
As noted in the Board's 1968 Decision, the Board
has held that a single plant unit is presumptively
appropriate where there is no bargaining history in a
more comprehensive unit and no functional integration
with`the operations of other facilities in a degree sufficient
to'obliterate" separate plant identity. We have again
examined all of the circumstances surrounding Employ-
er's Baltimore operation and conclude, as we did in
the case of the High Street plant, that although the
work functions of the Owings Mills plant are parallel
to some of those of the High Street and Eutaw Street
plants, nevertheless the Owings Mills plant functions
with a substantial degree of autonomy under separate
immediate supervision. As in the case of the High Street
plant, we cannot conclude that the production process
of the Maryland plants is so functionally integrated
as to destroy the separate identity of the Owings Mills
" Although it is physically attached' to the Eutaw Street plant, it
has a different address (500 W. West Street), as it faces on a different
street This addition was under construction in 1968
" As the Board did in 1968 , we, for the purposes of these proceedings,
treat all entities involved as a single employer herein called Maryland
Cup Changes in the corporate structure are as follows: Maryland
Baking Company no longer , exists as a separate entity but is now
part of Maryland Cup Corporation. Maryland Paper Products Company
no longer exists under this separate name but is now the straw manufac-
turing section of Maryland Cup Corporation Maryland Match Company,
previously a division of Maryland Paper Products Company, is now
Maryland Match Corporation, a wholly owned subsidiary of Maryland
Cup Corporation.
1" The supervisory status of the working leaders is discussed infra.
The parties agree that the shift superintendents , department managers,
and foremen are supervisors -
687
operation." We have again taken into consideration
all of the various factors present in this case, such
as the degree of centralized managerial control, the
amount of employee interchange, and the use of traveling
mechanics and electrical repairman crews, 12 and find
no more reason at this present time than existed previous-
ly to regard these factors as sufficient to alter the separate
identity and community of interest that exists among
Owings Mills employees or sufficient to rebut the pre-
sumptive appropriateness of a unit of the Owings Mills
employees. For the foregoing reasons, and particularly
in view of the separate location of the plant sought,
the autonomous daily operations of the Owings Mills
plant, the lack of substantial employee interchange, the
homogeneous character and separate identity of the
Owings Mills employee group, and the absence of a
contrary bargaining history, we find that the production
and maintenance employees at the Employer's Owings
Mills, Baltimore, Maryland, plant constitute a separate
appropriate unit.13
There remains for consideration the question of wheth-
er the working leaders are supervisors within the meaning
of Section 2(11) and therefore should be excluded from
the appropriate unit. As noted above, Petitioner con-
tends, contrary to the Board's finding in the High Street
case, that the working leaders" are supervisors. Employ-
er contends that the Board's finding that these employees
are not supervisors is correct.
In the High Street case, the evidence concerning
the supervisory status of these employees was supplied
entirely through the Employer's Personnel Director
David Levi. Levi testified that working leaders are the
most highly skilled or experienced men, receive from
10 to 20 cents per hour more than the next highest
paid men in their respective groups, and are engaged
90 per cent of their time in actual work performance,
as distinguished from leadership duties. He further tes-
tified that, although they act as conduits for orders
11 In 1968, the Board stated that the fact that Owings Mills orders
and supplies High Street with raw materials and makes a product
(lids) which complements the 'High Street product does not preclude
a finding that the High Street plant is not so functionally integrated
as to destroy its separate identity In our opinion, the reverse of
this finding is also true. The fact that these items are supplied by
Owings Mills to the High Street plant does not detract from our finding
that the Owings Mills plant is not so functionally integrated with the
High Street plant as to destroy its separate identity
12 Since 1968, Employer has added a centralized parts room at Owings
Mills to take care of the parts needed for all the plants in the area.
It is also seeking to establish a common identification system for all
parts We do not regard this change as being of more than minor
significance.
13 As the Board has repeatedly stated in other cases, and in the
High Street plant case, the fact that a different or larger unit may
also be appropriate is not controlling if the smaller unit sought also
constitutes an appropriate unit. As we have found that Owings Mills
is an appropriate unit, we also find no merit in the Employer 's argument
that as the Petitioner was engaging in active organizational efforts
at its High Street plant at the same time it was organizing the Owings
Mills plant we are precluded for that reason from finding the Owings
Mills plant an appropriate unit . Accordingly, Employer' s motion to
dismiss on that ground is hereby denied.
11 The maintenance mechanic leader classification, which was in exist-
ence in 1968, has been dropped Employees who formerly held that
classification are now classified as working leaders
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from shift foremen, they have no authority to hire,
fire, transfer , discipline, or grant time off or make recom-
mendations regarding these matters , and they do not
exercise independent judgment or responsible direction
of work of other employees Petitioner was not a party
in that case
In the instant proceeding , Petitioner presented contra-
ry testimony from several rank-and-file employees,
including a former work leader Their testimony indicates
that work leaders do grant employees time off , excuse
absences , discipline employees , and transfer employees
from one place to another , all without consultation with
their supervisors 15 Employer did not present any work
leaders or foremen as witnesses In fact it did not
directly dispute the testimony of Petitioner ' s witnesses
that working leaders exercised the authority the Petition-
er's witnesses attributed to them , but merely asserted
that if they did exercise such authority they had exceeded
the authority given to them by the Employer Petitioner's
witness also sharply disagreed with Employer ' s witnesses
concerning the amount of physical work done by working
leaders, Petitioner ' s witnesses stating that working lead-
ers actually did very little physical work
In support of its contentions , Petitioner also relies
on what it views as a disproportionately high number
of rank-and-file employees per supervisor , as defined
by the Employer , and asserts that this indicates that
the working leaders are in fact supervisors Employer
claims that it has 79 supervisors for its approximately
1300 rank-and-file employees "' The figure of 79 supervi-
sors includes approximately 20 supervisors who are at
higher levels and do not directly supervise rank-and-
file employees on a daily basis In addition to contending
that the overall ratio is high , Petitioner suggests that
the ratio is particularly out of proportion when particular
departments are examined For example , in the packag-
ing department there are a total of 380 employees and
only 3 supervisors , according to the Employer, for a
ratio of 1 supervisor for every 126 66 employees If
the 7 working leaders are added to the number of
supervisors the ratio becomes 1 to 37 which appears
to be a more reasonable proportion In the cold cup
forming department there are 119 employees and only
2 supervisors , according to the Employer , for a ratio
of 1 supervisor for every 59 50 employees and one
of the supervisors also supervises two other departments
with 109 employees If the 6 working leaders are included
as supervisors the ratio again drops considerably In
the quality control department there are 63 employees
and only 1 supervisor, according to the Employer, for
a ratio of I supervisor for 63 employees If the 3
working leaders are included as supervisors the ratio
again drops considerably The employee -supervisor ratio
is at its highest in these departments In other depart-
ments the ratio varies from a high (24 to 1) to very
low (2 to 1) Petitioner also points to the fact that
there are very few supervisors on the second and third
shifts, the number being so low that employees on
those shifts stated that it was very unusual for them
to see a salaried supervisor and they regarded the work-
ing leader as their "boss"
While the record is not entirely clear it is more
complete than the previous record before us, and we
conclude , upon a weighing of all the evidence, that
working leaders do exercise the type of independent
judgment and responsible direction of the work of other
employees that indicates supervisory authority Accord-
ingly , we find that the working leaders are supervisors,
and shall exclude them from the unit found appropriate
herein
Accordingly, we find that the following employees
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of
the Act
All production and maintenance employees , including
truckdrivers and warehouse employees , located at the
Owings Mills plant , 10100 Reisterstown Road , Baltimore,
Maryland, excluding all office clerical employees, work-
ing leaders , foremen , and other supervisors and guards
as defined in the Act , as amended
[Direction of Election " omitted from publication ]
'g In addition the ex working leader James McCraw testified that
he had the authority and in fact did discharge an employee and
had the authority to recommend raises However on cross examination
he did not seem sure of his authority in these respects and accordingly
we do not rely on this testimony
The 1 300 includes the 76 working leaders
" In order to assure that 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 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 5 within 7 days of the date of this
Decision and Direction of Election 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