New England Confectionery Co.

National Labor Relations Board - Board Decisions

Apr 30, 1954

108 N.L.R.B. 728 (N.L.R.B. 1954)

728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the maintenance employees be set up in a separate department
for administrative purposes . We believe that it is sufficient
that the maintenance employees are a clearly identifiable,
functionally distinct and homogeneous group , whose work and
interests are different from those of the other employees in the
plant.
We have also considered the Employer ' s contention that
the unit requested by the Petitioner is based on its extent of
organization among the Employer ' s employees , and should
therefore be found inappropriate . We find no merit in this
contention . Section 9 ( c) (5) of the Act precludes the Board
from giving controlling weight to this factor in determining
the appropriateness of a unit . As pointed out above , however,
other factors wholly unrelated to the extent of organization
support our finding that a maintenance unit is appropriate when,
as here , there is an absence of any bargaining history on a
broader basis. 10
We find that all maintenance employees at the Employer's
Salisbury , Maryland , plant , including engineers , mechanics,
mechanics ' helpers electricians , welders, line mechanics,
wrapping and filling machine mechanics , and maintenance stock
clerks, but excluding all other employees , guards, and super-
visors , constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of
the Act.
5. The Employer contends that an election should not be
directed until the approximate seasonal peak . The Employer
starts processing operations sometime between April 1 and 15,
and the processing season lasts until about the end of December
or January . As this decision will issue at a time when the Em-
ployer's processing season has already begun, and as the
normal crew of maintenance employees is relatively stable
throughout the year , we see no reason to depart from our
usual practice of directing an immediate election.
[Text of Direction of Election omitted from publication.]
Muscle Shoals Chlorine Caustic Plant, 102 NLRB 273; General Dyestuff Corporation. 100
NLRB 1311; Western Kentucky Gas Company, 97 NLRB 917; J. C. Penney Company. 92
NLRB 1286; Tyre Brothers Glass & Paint Co., 85 NLRB 910.
10National Carbon Company , a Division of Union Carbide and Carbon Corporation , ( Edge-
water Works), 107 NLRB 1486.
NEW ENGLAND CONFECTIONERY COMPANY and LOCAL
3, INTERNATIONAL BROTHERHOOD OF FIREMEN & OIL-
ERS, POWERHOUSE EMPLOYEES, OPERATORS AND MAIN-
TENANCE MEN, AFL, Petitioner. Case No . 1-RC-3550.
April 30, 1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Sidney A.
108 NLRB No. 106.
NEW ENGLAND CONFECTIONERY COMPANY 729
Coven, hearing officer . The hearing officer 's rulings made at
the hearing are free from prejudicial error and 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.
2. The labor organization involved claims to represent cer-
tain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section Z (6) and ( 7) of the Act.
4. The appropriate unit:
The Petitioner seeks a unit of powerhouse engineers and
firemen, including the assistant chief engineer , but excluding
all other employees , maintenance department employees, the
air-conditioning operator , the maintenance handymen , and the
production area oilers. The Employer contends that the
proposed unit is inappropriate because of the high degree
of integration between the powerhouse and the production
plant and because the proposed unit does not include the latter
four classifications . The Employer also objects to the inclusion
of the assistant chief engineer on the ground that this em-
ployee is a supervisor . There is no history of bargaining
with any union representing any of the Employer's em-
ployees.
The Employer, a manufacturer of candy, employs approxi-
mately 1,350 employees at its Cambridge , Massachusetts,
plant . The powerhouse is located in a separate building con-
nected to the main plant by means of a tunnel. In the powerhouse
are nine employees and a chief and an assistant chief engineer.
Three of the powerhouse employees are engineers , four are
firemen, one is an air - conditioning operator , and one is a
maintenance handyman. The engineers operate the powerhouse
boilers which furnish high pressure steam for the cooking of
the Employer ' s product and low pressure steam for general
heating purposes . The firemen adjust burners, examine auto-
matic draft equipment , supervise the filling of the fuel oil
tanks, and oil powerhouse equipment . Both the engineers and
firemen are licensed by the State of Massachusetts . Unlike
the production and maintenance employees , the engineers and
firemen are on duty 7 days a week on 3 regular shifts. Each
engineer and fireman works a 6-day week with the chief
powerhouse engineer and his assistant acting as relief en-
gineers. 1 The work of the engineers and firemen is performed
in the powerhouse, except that the second- and third-shift
engineers also make a 45-minute round through the main
plant area checking powerhouse lines and equipment. These
rounds are generally made at a time when no production work
is being performed in the main plant.
1 The assistant chief engineer, as hereinafter discussed , regularly works the second
shift and 1 day each week acts as relief engineer for the third- shift engineer.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The maintenance department consists of electricians, mill-
wrights, and steamfitters , and is located in the main plant area
where most of the maintenance work is performed . Along with
their regular duties, the maintenance department employees
perform specialized work in the powerhouse . The electricians
maintain electrical equipment in the powerhouse , and the mill-
wrights and steamfitters perform major mechanical overhaul
and repair of powerhouse equipment . Maintenance department
employees do not tend powerhouse equipment and have dif-
ferent immediate supervision than powerhouse employees.
With the exception of the millwrights who work on Saturdays,
the maintenance department and the production employees
regularly work 1 shift , ' 5 days a week . There is no interchange
between the powerhouse employees and the maintenance
department or production employees.
In view of the foregoing, we find that the engineers and fire-
men and related categories constitute a distinct , homogeneous,
and functionally coherent powerhouse group such as the Board
has held may constitute a separate appropriate unit. 3 As
the maintenance department employees have interests dis-
tinguishable from those of the powerhouse employees, we
shall, contrary to the Employer ' s contention, exclude them
from the unit.
The air - conditioning operator and the maintenance handyman:
The air - conditioning operator spends approximately 80 percent
of his time during the winter season in the powerhouse
operating steam and electric compressors which produce the
refrigerant used in the main plant for air conditioning.
During the summer season, when air conditioning is used to
its fullest extent , the air-conditioning operator spends more
than half his time outside the powerhouse in the production
area. Although this employee is not licensed , he assists the
engineers and firemen in the powerhouse , handling oil and
adjusting burners. The maintenance handyman spends all of
his time in and around the powerhouse . His duties include the
burning of plant rubbish and the cleaning and lubrication
of powerhouse equipment . Although this employee is not
licensed , he assists the firemen in cleaning boiler tubes.
Both the air - conditioning operator and the maintenance handy-
man are supervised by the chief powerhouse engineer.
2 However , between the months of July and December, during the Employer's busy season,
the Employer operates a second shift of production and maintenance employees.
$Cf. American Potash & Chemical Corporation, 107 NLRB 1418 . Although the Board
has imposed the traditional union test in severance cases only ( cf. American Potash &
Chemical Corporation , supra ), we find , contrary to the Employer 's contention, that
the Petitioner has traditionally represented powerhouse employees The Employer also
contends that a prior Board decision ( Case No. 1-RC-3098 not reported in printed volumes
of Board Decision and Orders ) which found a unit of all the Employer 's employees to be an
appropriate unit , should be controlling in the present case. We find no merit in this conten-
tion. The Board has repeatedly held that a prior determination as to an appropriate bargain-
ing unit does not preclude a redetermination of the unit appropriate for the employees when
a later petition is filed . Thalhimer Brothers Incorporated , 93 NLRB 726, 727.
WEILL'S, INC. 731
In view of the related nature of the work performed by
the air-conditioning operator and the maintenance handyman
and the engineers and firemen, and in light of their common
supervision and working conditions, we find, contrary to the
Petitioner's contention that these employees may be included
in the unit. 4
The oilers in the production area: The Employer would
include three employees classified as oilers whoworkthrough-
out the main plant oiling machinery and equipment. As it
does not appear that the oilers are closely associated with
the powerhouse employees, we shall exclude them from the
unit. 5
The assistant chief engineer: This employee performs the
regular duties of . an engineer. In the absence of the chief
powerhouse engineer , he had the authority to make routine
assignments and to pass along instructions issued by the
chief plant engineer. He has no authority to hire, discharge,
or discipline powerhouse employees, but may recommend
promotions to the chief powerhouse engineer who, in turn,
has the authority effectively to recommend changes in the
status of powerhouse employees. Admittedly, the only recom-
mendation accorded substantial weight is that of the chief
powerhouse engineer.
On the foregoing facts, we find that the assistant chief
engineer does not possess the supervisory authority contem-
plated by Section 2 (11) of the Act." Accordingly, we will
include him in the unit.
We find that all powerhouse employees at the Employer's
Cambridge, Massachusetts, plant, including firemen, engineers,
the air-conditioning operator, the maintenance handyman,
and the assistant chief engineer, but excluding all other em-
ployees, maintenance department employees, the oilers in the
production area, the chief powerhouse engineer , and all other
supervisors as defined in the Act, constitute aunit appropriate
for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
4Cf. Consolidated Vultee Aircraft Corporation, Pamona Division, 108 NLRB 159 (air-
conditioning operators); Westinghouse Electric Corporation, 108 NLRB 556.
5 Chrylser Corporation, 98 NLRB 1105, 1108.
"Cf. The Clinton Construction Company, 107 NLRB 946; Warren Petroleum Corporation,
97 NLRB 1458, 1460-1461.
WEILL'S, INC. and RETAIL CLERKS' UNION, LOCAL 137,
RETAIL CLERKS' INTERNATIONAL ASSOCIATION, AFL,
Petitioner . Case No . 21-RC-3327.
DECISION AND CERTIFICATION OF REPRESENTATIVES
On December 5, 1953, pursuant to a stipulationfor certifica-
tion upon consent election, an election by secret ballot was
108 NLRB No. 38.