S. D. Warren Co.

National Labor Relations Board - Board Decisions

Aug 23, 1963

144 N.L.R.B. 204 (N.L.R.B. 1963)

204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employers at the location affected by the alleged conduct are taken
into consideration for jurisdictional purposes, along with the opera-
tions of the primary employer.' However, there is no indication in
this case of any effect upon the secondary employers' construction site
activities from Petitioner's picketing. Even as to secondary employer
Seifert, the general contractor, not more than $25,000 of its purchases
which constituted direct and indirect inflow to the site would have been
affected by the Petitioner's picketing. Thus, as to the primary em-
ployer there is no direct inflow and no showing as to the quantity of
indirect inflow; further, there is no indication as to the extent of the
effects, if any at all, from the Petitioner's picketing upon the con-
struction site operations of the secondary employers. Under these
circumstances, the Board is unable to make a meaningful jurisdictional
determination herein.
Accordingly, considering that the Board's Rules and Regulations,
Series 8, as amended, provide in Section 102.13 for a determination
based upon the petition, responses, and submission of briefs, and that
they do not provide for a hearing, as requested by Petitioner, to
develop further information, the parties are advised that, on the alle-
gations here present, the Board is unable to conclude whether or not
it would assert jurisdiction herein.
2 Matthews Construction Company, 142 NLRB 435 ; Weibel Excavating Company, 137
NLRB 1788 ; cf. Golding and Jones, Inc, at al., and B B & G Developers , 139 NLRB 1370.
S. D. Warren Company and International Association of Machin-
ists, AFL-CIO; International Brotherhood of Electrical Work-
ers, AFL-CIO; United Brotherhood of Carpenters and Joiners
of America, AFL-CIO; International Brotherhood of Firemen
and Oilers , AFL-CIO, Joint-Petitioners. Case No. 1-RC-7215.
August 23, 1963
DECISION ON REVIEW
On April 4, 1963, the Regional Director for the First Region issued
a Decision and Direction of Election in the above-entitled proceeding.
Thereafter, the Employer, in accordance with Section 102.67 of the
Board's Rules and Regulations, Series 8, as amended, filed with the
Board a timely request for review of such Decision and Direction of
Election with a supporting brief on the ground that the unit found ap-
propriate by the Regional Director raised substantial questions of
law and policy. The Joint-Petitioners filed a brief in support of the
Regional Director's findings. The Board, by telegraphic Order dated
May 1, 1963, granted the request for review and stayed the election.
144 NLRB No. 25.
S. D. WARREN COMPANY 205
The Board 1'has considered the entire record in the case with respect
to the Regional Director's determination under review together with
the briefs of the parties and makes the following findings :
On the basis of the Joint-Petitione'rs' 'general request for a unit of
maintenance employees, the Regional Director found appropriate a
unit limited to the engineering division, consisting of all employees
in the following departments or sections : 2
Instrumentation and Steam Distribution, Power Boilers and
New Boiler House, Bark Burner Boiler, Chemical, Smelting and
Recovery Unit, Mechanical Power Maintenance, Steam Engi-
neers, Oilers, Electrical Stations, Paint Shop, Belt Shop, Machine
Shop, Electrical Shop, Grinder Room, Rigger Shop, Carpenter
Shop, Piping Shop, Mason Shop, Tin Shop, Welding Shop,
Laborers and Truckmen ; and employees located at the Dundee,
Eel Weir and Saccarappa Hydroelectric Stations, Janitorial and
Custodial employees of the Engineering Division, and Leadmen
in the respective departments and locations listed above; but
excluding all other employees ; employees of the Engineering
Division permanently assigned to other Divisions of the Mill,
Research Division employees, Dispatcher, Assistant Dispatchers,
Telephone Operators, Office Clerical and Plant Clerical em-
ployees, Technical employees, Professional employees, Foremen,
Guards and Supervisors as defined in the Act.
The Employer contends that the unit found appropriate is heterogene-
ous in nature and is neither an appropriate maintenance nor a depart-
mental unit. It further contends that the operations of the mill are
too integrated to permit separate bargaining units, and that only an
overall production and maintenance unit is appropriate.
The Enkployer's mill, located at Westbrook, Maine, is engaged in
the manufacture and sale of fine printing and speciality papers and
has had no history of collective bargaining. The mill comprises a
series of continuous connected buildings, covering approximately 4
miles and includes three hydroelectric plants which are located from
approximately 1 to 12 miles from the mill and supply the power for
its manufacturing process. Of the approximately 2,700 hourly rated
production and maintenance employees, approximately 400 are in the
unit found appropriate by the Regional Director.
The mill's operations, like that of similar paper manufacturing
operations, may be described as a "continuous process" of chemical
1 Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [Chairman McCulloch and
Members Fanning and Leedom].
2 As amended in Order Correcting Decision and Direction of Election issued on April 13,
1963. The parties agreed that employees of project engineering , design engineering, and
construction engineering sections , as well as dispatcher, assistant dispatcher , telephone
operators , and office clericals , be excluded.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and machine operations, with each manufacturing operation related
to the preceding one. The mill is divided administratively into the
following described 10 separately supervised divisions. The Wood-
lands, pulp mill, beater machine, coating, finishing, lithoplating, roll
storage and transportation, and research divisions are concerned di-
rectly with the production and manufacture of paper. The adminis-
tration and control division provides office and clerical support. The
work of the engineering division, as detailed below, is devoted to ap-
proximately one-third maintenance, one-third new construction, and
one-third utilities and related operations.'
Most employees in the production departments are classified as ma-
chine watchers or tenders and spend a major part of their time in the
varied aspects of the paper production process. As an incident of
their work, these employees also make minor and routine mechanical
repairs. Some employees, classified within their respective depart-
ments as paper machine maintenance employees, repairmen, oilers,
and mechanics, spend full, or a high percentage, of their time doing
repair or preventative maintenance work. This work can be char-
acterized as incidental to the production process. The research de-
partment as its name implies develops and tests new processes and
equipment. Included in this department are approximately 13 em-
ployees who do specialized mechanical and maintenance work on new
and experimental equipment when it is first placed in operation in
the mill. In their combined efforts the employees in the production
and research departments perform approximately 50 percent of the
total maintenance work, the balance being performed by employees
of the engineering division.
The record indicates that the mill operates around-the-clock, with
four different types of work shifts and several departmental varia-
tions. Most of the employees directly engaged in the papermaking
process are on a bonus and incentive system and work on other than
daytime shifts. The Employer maintains a millwide seniority policy
predicated upon skill and ability in addition to length of service.
However, since there have been no recent layoffs, the record is specula-
tive as to how "bumping rights" would be exercised among the various
departments. All the hourly rated employees enjoy similar vacation,
holiday, grievance procedure, life insurance and pension plans, and
retirement benefits, and use the same locker and canteen facilities.
Employees do not punch timeclocks, but keep and report their own
s The chemical , smelting , and recovery unit in the engineering division is concerned with
the recovery of usable chemicals from spent chemicals in a form suitable for further work-
ing and could conceivably be considered part of the productive process. The unit also
produces steam for productive departments and has employee classifications similar to the
utility operations. Approximately 20 employees are employed in this unit. The record
does not indicate the amount of time or the specific employees involved in the two opera-
tions. Thus the chemical recovery unit is at most only a minor operation in the overall
department.
S. D. WARREN COMPANY 207
hours. Although the record shows that there are transfers among
the production departments and the engineering division, the record
does not reveal the frequency of such transfers or the basis upon which
such transfers are made.
The engineering division, like each of the other divisions, has its
own separate line of supervision, running from top management
through the multiple departments included therein. However, it
differs in major respects from the other divisions. (1) The engineer-
ing division is primarily staffed with employees trained to perform
the more highly skilled craft and maintenance duties required in main-
taining the mill's operations and in the expansion of the mill's facili-
ties. These skilled employees are separately based and work out of
various craft shops, such as metal working, carpentry and millwright,
rigging, pipefitting, painting, and masonry, which are located in vari-
ous parts of the mill. The Employer does not have a formal appren-
ticeship program, but has an on-the-job training program by means of
which a "helper" advances through various steps within a given job
classification under an established progression schedule. (2) The
work of the division is primarily devoted to maintenance and con-
struction, performing approximately 50 percent of the mill's main-
tenance and 85 percent of the new construction work. Major
maintenance jobs are carried out almost entirely under the engineer-
ing division's supervision. When a maintenance job is beyond the
capability of maintenance employees in the various production de-
partments a request for specialized workmen is made to the division.
When an engineering division crew works in a production area, they
are under the nominal supervision of the production supervisor in
the area of work and may utilize production maintenance personnel
to assist, depending upon the nature of the work to be performed.
Although the record shows that at lower levels the maintenance skills
of many of the employees in production departments are related, it is
clear that the bulk of the highly skilled craftsmen are in the engineer-
ing division. The specialized equipment in the various craft shops in
the division is not utilized by employees doing maintenance work in
other divisions 4
Included in the engineering division are the utility operations which
supply the mill's electricity and steam. In common with other em-
ployees in the division, utility employees do not operate production
machines and do not participate in the Employer's incentive bonus
plan.
Around the first week in July of each year it is the Employer's prac-
tice to close the plant for approximately 1 week, at which time the
* Seventeen skilled maintenance employees ( 2 oilers, 5 carpenters , 1 welder, and 9 ma-
chinists ) are permanently assigned from engineering to the papermill and woodyard divi-
sions For all practical purposes , these assigned employees are not part of the engineering
division and were excluded by the Regional Director in his unit finding.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engineering division works throughout the mill rebuilding, replacing,
and repairing mill machinery and buildings, and engages in new con-
struction work. In 1962 approximately 100 employees from other
divisions worked under the supervision of the engineering division
in the performance of this work.
In all the circumstances of this case, including the absence of any
bargaining history and the fact that the engineering division is a
distinct administrative subdivision of the Employer, having a func-
tional base of maintenance, construction, and utility work and em-
ploying primarily skilled employees who work out of their respective
craft shops and do not work directly in the productive process, we
agree with the Regional Director's conclusion that such unit limited
to the engineering division, as described above, is appropriate for
collective-bargaining purposes. In reaching this result we are not
unmindful of the fact that there is some overlapping of work skills
among some of the employees doing maintenance work in the produc-
tion divisions and some of the lesser skilled employees in the engineer-
ing division. However, we do not believe that in the circumstances
of this case that this factor is sufficient to destroy the homogeneity
and mutuality of interests of employees in the engineering division .5
Nor do we believe that the record shows such a degree of integration
between the engineering and other divisions as to preclude the estab-
lishment of a unit other than one plantwide in scope.
Accordingly, the case is hereby remanded to the Regional Director
for the First Region for the purpose of holding an election pursuant
to his Decision and Direction of Election, except that the payroll
period for determining eligibility shall be that immediately preceding
the date below.
MEMBER LEEDOM, dissenting :
I do not agree with my colleagues that the unit of employees in
the Employer's engineering division, as described in the majority,
opinion, is appropriate for collective-bargaining purposes. This unit
fails to conform to any kind of unit heretofore found appropriate by
the Board, for it is neither craft, departmental, residual, nor his-
torical. It is rather a heterogeneous grouping of some, but not all,
the employees in the division. The sole common denominator of the
included employees is the fact that they have been assigned admin-
istratively to the same division, a catchall division at best.
, The Board has consistently held that a departmental unit need not include employees
of similar skills that are outside the department. See General Dynamics Teleoommunicd-
tions, a Division of General Dynamics ,Corporation, 140 NLRB 1286; Kennard Corpora-
tion, 114 NLRB 150 ; American Bosch firma Corporation, 115 NLRB 226. Nor do we
believe that the hydroelectric stations should be excluded on the basis of public interest
because they supply heat to a local hospital and church and could conceivably control the
generation of power by a local public utility company in view of the record clearly indicat-
ing that the stations are under the Employer's control and operation.
S. D. WARREN COMPANY 209
The unit description itself, and my colleagues' findings, demonstrate
the heterogeneity of this unit. Thus, as my colleagues point out,
"The work of the engineering division ... is devoted to approximately
one-third maintenance, one-third new construction, and one-third
utilities and related operations." One of the "related operations," ap-
parently, is the chemical, smelting and recovery unit which, according
to our colleagues, "could conceivably be considered part of the produc-
tive process." Thus, there is ample demonstration that the unit lacks
functional homogeneity. Nor is there a homogeneity of skills, as the
skills of the employees in the unit run the gamut from those of skilled
craftsmen to those of unskilled laborers, with all shades and varieties
of skills in between. The unit, moreover, does not meet the test of an
appropriate multicraft maintenance unit, as it includes many em-
ployees who are not engaged in maintenance work, and excludes em-
ployees who perform approximately 50 percent of the total mechanical
maintenance work in the mill. Likewise, as there is no history of
bargaining, the unit cannot be justified on historical grounds; and as
there are other unrepresented employees, it is clearly not a residual
unit.
Thus there is left to support the unit nothing but the tenuous bond
of administrative assignment. Yet even if I assume that administra-
tive assignment without more could be deemed a common bond suffi-
ciently strong to justify a unit finding, the unit here would still be
without adequate foundation. For it does not include all who are
linked by this same bond; i.e., the 17 skilled maintenance employees
attached to the papermill and woodyard divisions, and various
clerical and other employees, are excluded. Although these 17 skilled
employees may, as my colleagues aver, "for all practical purposes"
be functionally part of other divisions, they are still administratively
part of the engineering division and thus partake of the only mutual
interest which binds together all the other employees in the unit now
found appropriate.6
In my opinion, the picture is the same irrespective of, the, camera
angle-an arbitrary grouping with no rational foundation. If the
foundation is deemed to be solely administrative organization, the
unit excludes employees in the division who should be included. If
the foundation is deemed to be either skills, or functions, or both,
without regard to administrative organization, the unit excludes em-
ployees outside the division who have the same skills or functions, and
includes employees within the division with diverse skills and func-
9 Similarly , it is clear that the parties have agreed to exclude certain employees ad-
ministratively part of the engineering division, as office clerical, technical , and professional
employees, because they regarded these employees as functionally distinct from the other
employees sought. But the basis for their agreement is not the basis for my colleagues'
unit finding Hence, it is doubtful that the parties ' agreement is entitled to much weight,
proceeding as it does on a basis which my colleagues eschew.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions. If the foundation is deemed to be skills and/or functions
within an administrative unit, there are still employees in this so-
called appropriate unit who do not belong because of their diverse
skills and functions.
As the unit found appropriate cannot be supported on any rota-
tional basis, I dissent from my colleagues' refusal to set aside the
Regional Director's unit determination.
R.C. Can Company and United Steelworkers of America, AFL-
CIO. Case No. 16-CA-1651. August 26, 1963
DECISION AND ORDER
On March 18, 1963, Trial Examiner John P. von Rohr issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report. The General Counsel also filed exceptions, a
supporting brief, and a reply brief.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report and the entire record in the case, including the
exceptions, brief, and reply brief, and hereby adopts the findings,'
i On April 24 , 1963, the General Counsel moved for leave to file a reply brief . By letter
dated April 29, 1963, General Counsel's motion was granted and the reply brief was re-
ferred to the Board for consideration . Thereafter , on June 5, 1963, Respondent moved
for leave to file a response to General Counsel's reply brief . Respondent also moved to
strike part of General Counsel's reply brief. On June 10, 1963, the General Counsel filed
an opposition to Respondent 's motion for leave to file a response to General Counsel's
reply brief and the motion to strike a part thereof . By wire dated June 10, 1963, Re-
spondent's response to General Counsel's reply brief was accepted and referred to the
Board for consideration . In addition , Respondent ' s motion to strike a part of the reply
brief and General Counsel's opposition thereto were referred to the Board for a ruling
thereon. In essence , Respondent contends -that that portion of General Counsel ' s reply
brief whereby General Counsel "objects and excepts to the Trial Examiner 's failure to make
a specific finding . that Respondent violated Section 8 ( a) (5)" constitutes a late excep-
tion. We agree . The last day for filing exceptions was April 15. General Counsel's brief
was dated April 24. As these exceptions are clearly late, we will grant Respondent's mo-
tion to strike that portion of the reply brief relating to these belated exceptions.
9 Respondent excepted to the Trial Examiner 's reliance on Lee's testimony as to the
efforts of Lee and U.S. Conciliator White to arrange further negotiating sessions after
February 26, 1962. Lee testified in great detail as to his contacts with White during this
period and as to what White reported to him. Inasmuch as Lee's testimony as to what
White told him was received in evidence without objection by Respondent 's counsel, we find
no merit in this exception.
144 NLRB No. 26.