Towmotor Corp.

National Labor Relations Board - Board Decisions

May 26, 1970

182 N.L.R.B. 774 (N.L.R.B. 1970)

774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tow motor Corporation and International Union of Operat-
ing Engineers , Local 589, AFL-CIO, Petitioner Case
8-RC-7624
May 26, 1970
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held at Cleveland, Ohio, before Hearing Officer
Vaughn C Sterling Following the hearing, and pursuant
to Section 102 67 of the National Labor Relations Board
Rules and Regulations and Statements of Procedure,
Series 8, as amended, the Regional Director transferred
the case to the National Labor Relations Board for
decision Thereafter, briefs were timely filed by the
Employer, the Petitioner,' and the Intervenor,2 and the
Employer and the Intervenor filed reply briefs, all of
which have been duly considered
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 threemember panel
The Board has reviewed the Hearing Officer' s rulings
made at the hearing and finds that they are free from
prejudicial error They are hereby affirmed
Upon the entire record in this case, the Board finds
I The Employer is engaged in commerce within the
meaning of the Act, and it will effectuate the purposes
of the Act to assert jurisdiction herein
2 The labor organizations involved claim to represent
certain employees of the Employer
3 No question affecting commerce exists concerning
the representation of certain employees of the Employer
within the meaning of Section 2(6) and (7) of the Act,
for the following reasons
The Petitioner, IUOE, seeks an election in a unit
of powerhouse employees (heating +plant operators and
heating plant helpers) at the Employer's new Mentor,
Ohio, plant The Employer and the Intervenor UAW
contend, inter alia, that their current contract, as clarified
by their supplemental agreement of April 16, 1969, is
a bar to this proceeding
For some years, the Intervenor UAW has been recog-
nized as the collective-bargaining representative of the
production and maintenance employees at the Employ-
er's three manufacturing plants in Cleveland, Ohio In
1966, the Employer began construction of a new plant
in Mentor, Ohio, about 17 miles distant from the Cleve-
land plants, and when the Mentor plant becomes fully
' International Union of Operating Engineers Local 589 AFL-CIO
herein called IUOE
4 International Union United Automobile Aerospace and Agricultural
Implement Workers of America UAW herein called UAW was permit
ted to intervene at the hearing on the basis of its current contract
covering the Employer s production and maintenance employees
operational in late 1970, the Cleveland plants will be
closed down On February 9, 1966, the Employer and
the Intervenor UAW executed a contract, effective until
October 1, 1967, in which the Employer agreed, inter
alia to recognize the Intervenor as the bargaining agent
of its production and maintenance employees at any
new plant located within 25 miles of one of the existing
Cleveland plants On November 8, 1967, the Employer
and the Intervenor entered into a successor agreement,
effective until October 1, 1970, whereby employees at
the new Mentor plant were recognized as part of the
bargaining unit and were included in the unit designation
By a memorandum of agreement, executed April 16,
1969, the basic agreement of 1967 was supplemented
to provide six new job classifications with rates of
pay and job descriptions, and included therein were
the classifications of heating plant operator and heating
plant helper
On July 2, 1969, the Employer began to assign the
first of its approximately 1,100 employees from its exist-
ing Cleveland plants to the new Mentor plant As of
the date of the hearing, October 1, 1969, the Employer
had a complement of 33 employees at the Mentor plant,
including the 9 powerhouse employees sought by the
Petitioner, namely 6 heating plant operators and 3 heating
plant helpers '
The powerhouse at the Mentor plant is located in
a building about 600 feet from the main plant The
powerhouse employees are encompassed within the plant
engineering occupational group, and thus are in the
same category as the Employer's electricians, mainte-
nance men, grounds and service employees, power
sweepers, and janitors The heating plant operators,
who are licensed stationary engineers, and the heating
plant helpers are, insofar as the first shift is concerned,
under the supervision of Ken Hawkins, a utility foreman,
who is also a licensed stationary engineer In this connec-
tion, the record discloses that Ken Hawkins also super-
vises employees in categories other than heating plant
operators and helpers The powerhouse employees are
currently engaged in checking boilers and equipment
at the powerhouse, but when the plant becomes fully
operational in late 1970, they will maintain the steam,
heat, and air lines in the main plant They are, like
the production and maintenance employees, required
to punch a timeclock, and their rates of pay are within
the range of those of the production and maintenance
employees The powerhouse employees and the produc-
tion and maintenance employees are covered by the
same pension, life insurance, medical benefit, and supple-
mental unemployment benefit plans There does not
appear to be any employee interchange between the
powerhouse employees and the production and mainte
nance employees
Under the foregoing circumstances, we find, initially,
that the Employer's Mentor plant, in its present state
of operation, and as planned when the Employer's Cleve-
3 The six heating plant operators are new hires at the Mentor plant
The remaining 27 employees including the 3 heating plant helpers
were transferred from the Cleveland plants
182 NLRB No 116
TOWMOTOR CORPORATION
land plants are closed , is merely a relocation and consoli-
dation of the Cleveland installations . Moreover , we view
the powerhouse employees at the new Mentor plant
to be normal accretions to the existing production and
maintenance bargaining unit such as the parties to the
overall collective -bargaining contract necessarily con-
templated might beadded to the regular operation of
the plant . They were expressly included in the, coverage
of the contract by written agreement before the IUOE
made any claim to represent them . The instant petition
was filed September 11, 1969, within the insulated period
of the November 8, 1967, agreement.
Our colleague vigorously insists that the case before
us must be treated just like a case involving an entirely
new production enterprise , with no prior bargaining histo-
ry for any of the employees ; or like a case involving
an employer who purchases, additional facilities, and
then attempts to merge them into a single unit, despite
each facility ' s separate history of bargaining with a
different union. Of course , if we thought the situations
were analogous , we would reach the same conclusion.
But we don't. i
Here , the Mentor plant was constructed to house
three previously separate production facilities . All pro-
duction and maintenance employees at the three locations
have for some years been represented by the UAW,
and the old plants will be closed when the operations
and employees have been located and consolidated at
Mentor . By successive contracts starting more than 4
years ago, the Employer and the incumbent Union sought
to stabilize the employees ' employment situation during
the transition and to assure coverage at the new plant
for the large number of previously represented employ-
ees; they also, by the contract supplement of April
1969, included a small number of new maintenance
classifications- of employees required by the relocation.
Because of their integral relationship to the main plant,
based on the factors cited above , and their explicit
coverage under the contract , our finding permitting accre-
tion of the powerhouse employees tracks normal unit
determinations. We are not persuaded by our colleague's
views, therefore , to refuse to apply our normal conttact-
bar principles and upset the arrangements agreed upon
by the parties , merely , because the Petitioner requests
us to do so in a petition filed 5 months later.
We conclude that the basic 1967 contract, as supple-
mented on April 16, 1969, is a bar to this proceeding,
and we shall, accordingly , dismiss the petition.4
ORDER'
It is hereby ordered that the petition filed herein
be, and it hereby is , dismissed.
MEMBER FANNING , dissenting:
As Petitioner aptly stated at the hearing in this case:
"What is at issue is the right of employees at an entirely
Firestone Synthetic Fibers Co , 171 NLRB No 133, Arrow Company,
a Division of Cluett, Peabody & Co , Inc , 147 NLRB 829; Solar
Manufacturing Company, 110 NLRB 1,188
775
new facility doing work never , performed for this
Employer before , to obtain a self-determination election
under the Act." My colleagues deny this right.
Initially my colleagues find that these powerhouse
employees at the Mentor plants -where the three Cleve-
land facilities comprising ' the existing bargaining unit
are scheduled to be relocated by the end of 1970-
are "normal accretions " such as the parties to the
existing bargaining contract "necessarily contemplated
might be added to the regular operation of the plant,"
even though the plants in question had never had power-
houses. This conclusion would appear to be at odds
with the Board's decision in Consolidated Edison' where
the purchase of three power plants and,the employment
of their employees was found not to constitute normal
accretion to a public utility already , supplying electric
power , gas, and steam to consumers.
Having made a finding of normal accretion , my col-
leagues note the express inclusion of these classifications
of heating plant operator and heating plant helper in
the current contract before the Petitioner claimed to
represent them ,, and proceed to find the Intervenor's
contract a bar . Not only was the inclusion of these
classifications prehire as to the employees involved,
but these were powerhouse employees not theretofore
employed by this Employer, employees of a type recently
termed "a functionally distinct group of employees to
whom the Board customarily grants separate representa-
tion . "' As there is no showing that these powerhouse
employees , who could constitute a separate unit , signified
their voluntary selection of the Intervenor after their
employment , the contract though purporting to include
them cannot bar processing ' of the Petitioner ' s request
to represent them ." In the absence of "normal accretion"
the Board normally recognizes that the parties to a
contract are not entitled to extend the coverage of
their contract without consent of the employees affect-
ed.9
. Thus, I return to the crucial issue :, accretion. My
colleagues cite no precedent for their , conclusion that
a powerhouse is a "normal accretion ." To bolster their
conclusion they analyze the evidence as they would
in a severance case where powerhouse employees have
Six of the nine who make up this group were newly hired because
the Employer previously had no need for licensed operators at its
existing Cleveland facilities and no employee could qualify as a state
licensed stationary engineer for the new boilers at Mentor The three
helpers were transferred from production jobs, having had boiler experi-
ence in the Navy or elsewhere The helper job is in the line of progression
for an operator ' s job, after requisite experience and passing the written
state examination.
" Consolidated Edison Company of New York, Inc , 132 NLRB 1518,
1521
International Paper Company , 171 NLRB No 89
See Pullman Industries , Inc , 159 NLRB 580, 582-583, where the
Board observed that "even where a contract expressly covers employees
to be hired after execution of the contract at new facilities " the contract
is no bar in the absence of accretion
" See Beacon Photo Service , Inc , 163 NLRB 706, specifically the
discussion of the second issue in the case at p 706
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
long been bargained for as part of a plantwide unit "'
They admit the lack of interchange between these power-
house employees and the production and maintenance
employees , as well as the essentially separate supervision
of the powerhouse group by a licensed stationary engi-
neer ," but on the issue of maintenance work that may
be done by powerhouse employees in the main plant
the sense of the record testimony is telescoped What
the record actually shows as to possible plant work
by powerhouse employees is that they had not at the
time of hearing been used on maintenance work at
Mentor , that they would have the "responsibility" to
go into the plant to make sure that steam and airlines
from the powerhouse were functioning properly, but
that other craftsmen like electricians and maintenance
men will do actual maintenance work , such as electrical
repairs and welding upon such lines when in operation,
and that the heating plant operators , one of whom
must be present in the powerhouse at all times, are
not sufficiently numerous to permit their spending signi-
ficant time in the plant In fact , it is admitted that
for 6 out of 7 days in a workweek there will be "only
one licensed stationary engineer in the presence of the
boilers "
The Board ' s historic recognition of powerhouse
employees as an appropriate unit has been based upon
their separate location, "radically different " duties'12
longer workweek , and similar differentiating consider-
ations, rather than upon punching "a" timeclock, being
paid "within the range of production and maintenance
employees ," and having the same fringe benefits-those
tireless common denominators upon which the majority
relies If, under present Board standards , these power-
house employees are to have any opportunity for self
determination , now, when they have had no representa-
tion in an overall unit, is the time 13 In the present
"' See Mobil Oil Corporation 169 NLRB where severance from
20 years of bargaining in a production and maintenance unit was in
issue The Board majority dismissed despite separately located and
supervised powerhouse employees I dissented noting the departure
from overwhelming Board precedent beginning with the earliest Board
decisions involving powerhouse groups
11 This engineer whose title is utility foreman interviewed the six
heating plant operators before hire He supervises these employees
on the day shift and is on call for the third shift (Production employees
at Cleveland work only two shifts) He reports directly to the plant
engineer as do-or will-the supervisors for electricians for mainte
nance men for grounds and service men and for power sweepers
and janitors The additional employees to be supervised by the utility
foreman at a later date appear to be in the classification serviceman
heating refrigeration & ventilation included in the April 16 1969
contract amendment (who it is said will have a locker in the power
house) water treatment people who will work in the waste treatment
state of Board law on severance it is doubly unfair
to deny them self determination by finding accretion '"
I cannot fathom why my colleagues are willing to
treat headquarters office clericals located across the
street from a company plant as so distinctive from
that plant's existing office clerical unit as to vouchsafe
them not just self-determination but a separate unit,'3
but are unwilling to accord powerhouse employees locat-
ed 600 feet away from a plant, in their own building,
with their own timeclock and washup facilities, the
choice of bargaining with or apart from plant employees
having a whole spectrum of distinct duties not usable
in the powerhouse
I would grant the powerhouse group here sought
a self-determination election, putting both the Petitioner
and the Intervenor on the ballot
plant adjacent to the powerhouse and a pipefitter classification neither
of the latter being mentioned in the amendment I submit that the
record testimony on these prospective employees is too nebulous to
support the majority conclusion that the utility foreman also supervises
plant employees
z The Warfield Co 6 NLRB 58
See International Paper Company 171 NLRB No 89 referred
to above The cases relied on by my colleagues are distinguishable
Firestone Synthetic Fibers Co 171 NLRB No 133 involved a production
and maintenance unit whose maintenance employees spent 95 percent
of their time in production areas Added to the unit were 50 new
hires for maintenance work and 31 formerly employed on the premises
by a subcontractor The entire maintenance force as augmented was
subject to multicraft supervision I agreed with my colleagues that
the added maintenance employees were clearly normal accretions
to the existing production and maintenance unit Arrow Company
147 NLRB 829 involved a relocation of two warehouses with additional
employees but no new skills at all In Solar Mfg Co 110 NLRB
1188 the express contract inclusion of toolmakers and maintenance
machinists was found normal accretion but this inclusion was not
prehire and there is no indication in the decision that the added employees
had separate housing and supervision
" Methinks my colleagues protest too much when they emphasize
the timing of this petition as too late to prevent contract bar With
respect to the hire of the employees concerned it was obviously timely
By this emphasis on untimeliness they apparently hope to evade the
true issue that if the group enveloped by the contract is not a normal
accretion contract bar rules do not apply But taking at face value
their protestations of the unexceptional sanctity of contract bar I
shall await with interest their reaction if the Petitioner files a new
petition timely with respect to the imminent expiration of the contract
on October I 1970 Will my colleagues then permit severance in
fairness to new employees with distinct skills-as their formal ruling
here would seem to require'
15 See Patterson Sargent Division of Textron Inc 173 NLRB No
203 The division headquarters office clerical group there granted its
own unit received data from the office clericals in the adjacent plant
In denying accretion and directing the only Union seeking them to
go to an election the Board noted that the group included clerical
classifications not represented in the office clerical unit at the plant
were separately supervised and were not interchanged with office
clericals at the nearby plant