NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,414, THE LUNDY PACKING COMPANY, INC. and UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 204, AFL-CIO et al., (Sep. 02, 1994), National Labor Relations Board, (Sep 2, 1994)
THE LUNDY PACKING COMPANY, INC. and UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 204, AFL-CIO et al.
314 NLRB No. 172.Case No. 12-RC-7606. September 2, 1994
Before Gould, Stephens and Devaney.
Bargaining Units--Production Maintenance Unit--Quality Control Lab Techs.--Quality assurance/lab technicians and temporary management trainees, who spent approximately 80 percent of their time on an employer’s production floor performing quality assurance testing, were not to be included in the employer’s bargaining unit consisting of production and maintenance employees. Although those employees performed production-related functions and had some contact with unit employees, they were separately supervised, were paid differently, did not interchange with unit employees and had infrequent and insubstantial contact with unit employees. Consequently, challenges to their ballots that were cast in a union representation election were upheld. Section 9(b).
Back reference: ¶2620.749.
Bargaining Units--Production Maintenance Unit--Engineers and Trainees.--An employer’s industrial time-study engineer and industrial engineer trainees were not included in a bargaining unit consisting of the employer’s production and maintenance employees and, consequently, ballots cast by the engineer and trainees in a union representation election were not counted. The engineer and trainees did not share a sufficiently strong community of interest with unit employees because significant amounts of their time was spent away from the employer’s plant, they did not interchange with unit employees, were compensated differently and their interests were separate and distinct. Section 9(b).
Back reference: ¶2620.749.
From Text of Board’s Decision
Having carefully considered the entire record [1] we have decided to: (1) grant Joint Petitioners’ request for review with respect to the Regional Director’s finding that the petitioned-for unit of production and maintenance employees also must include the quality assurance/lab technicians, temporary management trainees I, lab technicians, and industrial engineers and, on review, reverse the Regional Director’s decision overruling the challenges to their ballots; (2) deny the Joint Petitioners’ request for review of the Regional Director’s decision overruling the challenge to the ballot of the waste management operator and deny the Employer’s request for review of the Regional Director’s overruling of the Employer’s objections to the election for the reasons stated in his supplemental decision; and (3) find it unnecessary to resolve the challenge to the ballot cast by the receiver because, in view of the above determinations, his ballot no longer is determinative of the election results.
The Employer is engaged in the processing and sale of pork and pork products at its Clinton, North Carolina facility. The Employer’s facility consists of two plants; the first contains the processing and shipping areas; the second contains the kill and cut areas. The two plants are connected via a tunnel where the pork products from plant two are conveyed to plant one for further processing and shipment. A hog barn, where hogs are housed for slaughter, adjoins plant two. A separate garage building is physically located between the two plant buildings, and the waste water treatment plant and warehouse are located behind the hog barn. All employees enjoy the same benefits, and all are subject to drug testing and to the Employer’s rules and employee handbook. There are no specific plantwide shifts; each department sets it own shifts.
Placement of the Quality Assurance/Lab Technicians, Temporary Management Trainees I, Lab Technicians, and Management Trainees
Quality assurance/lab technicians and temporary management trainees I spend approximately 80 percent of their time on the production floor taking a variety of samples of the working surfaces to which the product will be exposed, testing the housekeeping and cleanliness of the facility, performing inspections, and obtaining weights and temperature of hogs and products. The remaining 20 percent of their time is spent recording the results of their inspections in the office. Lab technicians (a classification separate from that of quality assurance/lab technicians) spend approximately 85 percent of their time in the laboratory doing test, and the remainder working around the production areas gathering samples. They also prepare paperwork documenting test results. Production and maintenance employees perform the same type of checks on meat as do the quality assurance/lab technicians, temporary management trainees I, and lab technicians; all fill out the same reports.
Quality assurance/lab technicians, temporary management trainees I, and lab technicians (collectively referred to as technicians) are paid on a coefficient basis, which is not an hourly basis, and record their time on a timesheet. In contrast, production and maintenance employees are hourly paid and punch a timeclock. Technicians do not interchange with production and maintenance employees. Technicians are supervised by the quality assurance/lab manager, under the direction of the research and development director. With respect to transfers, five of the seven current quality assurance/lab technicians and temporary management trainees I transferred directly from production positions, and one transferred from an office position. Technicians are not required to have a college education or technical education. Employees take a math or aptitude test when transferring to a quality-control position. Four employees stated that when they transferred from production to quality assurance/lab technician positions, they received 6 months of on-the-job training. The lab technicians had been assigned to clerical positions before being placed in the lab technician classification; one has an associate degree in accounting, and the other has no education beyond high school. Lab technicians receive several weeks of on-the-job training. Quality assurance/lab technicians and temporary management trainees I are cross-trained and substitute for lab technicians when the lab technicians are absent.
A petitioned-for unit need only be an appropriate unit for purpose of collective bargaining, not the most appropriate unit, [2] and in representation proceedings, the unit sought by the petitioner is always a relevant consideration. [3] Here, we find, contrary to the Regional Director, that the technicians do not share such an overwhelming community of interest with the petitioned-for production and maintenance employees as to mandate their inclusion in the unit despite the Petitioner’s objections. The technicians are separately supervised, are paid differently than the petitioned-for employees, and interchange with each other but not with production and maintenance employees. Although technicians do perform some of the same function[s] as performed by the petitioned-for employees, the majority of their functions, albeit related to the production process, are generally different from those performed by production and maintenance employees. In addition, although there is some contact between technicians and the petitioned-for employees, this contact is not so substantial and regular as to compel their inclusion in the unit.
In Penn Color, [4] the Board found appropriate the petitioned-for unit of production and maintenance employees, excluding quality control and development technicians. There, despite common vacation policies, holidays, pension plans, sick days, and “some” contact, the Board found that in view of their separate supervision, absence of the interchange, option of being paid on a salaried basis, and different requirements regarding educational background and on-the-job training, as well as the fact that the petitioner did not seek to include them in the unit, the quality control and research and development technicians’ community of interest with production and maintenance employees was not sufficient to warrant including them in the unit. In Beatrice Foods, [5] the Board sustained challenges to the ballots of quality control employees, despite the petitioner’s urgings that those ballots be counted. The Board found that as they were separately supervised, separately located, and did not have regular contact with production employees, quality control employees did not share a sufficient community of interest with unit employees to enable them to be included in the unit. [6]
We are not unmindful that the Board has generally included quality control employees in production and maintenance units when a union has requested them, finding that their placement in the same unit does not create a conflict of interest. [7] Here, there are factors present that would support adding the disputed employees to the petitioned-for unit, i.e., they perform production-related functions, have some contact with unit employees, have similar benefits and holdidays, are not required to have special education or training, and some were formerly employed in production positions. Consequently, a unit including these employees might also have been an appropriate unit had such a unit been sought by the Petitioners. However, because, as previously stated, the disputed employees have separate supervision, are paid differently, do not interchange with the production and maintenance employees, have generally different functions and have insubstantial and iregular contact with the requested production and maintenance employees, and as no labor organization is seeking to represent a broader unit including the disputed employees, we conclude that the quality assurance/lab technicians, temporary management trainees I, and lab technicians do not share such an overwhelming community of interest as to require their inclusion in the petitioned-for production and maintenance unit. Penn Color, supra. [8]
Industrial Engineer and Industrial Engineer Trainees
The Employer’s one industrial engineer and two industrial engineer trainess (collectively referred to as industrial engineers) do time studies. In performing their time studies, industrial engineers observe production employees, record the time it takes them to perform production functions, and make calculations to obtain standards for classifications and products. They also prepare layouts for new departments and/or new functions. While on the production floor, industrial engineers speak with production employees inquiring about any changes in their jobs since the prior audit, and eliciting any recommendations regarding the flow of the jobs. Industrial engineers spend half of their time in their office, located away from the production floor and the other half in and around the production areas obtainng data. Although the data they generate affects the amount of wages and incentive pay received by production employees, industrial engineers make no recommendations regarding whether the standards calculated should result in a pay increase or incentive pay.
Industrial engineers are under the supervision of the senior and chief industrial engineers, who in turn report to the director of research and development. None of these three supervisors or managers supervise any production and maintenance employees. There are no education or technical prerequisites for becoming an industrial engineer; they are not required to possess any college education, and, at most, are required to take a few weeks of on-the-job training and pass a “common sense” test. they are compensated differently from production and maintenance employees. [9] There is no interchange between them and production and maintenance employees. Two industrial engineers were temporarily assigned to perform production tasks in a newly created production area until the Employer placed production employees in that area. These duties encompassed approximately 2 hours per week for 2 months. They also performed “leaker” checks on an as-needed basis, identical to those performed by production employees. Of the three industrial engineers employed at the time of the hearing, two had transferred from production and maintenance positions.
The Board has consistently found that time study employees are not supervisory, managerial, or confidential employees. [10] Time-study employees are often excluded from production and maintenance units by the parties, [11] or found to be technical employees and either excluded from production and maintenance units under Sheffield Corp. [12] or inculded in a separate technical unit with other technical employees, [13] or given a separate unit. [14] In the instant case, we find, contrary to the Regional Director, that industrial engineers do not share a sufficiently strong community of interest with production and maintenance employees such that their inclusion in the petitioned-for unit is mandated. Indeed, the interests of the industrial engineers are separate and distinct from the interests of the production and maintenance employees. [15] Industrial engineers are separately supervised; spend half of their time in their office, which is located away from the prduction floor, do not interchange with production and maintenance employees; and they are differently compensated. Further, industrial engineers primarily perform different fucntions from those performed by production and maintenance employees, even though their functions are related to the production process in that they ensure that the Employer’s operations are carried out with maximum efficiency and at minimum cost. The occasional production tasks that industrial engineers may perform are only incidental to their primary function of calculating production standards, and there is no evidence that production employees ever perform the industrial engineers’ functions. Moreover, although they have some contact with production and maintenance employees, this contact is limited to occasional questions about the workflow and does not justify their inclusion in the unit.
As is the case with respect to the quality assurance/lab technicians, there are some factors here which would support finding appropriate a production and maintenance unit including industrial engineers, should the Joint Petitioners have sought such a unit. Thus, industrial engineers perform production-related functions, have some contact with production and maintenance employees, share the same benefits and holidays, receive on-the-job training, and are subject to the same personnel rules. As noted above, however, the petitioned-for unit need only be an appropriate unit, and in this case there is no labor organization seeking to represent a broader unit including industrial engineers. We conclude that industrial engineers do not share a close community of interest with the petitioned-for production and maintenance employees as to require their inclusion in the unit. See Penn Color, supra.
In summary, we reveerse the Regional Director’s supplemental decision with respect to his finding that the petitioned-for unit must also include quality assurance/lab technicians, temporary management trainees I, lab technicians, and industrial engineers, and we sustain the challenges to those employee ballots. We deny the Joint Petitioners’ request for review with respect to the inclusion of the waste management operator. Fianlly, we find it unnecessary to consider the Joint Peitioners’ request for review with respect to the receiver’s alleged status as a guard. In light of our Decision sustaining the challenges to the ballots of the disputed employees listed above, we find it unnecessary to resolve the challenge to the receiver’s ballot as his vote is not determinative of the election results.
[Dissent]
Member Stephens, dissenting: Contrary to the majority, I affirm the Regional Director’s determination that the Petitioners’ challenges to the ballots of the quality assurance/lab technicians and lab technicians (QALTs) and the industrial engineer and industrial engineer trainees (IEs) should be overruled. The Board has routinely included quality control employees in production units when a community of interest between the two groups has been shown to exist. Blue Grass Industries, 287 NLRB 274, 299 (1987); Owens-Illinois, Inc., [1994 CCH NLRB ¶26,640] 211 NLRB 939, 941 (1974); W. R. Grace & Co., 202 NLRB 788, 789 (1973). This is particularly true where it has been established that quality control employees perform functions that are integral to the production process in addition to sharing a community of interest with the production employees. Moreover, the Board has included such employees in the unit on the basis of their community of interest without regard to the petitioning labor organization’s desire to exclude them. W.R. Grace & Co., supra. See also, Blue Grass Industries, supra, (quality control employees included in the production and maintenance unit contrary to the General Counsel’s position; unclear which party challenged their ballots). Cf. Beatrice Foods, 222 NLRB 883 fn. 3 (1976) (challenges to ballots of quality control employees sustained in view of lack of community of interest; unclear which party challenged their ballots).
In the instant case, the majority conceded that the QALTs share a community of interest with other employees in the prduction unit. Moreover, it is given that the QALTs, who spend 80 percent of their time on the production floor, perform an integral function in the meat processing and packing operation. Notwithstanding the foregoing, the majority sustains the challenges to the QALTs’ ballots in large part because the Petitioners do not seek to represent them. The majority takes the position that the QALTs can be included, over the Petitioners’ objection, only when they have an “overwhelming” community of interest with the other unit employees. The only case cited for this proposition is Penn Color, 249 NLRB 1117 (1980) and that case does not set forth so stringent a test.
In sum, my colleagues disregard the precedent cited above and derogate the Board’s policy against fragmenting production and maintenance units.
Similarly, a community of interest has been shown to exist between the IEs and the production unit employees. IEs spend 50 percent of their time on the plant floor and perform some unit work in addition to having the same holidays and benefits. For the reasons set forth by the Regional Director, I would include them in the unit as well.
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