Consolidated Papers, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1356 (N.L.R.B. 1985)

1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consolidated Papers , Inc. and Office and Profes-
sional Employees International Union , Local 95,
AFL-CIO, Petitioner . Case 30-UC-193.
29 March 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND HUNTER AND
DENNIS
Upon a petition filed under Section 9(c) of the
National Labor Relations Act, a hearing was held
before Hearing Officer Rocky L. Coe on 5 May
1982. After the hearing, and pursuant to Section
102.67 of the Board's Rules and. Regulations, the
Regional Director for Region 30 transferred the
case to the Board for decision The Petitioner, the
Employer, and the attempted Intervenors filed
briefs. i
The Board has reviewed the rulings of the hear-
ing officer made at the hearing and finds that they
are free from prejudicial error. They are affirmed.
On the entire record in this proceeding, the
Board finds:
1. The Employer, a Wisconsin corporation, is en-
gaged in the manufacture of paper products at its
facility in Wisconsin Rapids, Wisconsin, where,
during calendar year 1981, it shipped goods valued
in excess of $50,000 to and from points located out-
side the State of Wisconsin. We find the Employer
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The parties stipulated, and we find, that Office
and Professional Employees International Union,
Local 95, AFL-CIO, the Petitioner, is a labor or-
ganization within the meaning of Section 2(5) of
the Act The Petitioner claims to represent certain
employees of the Employer
The Petitioner seeks by its unit clarification peti-
tion to add to the unit described below approxi-
mately four merchant account representatives, four
merchant account representative trainees, three
merchant account regional supervisors, and one ad-
ministrative assistant. The Employer contends that
none of those classifications is properly included in
the certified unit which the Petitioner presently
represents. That unit is described in the most recent
collective-bargaining agreement's recognition
clause, as follows:
The Company recognizes the Union as the ex-
clusive collective bargaining agent as to
wages, hours, working conditions, and other
conditions of employment for all eligible em-
' The hearing officer denied the motion to intervene filed by employ-
ees S M Allen, et al on the grounds that they lacked standing and that
the Employer adequately represented their position
ployees engaged in office and clerical work in
the offices of Wisconsin Rapids Division,
Kraft Division, Paperboard Products Division,
Main Office, Consoweld Corporation, and
Consoweld Distributors, Inc. and any succes-
sors or assigns, all of which are located in the
city of Wisconsin Rapids, Wood County, Wis-
consin; Biron Division and Research and De-
velopment Division, which are located in the
Village of Biron, Wood County, Wisconsin;
and all eligible employees engaged in office
and clerical work and employees classified as
Technicians in the offices of the Wisconsin
River Division, located in the Village of Whit-
ing and the Township of Linwood, Portage
County, Wisconsin. The term "eligible em-
ployees" shall be defined as "hourly paid em-
ployees engaged in office and clerical work "
It is agreed that managerial, supervisory, pro-
fessional, technical (other than those covered
by this agreement), and confidential employees
as defined in the Labor Management Relations
Act of 1947 as amended, are excluded.
The history of collective bargaining between the
Employer and the Petitioner in Wisconsin Rapids
dates back to 1944, when the Union was first certi-
fied by the Wisconsin Employment Relations
Board after an election. Contracts between the par-
ties were successfully negotiated, with the most
recent contract extending from 1 June 1980
through 31 May 1982.2 The contracts have specifi-
cally covered only hourly paid employees. In July
1979, while the parties were operating under a con-
tract which had become effective 31 August 1978,
the petitioned-for section, composed of salaried
sales employees, was transferred from the Employ-
er's Chicago facility to its main office in Wisconsin
Rapids, with some of the employees coming from
Chicago and some of the jobs being filled locally,
including from the bargaining unit, after a job post-
ing in the plant.
The Petitioner filed for unit clarification in Case
30-UC-153 seeking to clarify these new positions
into its existing unit. A hearing was held and, on 8
January 1980, the Regional Director issued his De-
cision and Order Granting Clarification of Bargain-
ing Unit and a Supplemental Decision and Order
Granting Clarification of Bargaining Unit on 15
2 The original unit was composed of "eligible employees in office and
clerical work at the Wisconsin Rapids Division and Main Office" of the
Employer Other office and clerical units from divisions in Biron , Atawa-
gonon, and Wisconsin River were added by election, as were comparable
groups from the Kraft Division, Consoweld Subsidiary, Research and
Development and the Paperboard Products Division Recently , a unit of
hourly paid technicians was added following an election and hourly paid
computer programmers were added by way of unit clarification
274 NLRB No 197
CONSOLIDATED PAPERS 1357
January 1980 3 The Regional Director found that
six customer service representatives4 were proper
accretions to the unit, but that two customer serv-
ice representative supervisors should be excluded
as supervisors, and that the Petitioner's motion to
amend its petition to clarify the unit by including
the position of administrative assistant was untime-
ly.
Subsequently, the Employer refused to bargain
with the Union about the terms and conditions of
employment of the six customer service representa-
tives and, on 13 November 1980, the Board issued
its Decision and Order granting the Motion for
Summary Judgment and ordering the Employer to
bargain with the Union. (253 NLRB 283 (1980).)
The United States Court of Appeals for the Sev-
enth Circuit, however, denied enforcement of the
Board's Order (670 F.2d 754 (1982)), finding that,
under Wallace-Murray Corp., 192 NLRB 1090
(1971), the petition should have been dismissed as
untimely because it was filed in midcontract and
sought to include, by clarification, employees who
the contract excluded from the unit.5 The court
did not reach the merits of the accretion issue, but
stated that the Union could seek unit modification
while negotiating a new contract, or alternatively
file for unit clarification at that time. On 12 April
1982 the instant petition was timely filed.
The Merchant Account Representatives
The Union's petition seeks to clarify into the cer-
tified unit 12 employees who are salaried and hold
the positions of merchant account representative (3
of whom are classified as merchant account region-
al supervisors), merchant account representative
trainee, and administrative assistant With the ex-
ception of the administrative assistant, these em-
ployees are essentially sales representatives who re-
ceive the initial contract for customers, take orders
for paper products, and generally follow through
on their customers' orders The merchant account
representatives are assigned to specific geographic
regions in which they are required to know their
customers' needs and maintain contact with them.
The merchant account representative position
description states that the purpose of the job is to
represent the Company "with respect to sales and
service of merchant papers to a variety of custom-
ers within a defined geographical area" and to
"maintain favorable contact with these accounts."
3 On 5 March 1980 the Board denied the Employer's request for
review of the Regional Director's Decision and Order and Supplemental
Decision and Order
4 Before the hearing in the instant case, the customer service represent-
atives' job titles were changed to merchant account representatives
s The employees sought through the clarification petition were sala-
ried, and the unit had been limited historically to hourly paid employees
These employees take orders, usually by telephone,
from customers and complete the requisite forms,
determining prices from a manual supplied to each
representative as well as to most customers The
representative also provides the customer with in-
formation regarding transportation and arranges
the transportation in accordance with the custom-
ers' wishes. On occasion, the representative will ac-
tively solicit orders from customers, particularly if
the Employer happens to be overstocked with a
particular item it wishes to sell rapidly. The repre-
sentatives are required to be thoroughly familiar
with the Employer's wide variety of products, in-
cluding 27 grades of paper available in many sizes,
weights, and finishings.
As noted, all the employees the clarification peti-
tion seeks are salaried, and their salaries are raised
according to merit reviews. Unit employees are
hourly paid and file timecards and their wages are
increased according to seniority rather than merit
Salaried employees are evaluated according to a set
of standards related to the achievement of sales-ori-
ented goals, while hourly paid unit employees are
judged on the basis of objective criteria set by the
contract but not considered in determination of
wages. In addition, the salaried employees' eligibil-
ity for promotion is determined by regular moni-
toring of their job performance. Hourly paid em-
ployees, on the other hand, are promoted solely on
the basis of seniority and standard minimum qualifi-
cations The merchant account group's salary range
is higher than the range of yearly wages the unit
employees earn, with merchant account representa-
tives earning from $19,240 to $35,620, as opposed
to $11,814 to $23,919 for unit employees.6
The merchant account representatives and the
unit employees share common medical insurance
and the same paid holidays but their other benefits
are different. Salaried employees do not work a
fixed number of hours and have no predetermined
amount of vacation time, while hourly workers
work a definite number of hours per week and are
entitled to 40 hours of personal leave per year. The
retirement plans, sick leave, and long-term disabil-
ity benefits of the two groups are also different.
The Union asserts that the merchant account
representatives are simply salesclerks who exercise
no discretion beyond the Employer's established
policies. The Union also contends that the repre-
sentatives conduct almost all of their business over
the telephone and that their discretion in sales is
limited to filling the customer's orders by use of a
price manual that is available to the customers as
6 Relatively few of the unit's 316 employees are at the higher end of
the wage scale
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
well. Like regular salesclerks, they type on a video
terminal keyboard utilizing employment skills
which are similar to those of many unit employees.
The Union also seeks to demonstrate that the
merchant account group shares a substantial com-
munity of interest with the bargaining unit employ-
ees by pointing out that they are in regular contact
with employees in production inventory control re-
garding production scheduling and with shipping
department employees concerning pool trucks; that
unit employees filled three of the five positions that
became vacant at the time that the merchant ac-
count group was transferred from Chicago to Wis-
consin Rapids; and that some unit positions involve
complexity and responsibility comparable to that of
the merchant account positions as well as daily
contact with customers. However, out of a unit of
approximately 316 employees, the Union, using its
own calculations, points to only 27 employees
whose jobs it argues require the same discretion
and independence as the merchant account job.
There is no interchange between unit employees
and the merchant account representatives, nor do
the two groups share common supervision or the
same benefits. They are evaluated and promoted
according to different procedures and different
standards and, while there is some functional inte-
gration, it appears to be minimal and limited to
dealing with only two categories of unit employ-
ees, those in production inventory control and
shipping.
In addition to the difference in working condi-
tions, benefits, and pay, the merchant account rep-
resentatives are required to utilize substantially dif-
ferent skills from those needed by unit employees.
Their main objective is to maximize the Employ-
er's product sales by developing cordial and lasting
relationships with their customers, to familiarize
themselves with the items to be sold in order to
best anticipate the needs of both the Employer and
the customer, and to manage each sale from its
origin at the point of initial inquiry, through the ar-
destination Their rate of pay is considerably
higher than that of the vast majority of unit em-
ployees and they are required to travel occasional-
ly to their customers' facilities to aid in the devel-
opment of a beneficial working relationship. They
are hired based on factors such as educational
background, sales experience, and sales aptitude.
Therefore, because we find that the merchant ac-
count representatives have a separate and distinct
community of interest from the bargaining unit em-
ployees, we shall deny the Union's petition to clari-
fy them into the unit.
The Merchant Account Trainees
The merchant account trainees are college grad-
uates training for outside sales positions by work-
ing for a time, usually exceeding 1 year, in the mer-
chant account department. Their duties while in
the merchant account department are essentially
the same as those of the merchant account repre-
sentatives, described above. We shall therefore
deny the Union's petition with respect to this clas-
sification.
The Administrative Assistant
The administrative assistant position was trans-
ferred from the Chicago operation, along with the
merchant account representatives, and is essentially
a part of that operation. Like the merchant account
positions, the administrative assistant is salaried and
works closely with the department manager. Be-
cause we find that the administrative assistant has a
greater community of interest with the other em-
ployees in the merchant account group than with
the unit employees, we shall dismiss the petition
with regard to that position as well.
Because we are finding that none of the positions
can be properly added to the unit, we find it un-
necessary to reach the issue of whether three of the
merchant account representatives are supervisors.
ORDER
rangement of transportation, to the product's final The petition is dismissed.