Cristal USA, Inc.

National Labor Relations Board - Board Decisions

May 18, 2017

365 NLRB No. 82 (N.L.R.B. 2017)

365 NLRB No. 82
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Cristal USA, Inc. and International Chemical Work-
ers Union Council of the United Food & Com-
mercial Workers International Union, AFL–
CIO, CLC, Petitioner. Case 08–RC–184947
May 18, 2017
ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
The National Labor Relations Board has carefully con-
sidered the Employer’s request for review of the Acting
Regional Director’s Decision and Direction of Election,
as well as the Petitioner’s opposition brief. The request
for review is denied as it raises no substantial issues war-
ranting review.1

1 In denying review, we find that the Acting Regional Director cor-
rectly applied the two-step framework set out by the Board in Specialty
Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934, enfd.
sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552
(6th Cir. 2013), in finding the petitioned-for unit of Plant 2 North pro-
duction employees to be an appropriate unit. Under that framework,
which adheres to well-settled precedent that the Board need find “only
that the unit proposed is an appropriate, rather than the most appropri-
ate unit,” Specialty Healthcare, supra at 940 (emphasis in original), the
Board first determines whether the petitioned-for employees are readily
identifiable, and whether they share a community of interest. In ap-
praising community of interest, the Board applies the following tradi-
tional factors: whether the employees are organized into a separate
department; have distinct skills and training; have distinct job functions
and perform distinct work, including inquiry into the amount and type
of job overlap between classifications; are functionally integrated with
the Employer’s other employees; have frequent contact with other
employees; interchange with other employees; have distinct terms and
conditions of employment; and are separately supervised. If the Board
finds that the petitioned-for unit has a community of interest, the Em-
ployer has the burden of demonstrating that the additional employees it
seeks to include share an “overwhelming community of interest” with
the petitioned-for employees, such that there “is no legitimate basis
upon which to exclude” the additional employees from the unit. Spe-
cialty Healthcare, supra at 944–946.
In this case, the petitioned-for Plant 2 North production employees
work in a plant separate from other production employees, have skills
and specialized training specific to producing a particular chemical, and
produce that chemical as a distinct part of the Employer’s production
process. They are commonly supervised by the Plant 2 North Manufac-
turing Superintendent. Although they share some facility-wide terms
and conditions of employment with other employees, their actual con-
tact and interchange with other employees is minimal. They do not
temporarily interchange with Plant 2 South production employees.
Their performance of voluntary warehouse overtime work is sporadic
and employees outside the petitioned-for unit do not reciprocate by
performing Plant 2 North production work. See Macy’s, Inc., 361
NLRB No. 4, slip op. at 10 (2014) (temporary interchange and one-way
interchange are accorded little weight in community of interest anal-
yses), enfd. 824 F.3d 557 (5th Cir. 2016). As for contact between the
Dated, Washington, D.C. May 18, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN MISCIMARRA, dissenting.
I would grant review of the Regional Director’s find-
ing that a bargaining unit consisting of Plant 2 North
production employees is appropriate, excluding Plant 2
South production and warehouse employees, on the basis
that the Regional Director applied Specialty Healthcare
in upholding the exclusion of the latter employees, and I
believe Specialty Healthcare was wrongly decided for
the reasons expressed in Macy’s, Inc., 361 NLRB No. 4,
slip op. at 22–33 (2014) (Member Miscimarra, dissent-
ing). Additionally, although Plant 2 North and Plant 2
South are located on opposite sides of a public road, and
each facility has a separate manufacturing superintendent
(both of whom report to the same operations manager),
both facilities process titanium dioxide, and most of
Plant 2 North’s production of another chemical, titanium
tetrachloride, is subject to further processing in Plant 2
South. To facilitate the processing of these chemicals,
Plant 2 North and Plant 2 South are connected by an un-
derground system of pipes. Plant 2 North and Plant 2
South are therefore functionally integrated. Moreover,
the production employees in Plant 2 North and Plant 2
South wear the same uniform, use similar protective
equipment, attend the same orientation program, and
receive the same employee benefits with regard to health
insurance, retirement, holiday, and vacation, among other
things. The Regional Director’s Decision and Direction

Plant 2 North and South production employees, it is limited to coordi-
nating activities during periodic downtime or shutdown operations.
Contact between the Plant 2 North production employees and the
maintenance employees is similarly sporadic, limited to occasional on-
site equipment repairs of production machinery, and coordinating to
ensure that electricity is cut off to equipment that is being repaired.
Finally, the Plant 2 North production employees have separate day-to-
day supervision. They are also under an entirely different chain of
command than the maintenance and warehouse employees. We accord-
ingly find that the petitioned-for production workers share a community
of interest. Further, we find that the Employer has not established—
and our dissenting colleague has not shown by the facts he cites—an
overwhelming community of interest between the petitioned-for em-
ployees and employees outside the unit. We therefore find the peti-
tioned-for employees to constitute an appropriate unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
of Election in Cristal II (Case 8–RC–188482) further
indicates some interchange between Plant 2 South pro-
duction employees and Plant 2 South warehouse em-
ployees, and all employees working in production posi-
tions in Plant 2 North and Plant 2 South and warehouse
positions in Plant 2 South are affected by any startup or
shutdown of operations. See Cristal USA, Inc., 365
NLRB No. 74 (2017) (Member Miscimarra, dissent-
ing). In these circumstances, I would grant review on the
basis that substantial questions exist regarding whether
the unit consisting exclusively of Plant 2 North produc-
tion employees erroneously disregards or discounts the
community of interests these employees share with Plant
2 South production and warehouse employees and pro-
motes instability by creating a fractured or fragmented
unit. See Macy’s, Inc., supra, slip op. at 27–29 (Member
Miscimarra, dissenting); DPI Secuprint, Inc., 362 NLRB
No. 172, slip op. at 10–18 (2015) (Member Johnson,
dissenting).
Dated, Washington, D.C. May 18, 2017
______________________________________
Philip A. Miscimarra, Chairman
NATIONAL LABOR RELATIONS BOARD