Lily-Tulip Cup Corp.

National Labor Relations Board - Board Decisions

Jun 26, 1969

177 N.L.R.B. 71 (N.L.R.B. 1969)

LILY-TULIP CUP CORP.
Lily-Tulip Cup Corporation and Local Union 453,
International Brotherhood of Electrical Workers,
AFL-CIO, Petitioner . Case 17-RC-5816
June 26, 1969
DECISION ON REVIEW
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On November 29, 1968, the Regional Director for
Region 17 issued a Decision and Direction of
Election in the above-entitled proceeding in which he
found appropriate a unit of maintenance employees
at the Employer ' s Springfield , Missouri , facility,
including therein employees of the Maintenance,
Plant & Grounds , and Powerhouse Departments, as
requested by the Petitioner, as well as machine
attendants assigned to a number of production
departments , and rejecting the Employer's
contention that because of the integration of its
operations , a maintenance unit was inappropriate.
Because of his substantial enlargement of the
requested unit, the Regional Director provided the
Petitioner opportunity to submit , within 10 days of
his Decision , additional showing of interest to
support an election in the enlarged unit. On
December 10, the Employer, having been advised
the previous day that the Petitioner had submitted
an adequate showing of interest , filed with the
Regional Director a request for administrative
determination as to whether said showing was
obtained subsequent to the date of the hearing
herein , September 6, 1968. The Regional Director
denied such request on December 19.
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and
Regulations , Series 8 , as amended , the Employer
filed a timely request for review of the Regional
Director ' s Decision on the grounds that he made
factual findings which are clearly erroneous and
that, in making his unit finding , he departed from
officially reported precedent . The Employer also
filed a separate request for review of the Regional
Director ' s ruling on its request for administrative
determination.
By telegraphic order dated January 28, 1969, the
National Labor Relations Board granted the
Employer' s requests for review and stayed the
election pending its decision on review . Thereafter,
the Employer and the Petitioner filed briefs on
review . The Petitioner' s parent, the International
Brotherhood of Electrical Workers, AFL-CIO,
herein called the IBEW , requested permission to file
an amicus curiae brief on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act , as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
71
The Board has considered the entire record in this
case with respect to the issues under review,'
including the briefs on review filed by the parties
and the amicus curiae, and hereby affirms the
Regional Director's Decision, attached hereto, with
the following modifications:
The Employer contends that the only appropriate
unit for the plant involved is an overall production
and maintenance unit. It argues that the Regional
Director's inclusion of machine attendants in the
Petitioner's requested unit lends support to its
position because the machine attendants are
permanently assigned to production departments
and work in close contact with production
employees. The Petitioner, in its brief on review,
argues, in effect, that the unit it petitioned for is an
appropriate departmental unit, remarking, with
respect to the inclusion of the machine attendants in
such unit, that it was "the Board's responsibility to
place employees in an appropriate unit to guarantee
them their rights under the Act regardless of the
contentions of the Employer or Union." The
Petitioner further urges, in light of the additional
showing of interest it submitted, that the unit as
enlarged by the Regional Director is also
appropriate. The IBEW joins in the latter position.
However, it submits, in the alternative, that if the
Board disagrees with the Regional Director's
inclusion of machine attendants, the originally
requested unit should be found appropriate in this
case.
The principal issue treated herein, and the only
matter on which we modify the Regional Director's
Decision, is his inclusion of machine attendants in
the unit found appropriate.
The record indicates that the machine attendants
spend about 75 percent of their shift time making
adjustments on machines in their production
departments in order to maintain quality of the
product. When not making adjustments they usually
patrol the machines assigned to them to make sure
they are functioning properly. The number of
machines assigned to each attendant varies from 3
or 4 to 20, depending on the department and the
complexity of the machines. If they detect
mechanical malfunctioning requiring repair or
maintenance, they advise their foreman. If such
work is minor and they can spare the time from
their adjustment responsibilities, the attendants are
authorized to do the work themselves. Otherwise -
and in all cases where the repair or maintenance
needed is major - it is done by personnel assigned
to the maintenance department.
The machine attendants also, in some instances,
convert machines to equip them to handle varying
products. Some conversions are made by
maintenance men, at times with the assistance of
machine attendants. Parts needed for conversions
'In view of our unit finding below , the issues raised by the Employer's
request for review of the Regional Director 's ruling on its request for
administrative determination are rendered moot.
177 NLRB No. 3
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are obtained from the conversion room located in
the maintenance area. The record indicates that
most conversions are accomplished on overtime.
It appears that on all shifts machine attendants
report to production foremen. There was testimony
that they are also subject to the immediate
supervision of maintenance department supervisors.'
However, it does not affirmatively appear that the
maintenance supervision extends beyond the minor
maintenance and repairs and the conversion work
done by the machine attendants. The record
indicates that upon completion of his probationary
period a machine attendant is rated as to
acceptability for permanent employment in the
classification by those maintenance and production
supervisors who have immediate supervision over
him and that the final decision is made by the
maintenance department superintendent. Again, it is
not shown that such participation by the
maintenance department in rating the acceptability
of machine attendants extends beyond the minor
maintenance tasks he performs.
Upon the foregoing and the entire record in this
case, we conclude, contrary to the Regional
Director, that the machine attendants spend the
great majority of their time performing a production
function and should not be included in the
maintenance unit.' The fact that machine attendants
also occasionally perform maintenance functions,
such as minor repairs and maintenance of the
machines they adjust, and make some of the
conversions of these machines, either alone or as
assistants to maintenance men, mostly during
overtime hours, does not, in our opinion, require
their inclusion in a unit of maintenance employees.
We conclude further, under the facts of this case
and for the reasons set forth by the Regional
Director in finding a maintenance unit appropriate,
that the Petitioner's originally requested unit of
maintenance employees in three distinct
administrative departments of the Employer's plant,
constitutes an appropriate unit.' Although certain
employees in other departments such as the
production department servicemen and the cafeteria
utility men as found by the Regional Director, and
the machine attendants as found herein, as part of
their duties perform clean-up and supply functions
similar to those performed by some of the utility
men in Plant & Grounds, such factors in the
circumstances herein are insufficient to destroy the
homogenity and mutuality of interests of
maintenance employees in the Maintenance, Plant &
'Under the maintenance department superintendent , there are three shift
foreman (one for each shift) and seven maintenance supervisors (five on the
day shift, and two on the second shift).
'Compare , for example, Sawyer Biscuit Company, 108 NLRB 1124
(machine setup men); E. I. DuPont de Nemours and Company, 117 NLRB
1048, 1050 (production employees performing inspections and making
minor repairs).
'See S. D. Warren Company, 144 NLRB 204, 206.
IS D. Warren, supra. General Electric Company, 167 NLRB No. 49
Grounds, and Powerhouse Departments.'
Accordingly, we shall remand the case to the
Regional Director in order that he may conduct an
election pursuant to his Decision and Direction of
Election, as modified herein, except that the
eligibility payroll period therefor shall be that
preceeding the date below.7
`Contrary to the Employer' s contention , the record supports the
Regional Director' s finding that there is no interchange between
maintenance employees in these three departments and employees in other
departments . The fact that permanent transfers have been made by
employees between these departments , or that the machine attendants, if
they take the requested training courses, become eligible for openings in
maintenance man class II, does not militate against the unit found
appropriate herein.
'In order to assure that all eligible voters may have the opportunity to be
informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them. Excelsior
Underwear Inc, 156 NLRB 1236, N.L R B. v. Wyman-Gordon Company,
394 U.S. 759. Accordingly, it is directed that a corrected election eligibility
list, containing the names and addresses of all the eligible voters must be
filed by the Employer with the Regional Director for Region 17 within 7
days of the date of this Decision on Review. The Regional Director shall
make the list available to all parties to the election . No extension of time
to file this list shall be granted by the Regional Director except in
extraordinary circumstances . Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
riled.
DECISION AND DIRECTION OF
ELECTION
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, a hearing was
held before a hearing officer of the National Labor
Relations Board. The Hearing Officer's rulings
made at the hearing are free from prejudicial error
and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in
connection with this case to the undersigned
Regional Director.
Upon the entire record in this case, the Regional
Director finds:
1. 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 organization involved claim(s) to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of certain employees
of the Employer within the meaning of Section
9(c)(1) and Section 2(6) and (7) of the Act.
4. The following employees of the Employer
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:'
'The Employer manufactures various plastic and paper containers at the
only facility involved herein, located in Springfield , Missouri. The
enterprise employs some 1621 production and maintenance employees,
LILY-TULIP CUP CORP. 73
All maintenance employees employed at
Springfield , Missouri facility of Lily-Tulip Cup
Corporation , including Maintenance Department
employees (Maintenance Men Class I, Maintenance
operates on a 24-hour basis 6 days each week , and occupies a plant and
separate warehouse located on several acres. None of the employees are
presently represented by a labor organization , nor is there any history of
collective bargaining at the plant since it opened in 1952 There is a
number of operating departments which cover production proper,
maintenance functions , warehousing , and a cafeteria
The Petitioner contends for a maintenance unit and would include in it
the Employer' s maintenance department , the powerhouse , and the plant &
grounds department The Employer asserts that such a unit is
inappropriate since its operations are integrated and that, in any event,
there are employees other than those sought by the Petitioner who are
likewise engaged in maintenance work . This latter group , according to the
Employer, comprises individuals classified as machine attendants and
department servicemen , both of which groups are represented in a number
of departments other than those specifically sought by the Petitioner, and
the utility men assigned to the cafeteria department The Employer also
argues that the Petitioner 's unit contention is based on extent of
organization only, and that the petition must be dismissed for that reason
I find no merit in this last contention as the record in its entirety shows,
and I so find , that there exists in this plant a distinct maintenance group,
separate and identifiable from production and other employees , which is
appropriate for the purposes of collective bargaining
Turning now to the composition of the maintenance unit here involved, I
find as follows:
The maintenance department employs approximately 46 individuals (35
in the maintenance man I and maintenance man Il classifications ; 4 spare
parts attendants , and 7 helpers and oilers ). This department has its own
departmental and lower level supervisors . Like all departments at the
plant, hiring or transfer into the department must have the approval of the
departmental supervisor . Production and maintenance department
employees do not interchange jobs or share job functions . There is a
maintenance area, separated by a wall from the production area proper,
which houses a machine shop containing lathes, dull presses , and other
machine and bench tools common to such an operation . About /
maintenance men class I and class II are permanently assigned to the
machine shop where they make new parts and perform major overhauls
The remainder of the maintenance men class I and class II generally work
with their tool carts in various production areas throughout the plant,
performing mechanical maintenance work . Both classifications are skilled,
and neither performs production work . The major difference between the
two classifications is that the maintenance man class I is somewhat more
skilled and requires a certain period of employment in the maintenance
man class II classification as a prerequisite The spare parts attendants
spend their entire respective shifts in the spare parts room , a fenced
enclosure located in the maintenance area They issue and keep account of
tools and parts used by the maintenance men, the machine attendants, and
the powerhouse employees . They work under the supervision of the
maintenance supervisor and the maintenance foreman of their respective
shifts They virtually never come into direct contact with production
employees or the production operation . The helpers and oilers are
preventive maintenance employees who regularly follow prescribed routes
throughout the plant oiling and greasing moving machinery They are
supervised by maintenance supervisors and do no production work
The powerhouse consists of 16 employees in three classifications (4 shift
engineers , 8 watch engineers , and 4 junior operating engineers) This
department is generally supervised by Chief Engineer Benson , who also
oversees the plant & grounds department , and by Foreman Dave Carr,
whose authority extends only over the three powerhouse classifications.
The powerhouse department cares for the various powerlines and power
accessories used at the plant , except for electrical work which is handled
pursuant to contract by another employer. The shift engineers work
separate shifts and are responsible for checking the accessory equipment
every two hours and recording the result . This equipment is located
throughout the plant and in tunnels under the plant and warehouse
Generally, the shift engineer will make minor adjustments ; but if the
problem is serious the shift engineer and the watch engineers, or the watch
engineers alone , will attend to it, Two watch engineers work on each shift.
They receive their assignments from the boiler room or Chief Engineer
Benson 's office . Apporximately 50 percent of their average day is spent
Men Class II, Spare Parts Attendants, and Helpers
and Oilers), Plant & Grounds Department
employees (Groundsmen, Utility Men-Steam, and
Utility Men), Powerhouse Department employees
(Shift Engineers, Watch Engineers, and Junior
Operating Engineers), and Machine Attendants;
troubleshooting on the various steam , vacuum, water, and air lines which
serve production machinery ; another 25 percent is spent on pumping liquid
wax and plastic used in production through various pipes from railroad
cars to storage containers , and the remaining 25 percent in checking and
adjusting the various power lines . Occasionally , the watch engineers
perform minor upkeep maintenance on material handling equipment used
in the warehouse The junior operating engineers (also called firemen at
the plant) work only in the boiler room During his respective shift, each
junior operating engineer answers the plant telephone for trouble calls and
informs the watch engineer or shift engineer of the problem , fires boilers,
and, generally , maintains the boiler room equipment
The plant & grounds department (2 groundsmen ; 6 utility men steam, 10
utility men) is immediately supervised by foreman Cliff Kubat who works
under Chief Engineer Benson's direction . The groundsmen primarily care
for the several acres of lawn and shrubs on which the facility is located
During the winter they remove snow and ice and work inside the plant
doing general cleaning work and replacing light fixtures One groundsman
regularly operates a floor sweeper in the production area 2 days per week
Utility men steam operate certain machines on the production floor.
These machines , designed specifically for the Employer ' s plant, clean the
floors to achieve the sanitary conditions necessary in a plant manufacturing
food and drinking containers The utility men generally work only the first
shift and perform unskilled cleanup duties inside the plant , and in offices
and restrooms . During extremely inclement weather, they may be
upgraded to groundsmen to help remove ice and snow from the premises.
On occasion , utility men, along with the lowest level classifications in other
departments , are given the opportunity to work overtime in the warehouse
Even though the Employer's operations are to some extent integrated,
the above facts establish the existence of an identifiable maintenance unit
headquartered in distinct work areas, managed by its own supervisors,
distinguished departmentally by management , possessed of vaned skills,
divorced from production work and interchange with production
employees , and solely responsible for maintaining the Employer's premises
and equipment Under these circumstances , a maintenance unit including
the three departments discussed is appropriate However, it now becomes
necessary to determine the unit placement of the three classifications
named by the Employer as also performing maintenance functions. As
already stated , they are machine attendants, department servicemen, and
utility men in the cafeteria.
There are about 95 machine attendants who work in production areas
and who are assigned to the GEM , nestrite & tubs, P B, & Cone, plastics
and cover & lids departments They convert machines from one type of
operation to another This requires the attendant to obtain the required
parts from the used parts room, located in the maintenance area, and
apparently interchange the parts, using various hand tools . They also
withdraw parts and tools from the spare parts room mentioned above. On
occasion , a machine attendant will do minor work in the machine shop
Most of their time , however, is spent keeping the machines to which they
are individually assigned in continuous operation This responsibility
involves adjusting the machines for certain types of production and levels
of quality, eliminating squeaks and minor malfunctions , and replacing
bearings and worn parts The machine attendants are immediately
supervised by both production and maintenance foremen, but the
maintenance superintendent is responsible for passing on their promotion
from probationary to permanent employment and any ultimate decisions
concerning their supervision The machine attendants perform no
production work ; however, they sometimes work together with
maintenance men class I or II , especially on repairs performed during
overtime . There are also a number of repairs , such as bearing and worn
part replacements, which are performed either by the machine attendant
assigned to the machine involved, or a maintenance man class II,
depending basically upon which individual has the time; Also, the
Employer offers machine attendants a three-course educational series on
mechanics which is also offered to the maintenance men Any machine
attendant who is enrolled in , or has completed , the third course in the
series, is eligible for transfer into the maintenance man class II
classification This is the only line of progression into the maintenance
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
EXCLUDING office clerical employees ; production
employees ; professional employees , guards, and employees.
[Direction of Election'
publication.]
' ° omitted from
man classification at the plant . Based on the foregoing factors, I find
merit in the Employer 's position . The maintenance attendants will be
included in the unit . (See Gerber Products Company , 162 NLRB No. 14.)
The department serviceman classification is the entry level job in each of
the departments which have machine attendants assigned to them as well
as the punting department. Each department serviceman is assigned to a
specific production area and is supervised only by production supervisors.
They are responsible for bringing supplies to the production area from the
supply areas, stacking boxes , moving bins which feed into production
machines , and cleaning machines and the immediate area around them. I
cannot accept the Employer's argument that the department servicemen
are substantially identical to the utility man classification . While the
department servicemen's function of cleaning the production machinery
and the area immediately adjacent thereto has certain janitorial or
custodial aspects , it is of the same type of "maintenance" which
customarily is performed by employees working with machinery as a
matter of routine and does not involve any operation designed to remedy
malfunctions of machinery or its failure to operate at all. In this respect it
is also significant that in all these cases (except with regard to the printing
department) there are machine attendants, who are responsible for the
basic steps of maintenance proper , as set out above. Considering all the
functions of the department servicemen , it is clear that they are properly
part of the production group . They will be excluded from the maintenance
unit found herein to be appropriate
The four cafeteria utility men clean the cafeteria , dining room, and
kitchen areas . They work only in this area and apparently are supervised
by cafeteria supervisors They do not share duties with plant & grounds or
other unit employees , and there is no identification between them and the
latter group Such identification as they may have with other employees
appears to be limited to other cafeteria employees . They will be excluded.
The record shows that the Employer employs 5 women as "Matrons."
Since the record is silent on the duties of these employees and since the
supervisors as defined in the Act; and all other
matron classification is normally included in a maintenance unit, the
matrons may vote subject to challenge.
'Since the unit found herein to be appropriate is substantially larger than
the unit petitioned for, the Petitioner may, within 10 (ten) days from the
date of this Decision and Direction of Election , either withdraw from this
proceeding by written notice to the Regional Director, or else submit an
additional showing of interest with respect to the enlarged unit Absent
such additional showing of interest no election will be conducted herein
'An election eligibility list, containing the names and addresses of all the
eligible voters , must be filed by the Employer with the Regional Director
within 7 days after the date of this Decision and Direction of Election.
The list may initially be used by the Regional Director to assist in
determining an adequate showing of interest The Regional Director shall
make the list available to all parties to the election when he shall have
determined that an adequate showing of interest among the employees in
the unit found appropriate has been established , In order to be timely
filed, such list must be received in the Regional Office , 610 Federal
Building, 601 East 12th Street , Kansas City , Missouri 64106 , on or before
December 6, 1968 , Under National Labor Relations Board procedures, no
extension of time to file this list may be granted except in extraordinary
circumstances, nor shall the filing of a request for review operate to stay
the filing of such list . Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper objections are filed.
Excelsior Underwear, Inc, 156 NLRB 1236. An original and one copy
should be submitted.
'If any party wishes to request review , such request should be received
by the Board in Washington , D. C., on or before December 12, 1968. See
Sec. 102 .67 of the Board's Rules and Regulations.