Lundy Packing Co.

National Labor Relations Board - Board Decisions

Sep 2, 1994

314 N.L.R.B. 1042 (N.L.R.B. 1994)

1042
314 NLRB No. 172
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Then-Chairman Stephens and Member Devaney; former-Member
Raudabaugh dissenting in part on other grounds.
2 The Regional Director also overruled challenges to the ballots
cast by the finished product loader/cleaner, and sustained challenges
to the ballots of the electrician A and employees McPhail, Valente,
and Bradshaw. He further directed that the eligibility of certain al-
leged discriminatees be determined in the pending unfair labor prac-
tice proceeding. No request for review was filed with regard to these
rulings.
3 The Employer’s motion to strike is denied.
4 See Sec. 102.67(d) of the Board’s Rules (the Board may, in its
discretion, examine the record in evaluating a request for review).
The Lundy Packing Company, Inc. and United
Food and Commercial Workers Union, Local
204, AFL–CIO, and International Union of Op-
erating Engineers, Local 465, AFL–CIO, Joint
Petitioners. Case 12–RC–7606
September 2, 1994
DECISION ON REVIEW, ORDER, AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On May 7, 1993, the Acting Regional Director for
Region 12 issued a Decision and Direction of Election
in which he directed an election in the petitioned-for
unit of production and maintenance employees, exclud-
ing, inter alia, quality assurance/lab technicians and
management trainees I, lab technicians, and industrial
engineers. The Joint Petitioners and the Employer filed
timely requests for review. By Order dated June 3,
1993, the Board majority1 denied both requests for re-
view but permitted the electrician A at the Employer’s
Gold Banner facility, the receiver, industrial engineers,
quality assurance/lab technicians, temporary manage-
ment trainees I, and lab technicians to vote by chal-
lenged ballot. The election was conducted on June 3,
1993; the tally of ballots showed 318 votes for Joint
Petitioner and 309 against, with 24 determinative chal-
lenged ballots. Thereafter, the Employer filed timely
objections to the election.
On July 29, 1993, after an investigation, the Re-
gional Director issued a Supplemental Decision on
Challenged Ballots and Objections to Election, and
Order. The Regional Director overruled the challenges
to the ballots cast by the quality assurance/lab techni-
cians, temporary management trainees I, lab techni-
cians, industrial engineers, waste management operator,
and receiver, and included them in the unit.2 The Joint
Petitioners filed a timely request for review of the Re-
gional Director’s decision, arguing that these classifica-
tions should be excluded from the unit. The Employer
filed a statement in opposition to the Joint Petitioners’
request for review, and a motion to strike the request
for review.3
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Having carefully considered the entire record,4 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 mainte-
nance 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 bal-
lot of the waste management operator and deny the
Employer’s request for review of the Regional Direc-
tor’s overruling of the Employer’s objections to the
election for the reasons stated in his supplemental deci-
sion; and (3) find it unnecessary to resolve the chal-
lenge 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 Caro-
lina 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 prod-
uct will be exposed, testing the housekeeping and
cleanliness of the facility, performing inspections, and
obtaining weights and temperature of hogs and prod-
ucts. 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 tests,
and the remainder working around the production areas
gathering samples. They also prepare paperwork docu-
menting test results. Production and maintenance em-
1043LUNDY PACKING CO.
5 Omni International Hotel, 283 NLRB 475 (1987).
6 E. H. Koester Bakery & Co., 136 NLRB 1006 (1962).
7 249 NLRB 1117 (1980).
8 222 NLRB 883 (1976).
9 Kellogg Switchboard & Supply Co., 127 NLRB 64 (1960), and
W. R. Grace & Co., 202 NLRB 788 (1973), in which the Board in-
cluded quality control employees over the petitioners’ objections,
were decided prior to the Board’s decision in Penn Color and, there-
fore, have diminished precedential value. Moreover, both cases are
distinguishable. In Kellogg, the Board simply concluded, with almost
no explication, that the interests of the sole quality control technician
were not sufficiently dissimilar from those of production and mainte-
nance employees to justify his exclusion. In W. R. Grace & Co., the
Board overruled challenges to the ballots of quality control employ-
ees in view of their numerous contacts with unit employees and their
integral role in the production process, and the fact that they were
hourly paid, shared the same work breaks, lunch periods, and locker
room with unit employees, punched a timeclock, received similar
benefits, and had similar training. In Blue Grass Industries, 287
NLRB 274, 276–277 (1987), decided after Penn Color, the Board
found that the circumstances compelled the inclusion of quality con-
trol inspectors in the unit of production employees. The Board found
that their jobs were a vital part of the production plant, their pay
and benefits were similar, and that there was significant interaction
between the two groups of employees.
10 See Blue Grass Industries, supra; W. R. Grace & Co., supra. In
Blue Grass, the administrative law judge noted that ‘‘[a]lthough the
important criterion is community of interest with bargaining unit
members rather than the relationship of the job to the production
process . . . the importance of quality control jobs in the production
of garments is a further consideration when a community of interest
has already been demonstrated.’’ 287 NLRB at 299.
ployees 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 man-
agement trainees I, and lab technicians (collectively re-
ferred 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 posi-
tions, and one transferred from an office position.
Technicians are not required to have a college edu-
cation or technical education. Employees take a math
or aptitude test when transferring to a quality-control
position. Four employees stated that when they trans-
ferred from production to quality assurance/lab techni-
cian positions, they received 6 months of on-the-job
training. The lab technicians had been assigned to cler-
ical positions before being placed in the lab technician
classification; one has an associate degree in account-
ing, 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 purposes of collective bargaining, not the most
appropriate unit,5 and in representation proceedings,
the unit sought by the petitioner is always a relevant
consideration.6 Here, we find, contrary to the Regional
Director, that the technicians do not share such an
overwhelming community of interest with the peti-
tioned-for production and maintenance employees as to
mandate their inclusion in the unit despite the Peti-
tioners’ objections. The technicians are separately su-
pervised, 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 as
performed by the petitioned-for employees, the major-
ity 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 sub-
stantial and regular as to compel their inclusion in the
unit.
In Penn Color,7 the Board found appropriate the pe-
titioned-for unit of production and maintenance em-
ployees, excluding quality control and development
technicians. There, despite common vacation policies,
holidays, pension plans, sick days, and ‘‘some’’ con-
tact, the Board found that in view of the their separate
supervision, absence of interchange, option of being
paid on a salaried basis, and different requirements re-
garding educational background and on-the-job train-
ing, as well as the fact that the petitioner did not seek
to include them in the unit, the quality control and re-
search and development technicians’ community of in-
terest with production and maintenance employees was
not sufficient to warrant including them in the unit. In
Beatrice Foods,8 the Board sustained challenges to the
ballots of quality control employees, despite the peti-
tioner’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.9
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.10 Here, there are factors
present that would support adding the disputed em-
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 By stating that we made our decision ‘‘in large part because the
Petitioner does not seek to represent [the disputed employees],’’ our
dissenting colleague is implying that we have given ‘‘controlling’’
weight to the Union’s extent of organization, which is prohibited by
Sec. 9(c)(5) of the Act. However, as is clear from the above, ‘‘the
appropriateness of the proposed unit . . . is indicated by other clear
and decisive factors, [and] there is no reason why the Union’s deci-
sion to seek representation of employees on a narrower basis[]
should preclude the Board from finding the smaller unit appro-
priate.’’ E. H. Koester Bakery Co., supra at 1012 fn. 16 (internal
quotation marks omitted).
12 One trainee testified that he had been earning $7.66 per hour
as a production employee in the bacon department. On becoming an
industrial engineer, he earned $375 per week but no longer received
overtime.
13 See, e.g., Case Corp., 304 NLRB 939 (1991). In the instant
case, no party argues that industrial engineers should be excluded
because they are supervisory, managerial, or confidential employees.
14 See, e.g., Van Gorp Corp., 240 NLRB 615 (1979); United Tech-
nologies Corp., 274 NLRB 504 (1985).
15 134 NLRB 1101 (1961). See also Reliable Castings, 236 NLRB
315 (1978).
16 See, e.g., Chrysler Corp., 192 NLRB 1208 (1971).
17 Case Corp., supra; Ford Motor Co., 66 NLRB 1317 (1946).
Joint Petitioners assert that industrial engineers should be excluded
because, inter alia, they are technical employees. Joint Petitioners
claim that they have special skills, make determinations that directly
affect production and maintenance employees’ compensation, use
independent judgment, are paid differently, and are separately super-
vised. Contrary to the Joint Petitioners, we find that industrial engi-
neers are not technical employees. There is no evidence of any spe-
cial requirements for becoming an industrial engineer, they receive
minimal on-the-job training, and they do not appear to exercise inde-
pendent judgment and discretion. Thus, we do not exclude the indus-
trial engineers on that basis. Compare Reliable Castings, 236 NLRB
315 (1978). There, the Board found that timestudy employees were
technical employees based on their special skills, their exercise of
independent judgment, and their special education and training.
ployees to the petitioned-for unit, i.e., they perform
production-related functions, have some contact with
unit employees, have similar benefits and holidays, 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 sepa-
rate supervision, are paid differently, do not inter-
change with the production and maintenance employ-
ees, have generally different functions, and have insub-
stantial and irregular contact with the requested pro-
duction and maintenance employees, and as no labor
organization is seeking to represent a broader unit in-
cluding the disputed employees, we conclude that the
quality assurance/lab technicians, temporary manage-
ment 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.11
Industrial Engineer and Industrial Engineer
Trainees
The Employer’s one industrial engineer and two in-
dustrial engineer trainees (collectively referred to as in-
dustrial engineers) do timestudies. In performing their
timestudies, 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 func-
tions. While on the production floor, industrial engi-
neers 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
obtaining 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 cal-
culated 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 re-
port 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 dif-
ferently from production and maintenance employ-
ees.12 There is no interchange between them and pro-
duction and maintenance employees. Two industrial
engineers were temporarily assigned to perform pro-
duction 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 per-
formed by production employees. Of the three indus-
trial engineers employed at the time of the hearing,
two had transferred from production and maintenance
positions.
The Board has consistently found that timestudy em-
ployees are not supervisory, managerial, or confidential
employees.13 Timestudy employees are often excluded
from production and maintenance units by the par-
ties,14 or found to be technical employees and either
excluded from production and maintenance units under
Sheffield Corp.15 or included in a separate technical
unit with other technical employees,16 or given a sepa-
rate unit.17 In the instant case, we find, contrary to the
Regional Director, that industrial engineers do not
1045LUNDY PACKING CO.
18 Cf. University of Hartford, 295 NLRB 797 (1989). There, it was
noted that in Georgetown University, 200 NLRB 215 (1972), the
Board drew an analogy between such a ‘‘blue collar’’ unit in a uni-
versity setting and the usual production and maintenance unit in the
industrial areas, noting that such a unit normally does not include
office clerical or technical employees with manual workers. 295
NLRB at 798 fn. 5.
share a sufficiently strong community of interest with
production and maintenance employees such that their
inclusion in the petitioned-for unit is mandated. In-
deed, the interests of the industrial engineers are sepa-
rate and distinct from the interests of the production
and maintenance employees.18 Industrial engineers are
separately supervised; spend half of their time in their
office, which is located away from the production
floor; do not interchange with production and mainte-
nance employees; and they are differently com-
pensated. Further, industrial engineers primarily per-
form different functions from those performed by pro-
duction 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 engi-
neers 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 mainte-
nance 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 such a close community of interest with the peti-
tioned-for production and maintenance employees as to
require their inclusion in the unit. See Penn Color,
supra.
In summary, we reverse the Regional Director’s sup-
plemental 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 employees’ ballots.
We deny the Joint Petitioners’ request for review with
respect to the inclusion of the waste management oper-
ator. Finally, we find it unnecessary to consider the
Joint Petitioners’ request for review with respect to the
receiver’s alleged status as a guard. In light of our De-
cision sustaining the challenges to the ballots of the
disputed employees listed above, we find it unneces-
sary to resolve the challenge to the receiver’s ballot as
his vote is not determinative of the election results.
ORDER
The Employer’s request for review and motion to
strike are denied. The Joint Petitioners’ request for re-
view is granted with respect to the Regional Director’s
finding that quality assurance/lab technicians, manage-
ment trainees I, lab technicians, and industrial engi-
neers must be included in the petitioned-for unit, his
decision as to those employees is reversed, and the
challenges to their ballots are sustained. In all other re-
spects, the Joint Petitioners’ request for review is de-
nied, except that the challenge to the ballot cast by the
receiver shall remain unresolved, as it is not deter-
minative of the election results.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for the Joint Petitioners, United Food
and Commercial Workers Union, Local 204, AFL–
CIO, and International Union of Operating Engineers,
Local 465, AFL–CIO, and that the Joint Petitioners are
the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
All production and maintenance employees, jani-
torial employees, condensate drivers, waste man-
agement operators, raw material handler/cleaners,
stockers, emergency room technicians, first aid at-
tendants, kill gang leaders, and plant clericals, in-
cluding inventory control section leaders, office
clerks B & C (inventory control), distribution
service section leaders, office supplies section
leaders, and office clerks A, B & C
(supplies/distribution) employed by the Employer
at its Clinton, North Carolina facility, but exclud-
ing long-haul drivers, co-drivers, short-haul driv-
ers, sales route drivers, permanent livestock driv-
ers, temporary livestock drivers, outside buyers,
hog buyers, assistant hog buyers, assistant hog
buyers p.m., tire changers, vehicle mechanics, ve-
hicle refrigeration mechanics, laborers (garage
a.m. and p.m.), industrial engineers, industrial en-
gineer trainees, laboratory technicians, quality as-
surance technicians, temporary management train-
ees I, process sales coordinators, trip audit entry
section leaders, office clericals, confidential em-
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 The receiver is neither included in nor excluded from the bar-
gaining unit covered by the certification issued herein, inasmuch as
we have not determined his alleged guard status.
ployees, guards, and supervisors as defined in the
Act.19
MEMBER STEPHENS, dissenting.
Contrary to the majority, I would affirm the Re-
gional Director’s determination that the Petitioners’
challenges to the ballots of the quality assurance/lab
technicians and lab technicians (QALTs) and the in-
dustrial 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., 211 NLRB 939,
941 (1974); W. R. Grace & Co., 202 NLRB 788, 789
(1973). This is particularly true where it has been es-
tablished that quality control employees perform func-
tions that are integral to the production process in ad-
dition to sharing a community of interest with the pro-
duction employees. Moreover, the Board has included
such employees in the unit on the basis of their com-
munity 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 pro-
duction 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 em-
ployees sustained in view of lack of community of in-
terest; unclear which party challenged their ballots).
In the instant case, the majority concedes that the
QALTs share a community of interest with other em-
ployees in the production unit. Moreover, it is a 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. Notwith-
standing the foregoing, the majority sustains the chal-
lenges 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 propo-
sition 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 frag-
menting production and maintenance units.
Similarly, a community of interest has been shown
to exist between the IEs and the production unit em-
ployees. 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.