Penn Color, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1980

249 N.L.R.B. 1117 (N.L.R.B. 1980)

PENN COLOR, INC. 1117
Penn Color, Inc. and Teamsters Local Union No.
115, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, Petitioner. Case 4-RC-13742
June 9, 1980
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On November 2, 1979, the Acting Regional Di-
rector for Region 4 issued a Decision and Direc-
tion of Election in the above-entitled proceeding in
which he found inappropriate Petitioner's request
for a single-plant unit of production and mainte-
nance employees at the Employer's Doylestown,
Pennsylvania, facility. Instead, he directed an elec-
tion in a broader unit of production and mainte-
nance employees at both the Doylestown facility
and the Employer's plant at Flemington, New
Jersey. Further, he included in that unit quality
control and research and development technicians
from both facilities, whom Petitioner sought to ex-
clude. Thereafter, in accordance with Section
102.67 of the National Labor Relations Board
Rules and Regulations, Series 8, as amended, Peti-
tioner filed a timely request for review of the
Acting Regional Director's decision. The National
Labor Relations Board, by telegraphic order dated
December 6, 1979, granted the request for review.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record with
respect to the issues under review and makes the
following findings:
Petitioner contends that the record in this pro-
ceeding supports a finding that the requested unit
of all production and maintenance employees at the
Employer's Doylestown, Pennsylvania, facility, ex-
cluding quality control and research and develop-
ment technicians, constitutes an appropriate unit
for collective-bargaining purposes. Accordingly,
Petitioner contends that the Acting Regional Di-
rector erred in concluding otherwise. For the fol-
lowing reasons, we agree with Petitioner's conten-
tions.
I While the Employer objected to Petitioner's request for review on
the ground that Petitioner had filed "exceptions" to the election instead
of a formal request for review, we find that, despite the format, Petition-
er, in substance, filed a request for review, urging, inter alia, that the
Acting Regional Director had departed from officially reported Board
precedent in finding the requested unit inappropriate. We find that Peti-
tioner thereby complied with Sec. 102 67(c)(1) of the Board's Rules and
Regulations regarding requests for review and that review was properly
granted
249 NLRB No. 151
1. The Employer is engaged in the production of
color concentrates at its two plants located at Doy-
lestown, Pennsylvania, and Flemington, New
Jersey. These plants are 20 to 25 miles apart. Doy-
lestown has 62 employees and Flemington has 29
employees in the classifications that would be in-
cluded in the two-plant unit proposed by the
Acting Regional Director. There is no collective-
bargaining history for any of the Employer's em-
ployees, and no labor organization seeks to repre-
sent them on a broader basis than is sought here.
The Employer's operations are highly integrated
and administratively centralized. The corporate
headquarters, located in the Doylestown office,
keeps personnel and payroll records and seniority
lists for both plants. Wages and benefits are applied
uniformly and these are determined according to
companywide seniority. The number of shifts for
each plant is different, however, with Doylestown
having three shifts that run 24 hours a day while
Flemington runs two shifts from 7 a.m. until mid-
night. Employees at both plants have similar job
skills, functions, and classifications. The Employer
also transfers machinery and products from one
plant to another, including an almost daily truck
shipment between plants of raw material and goods
in process.
While both of the Employer's plants manufacture
essentially the same product (i.e., color concen-
trates), using similar materials, manufacturing pro-
cesses, and equipment, there are some differences
in what each plant produces and the processes and
materials each uses. For instance, the Doylestown
plant has total responsibility for storing nitrocellu-
lose, a flammable material used in producing color
concentrates. Doylestown uses this material in its
raw form, while Flemington uses this flammable
material only in its final form. Furthermore, only
Flemington produces paste dispersion and performs
the pulverizing process.
Edgar Putnam is the president and chairman of
the board of Penn Color. He has ultimate control
over business operations, personnel policies, and
labor relations at both facilities. He makes final de-
cisions on hiring, firing, layoffs, grievances, and
leaves of absence. Theodore J. Movellan is vice
president of operations and has ultimate responsibil-
ity for the production and scheduling of both facili-
ties and for the purchasing of all raw materials for
both plants. He also keeps informed of personnel
problems at each plant by his constant contact with
each plant's respective plant manager. Normally,
Movellan is at the Flemington plant 2 days a week
and at Doylestown 3 days a week. However, when
one of the respective plant managers is absent, Mo-
vellan spends his time at the plant of the absent
PENN COLOR, INC
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant manager. Kevin Putnam, the son of the presi-
dent, is the plant manager at Doylestown; Bob
Akers holds that position at Flemington.
According to the testimony of Edgar Putnam,
each plant manager "makes all decisions which re-
quire the exercise of independent judgment and dis-
cretion."2 At each plant, the plant manager sets up
the personnel schedules for his entire plant, includ-
ing the schedules for the shift foremen underneath
him,3 and is authorized to excuse employees be-
cause of illness. While President Putnam does have
overall responsibility for personnel policies and
benefits, such as vacations, sick days, pensions, and
leaves of absence, all of these matters are the re-
sponsibility of the respective plant manager on a
daily basis. Furthermore, plant managers, in con-
junction with Vice President of Operations Movel-
lan, are involved in setting production schedules,
and independently handle unexpected situations
that require immediate attention, such as when a
machine breaks down.
The hiring process at Penn Color is centralized
but, as with other responsibilities mentioned above,
there is significant input from the plant managers.
The hiring process is usually initiated by one of the
plant managers who recognizes a need for addition-
al staffing at his plant. Then, either the plant man-
ager or Movellan informs President Putnam of this
need. Subsequently, an initial interview is held by a
secretary at Doylestown who interviews all appli-
cants. The applicant is then interviewed by the
plant manager for whom the applicant would be
working. If the prospective candidate is deemed
suitable for hire by the plant manager, he or she
will then have an interview with President Putnam.
While Putnam makes the final decision in hiring,
heavy reliance is placed on the recommendation of
the plant manager who interviewed the applicant.
In similar fashion, reliance is also placed on the
plant managers' assessment in determining whether
probationary employees become permanent em-
ployees.
Discharges are usually initiated by either a shift
foreman or one of the plant managers. While Presi-
dent Putnam makes the final decision as to the dis-
position of these cases, the respective foreman's
and/or plant manager's recommendations are usual-
ly followed.
With regard to employee interchange, the Em-
ployer asserts that there have been frequent trans-
fers between the two plants over a 5-year period.
2 While Putnam was only asked by counsel about the Flemington plant
manager, there is nothing in the record to support a finding that the re-
sponsibilities of the plant manager at Doylestown are any different than
those described for Flemington.
3 At both plants, every shift has a shift foreman. At Doylestown, in
addition to the three shift foremen, there is a maintenance foreman
At the hearing, the Employer submitted a list of 23
such transfers. Of the 23 transfers, however, 13
were directly related to the temporary closing and
reopening of the Flemington facility in December
1974. Of the remaining 10 transfers, 5 involved
quality control technicians, 2 involved supervisors,
and only 3 involved the production and mainte-
nance employees whom Petitioner seeks to repre-
sent. Of the three production and maintenance
transfers, all were requested by the transferred em-
ployees.
Contact between the employees at the two plants
does occur when employees from both plants work
together on a project, such as taking inventory or
preparing equipment for transportation. Employees
from both plants also attend some of the same com-
pany outings. The Employer has one truckdriver
who has frequent contact with employees at both
facilities as he makes daily deliveries of raw materi-
als and goods in process between the plants.
These facts, which described Penn Color's pre-
sent arrangements with respect to labor relations
and administrative matters, were characterized by
the Acting Regional Director in his decision as
constituting "few changes in the operations of both
facilities since the last decision." The Acting Re-
gional Director thereby made reference to an earli-
er decision, in 1976, in which the Regional Direc-
tor found appropriate a unit comprising the em-
ployees of both the Doylestown and Flemington
facilities, contrary to Petitioner's request for a
single-plant unit at Doylestown. Request for
review of that decision was thereafter denied by
the Board.4
Contrary to the Acting Regional Director, we
find that the day-to-day supervision over the two
plants has changed significantly since that earlier
decision. This change is of critical importance in
assessing the current situation and in our finding
that a unit of production and maintenance employ-
ees at the Doylestown facility only is appropriate
today. 5
At the time of the earlier decision in 1976, Presi-
dent Putnam performed essentially the same func-
tions as he does now, but Theodore Movellan did
not occupy his present position as vice president of
operations. Instead, Robert Akers was second in
command and held the position of plant superinten-
dent for both facilities. Below him at each plant
was the position of general foreman. Akers had a
4 Member Jenkins dissented and would have granted the request for
review in the earlier proceeding. Both the Regional Director's and
Board's determinations in that earlier proceeding were not published in
the Board's bound volumes.
5 While focusing on the change in day-to-day supervision at the two
plants, we are mindful that a number of factors, such as wage structures,
fringe benefits, skill levels, and job classifications, have remained the
same between the two plants since the 1976 decision.
PENN CLOR, INC. 1119
far greater responsibility than does Movellan today
in the day-to-day operation and administration of
the two plants, especially with respect to personnel
matters. Akers, as plant superintendent, handled all
of the day-to-day personnel matters that are now
handled separately by each plant manager, such as
questions relating to the payment of sick days and
holidays; the granting of bereavement pay, over-
time, and jury duty; and the handling of grievances
and employee requests for leaves of absence. And,
in 1976, the Regional Director concluded that the
general foremen's authority was extremely circum-
scribed, particularly since their administrative role
was limited to speaking to employees about their
tardiness and discussing wage increases and evalua-
tions with Akers. Finally, unlike the plant manag-
ers, who are their functional equivalent today, the
general foremen did not have any input into chang-
ing production methods, altering production sched-
ules, or interviewing prospective employees. Akers,
subject to President Putnam's approval, handled
these matters exclusively. 6
On the basis of the foregoing and the record as a
whole, we are unable to agree with the Acting Re-
gional Director that local autonomy with regard to
the day-to-day supervision of employees at each
plant is so limited, or that the degree of employee
interchange is so substantial, as to rebut the pre-
sumption favoring a single-plant unit at Doyles-
town. In this regard, we have frequently noted that
the party seeking to overcome the presumptive ap-
propriateness of a single-plant unit must be able to
show that the day-to-day interests of the employees
at the location sought have merged with those of
the employees at the other location. 7 We do not
believe that the Employer has made such a show-
ing here.
Thus, as we have noted, the plant managers cur-
rently exercise considerable authority and influence
in personnel matters. While President Putnam, with
the help of Theodore Movellan, makes final deci-
sions with respect to hiring, firing, layoffs, and pro-
duction and scheduling, employees at the two
plants "perform their day-to-day work under the
immediate supervision of one who is involved in
rating their performance and in affecting their job
status and who is personally involved with the
daily matters which make up their grievances and
s Even in those areas where there is arguably some similarity between
the role of the general foremen in 1976 and the plant manager today, the
plant manager still has greater input in the decisionmaking process For
instance. in the area of firing employees, general foremen were autho-
rized to make recommendations but their recommendations were not
always accepted Todays a recommendation by a plant manager regard-
ing the firing of an eniployce is almost always agreed to by Morellan and
President Putnam
7 tHaag Drug (ompany, Incorporated, 169 NI.RB 877 (196)
routine problems."8 Furthermore, although plant
managers do not have the final say on hirings or
firings, they do interview prospective applicants,
and their recommendations as to both hiring and
firing are accorded considerable weight in the
Company's decisionmaking process. In this respect,
this case is quite similar to a number of Board cases
where, although the ultimate authority to hire and
fire was centralized, the significance of an individ-
ual manager's involvement in that process was
found to be a factor supporting the appropriateness
of a single-plant unit.9
Accordingly, where, as here, substantial auton-
omy is vested in the plant managers to handle the
day-to-day supervision of their employees, we find
this more significant in determining the appropri-
ateness of the unit sought than the existence of cen-
tral recordkeeping or product integration. 0
Similarly, with respect to employee interchange,
we find that the evidence does not establish that
the extent of such transfers and contacts has cre-
ated a significant community of interest between
employees at the two plants. Over half of the trans-
fers took place approximately 4 years prior to the
hearing, and they related to the closing and re-
opening of the Flemington plant. Moreover, of the
10 remaining transfers, 2 involved employees who
were supervisors, 5 involved employees who were
quality control technicians whom we find, infra,
are not appropriately included in the unit, and only
3 involved employees who were in the production
and maintenance unit. Of these three employees, all
requested their transfers. As a Board panel recently
pointed out in Renzetti's Market, Inc., 1̀ employee
interchange either created by the opening or clos-
ing of an establishment or made at the convenience
of employees is "not entitled to much weight in de-
termining the scope of the appropriate unit."
Thus, in view of the sufficiently autonomous su-
pervision at each of the plants, the lack of signifi-
cant employee interchange, the absence of any bar-
gaining history among the unit employees, and the
fact that no labor organization seeks to represent
the employees on a broader basis, we find that
there is a sufficient basis for granting Petitioner's
request for a single-plant unit. 12
2. As noted, Petitioner also sought review of the
Acting Regional Director's inclusion of the quality
control and research and development technicians
Renzetllt fMarket, Inc., 238 NLRB 174 (1978)
9 See, e g., Renzetti Market. Inc.. upra: Pneumo Corporation, d/b/a P
& C (Cros C.). 228 NLRB 1443 (1977); Bourns Inc. 217 NLR 21
(1975). Gordion Mills, Inc., 145 NI.RB 771 (1963)
' HIlaag Drug Co., Inc., 169 NLRB at 878: The Black and Decker Man-
ufacturing Company, 147 NLRB 825. 828 (1964).
"i 238 NLIRH 174, fn 8.
x2 In reaching this result. Member Jenkins does not rely on Rezettrri.
but instead relies on Pneumo Corporation. supra.
PENN COLOR, NC.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the unit found appropriate. These employees
perform research, development, and testing for the
manufacturing operations in laboratories at both fa-
cilities. With respect to these categories, we also
disagree with the Acting Regional Director's deci-
sion to include them in the production and mainte-
nance unit. 3 First of all, the fact that some of the
technicians are located at the Flemington plant pre-
cludes us from concluding that all technicians
should be included in the Doylestown unit of pro-
duction and maintenance employees. As for those
technicians at Doylestown, we find their inclusion
in the unit inappropriate for the following reasons:
First, the supervision of production and mainte-
nance employee is totally separate from the super-
vision of technicians. This includes hiring, firing,
evaluating, and assigning jobs to employees. All of
these matters respecting the technicians are the sole
responsibility of Technical Director Chuck Rybny.
Second, there is no interchange between produc-
tion and maintenance employees and technicians.
The only contact the two groups have during
working hours occurs when technicians work
alongside production and maintenance employ-
ees.14 Third, while technicians have the option of
:' As the Acting Regional Director did, we base our decision on an
analysis of these technicians' community of interest with the production
and maintenance employees rather than determining first whether they
are technical employees.
14 While the Acting Regional Director characterized this contact be-
tween technicians and production and maintenance employees as occur-
ring "often," the amount of such contact cannot be discerned from the
testimony presented. Rather, all that can be said conclusively is that there
is some contact.
being paid on a salaried basis, all production and
maintenance employees are compensated at an
hourly rate. Fourth, the basis for promotion and
the frequency with which promotion occurs are
different for technicians and production and main-
tenance employees. Finally, technicians and pro-
duction and maintenance employees have different
requirements regarding educational background
and on-the-job training.
In sum, while the two groups share certain
common benefits such as common vacation poli-
cies, holidays, pension plans, and sick days, these
are not sufficient in light of the numerous differ-
ences discussed above to establish a sufficient com-
munity of interest to warrant the inclusion of the
quality control and research and development tech-
nicians in the Doylestown production and mainte-
nance unit.
Accordingly, we find that the following employ-
ees of the Employer constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees,
shipping and receiving employees, warehouse-
men, and truckdrivers employed by the Em-
ployer at its Doylestown, Pennsylvania, facili-
ty, but excluding all quality control and re-
search and development technicians, office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]