Plough, Inc.

National Labor Relations Board - Board Decisions

May 22, 1973

203 N.L.R.B. 818 (N.L.R.B. 1973)

818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plough, Inc. and International Chemical Workers
Union, AFL-CIO-CLC and Local 194 of the Inter-
national Chemical Workers Union ,' Joint Peti-
tioners. Case 26-UC-33
May 22, 1973
DECISION ON REVIEW
By CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On October 30, 1972, the Regional Director for
Region 26 issued a Decision and Clarification of Bar-
gaining Unit in the above-entitled proceeding in
which he granted, in part, the Joint Petitioners' re-
quest that the certified unit, as described in their ex-
isting contract with the Employer, be clarified to
include specifically a number of categories of employ-
ees, and he denied the request insofar as it related to
electricians and office supply men whose exclusion
from the unit antedated the certification issued to
Local 194.2 Thereafter, in accordance with Section
102.67 of the National Labor Relations Board Rules
and Regulations, the Employer filed a timely request
for review of the Regional Director's Decision on the
grounds that to the extent that he granted the request-
ed clarification he departed from officially reported
precedent and made findings of fact which are clearly
erroneous. The Joint Petitioners filed opposition to
the request for review.
The National Labor Relations Board, by telegraph-
ic order dated January 18, 1973, granted the request
for review and stayed the Regional Director's clarifi-
cation pending decision on 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 in this
case with respect to the issues under review and makes
the following findings:
The existing contract between the Employer and
the Joint Petitioners, effective August 15, 1972,
through August 14, 1975, contains the following unit
descriptions:'
All production, plant maintenance, machine
shop, warehousing, garage mechanics, shipping,
receiving, garage, boiler room and printing plant
1 Referred to herein sometimes as Chemical Workers and Local 194.
2 At the time of the certification in May 1952, Local 194 was affiliated with
AFL
J The Regional Director found that all contracts entered into subsequent
to Local 194's certification contain a unit essentially the same as that origi-
nally certified
service employees of the Company at its plants at
3022 Jackson Avenue, Memphis, Tennessee,
1248 Warford Street, Memphis, Tennessee, 2401
Lejourne Road, Miami Florida, and the line me-
chanics at 1178 Pope Street, Memphis, Tennessee
... but excluding printers, bookbinders, typog-
raphers, over-the-road truck drivers, cafeteria
employees, watchmen, guards, office and clerical
employees, professional and technical employ-
ees, and supervisors... .
In the course of negotiations for this contract, the
Petitioner contended that certain categories of em-
ployees were improperly excluded from the bargain-
ing unit, and at the time of execution of the contract
the parties agreed that the issues would be resolved
through the instant petition.
The Regional Director clarified the unit to include
Carl Fields, retained sample technician; Matt Lewis,
glass and chemicals handler; Savenia Pulliam and
Earnest Kent, yard employees; Hester Weeden, com-
pounding department equipment mechanic; Billy
Reece, fire and safety inspector; four printing division
inspectors; Botho Peters, lead maintenance mechan-
ic; three forklift mechanics; and five quality control
in-process technicians.
The Regional Director found that the three forklift
operators, whose classification has been in existence
for at least 9 or 10 years, and the five quality control
in process technicians, whose classification has been in
existence over years, share a close community of in-
terest with unit employees and that they are accre-
tions to the unit. The Employer, in support of its
contention that they may not be included by way of
clarification, points to the fact that there have been
several contracts negotiated excluding them. As to
Peters, the lead maintenance mechanic, the Regional
Director found that the parties had inadvertently ex-
cluded him from the unit, and that the "duty of the
Board to police its certification warrants a finding
that this classification has been and is now one that
should be in the unit." He also found that Pulliam had
been reclassified as a leadman in the yard in 1959 and
removed from the unit. Finding Pulliam not to be a
supervisor as defined in the Act, he clarified the unit
to include him on the same basis as stated above with
respect to Peters. The Employer asserts error in the
finding that Peters' exclusion was inadvertent and
contends that clarification as a means of including
Peters and Pulliam is improper.
We agree with the Employer's contention that the
long period of exclusion of employees in the foregoing
four classifications requires that the issues raised con-
cerning their inclusion in the existing unit be resolved
in a 9(c)(1) election proceeding.4 Contrary to the Re-
4 See C F&1 Steel Corporation, 196 NLRB 470, 472; Monongahela Power
203 NLRB No. 132
PLOUGH, INC.
gional Director, the Board does not normally use its
power to police its certification to include in a unit by
way of clarification classifications or categories of
employees who historically have been excluded. Ac-
cordingly, the requests for clarification of the unit to
include the forklift mechanics, the quality control in-
process technicians, lead maintenance mechanic Pe-
ters, and yard leadman Pulliam are hereby denied.
The Regional Director found that Fields and Lewis
were assigned to the classifications of retained sample
technician and glass and chemicals handler, respective-
ly, approximately 18 months before the hearing date.
Prior thereto, Fields had been a serviceman, covered
by the contract, whose duties were to wash lab uten-
sils by hand. He now works in the basement of a new
administration building. His present duties are to
maintain a supply of glassware used by the laboratory
staff for sample analysis and to retain samples of raw
materials . Now, as before, his supervisor is Blasin-
game. Lewis, also under Blasingame 's supervision,
washed lab utensils with a dishwasher and maintains
a store of chemicals. The Regional Director conclud-
ed that Fields and Lewis in their new classifications
are doing work similar to that formerly done by unit
employees and that their new duties are not technical
in nature. He therefore found them to be accretions
to the unit. The Employer contends that the Regional
Director erred in finding that Fields performs similar
work to that formerly done by unit employees. It ad-
vanced no specific contention in support of its request
for review concerning Lewis. We reject the
Employer's contentions and affirm the Regional
Director's clarification of the unit to include Fields
and Lewis.
The Regional Director found that the classification
of printing division inspector was created in 1971 to
meet the printing requirements for a new line of ethi-
cal drugs manufactured by another corporation
which had merged with the Employer. The record
indicates that the four employees in this classification
perform an inspection function with respect to sheets
of printed matter produced in the printing division,
which are cut, creased, folded, and formed into car-
Company, 198 NLRB No. 177; Brockton Taunton Gas Company, 178 NLRB
404; Lufkin Foundry and Machine Company, 174 NLRB 556, and cases cited
therein . Contrary to the Regional Director, the policy applied in these cases
is not confined to situations where the classifications sought to be added to
a unit by way of clarification were in existence at the time the bargaining
relationship was established . The policy also applies where , as here, the
parties have in the past bargained on the basis of a unit which did not include
the disputed classifications or categories of employees. Cf. Wallace-Murray
Corporation, Schwitzer Division, 192 NLRB 1090.
819
tons used as containers for the Employer's products.
Much of this inspection was previously carried out by
carton finishers, unit employees, who fed the printed
sheets into glueing machines, which produced the car-
tons, and then stacked the cartons in shipping boxes.'
Because of the high rate at which the machines pro-
duced the cartons, the carton finishers had been un-
able to catch many defects in the printed matter and
in the construction of the cartons. The new classifica-
tion of inspectors was created in part to remedy this
problem. The Employer contends that the printing
division inspectors have a closer community of inter-
est with excluded printing division employees than
with unit employees. We find no merit in the
Employer's contention and affirm the Regional
Director's clarification of the unit to include the print-
ing division inspectors.
The Regional Director found that the classification
of compounding department equipment mechanic occu-
pied by Weeden was created 3 years ago because of
acquisition of larger and more sophisticated equip-
ment. Compounding maintenance work historically
has been performed by unit employees working in the
compounding department. Fire and Safety Inspector
Reece works in the unit performing a utility mainte-
nance function, such as work on air-handling equip-
ment. He was given the added duties of inspection of
fire and safety equipment in 1971. In the past, this
inspection function was performed by unit employ-
ees. Although the Regional Director granted the Peti-
tioners' request that the unit be clarified to include
yard employee Kent, no specific findings were made
concerning him. The record too contains little evi-
dence as to when he was hired or what he does other
than to suggest that he works in the yard with Pulliam.
As to Kent, Weeden, and Reece, the Employer ad-
vanced no specific facts or argument in support of its
request for review. We therefore affirm the Regional
Director's clarification of the unit to include these
three employees.
In conclusion, the Regional Director's clarification
of the existing unit is affirmed in all respects except
as to his inclusion of the three forklift operators, the
five quality control in-process technicians, lead main-
tenance mechanic Peters, and yard leadman Pulliam,
which categories we have found may not be included
in the unit by way of a unit clarification proceeding.
S The Regional Director stated that the duties of the punting division
inspectors are "merely an improvement or upgrading of the inspection for-
merly performed by the control inspectors who are unit employees." The
Employer asserts this finding to be in error. It is evident from the record that
the Regional Director was referring to "carton finishers" not "control inspec-
tors" and made an inadvertent error.