Rohtstein Corp.

National Labor Relations Board - Board Decisions

Nov 16, 1977

233 N.L.R.B. 545 (N.L.R.B. 1977)

ROHTSTEIN CORPORATION
Rohtstein Corporation and Bakery and Confectionery
Workers International Union of America, Local
No. 20, AFL-CIO, Petitioner and Teamsters Local
Union No. 25, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Petitioner. Cases 1-RC-14943 and
1-UC-210
November 16, 1977
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On April 15, 1977, the Regional Director for
Region I issued a Decision, Order, and Direction of
Election in the above-entitled proceeding. Bakery
and Confectionery Workers International Union of
America, Local No. 20, AFL-CIO (hereinafter
referred to as Local 20), the Petitioner in Case l-RC-
14943, sought a unit of all production and mainte-
nance employees at the Employer's manufacturing
division, formerly a separate corporation known as
Orchard Foods. Teamsters Local Union No. 25, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (hereinafter
referred to as Local 25), the Petitioner in Case 1-
UC-210 and an Intervenor in Case I-RC-14943,
sought to clarify the unit it currently represents at the
Employer's facility to include the former Orchard
Foods production and maintenance employees. The
Employer's position is that the employees sought by
Local 20 are covered by its existing contract with
Local 25. Alternatively, the Employer contends that
only a unit of all employees at its Woburn facility is
appropriate. The Regional Director dismissed the
petition for unit clarification, found a unit limited to
the former Orchard Foods employees to be appropri-
ate, and directed an election in that unit with both
Local 20 and Local 25 participating.
The Employer filed, in accordance with Section
102.67 of the National Labor Relations Board Rules
and Regulations, Series 8, as amended, a timely
request for review of the Regional Director's deci-
sion. The Employer disputes the factual conclusions
of the Regional Director and contends that his
determination of the appropriate unit and dismissal
of the unit clarification petition departed from Board
precedent.
By telegraphic order dated May 11, 1977, the
Board granted the Employer's request for review. All
parties filed briefs on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
I For example, the cooks have assisted in material handling when their
services are needed and they are free to leave their pnmary responsibilities.
233 NLRB No. 86
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Employer manufactures and distributes indus-
trial food supplies with its principal office and place
of business in Woburn, Massachusetts. Prior to 1973,
however, the Employer had no manufacturing
capacity. In 1973, a food manufacturing corporation,
Orchard Foods, moved into and shared the Employ-
er's main facility. The two operations were indepen-
dently owned and operated until 1974 when Orchard
Foods merged with the Employer.
The issue in this case is whether the employees
formerly employed by Orchard Foods (hereinafter
referred to as the manufacturing employees) consti-
tute a separate appropriate unit or whether those
employees lack the identifying characteristics war-
ranting separate representation and must constitute
an accretion to the existing unit (hereinafter referred
to as the distributing employees). In 1976, faced with
the same question, the Regional Director found the
manufacturing employees to constitute a separate
appropriate unit and directed an election involving
the Petitioners in this case. Neither union received a
majority of the ballots cast.
Since the merger and the last election, the
Employer has endeavored to absorb and integrate
the manufacturing operation gradually into the
distributing operation. This effort has been most
successful in the consolidation of the Employer's
administration. The executive structure has been
effectively merged. Corporate functions such as
personnel, bank accounts, bookkeeping, payroll,
health benefits, billing, and ordering have also been
integrated and centralized.
Despite this administrative centralization, the
Regional Director's conclusion that the manufactur-
ing and distributing operations have basically re-
tained the functional integrity and independence that
existed prior to the merger is supported by the
record. The manufacturing department processes
goods in two ways: the cooking of various syrups and
fillings, and the repacking of bulk goods into smaller
quantities. There are approximately 40 employees in
this department: cooks, filler operators, labelers,
material handlers, and maintenance workers. Al-
though job functions are somewhat flexible when the
need arises,' the cooks oversee the actual manufac-
turing process of cooking; the filler operators
package the cooked product as it descends from the
mezzanine cooking area to the main floor and
monitor the movement of liquid raw materials from
the storage area to the cooking area; the labelers are
primarily concerned with labeling the products,
including moving the packaged product to the
545
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labeling area; the material handlers, including two
forklift operators, perform most of the moving and
loading tasks of the department; and the mainte-
nance employees do general maintenance throughout
the facility and are responsible for pumping the
liquid raw materials into the storage tanks from
which they are fed into the cooking vats.
The distributing department consists of approxi-
mately 75 employees; truckdrivers, helpers, forklift
operators, and warehousemen. Their function centers
on the unloading, storing, loading, and transporta-
tion of goods. They handle raw materials, finished
products that have been processed by the manufac-
turing department, and other finished products
which are received and shipped without any process-
ing or repacking.
Although the Employer and Local 25 contend that
the job tasks and functions of the two departments
are sufficiently integrated to warrant accreting the
manufacturing employees to the existing unit, the
record demonstrates that the employees of each
department are still involved in and identified with
distinct and essentially dissimilar operations. The
majority of the employees in the manufacturing
department have as their primary responsibility tasks
which are peculiar to the production functions-
cooks, filler operators, and labelers. Similarly in the
distributing department, half of the employees are
truckdrivers whose job function is not similar to that
of any employees in the manufacturing department.
While those employees in both departments who
move, load, and unload goods perform similar
physical taks, they are not used interchangeably and
their duties are defined by their departments. When
the manufacturing operation is open, raw materials
used in production are unloaded exclusively by the
manufacturing personnel. Similarly, finished pro-
cessed products are loaded exclusively by the
manufacturing employees. Even where a truck is
receiving a mixed load, the manufacturing employees
will generally load the processed goods and the
distributing employees will load the other products.
The only regular and substantial exception to this
allocation of tasks occurs after midnight when the
manufacturing operation is closed. The distributing
operation assumes the tasks of unloading the raw
materials needed by the manufacturing operation
and loading their processed product. This overlap-
ping of tasks necessitates some dovetailing of
operation at least to the extent that distributing
employees must be aware of the organization of the
finished inventory racks and work with the manufac-
turing employees so that the correct loads are sent
out.
Other evidence of employees from one department
performing tasks normally performed by employees
from another department, however, is limited to the
infrequent and the unusual. For example, the task of
moving raw materials to the cooking mezzanine,
done routinely by manufacturing employees, is
performed by a distributing employee only two or
three times a month. Evidence of manufacturing
employees performing tasks normally done by
distributing employees is even scantier. Thus, where,
as here, employees with similar job functions are not
used interchangeably, but have their duties defined
by their department, the inference is that the
employees in each department are distinct and
independent groups.
This independence is corroborated by other differ-
ences in operation and working conditions. The
manufacturing employees have different hours and
wages. The distributing department operates 24
hours a day, while the manufacturing facilities
operate for only two shifts. The shift starting times
are different. Employees performing similar tasks are
not paid the same wages and the weekly pay periods
for the two departments are not the same. The
manufacturing employees wear special uniforms.
Lunch and coffeebreaks are different.
The manufacturing operation has its own supervi-
sory hierarchy, although the Employer recently
created the position of operations manager with
authority over all distribution and production func-
tions. Despite the technical authority of any supervi-
sor over any employee, employees in each depart-
ment are responsible to their own departmental
supervisors. Even as a matter of corporate policy,
management authority is channeled through the
departmental supervisory staffs and not across
departmental lines.
Personnel decisions as to layoffs and overtime are
made separately for each department. Within the last
year employees were laid off and overtime was cut in
the manufacturing department although the distrib-
uting department was unaffected. Seniority is also
determined separately.
Interchange between the two departments has been
insignificant. Excluding management positions, few
employees have transferred between departments.
Apparently there is not even an established proce-
dure for applying for such a transfer.
Physically, although both departments operate
under the same roof, their operations are basically
segregated. The manufacturing department is located
on one side of the facility. The cooking room is on
the mezzanine with the processed produce flowing
down to the filling room on the main floor where it is
packaged and then labeled and stored in an adjacent
holding area which is used exclusively for the
manufacturing department. Certain areas are utilized
jointly: the primary loading docks which are on the
546
ROHTSTEIN CORPORATION
distribution side, the finished inventory racks, and
the cold storage facility. Nevertheless, except for the
loading docks, those areas are internally segregated
by department. Within the cold storage there are
separate sections for the materials earmarked for
manufacturing. Similarly, in the finished inventory
racks, certain aisles are reserved for the processed
products.
Although officially the various entrances, rest-
rooms, and lunch areas are open to all employees,
the distributing and manufacturing employees gener-
ally use the facilities close to their main working
areas. This defacto separation is also illustrated by
the two sets of timeclocks; one at the entrance near
the cooking area which has the timecards for the
manufacturing employees, and one at the other end
near the loading docks with the timecards for the
distributing employees.
Based on the above and the record as a whole, we
conclude, in accord with the Regional Director, that
the manufacturing employees share a sufficiently
distinct community of interest apart from the other
employees to constitute a separate appropriate unit.
In making this decision, we have considered a
number of factors, including the integration of
operations, the centralization of managerial and
administrative control, geographic proximity, the
similarity of working conditions, supervision, skills,
and functions, and the degree of interchange among
the employees, 2 and we rely on the following
conclusions.
The manufacturing department has remained
functionally a distinct operation within the Employ-
er's facility since the merger and the previous unit
determination. The manufacturing employees can be
identified by their working hours, pay, frontline
supervision, seniority status, lunch and coffeebreaks,
timeclocks, dress, and general physical working
locations. Their job classifications and functions are
basically dissimilar from those of the distributing
employees. Even the manufacturing employees
whose job tasks are functionally interchangeable
with those performed by some of the distributing
employees have work assignments that are deter-
mined by their affiliation with the manufacturing
department. There is no significant interchange
between the two departments, and layoffs and cuts in
overtime were determined for the manufacturing
2 E.g., The Great Atlantic and Pacific Tea Companiv (Famili' Savings
Center), 140NLRB 1011, 1021(1963).
3 Rostone Corporation, 196 NLRB 467 (1972); Rainbow Crafts, Inc.. a
Subsidiarly of General Mills, Inc. and Kutol Prtoducts Co., 190 NLRB 554
(1971); see Vincent Price laboratories, Inc. and Vincent Price Studio
Incorporated, 220 NLRB 1387 ( 1975).
department as a separate group. Thus, we find that
the manufacturing employees may constitute a
separate appropriate unit.3
This conclusion, however, does not preclude a
finding that a unit consisting of all employees is also
appropriate.4 Although the evidence of some integra-
tion of operation, the similarity of some job func-
tions, the centralized administrative and managerial
control, and the geographic proximity is not suffi-
cient to negate the appropriateness of the smaller
unit, it does demonstrate a sufficient community of
employee interests between the manufacturing and
distributing operations to support a finding that an
overall unit may be appropriate.
Thus, we find that either a unit of the manufactur-
ing employees alone or a unit of both the manufac-
turing and distributing employees could constitute an
appropriate unit.5 Accordingly, no unit determina-
tion will be made at this time. Rather, we shall allow
the manufacturing employees as a voting group to
express their desire to either be represented in a
separate unit by Local 20, to be included in the
existing unit of distributing employees represented
by Local 25, or to remain unrepresented.
An election is therefore directed in the following
voting group:
All production and maintenance employees of the
Employer at its Woburn, Massachusetts location
but excluding office clerical employees, profes-
sional employees, distributing employees current-
ly represented by Teamsters Local No. 25,
carmen, and guards and supervisors as defined in
the Act.
If the majority of the employees in the above-
described voting group cast their ballots for Local 20,
they will be taken to have indicated their desire to
constitute a separate appropriate unit and the
Regional Director is instructed to issue a certification
of representative to Local 20 for this unit, which the
Board, under the circumstances, finds to be appro-
priate for purposes of collective bargaining. If the
majority of the employees in the voting group cast
their ballots for Local 25, they will be taken to have
indicated their desire to be included in the existing
unit currently represented by Local 25 and the
Regional Director will issue a certification to that
4 E.g., Rosetone Corporation. 196 NLRB 467 (1972).
· Since a question concerning representation exists in the group of
employees sought to be accreted, the unit clanfication petition was properly
dismissed.
547
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect. If the majority of the employees in the unit
cast their ballots for neither labor organization, they
will be taken to have indicated their desire to be
unrepresented by any labor organization appearing
on the ballot and the Regional Director will issue a
certification of results of election.
[Direction of Election and Excelsior footnote
omitted from publication.]
548