Towmotor Corp.

National Labor Relations Board - Board Decisions

Jan 22, 1971

187 N.L.R.B. 1027 (N.L.R.B. 1971)

TOWMOTOR CORP. 1027
Towmotor Corporation and International Union of
Operating Engineers , Local 589, AFL-CIO, Peti-
tioner . Case 8-RC-7928
January 22, 1971
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held at Cleveland, Ohio, on September 11, 22, and
23, 1970, before John Vincek, Hearing Officer.
Following the hearing, and pursuant to Section 102.67
of the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8, as
amended, the Regional Director transferred the case
to the National Labor Relations Board for decision.
Thereafter, briefs were timely filed by the Employer,
the Petitioner,' and the Intervenor,2 all of which have
been duly considered.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connection
with this case to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.
Upon the entire record in this case, including the
briefs, the Board 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 organizations involved claim to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing 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, for the following
reasons:
The Petitioner, IUOE, seeks to sever a unit of
powerhouse employees (heating plant operators and
heating plant helpers) from an overall production and
maintenance unit at the Employer's new Mentor,
t International Union of Operating Engineers, Local 589, AFL-CIO,
herein called IUOE.
2 International Union , United Automobile , Aerospace and Agricultural
Implement Workers of America, UAW, Local 790, herein called UAW,
was permitted to intervene at the hearing on the basis of its contractual
interest in the employees sought in the petition.
3 In the prior Towmotor case (Towmotor Corporation, 182 NLRB No.
116), the Board , on the basis of contract bar, refused to accord a self-
determination election to the powerhouse employees at the Employer's new
Ohio, plant. The Employer and Intervenor UAW
contend that only an overall unit of production and
maintenance employees is appropriate because of the
highly integrated nature of the operation and because
the unit sought does not consist of a functionally
distinct departmental group of employees who have
common interests.
The Employer, a wholly owned subsidiary of the
Caterpillar Tractor Company, is an Ohio corporation
engaged in the manufacture and assembly of lift
trucks and related truck parts. Prior to construction of
the Mentor plant, the Employer's operation was
conducted through three separate facilities located in
Cleveland, Ohio. For some years, the Employer and
Intervenor UAW have entered into a series of
collective-bargaining contracts covering the prod-
uction and maintenance employees at the Cleveland
plants, and, more recently, the powerhouse employees
at the new Mentor, Ohio, plant.3 The new Mentor
plant, which is 17 miles distant from the Cleveland
plants, will become fully operational in late 1970, and
at that time the Cleveland plants will be closed down.
As of September 11, 1970, two-thirds of the equip-
ment at the Cleveland plants had already been
transferred to the Mentor plant, and of the 1,100
employees at Cleveland, there are 734 production and
maintenance employees now working in the Mentor
plant, of which 700 were transferred from the
Cleveland plants.
There was no counterpart to the powerhouse at the
Cleveland plants and it is a new operation at the
Employer's Mentor plant. It is located about 600 feet
from the main plant, and its function is to produce
heat, air, and steampower for the plant. There are in
the Employer's powerhouse such types of equipment
as two 100,000 pound boilers, two Caterpillar natural
gas engines , two pneumatic compressors, a water
softener, and a diesel electric generator.
There are nine employees assigned to the power-
house, namely six heating plant operators, who are
new hires, and three heating plant helpers, who are
transferees from the Cleveland plants. The heating
plant operators are required by state law to be
licensed stationary engineers . The powerhouse em-
ployees work exclusively in thepowerhouse, although
they may go into the main plant occasionally to
maintain the steam , heat, and air lines. They are
separately supervised, at least insofar as the first shift
Mentor facility. Member Fanning dissented . He did not view this
powerhouse group as a "normal accretion " to the contract unit and would
have granted a self-determination election immediately without running the
risk of denial of this right after a period of representation in the overall
unit. Now that the severance stage has been reached, Member Fanning
would grant a severance election to this group because of their special skills
and separate supervision without relying upon the "special circumstances
in this case."
187 NLRB No. 138
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is concerned, by Ken Hawkins, a utility foreman, who
is also a licensed stationary engineer. There is no
employee interchange between the powerhouse em-
ployees and the production and maintenance employ-
ees, although they may occasionally come into
contact with each other. Unlike the other operations
in the plant, which run on a three-shift, 5-day-a-week
basis, the powerhouse is in operation 24 hours a day, 7
days a week, including Sundays and holidays.
Employees in the powerhouse are encompassed
within the Plant Engineering Occupational Group,
which numbers about 64 employees, including electri-
cians, maintenance servicemen, grounds and service
employees, power sweepers, and janitors. The power-
house employees appear to be in a special category for
seniority purposes, since, in a reduction-in-force
situation, they may not be bumped by a more highly
rated employee, unless such employee had previously
held the heating plant classification. The powerhouse
employees and the production and maintenance
employees are covered by the same pension, life
insurance, medical benefits, and supplemental unem-
ployment benefit plans, and their rates of pay are
generally comparable.
We find no merit in the Employer's and Intervenor's
contention that only an overall unit, including the
powerhouse employees, is required under the integra-
tion theory, or that these employees do not constitute
a functionally distinct departmental group with
common interests. Thus, the powerhouse employees
work exclusively in a separate area; they essentially
are separately supervised; they do not interchange
with the production and maintenance employees;
they have only occasional contact with the other
employees; their work is scheduled over a 7-day week,
rather than a 5-day week as is the case with the other
employees; they do not work directly in the prod-
uction process; for purposes of seniority and bumping
rights, they appear to be in a special category; and
there is only a negligible history of collective
bargaining for the powerhouse employees under a
more comprehensive basis. Under these circum-
stances, and since the Petitioner is a labor organiza-
tion which traditionally represents powerhouse em-
ployees, it seems clear that, were there no bargaining
history, the powerhouse employees herein could
constitute a separate appropriate unit.4
Although the employees sought constitute a tradi-
tional departmental grouping, the Board, in an earlier
case involving the same parties, declined to direct an
election on a petition seeking to represent them
separately. There, a Board panel, in a split decision,
concluded that the newly established powerplant unit
constituted an accretion to the existing production
" See American Can Company, 179 NLRB No 12, Parke Davis &
Company, 173 NLRB No 53, and Mesta Machine Company, 167 NLRB 99
and maintenance unit in Cleveland and that, as the
petition was untimely with respect to the existing
collective-bargaining unit covering the latter, an
election was precluded under the Board's contract-
bar rules. Though the instant petition was timely filed
with respect to that contract, the question that
emerges is whether the bargaining history thus
developed precludes a severance election under the
criteria expressed in Mallinckrodt Chemical Works,
Uranium Division, 162 NLRB 387.
In our opinion, under the special circumstances in
this case ". . . the interest of the employer and the
total employee complement in maintaining the
industrial stability and resulting benefits of an
historical plantwide bargaining unit . . ." is out-
weighed by ". . . the interest of a portion of such
complement in having an opportunity to break away
from the historical unit by a vote for separate
representation."5 Thus, we are not here confronted
with an attempt to carve out a group of employees
with a long and entrenched history of collective
bargaining shared with others. Prior to 1969, the
production and maintenance unit did not include any
powerhouse employees, the Employer's plants includ-
ed no such facility, and in consequence the stationary
engineers needed to man the new powerhouse were
recruited through outside hiring. Nevertheless, their
inclusion within the production and maintenance
unit, albeit perfectly lawful, was accomplished with-
out affording them an opportunity to express a choice
as to their mode of representation. The Mallinckrodt
decision does not ignore the equities presented in such
circumstances, and, in recognition thereof, expressed
the following as a factor to be considered in
connection with requests for severance elections:
"... the prior opportunities, if any, afforded . . . to
obtain separate representation."6
Furthermore, in view of the short history of
bargaining on a comprehensive basis, we are not
persuaded that the existing pattern has been estab-
lished as the form most conducive to stability, nor
does it appear that separate representation of the
employees only recently added to the existing unit
would prove unduly disruptive. Also, the separate
representation of powerhouse units by Petitioner is
not an unusual phenomenon in this industry, and the
incidence of separate units both on a craft and
departmental basis within the operations of Caterpil-
lar Tractor Company, the parent corporation of the
Employer, precludes a finding that we are dealing
with production operations so integrated as to require
a denial of severance under any circumstances. In
sum, we are not persuaded that considerations of
stability emerging from existing patterns of represent-
s 162 NLRB at 392.
6 Ibid, 397
TOWMOTOR CORP.
ation , the potential for disruption, resulting from
separate representation, and the integrated nature of
the operations are sufficient in degree to outweigh the
interest of the employees sought in at least having one
opportunity to express their assent to, or rejection of,
the action of the Employer and Intervenor in merging
them into the existing unit . Accordingly, on the basis
of the special circumstances of this case, we find that
the powerhouse unit constitutes an appropriate
grouping for a severance election.
Accordingly, we shall make no final unit finding at
this time , but, as provided below, shall direct an
election among those in the following voting group:
All operators and helpers in the heating plant
(powerhouse) at the Employer's Mentor, Ohio,
plant, excluding all other employees, professional
employees, office clerical employees, guards, and
supervisors as defined in the Act.7
If a majority in the voting group vote in favor of
International Union of Operating Engineers, Local
589, AFL-CIO, they will constitute an appropriate
unit , and an appropriate certification will issue. If
they vote in favor of International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America, UAW, Local 790, they will
7 There is no dispute as to the composition of the unit
8 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 Co, 394 U S
759 Accordingly , it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters , must be filed
1029
remain part of the existing unit and a certification of
results to that effect will issue.
[Direction of Elections omitted from
publication.]
MEMBER JENKINS, dissenting:
Contrary to the majority, I would dismiss the
petition in accordance with the principles set forth in
Mallinckrodt. In my opinion, the functions and
characteristics of the powerhouse unit sought here are
identical to that as to which the Board denied
severance in Mobil Oil Corporation, 169 NLRB 259;
and, as in that case, support the conclusion ". . . that
the separate interests of the powerhouse employees
are so merged into the broader community of interest
shared by all . . . employees as to render a separate
powerhouse unit inappropriate."
In addition, the Board's prior decision in this
matter, 182 NLRB No. 116, has settled the issue so as
to become the law of the case. If the employees have
been accreted to the unit, as they have, there is no
question concerning representation before the Board.
If no severance election was proper then-as the
Board held-it is even less proper now.
by the Employer with the Regional Director for Region 8 within 7 days of
the date of this Decision and Direction of Election. 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
filed