361 N.L.R.B. 695 (N.L.R.B. 2014)

AT WALL COMPANY

National Labor Relations Board - Board DecisionsOct 6, 2014

361 N.L.R.B. 695 (N.L.R.B. 2014)

AT WALL CO. 695 AT Wall Company and New England Joint Board UFCW/RWDSU Petitioner. Case 01–UC–081085 October 6, 2014 DECISION ON REVIEW AND ORDER BY MEMBERS HIROZAWA, JOHNSON, AND SCHIFFER The issue presented is whether the Board should clari- fy an existing collective-bargaining unit to include new classifications established by the Employer after it ac- quired the operations of another company. The Acting Regional Director issued a Decision and Clarification of Bargaining Unit on August 30, 2012, granting the Un- ion’s petition for clarification and including the disputed classifications within the unit. The Employer filed a re- quest for review, contending that the Acting Regional Director erred in applying Premcor, Inc., 333 NLRB 1365, 1366 (2001), and determining that the employees perform the same basic function as the employees in the existing unit. The Petitioner filed an opposition brief, asserting that the Acting Regional Director had ruled correctly. On November 21, 2013, the Board granted review. The Employer has filed a brief on review, reiter- ating its prior arguments. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Having carefully considered the entire record, includ- ing the brief on review, we find, contrary to the Acting Regional Director, that the unit should not be clarified to include the new classifications. We disagree with the Acting Regional Director’s finding that the circumstanc- es warrant application of Premcor, supra, and we will instead apply the Board’s traditional accretion standard. Under that standard, we find that the classifications at issue should not be added to the unit, because the em- ployees in those classifications have retained their sepa- rate group identity and do not share an overwhelming community of interest with the employees in the existing unit. Accordingly, we reverse the Acting Regional Di- rector’s decision and dismiss the underlying petition. I. BACKGROUND AT Wall Company, the Employer, manufactures metal products at its facility in Warwick, Rhode Island. The Employer and the Union have been in a collective- bargaining relationship since at least 1960, when they entered into their first agreement. Section 3 (entitled Union Recognition) of their most recent agreement, ef- fective June 1, 2011–December 1, 2012, defined the bar- gaining unit as consisting of the classifications listed in section 17 (Employee Classifications). That section lists 21 classifications in 6 different departments:1 DEPARTMENT CLASSIFICATION Inspection Inspector C Inspector Quality Technician Maintenance Maintenance Assistant Maintenance Maintenance Mechanic Maintenance Electrician Tubing Annealer Operator Assistant Tubing Operator Cutting Machine Operator Tubing Department Coordinator Materials Handling Materials Administrator Material Handler Stamping/Finishing Packer Operator Set-up Operator Toolroom Machinist Machinist (CNC) Toolmaker Master Toolmaker Article 18(h) requires the Employer to bargain with the Petitioner over the wages of any newly created classifica- tions or departments within the unit.2 Each department has its own manager or supervisor. In December 2011, the Employer acquired the Metal- form Company of New Britain, Connecticut, and moved that company’s production of gun magazines to the Warwick facility. The 13 nonsupervisory employees in the Employer’s Metalform department work in four clas- sifications: Metalform Toolsetter, Metalform Assembler, Metalform Machine Operator, and Metalform Welding Operator. None of the employees currently working in 1 Contrary to the list in sec. 17 of the collective-bargaining agree- ment, the Employer’s organizational chart shows only 5 departments— Materials, Quality, Stamping, Tubing, and the recently added Metal- form. It shows the Toolroom as part of Stamping, and Inspection as part of Quality. Maintenance is not shown. 2 It does not appear that either party sought to negotiate the status of the four Metalform classifications or to seek the deferral of the current case to the arbitration process. 361 NLRB No. 62 696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD those classifications had been employed by Metalform, but were all hired by the Employer.3 The Warwick facility currently carries out three manu- facturing processes--tubing, stamping, and gun maga- zines--all of which take place on its production floor. The production floor consists mostly of open work areas marked off by yellow lines painted on the floor, but it also has a few walled-off areas used for finishing pro- cesses, including a “dirty room” for tumbling and an area for annealing (a heating process used to correct internal imperfections in certain materials, including metals). The Employer hires employees to make a single product and does not cross-train them in the making of other products. Nonetheless, with a few minor variations, the Employer hires employees with the same general qualifi- cations for each production process: high school gradu- ates with manual dexterity, the ability to read microme- ters, basic math skills, familiarity with the relevant man- ufacturing process, and the ability to lift up to 50 pounds. Once an employee is hired, the Employer provides on- the-job training and a 90-day probationary period. The production employees for the three processes mainly stay in separate work areas, except to use the common areas (bathrooms, cafeteria, and locker room) or, in the case of the Metalform and Stamping employees to finish prod- ucts, in the “the dirty room.” The parties’ collective-bargaining agreement specifies the wages for unit employees. The Metalform supervi- sors set the wages for that department’s employees at the end of their probationary period. The Metalform em- ployees work different hours from the unit employees, are paid different premiums for working a longer shift, and have different terms governing holidays, vacations, and medical insurance. The collective-bargaining agreement sets out the unit employees’ terms and condi- tions of employment; the Employer issues the Metalform employees their own handbook setting forth their unique benefits. Each manufacturing process begins with a material handler moving the appropriate starting material to an inspection area where an inspector verifies that it is ready to be placed in inventory for use. All three processes end with a material handler moving the finished product to the Employer’s shipping area. The Tubing department makes sheet metal tubes used in microwave communications, primarily “wave guides” that collect microwave signals and direct them to a re- ceiver. Six unit classifications collaborate in making the tube: material handler, inspector, operator, operator assis- 3 The Employer offered the former Metalform Company employees the opportunity to transfer to the Warwick facility, but they all de- clined. tant, cutting operator, and annealer. After obtaining the starter tube, an operator assistant compresses it on a press to the right size. An operator then draws (stretches) it on a draw bench. The operator assistant straightens, cleans, and cuts the tube. The annealer takes it to the annealing area where it is heated to remove any stresses. After the tube is inspected, the cutting operator cuts it to the right length. The Stamping department makes small metal discs used in electronics. Five unit classifications collaborate in making the stamping products: material handler, in- spector, toolmaker, setup operator, and stamping opera- tor. After obtaining the starter discs, a toolmaker or a setup operator loads the appropriate die tool onto the press machine. The stamping operator and the set up operator feed the starter disc into the press and use it to stamp the disc into the desired form. They then clean and tumble the disc in the “dirty room” to remove burrs and shavings before it is moved to the shipping area. The Metalform department primarily makes ammuni- tion magazines for the Colt “Model 1911” pistol.4 Six job classifications collaborate in making the ammunition magazines: material handler, tumbling operator,5 and the new classifications of Metalform toolsetter, Metalform machine operator, Metalform welder, and Metalform assembler. The Metalform toolsetter loads a die tool onto a press and punches holes into a test piece of metal. Machine operators then punch holes into production pieces and use other press machines to bend the flat piec- es into a U shape. After degreasing, a welding operator welds two of the pieces to form a single magazine. It is then shipped out to a subcontractor for annealing. After the subcontractor returns it, an operator adds a “feed lip” to enable bullets to travel from the magazine into the pistol for firing. A Metalform assembler welds a butt piece to the magazine and then takes it to the dirty room for finishing. The assembler then inspects it and inserts the magazine’s internal mechanism. II. THE ACTING REGIONAL DIRECTOR’S DECISION The Acting Regional Director declined to apply the Board’s traditional accretion analysis. He found that under Premcor, supra, newly created classifications should be included within an existing unit if they per- form the same or similar work historically performed by unit employees. Applying the Premcor standard, the Acting Regional Director found the four Metalform clas- sifications to be “newly created classifications that effec- 4 The Metalform employees also make heavy metal cans. 5 The Employer and Petitioner agree that the material handler and tumbling operator positions are currently part of the contractual bar- gaining unit. AT WALL CO. 697 tively perform the same or similar work that is historical- ly performed by unit employees in the Stamping and Tubing Departments.” He defined the common work function of both sets of employees as feeding a starting material through a press machine that either compresses it or stamps it into a product and then cleaning and pro- cessing the final product. The Acting Regional Director characterized the Metalform classifications as production and maintenance employees who simply work on a dif- ferent product line, albeit making a “somewhat more complex product” than those put out by the other de- partments. He also pointed to the Metalform and unit positions as having similar requirements and performing similar job tasks that were basic enough to be learned through on-the-job training, without any prior experi- ence, special skills, or expertise.6 Based on that analysis, the Acting Regional Director concluded that the Metal- form classifications belonged within the existing unit and that the unit should be clarified to include them. III. EMPLOYER CONTENTIONS In its brief on review, the Employer contends that the Acting Regional Director erred in applying Premcor, supra, instead of the Board’s standard accretion analysis. The Employer argues that the Premcor standard is inap- plicable to this case because the Metalform employees use different machines, tools, and manufacturing tech- niques from those used by the unit employees to make an entirely different and new product. It further argues that the Acting Regional Director should have applied the accretion analysis. Under that test, the Employer asserts, the Metalform employees cannot be accreted to the unit because they do not share an overwhelming community of interest with the unit employees. Frontier Telephone of Rochester, Inc., 344 NLRB 1270, 1271 (2005). In support, the Employer asserts that the Metalform em- ployees have separate day-to-day supervision and differ- ent training and working conditions, that there is no em- ployee interchange or contact between the two groups, and that its operations are not functionally integrated. IV. ANALYSIS Unit clarification is the appropriate method “for re- solving ambiguities concerning the unit placement of individuals who . . . come within a newly established classification of disputed unit placement.” Union Elec- 6 The Acting Regional Director acknowledged that the Employer trains the Metalform employees longer than the unit employees and at a different location. He also observed that manufacturing the gun maga- zines requires several more steps than for the stamping and tubing products, as well as the performance of basic welding tasks. He found that these differences in the production process were not so substantial as to render Premcor inapplicable. tric Co., 217 NLRB 666, 667 (1975). The Board will view a new classification as already belonging in the bargaining unit (rather than being added to the unit by accretion) if that new classification performs the same basic work functions historically performed by unit em- ployees. Premcor, supra; Developmental Disabilities Institute, Inc., 334 NLRB 1166 (2001). If, on the other hand, the Board finds that the Premcor test is not satis- fied, it will add or “accrete” the new classification to the unit “only when the employees sought to be added to an existing bargaining unit have little or no separate identity and share an overwhelming community of interest with the preexisting unit to which they are accreted.” CHS, Inc., 355 NLRB 914, 916 (2010), quoting Frontier Tele- phone, supra (internal quotation omitted). In making this determination, the Board analyzes the standard commu- nity-of-interest factors: interchange and contact among employees, degree of functional integration, geographical proximity, similarity of working conditions, similarity of employee skills and functions, common supervision, and collective-bargaining history. E. I. Du Pont, Inc., 341 NLRB 607, 608 (2004), citing Archer Daniels Midland Co., 333 NLRB 673, 675 (2001). The Board usually views as “critical” the factors of employee interchange and common day-to-day supervision, and their absence will “ordinarily” defeat an accretion claim. Frontier Telephone, supra. Nonetheless, the Board also recognizes that “the normal situation presents a variety of elements, some militating toward and some against accretion, so that a balancing of factors is necessary.” E. I. Du Pont, supra, citing The Great Atlantic & Pacific Tea Co., 140 NLRB 1011, 1021 (1963). The Board generally follows “a restrictive policy in finding accretions to existing units because the Board seeks to insure that the right of em- ployees to determine their own bargaining representa- tives is not foreclosed.” Archer Daniels Midland Co, supra, 333 NLRB at 675. Contrary to the Acting Regional Director, we find that the facts do not indicate that the employees in the four Metalform classifications perform the same basic func- tion as employees in the classifications within the exist- ing bargaining unit, and thus should not be treated under Premcor as being part of the unit. In making this find- ing, as explained below, we observe that the collective- bargaining agreement contains a narrow unit description that defines the unit by listing 21 specific job classifica- tions that are labeled by department (and sometimes by product). Given this restrictive definition of the unit, the Metalform employees’ function of producing an entirely different product using different processes under differ- ent working conditions is not sufficiently related to the functions of employees in the other departments to quali- 698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fy the Metalform employees to be part of the unit under Premcor. Having decided the case under Premcor, the Acting Regional Director did not address whether the Metalform classifications should be added to the unit under the Board’s traditional accretion test. Applying that test here, we find that the two sets of employees do not share an overwhelming community of interest that has subsumed the Metalform employees’ separate identi- ty. Accordingly, we will dismiss the petition for clarifi- cation. A. Premcor It is apparent to us that the employees in the four Metalform classifications do not perform the same basic functions as employees in the classifications comprising the bargaining unit. Section 17 of the collective- bargaining agreement narrowly defines the bargaining unit by the listed classifications, grouped by department (and sometimes work product).7 In order to be accreted to the unit, the Metalform employees would have to be shown to perform the same basic functions as employees in a classification or classifications listed as within the unit. For example, in Developmental Disabilities Insti- tute, supra, the unit was defined as including all “instruc- tional employees” and historically included only teachers and assistant teachers. The Board found that employees in a new classification, therapy assistant/psychology, who provided one-on-one instruction for disruptive chil- dren, should be included within an existing bargaining unit of teachers and teachers assistants because they per- formed the same basic work function of teaching mental- ly disabled children to modify their behavior in order to attain the school’s educational goals. In finding that the Metalform employees belonged in the unit under the Premcor standard, the Acting Regional Director found that they were simply working on a dif- ferent product line within a production and maintenance unit. In Premcor, the Board found that a new classifica- tion, process control coordinator, performed the same basic control room functions previously performed by unit employees classified as “operator 1s,” and thus was properly viewed as remaining within the historical pro- duction and maintenance bargaining unit. The Board clarified the unit to include the new position. Here, the only unit employees whose work might be comparable to that of the Metalform employees are those in the two production departments, Tubing and Stamp- ing. It is clear, however, that the Metalform employees do not perform any of the functions of the employees in those departments. They make substantially different 7 It also provides for bargaining to include in the unit additional clas- sifications or departments. products, using different machinery and processes that require significantly different training. The Metalform employees cannot reasonably be viewed as performing the same basic functions as the Tubing or Stamping em- ployees. We also find significant the fact that no Metalform employees have either displaced any unit employees or performed their work. Compare Brockton Taunton, 174 NLRB 969, 970–971 (1969) (the gas load supervisors are part of the unit since they performed the same basic func- tions that have been historically performed by bargaining unit employees). In fact, the Employer here brought in entirely new equipment from a different factory, installed it as a separate line from its traditional production, and maintained separate work hours, training, and other work terms for the employees operating this equipment. Based on these circumstances, we find that the em- ployees in the Metalform classifications do not perform the same basic functions as unit employees. Therefore, we conclude that our decision in Premcor does not sup- port clarifying the unit to include these employees. B. General Accretion Analysis Having found that the petitioned-for employees are not already part of the unit under Premcor, supra, we will apply the Board’s accretion analysis and determine whether the Metalform employees should be added to the unit because they have little or no separate identity and share an overwhelming community of interest with the preexisting unit. CHS, Inc., supra; E. I. Du Pont, supra. Based on our review of the record, we find that the Metalform employees have retained their separate group identity and do not share an overwhelming community of interest with the existing bargaining unit. First, the Metalform employees constitute a separate department, work exclusively in the manufacture of the Metalform products (primarily gun magazines) and largely stay in their own work areas. As for daily supervision, the Metalform, Tubing, and Stamping departments each have their own director or supervisor who directly oversees the employees in their respective departments. We also find that the other community-of-interest factors, on bal- ance, support a finding that there is no overwhelming community of interest between the two sets of employ- ees. The Metalform employees have minimal contact during working time because of their separate (although contiguous) work areas, with the exception of the materi- al handlers who move starting materials to the work are- as and the finished product to the shipping area. While the Metalform and unit employees use the same common areas (including the bathroom, cafeteria, and locker room), their interactions in these areas are necessarily limited by their different shifts and breaktimes. Their AT WALL CO. 699 functional integration is also limited by their specializa- tion in a single product, although the material handlers and inventory inspectors work with all three sets of man- ufacturing employees and two product lines use the same “dirty room” for tumbling, polishing, and finishing the products. Their bargaining histories are dissimilar be- cause the unit employees have been represented by the Petitioner since at least 1960 while the Metalform em- ployees are unrepresented. On the other hand, we find that a few community-of-interest factors do support ac- cretion: the employees share geographic proximity, simi- lar working conditions, and similar skills and functions. Weighing all of these factors, we conclude that the Metalform employees’ identity has not merged with those of the bargaining unit employees so that they have lost their separate identities and now share an over- whelming community of interest with unit employees. As discussed above, the Metalform employees do not satisfy the two critical factors of interchange with unit employees or common day-to-day supervision and we find that most of the other factors--largely indicating dif- ferent work functions and conditions--also weigh against finding an overwhelming community of interest between the Metalform and preexisting unit employees. See, e.g., Paper Manufacturers Co., 274 NLRB 491, 496–497 (1985), enfd. 786 F.2d 163 (3d Cir. 1986) (where com- pany bought and relocated separate process to represent- ed plant, new employees not accreted since they main- tained their separate identity). Compare Special Machine & Engineering, 282 NLRB 1410, 1410 (1987) (accretion of a unit of unrepresented employees into an existing unit justified where the two sets of employees were “merged into a single productive entity” as both groups of em- ployees used the same equipment and machines, required the same skills, worked on the same projects under common supervision, and worked under the same terms and conditions of employment.) While the Employer has not gone as far as to physically alter the workplace to keep the Metalform employees and the existing unit em- ployees separated, we find, for the reasons discussed above, that the two sets of working conditions are suffi- ciently distinct to prevent their merger into “a single pro- ductive entity” as in Special Machine & Engineering, supra.8 We conclude that the employees in the Metal- form classifications have maintained a separate identity and do not share an overwhelming community of interest with the unit employees, and therefore may not be ac- creted to the bargaining unit. ORDER The Acting Regional Director’s Decision and Order clarifying the unit is reversed, and the unit clarification petition is dismissed. 8 We also note that under Board law, ‘‘[i]t is well settled that the doctrine of accretion will not be applied where the employee group sought to be added to an established bargaining unit is so composed that it may separately constitute an appropriate bargaining unit.’’ Passavant Retirement & Health Center, Inc., 313 NLRB 1216, 1218 (1994) (quoting Hershey Foods Corp., 208 NLRB 452, 458 (1974), enfd. mem 506 F.2d 1052 (3d Cir. 1974)). Although we need not decide the issue—since we find no accretion here based on our traditional analysis—it appears from the record that a separate Metalform unit might be appropriate. Moreover, the current unit in the remaining departments constitutes an appropriate unit, notwithstanding the exclu- sion of Metalform employees.