W. R. Grace & Co.

National Labor Relations Board - Board Decisions

Mar 29, 1973

202 N.L.R.B. 788 (N.L.R.B. 1973)

788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ambrosia Chocolate Division of W. R . Grace &
Company and Teamsters "General" Local No. 200
affiliated with International Brotherhood of Team-
sters , Chauffeurs, Warehousemen & Helpers of
America, Petitioner . Case 30-RC- 1842
March 29, 1973
DECISION AND DIRECTION
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was
conducted on September 30, 1972,1 under the
direction and supervision of the Regional Director
for Region 30, among the employees in the unit
agreed on by the parties. At the conclusion of the
election the parties were furnished with a tally of
ballots which showed that, of approximately 155
eligible voters, 63 cast ballots for and 62 cast ballots
against the Petitioner. There were eight challenged
ballots, which are sufficient in number to affect the
results of the election.
On October 6, the Employer filed timely objections
to conduct affecting the results of the election. The
objections were investigated by the Regional Direc-
tor, who on October 26, issued a Notice of Hearing
on Challenged Ballots and Objections to Election,
wherein he directed that a hearing be held for the
purpose of receiving evidence to resolve issues raised
by the challenges and by the Employer's objections.
Pursuant thereto, a hearing was conducted on
November 6 and 7 before Hearing Officer Amedeo
Greco. On December 15, the Hearing Officer issued
his Report on Challenged Ballots and Objections in
which he recommended that all eight challenges be
sustained, that the objections be overruled, and that
the Petitioner be certified Thereafter the Employer
filed exceptions to the Hearing Officer's disposition
of seven challenges and his overruling of the
objections. Petitioner filed a brief in answer to the
Employer's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding 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. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
All dates are 1972
z As no exception was filed to the Hearing Officer' s recommendation
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
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 Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The parties have agreed, and we find, that the
following employees constitute a unit appropriate for
collective bargaining within the meaning of Section
9(b) of the Act:
All production and maintenance workers ex-
cluding supervisors as defined in the Act, guards,
confidential employees, office clerical employees
and all other employees of the Employer.
5. The Board has considered the Hearing Offi-
cer's report and recommendations. While we adopt
his findings and recommendations that the challenge
to the ballot cast by Walter Mueller be sustained and
that the Employer's objections be overruled, we find
merit in the Employer's exception to the Hearing
Officer's recommendation that the challenges to the
ballots cast by the six quality control employees be
sustained.2
The record shows that the Employer is engaged in
the manufacture of cocoa powder and various types
of chocolate coatings at its Milwaukee, Wisconsin,
facilities. In order to insure that its products are
processed and manufactured correctly, it maintains a
quality control department which consists of a
salaried director, an assistant director, and the six
hourly rated employees whose ballots have been
challenged in this proceeding. These employees, inter
aka, perform moisture analysis on sample cocoa
beans, check on incoming raw material, grade beans
as to color, aroma, size, etc., test roasted beans to
determine if they have been properly cracked and
fanned, sample the product for fat content, check on
size and flavor, and sample the finished product.
While they occasionally spend some time in the
production and maintenance area, much of their
time is spent in the laboratory.
In finding that the quality control employees do
not have a sufficient community of interest with
production and maintenance employees to warrant
their inclusion in the unit, the Hearing Officer relied
in the main on the following findings. They are
directly supervised by individuals who have no
supervisory authority over any other employees.
They are not assisted by production and mainte-
nance employees when samples are taken in the
production area, and the tasks performed by these
employees are different from those performed by
regarding the ballot cast by Elwyn Jervan, his recommendation is adopted
pro forma
202 NLRB No. 118
AMBROSIA CHOCOLATE 789
production and maintenance employees. They re-
ceive first aid training and are responsible for
administering first aid to all employees. The Hearing
Officer relied further on the fact that quality control
employees receive about 3 months of training before
they become proficient on the job, wear a uniform
different from that worn by production and mainte-
nance employees, and generally have more education
than do production and maintenance employees. He
also notes that the record shows only a few instances
in the last several years when there has been
interchange between quality control and production
and maintenance employees. Thus citing, and relying
on Arkansas Grain Corporation, 163 NLRB 625, the
Hearing Officer concluded that the challenges to the
ballots cast by the quality control employees should
be sustained.
On the record before us, we are not satisfied that
the present case fits so squarely into the Arkansas
Grain mold as to make that case dispositive of the
issues herein.
In Arkansas Grain the laboratory employees
worked in a separate building while the employees
here are located on the third floor of the building
where the bulk of the production and maintenance is
carried on. Although the laboratory is in a separate
area, it is only 25 to 50 feet from the production area.
Here, the quality control employees have more
numerous contacts with production and maintenance
employees and the quality control operation consti-
tutes an integral part of the Employer's entire
operation. While several of the employees here
generally have some education above the high school
level, there is no showing that it is a condition of
their employment.
Apart from finding that Arkansas Grain is not
controlling in this case, we do not find the wearing of
a different uniform by quality control employees a
factor warranting their exclusion from the unit since
all of the Employer's employees, depending on the
segment of operation in which they are involved,
wear different uniforms. Thus, quality control
employees wear a white shirt and blue pants,
shipping department employees wear a green uni-
form, production employees wear a light blue
uniform, and maintenance employees wear dark
blue. It does not appear that the training received by
quality control employees is so different from or
superior to that received by other employees to put
them in a different class. Nor do we find that the
administering of first aid by quality control employ-
ees negates community of interest. Rather, to the
contrary, the fact that first aid is administered by the
quality control employees further establishes and
builds on their community of interest with their
coworkers through additional contacts on a continu-
ous basis.
More importantly, quality control employees at-
tend the same monthly meetings as do hourly paid
production and maintenance employees. They share
the same work breaks, lunch periods, locker room,
lunchroom, and parking lot. Like production and
maintenance employees, they punch a timeclock, and
both groups enjoy the same fringe benefits such as
paid vacations, paid holidays, insurance, pensions,
and overtime. On these facts, and as the quality
control employees are clearly neither technical nor
professional employees, we find that they have
sufficient common interests with production and
maintenance employees to warrant their inclusion in
the unit. Accordingly, we shall overrule the chal-
lenges to the ballots cast by them
As we have overruled the challenges to six ballots
and these may be determinative of the results of the
election, we shall direct that the Regional Director
open and count the said six ballots and cause to be
served on the parties .a revised tally.
DIRECTION
It is hereby directed that, as part of his investiga-
tion to ascertain the representative for the purposes
of collective bargaining with the Employer, the
Regional Director for Region 30 shall, pursuant to
the Board's Rules and Regulations, within 10 days
from the date of this Direction, open and count the
ballots cast by Warren DeMichei, James Johnson,
Carmen Montoro, Robert Mustin, Chris Steinbergs.
and Tom Uyhara and thereafter cause to be served
on the parties a revised tally of ballots, including
therein the count of the above-mentioned ballots.
Thereafter, the Regional Director shall issue the
appropriate certification in accordance with the
Board's Rules and Regulations.