A. O. Smith Corp.

National Labor Relations Board - Board Decisions

Jul 25, 1967

166 N.L.R.B. 845 (N.L.R.B. 1967)

A. O. SMITH CORPORATION 845
A. O. Smith Corporation , Employer-Petitioner and !
Smith Steel Workers , Directly Affiliated with Local
Union 19806 , AFL-CIO, Petitioner ' and Technical
Engineers Association , Petitioner.2 Cases
30-UC-23, 30-UC-24, 30-UC-26, and 30-UC 27_
July 25,1967
DECISION AND ORDER CLARIFYING
CERTIFICATION IN CASES 30-UC-23 AND
30-UC-27; AND DENYING MOTIONS TO
CLARIFY CERTIFICATION IN CASES
30-UC-24 AND 30-UC-26.
The separate petitions herein were duly filed to
clarify the units as defined by the Board in the cer-
tifications it concurrently issued in 1946 to Local
19806 and to TEA'S predecessor, respectively, for
certain employees of the Employer at its Milwau-
kee, Wisconsin, plant.3 The petitions were con-
solidated for purposes of hearing. A hearing in
which all parties appeared and participated was
held February 9, 1967. On February 24, 1967, the
Regional Director issued an order transferring this
case to the National Labor Relations Board.
Thereafter, all parties filed briefs.
The Board has considered the Hearing Officer's
rulings made at the hearing and finds that no preju-
dicial error was committed.4 The rulings are hereby
affirmed.
Upon the entire record in this case, including the
briefs filed by the parties, the Board finds:
The Employer is a New York corporation en-
gaged at Milwaukee, Wisconsin, in the manufacture
and sale of automobile frames and parts, pipe cas-
ings, and other materials for the petroleum and
chemical industry.
Each of the unions before us is a currently recog-
nized representative of employees of the Employer'
in' a separate unit. The proceedings herein are ad-
dressed to,both these units , and seek clarification of
the Board's 1946 certifications establishing the
units.
The certification issued to TEA's predecessor in
1946 describes the certified unit as follows:5
All tracers, detail draftsmen , layout draftsmen,
designers, plant layout engineers , draftsmen
checkers, designer checkers, chemists, metal-
lurgists, laboratory technicians, laboratory
assistants A, laboratory assistants B, estima-
tors, planners, time study men, technical°
clerks, welding engineers, sales engineers, and
industrial engineers, and foremen helpers and
group leaders of such classifications, but ex-
cluding clerks, stenographers and supervisors,
and other employees.
That unit presently includes about 340 employees.
The certification issued to Local 19806 in 1946
describes the certified unit as covering any produc-
tion, maintenance, and office employees not specifi-
cally included in other units found to be appropriate
in the same proceeding, or not otherwise described
as specifically excluded.6 That unit presently in-
cludes approximately 4,500 employees.
The dispute concerns the unit status of the ap-
proximately 18 employees who constitute the non-
supervisory complement of department 1674 in the
Employer's automotive laboratory. Of these 18 em-
ployees, 10 are currently represented as part of
TEA's unit and 8 as part of Local 19806's unit. The
10 represented by TEA are currently classified as
technicians I. It is undisputed, however, that this job
title was recently set up as a substitute for and
describes the same job that was formerly titled
laboratory assistant A. Of the eight employees cur-
rently represented by Local 19806, five are clas-
sified as experimental workers A, two as experi-
mental welders, and one as a garage mechanic.
There is also in issue here an additional classifica-
tion titled experimental worker B, which the Em-
ployer fills from time to time but which was not in
fact filled as of the date of the hearing. Employees
who have held that classification have been
represented by Local 19806.
TEA and Local 19806 each claims that all
employees of department 1674 are properly part of
its certified unit. Local 19806 would therefore have
the Board find that technicians I belong in its unit;
while TEA would have the Board find that experi-
mental workers A and B, experimental welders, and
the garage mechanic belong in its unit. The Em-
ployer agrees with TEA that experimental workers
i Herein called Local 19806.
x Herein called TEA.
a The 1946 proceedings (Cases 13-R-3539 and 13-R-3595) are re-
ported at 70 NLRB 1288. They resulted in separate certifications of a
number of unions, including Local 19806 and Technical Engineers,
Architects, and Draftsmen's Union, Local 54, AFL. In 1951, the latter
union voted to disaffiliate from the AFL and to change its name to Techni-
cal Engineers Association, the Petitioner in Case 30-UC-27 herein. Fol-
lowing the disaffiliation action, the Employer in effect acknowledged TEA
as the successor or alter ego of the certified labor organization, and con-
tinuously bargained with it at all times since as the representative of the
same unit as was defined in the certification.
Other unions obtaining certifications in the same proceedings have no
interest in any of the employees who are the subject of the instant peti-
tions.
4 We hereby deny Local 19806's request for an order requiring the Re-
gional Director to produce all statements submitted by the parties to him
in response to his preheating letter dated January 23, 1967. Contrary to
the contention of Local 19806, we find that if any such statements were
submitted they are outside the purview of Sec. 102.133 of the National
Labor Relations Board Rules and Regulations and Statements of
Procedure, Series 8, as amended. The Regional Director's solicitation and
receipt of such statements at the prehearing stages of a proceeding involve
matters entrusted to his administrative discretion under Sec. 102.63 of the
Board Rules, and are expressly exempted from Sec. 102.133's disclosure
requirements by Sec. 102.128(a) and 102.130(a).
5 In the discussion hereafter, this unit will be referred to as the TEA
unit, and that for which Local 19806 contracts, as the Local 19806 unit.
6 See 70 N LRB 1288, 1291.
166 NLRB No. 98
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A and B properly belong in TEA's unit. The Em-
ployer requests. however, that in the event the
Board finds that experimental workers A and B are
properly in Local 19806's unit, it then also finds
that technicians I properly belong in that unit. The
Employer takes no position on the merits of so
much of TEA's motion as involves experimental
welders and garage mechanic.
The relevant facts are as follows:
The automotive laboratory was first established
just before World War It, was then inactivated for
the duration of the war, and was reactivated about
August 1945. It has remained in continous opera-
tion since that date.
The main function of the automotive laboratory
was and is to build and test prototypes of experi-
mental vehicles and such components thereof as are
produced by the Employer's automotive division.
The components include automotive frames, con-
trol arms, and other associated parts. The laborato-
ry employees have always performed their func-
tions under the technical direction of professional
employees in the development engineering depart-
ment . The engineers supply the laboratory em-
ployees with blueprints or design charts of the
prototype and/or the component parts, and advise
them as to the kind of test data to be supplied.
The automotive laboratory was still a relatively
small department as of the date the Board issued the
certifications in November 1946. The laboratory
was then staffed with four employees, two of whom
were classified as "junior designers," and two of
whom were classified as "laboratory assistants."
All were then represented by TEA's predecessor
and were unquestionably part of its certified unit.'
No additional permanent employee was added to
the laboratory staff until 195 1. Between 1946 and
1951, however, the Employer made a number of
temporary assignments to the automotive laborato-
ry to provide assistance to the permanent staff
whenever a need therefor arose. All such temporary
assignments were made to employees who were
regularly employed in the Employer's sample shop,
some of whom were there represented by Local
19806, and some by the Machinists.' The tem-
porarily assigned employees functioned as helpers
to the laboratory assistants represented by TEA's
predecessor and performed some of the testing
work together with, or under the direction of, such
laboratory assistants.
In 1951, the Employer decided to expand the per-
manent automotive laboratory complement. It
added to the laboratory staff five employees, all of
whom were transferred to the laboratory from the
sample shop. The first employee thus transferred
had been employed in the sample shop as a bench
machinist, and as such had been represented by the
Machinists as part of a craft unit of machinists. The
other four had been employed in the sample shop as
experimental workers A, and as such had been
represented by Local 19806 as part of its produc-
tion and maintenance unit . All five were assigned to
perform some or all of the testing functions previ-
ously performed by laboratory assistants
represented as part of the TEA unit. The Employer
changed the job title of the first of the transferees to
laboratory assistant. This employee was thereafter
represented as part of the TEA unit. The Employer,
however, permitted the other four to retain the ex-
perimental worker A job title, and, apparently yield-
ing to demands made by Local 19806, continued to
recognize Local 19806 as the representative of
these employees.
In subsequent years the laboratory activity ex-
panded, new and more complex testing equipment
was added, the laboratory staff was gradually in-
creased, and the job classifications were restruc-
tured to reflect different grades of skill and ex-
perience as well as new and specialized job func-
tions.
As of the date of the hearing, the laboratory's job
structure included: (a) three classifications in a sin-
gle line of progression: experimental worker B (the
entrance grade); experimental worker A, and
technician I (the top grade); and (b) two other clas-
sifications: experimental welder and garage
mechanic.
Continuing the practice begun in 1951, the Em-
ployer still bargains with TEA for the laboratory
employees now classified as technicians 1, and with
Local 19806 for all employees otherwise classified.
But, as noted above, each of the parties before us
opposes the continued maintenance of this 16-year
history of split representation of the automotive
laboratory employees, contending it has provoked,
and will continue to provoke, dissension and
dispute. Each party having interest in resolving the
dispute has accordingly invoked our clarification
procedures in an effort to obtain a peaceful settle-
ment. And in presenting their respective positions,
' Although the unit as described in the certification referred separately
to laboratory assistants A and B as included categories, it is clear from the
record as made in the 1946 proceeding that the use of the " A" and "B"
symbols reflected the parties ' recognition of the Employer's right to grade
its laboratory assistants according to their skill and experience where the
distinction appeared appropriate Thus, relevant portions of the 1946
record show the agreement of all the parties ( including t ocal 19806) that
all "laboratory helpers" and other employees in "technical types of em-
ployment" were deemed included in the unit found appropriate under the
petition filed by TEA' s predecessor and for which that union was ulti-
mately certified
" At that time the automotive laboratory and the sample shop were both
housed in a wooden shack-type structure in adjacent rooms . Craft machin-
ists in that shop were represented by the Machinists , others by Local
19806 As a result of subsequent relocation , the sample shop is now
housed in the main production plant , and the automotive laboratory in a
structure located across the street and known as building 83 The develop-
ment engineering and design engineering departments are also housed in
building 83
A. O. SMITH CORPORATION 847
all parties appear to agree that, although technologi-
cal developments have resulted in an upgrading of
the skills now required to perform the various
laboratory jobs, the job content of each classifica-
tion has remained substantially the same
throughout its existence.
The evidence relating to the present job content
of each of the disputed classifications shows as fol-
lows:
Those employed as technicians I are responsible
for performance of an entire technical test project
as defined by the development engineers. A project
usually involves use of an experimental vehicle as
a test base. The particular duties of technicians I in-
clude the setting up of the test equipment required
to test particular components of the experimental
vehicle, the maintenance of the proper testing con-
ditions and procedures, and the accurate compila-
tion of test data. Experimental workers A perform
portions of the various testing operations required
by the project and otherwise assist technicians I as
called upon to do so. Acting under the technical
guidance of technicians I, they spend approximate-
ly two-thirds of their time working jointly with
technicians I under common supervision on the
same test project. Experimental workers B, where
employed, occupy a trainee relationship to higher
rated workers and perform some of the more rou-
tine testing tasks under the latter's direction.
Employees classified as experimental welders
and garage mechanics are principally responsible
for certain specialized work functions not per-
formed by any of the above classifications. Their
duties involve the assembly, disassembly, and
mechanical repair of the component parts of the ex-
perimental vehicles subjected to the testing
processes. When there is no assembly or repair
work, experimental welders, and occasionally the
garage mechanic, may be called upon to assist in the
performance of the laboratory work. Unlike the
other automotive laboratory employees, however,
they are not in the line of progression which begins
with the experimental worker B classification and
goes up through the technician I classification.
Upon the foregoing facts we have no difficulty in
finding that technicians I and experimental workers
A and B in the automotive laboratory are in fact
laboratory assistants with varying degrees of skills,
and that the testing functions they now perform are
substantially the same as those which were per-
formed in the automotive laboratory at the time of
the 1946 unit determination solely by employees
classified as "laboratory assistants."
We also have no difficulty in finding that all
laboratory assistants are within the intended defini-
tion of the certified unit now represented by TEA
and outside that of the certified unit now
represented by Local 19806. In these circum-
stances we find no merit in Local 19806's request
that we clarify its unit to include specifically therein
those employees classified as technicians 1.9
Conversely, we find clearly supportable the
requests of the Employer and TEA that we clarify
TEA's unit to include specifically therein experi-
mental workers A and B.
Local 19806 further claims, however, that as the
certified unit represented by TEA includes both
professional and nonprofessional employees, the
Board, because of Section 9(b)(1) of the National
Labor Relations Act, as amended,'0 is without
power to order the inclusion of experimental work-
ers A and B in that unit without first affording the
professional employees therein a self-determination
election. We find no merit in this contention.
The Board had heretofore held that Congress did
not intend the enactment of Section 9(b)(1) to
render inappropriate previously established units
combining professional and nonprofessional em-
ployees and that this section does not bar parties to
an earlier established bargaining relationship in
such a unit from continuing to maintain their bar-
gaining relationship on the same unit basis. t t The
sole operative effect of 9(b)(1) is to preclude the
Board from taking any action that would create a
mixed unit of professionals and nonprofessionals
without first according the professionals involved
the opportunity of a self-determination election.12
In the instant case, it is conceded that all catego-
ries of employees whose unit status we are being
asked to clarify are nonprofessional. Our deter-
mination therefore that some such categories are
identical to those of other nonprofessional catego-
4 Our finding that the automotive laboratory assistants are within
TEA's certified unit and outside Local 19806 's rests on evidence showing
the intended scope of each of these units when the Board established them
in 1946, as well as on facts in this record which persuade us that the basic
functions now performed in the laboratory are essentially the same as they
were then. We believe this evidence of interest is entitled to greater weight
than the facts upon which Local 19806 rests its claim for the inclusion of
the automotive laboratory assistants in its unit , namely that production
employees possess and exercise contractual rights to "bump" into the
lower rated automotive laboratory jobs, and that other laboratory em-
ployees represented by TEA seldom transfer into the automotive labora-
tory or otherwise " interchange" jobs.
10 Sec. 9(b)(1) provides in pertinent part that the Board "shall not de-
cide" that a combined unit of professional and nonprofessional employees
is appropriate "unless a majority of such professional employees vote for
-inclusion in such unit."
11 See for example Retail Clerks Union No. 324, etc. (Vincent Drugs,
No. 3, Inc.), 144 NLRB 1247, International Telephone and Telegraph
Corp., 159 NLRB 1757.
1 2 In addition to the cases cited in the preceding note see also Lockheed
Aircraft Corporation ., 155 N LRB 702 . In that case, we were asked by a
union representing an existing unit of professional and nonprofessional
employees to determine through our clarification procedures that certain
categories of employees - whose inclusion in the unit was disputed by the
employer- were property part of a historical unit established prior to the
enactment of 9(b)(1). As the evidence in that case disclosed that at least
some of the categories in issue were professional in character , and as there
was no sufficient record basis to identify which, among them , if any, were
professional, we refused to issue the requested clarification order. Contra-
ry to Local 19806's position, we find that case to be clearly distinguisha-
ble from the one before us, because, unlike the instant case , it involved an
issue as to the placement of professional employees.
848 DECISIONS OF NATIONAL
ries concededly represented by TEA as part of its
unit , and that they therefore properly belong in that
unit , neither affects nor derogates from any of the
rights accorded by the statute to professional em-
ployees who are now in the TEA unit. We hold, ac-
cordingly , that Section 9(b)(1) of the Act does not
prohibit our granting the relief here sought.' 3
In accord with the respective motions of the Em-
ployer and TEA, we shall therefore clarify the units
herein so as to include experimental workers A and
B in the automotive laboratory , department 1674,
in TEA's unit , and, conversely , to exclude them
from Local 19806 's unit.
We shall , however , deny so much of TEA's
clarification motion as requests a determination that
experimental welders and the garage mechanic in
department 1674 are properly part of its unit. As
indicated above , the work such employees regularly
are engaged to do is largely dissimilar from that per-
formed by the other automotive laboratory em-
ployees . Moreover , unlike such latter employees,
the experimental welders and the gargage mechanic
have no rights of progression to the higher rated
LABOR RELATIONS BOARD
laboratory jobs. Further, there is nothing in the ex-
press language of the certification on which TEA
rests its claims to negate Local 19806' s contention,
supported by bargaining history, that these em-
ployees are part of its certified unit . Our order
below reflects the above determinations.
ORDER
It is hereby ordered that the certifications issued
in Cases 13-R-3539 and 13-R-3595 be, and they
hereby are, clarified as follows:
The classifications of experimental workers A
and B in the automotive laboratory, department
1674, are specifically included in the certified unit
represented by Technical Engineers Association,
and specifically excluded from the certified unit
represented by Smith Steel Workers, directly af-
filiated with Local 19806, AFL-CIO.
To the extent that any petitions filed by the
parties herein seek any further clarification of the
aforementioned certified units, the same are hereby
denied and dismissed.
11 This is not to be construed as a new certification