ACF Industries, Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1962

136 N.L.R.B. 594 (N.L.R.B. 1962)

594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between management and employees at the September 17 meeting . The instant case
is distinguished from Coppus Engineering Corporation v. N.L R.B., 240 F 2d 564
(C.A. 1), where the employer suggested the formation of a grievance committee
at an employee meeting sometime after the union had lost an eletcion . The em-
ployees then formed a shop committee and from this , the Board inferred that the
impetus for the shop committee came from the employer and that "inherent in the
suggestion was a promise to recognize and deal with the shop committee ." Those
circumstances do not exist in the instant case. Beginning with this first contact of
management with employees on the subject , management of Greystone and Donwood
consistently held to their position that the representation question should be settled
through the processes of the Board.
In all other , as in these respects , I find that the General Counsel has failed to
sustain the burden of proof of the allegations of the amended complaint.
CONCLUSIONS OF LAW
1. Greystone Knitwear and Donwood , Ltd., are, and at all times material herein
have been , affiliated businesses with common officers, ownership , directors, and
operators , and constitute a single integrated business enterprise , and their activities
affect commerce within the meaning of the Act.
2. District 65, Retail , Wholesale and Department Store Union , AFL-CIO, and
Greystone Employees ' Association and Knitwear Employees ' Association , its suc-
cessor. are labor Knitwear Corp. and Donwood, Ltd., have not engaged in unfair
3. Greystone Knitwear Corp. and Donwood, Ltd., have not engaged in unfair
labor practices as alleged in the complaint herein.
4. The amended complaint should be dismissed in its entirety.
RECOMMENDATION
Upon failure of proof to support the allegations of the amended complaint, I
recommend that it be dismissed in its entirety.
ACF Industries , Incorporated ( formerly American Car and
Foundry Company )' and International Association of Ma-
chinists , AFL-CIO, Petitioner. Cases Not. 28-RC-162 and 28-
RC475 (formerly 33-RC-1162 and 33-RC-475). March 26, 1962
DECISION AND ORDER DENYING MOTIONS
On March 5, 1954, following a Board-directed election in Case No.
33-RC-462 (now 28-RC-462), the Petitioner was certified as the
collective-bargaining representative for a unit of all production and
maintenance employees at the Employers Atomic Energy Commission
Operations, Albuquerque, New Mexico, excluding, inter alia,
inspectors.
On April 29, 1954, following an election in Case No. 33-RC-475
(now 28-RC-475) held pursuant to a consent-election agreement, the
Petitioner was certified as the bargaining representative of a unit of
all inspectors.
On December 7,1960, the Petitioner filed with the Board in Case No.
28-RC-462 a motion for clarification seeking inclusion in the pro-
duction and maintenance unit certain employees operating "machine
tools and producing parts." On December 15, 1960, a similar motion
I The Employer's name appears as corrected at the hearing
136 NLRB No. 54.
ACF INDUSTRIES, INCORPORATED 595
was filed in Case No. 28-RC-475 in the Board's Subregional Office
seeking clarification by the Regional Director of the inspectors' unit
certification by including certain employees performing inspection
work in the toolroom operation.
On June 30, 1961, the Board consolidated the two motions and di-
rected that a hearing be held on the issues involved. Hearing began
on July 19, 1961. By telegram on that date to the Board, the Peti-
tioner moved to amend its motion in Case No. 28-RC-462 to include
all employees in Company Building #5 who were engaged in heat
treating, plating, welding, and to include the "tool crib attendant," in
addition to employees operating machine tools who were identified
as "model shop" employees. The motion to amend was granted by the
Board on August 2, 1961. Thereafter, hearing was held on Septem-
ber 12, 13, 14, 15, and 16, 1961, before Fred W. Davis, hearing officer.
The hearing officer's rulings are free from prejudicial error and are
hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
Upon the entire record in these cases the Board finds as follows:
Case No. 28-RC-475: I The Petitioner claims as an accretion to its
inspectors' bargaining unit two senior tool and gauge technicians
(Martz and Benjamin). They are employed substantially in the in-
spection of tools, jigs, and fixtures produced in the tool and die shop.
There are two other senior tool and gauge technicians (Smiley and
Barnes) not claimed by the Petitioner who "intermittently and on a
more or less regular basis" perform the same type work. In all, the
Employer has 11 employees in this work classification. While nine of
them, including Smiley and Barnes, have their work station in the
Standards Laboratory which is geographically separated from the
tool and gauge inspection area, all 11 have the same supervision-
supervisor-tool and gauge inspection-who in turn is under the super-
visor-Standards Laboratory. Neither of these supervisors have any
shop or bargaining unit inspectors under them.
As noted, senior tool and gauge technicians, Martz and Benjamin,
inspect tools, jigs, and fixtures which are produced in the toolroom
and are delivered to the manufacturing department for use as facilities
or aids in the production of the end product. The shop inspectors do
'The Petitioner , while contending that this proceeding ( Case No 28-RC-475 ) should
be decided by the Regional Director since the certification resulted from a consent elec-
tion, stated that it had "no prejudice against the Board making the decision " The
Employer requests a Board decision . In view of the similarity of the motion here to that
filed in Case No. 28-RC-462 , the fact that a consolidated hearing was held on these
motions, and the positions of the parties , we shall pass upon the motion in Case No.
28-RC-475 as well as that in Case No. 28-RC-462.
641795-63-vol. 136-39
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not inspect tools, jigs, or fixtures, but are production line and end prod-
uct inspectors. The work of the senior tool and gauge technicians in
issue requires a substantially higher level of technical competence
than is required of the shop inspectors. Thus, the employees in ques-
tion work to finer tolerances than do the shop inspectors and from time
to time must use complex measuring equipment in the Standards Lab-
oratory which shop inspectors do not use.
Case No. 28-RC-462: The Petitioner claims as an accretion to its
production and maintenance unit certain employees employed in the
development and test engineering department, commonly referred to
as the D & T Lab (Building 5). Those sought are two heat treaters,
classified as technical specialist and technical assistant, one plater,
classified as technical assistant, two welders, classified as test engineer
and welding engineer, three machine tool operators, classified as tech-
nical specialists, and one tool crib attendant, classified as technical
assistant. It appears that other employees work in the same areas as
these employees but they are not sought by the Petitioner. The work
of this department is basically engineering and relates to research and
development. Information that can be used in the manufacturing
process is produced here, including new techniques of inspection. Su-
pervision of the D & T Lab employees is separate from that of produc-
tion and maintenance employees. The D & T Lab is headed by a
manager with five separate section heads under him. The manager
reports directly to the director of engineering who in turn reports to
the vice president and general manager. Neither the laboratory man-
ager nor the director of engineering report to or through the plant
manager.
The heat treaters operate heat furnaces, metal hardness testers, pre-
pare macro specimens for determining flow patterns in metals, and
assist metallurgists. They also prepare technical reports and pass
judgment on the soundness of materials, evaluate grain size, extract
specimens, and make microscopic examinations, none of which work
appears to be done by heat treaters in the production departments.
The plater prepares plating solutions, prepares and plates items of
developmental or experimental nature, prepares cleaning solutions,
assists in the development of processes and in special plating test
setups. This plater's work is in the development area whereas shop
platers work on plating of production items.
The welders' primary objective is to produce information which will
be useful in developing procedures for eventual production use. Oc-
casionally, they will use new equipment which may later be used in
the production processes if proven feasible. They perform test weld-
ing, evaluate welding material and processes, and prepare instruc-
tion reports for shop personnel and technical reports such as process
ACF INDUSTRIES, INCORPORATED 597
specifications. It appears from the record that the Employer has
graduate engineers in its employ who carry the same salaried job de-
scriptions as the two welders in issue here.
Within the welding section of the D & L Lab are 2 hourly paid
welders admittedly within the production and maintenance unit.
These unit welders work on aspects of welding materials which are
in the transitional stage between development and production for the
purpose of creating a pool of trained men for the production shop
and to determine the feasibility of laboratory developed welding pro-
cedures. These unit welders work not only under graduate engineers
but under the general direction of the welders in issue here.
The machine tool operators are engaged principally in the making
of models and prototypes of parts, jigs, and fixtures for developmental
testing, design proving, and experimental engineering. They act as
a support function to other development arms of the laboratory and
frequently confer with project engineers and engineers in metallurgy,
plastics, and other sections of the D & T Lab. None of these employees
made any production piece parts.
The tool crib attendant spends about 20 percent of his time directing
hourly paid laborers assigned to the D & T Lab for general housekeep-
ing, janitorial work and material handling. He has the authority to
temporarily upgrade the laborers if they perform work out of their
classification, approve time off for short periods, and he can effectively
recommend the transfer back to the labor pool of an unsatisfactory
employee.
As indicated above, it is the Petitioner's position that the work per-
formed by the employees in issue here should be considered accretions
to the certified units. The Employer urges that these motions be
denied, principally on the ground that the employees in issue are
"technical" employees and should not be included in a production and
maintenance unit, that they constitute only a small fraction of all the
technical employees in the plant,' and that the tool crib attendant is
a supervisor.
We agree with the Employer that the motions should be denied but
for the reasons stated herein. As to the tool crib attendant, the facts
set forth above establish his status as a supervisor within the meaning
of the Act. Respecting the other employees in issue, it is apparent,
particularly as to the inspectors, that the Petitioner seeks to include
only a few of the employees having similar classifications. The in-
terests of the employees in this group, including the work they do,
the skills required, and the nature of their supervision, materially dif-
ferentiate them from the other employees represented by the Peti-
tioner. Moreover, the jobs under consideration here are not newly
3 The Employer notes that it has in its employ more than 200 technical employees.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
created, and have been for many years considered as being outside
the unit. Under all these circumstances, to regard them as accretions,
as the Petitioner contends, is not warranted. Accordingly, we shall
deny the motions.
[The Board denied the motions for clarification of certifications.]
Rubin Dworkin t/a Dworkin Electroplaters and United Retail
and Wholesale Employees Union , Local 115 , International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America. Case No. 4-CA-2385. Marcia V, 1962
DECISION AND ORDER
On January 2, 1962, Trial Examiner Albert P. Wheatley issued his
Intermediate Report herein, finding that the Respondent engaged in
unfair labor practices and recommending that it cease and desist
therefrom and take affirmative action, as set forth in the Intermediate
Report attached hereto. The Trial Examiner also found that Re-
spondent did not engage in certain other unfair labor practices and
recommended that the allegations of the complaint in respect thereto
be dismissed. Thereafter, both the General Counsel and the Respond-
ent filed exceptions to the Intermediate Report, together with sup-
porting briefs.'
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 [Members Leedom, Fanning, and Brown].
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are affirmed. The Board has con-
sidered the Intermediate Report, the exceptions and briefs, and the
entire record in the case, and adopts the findings, conclusions, and
recommendations of the Trial Examiner with the additions and modi-
fications set forth below 2
We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act by its unlawful interrogation of em-
ployees. We further find, however, on the basis of testimony credited
by the Trial Examiner which is fully detailed in the Intermediate
3 The Respondent 's request for oral argument is denied , since the record and the briefs
adequately present the issues and positions of the parties.
2 Contrary to the Trial Examiner, we believe that Chase should be included in the bar-
gaining unit of Respondent 's production and maintenance employees . He spends part of
his time making deliveries and pickups . The remainder of his time, and the record in-
dicates that it is a considerable amount of time, is spent in the plant performing mis-
cellaneous jobs as needed . His work brings him in contact with other employees in the
unit and he shares the same supervision with them . We find his interests are such as
to warrant his inclusion in the unit.
136 NLRB No. 15.