Detroit Harvester Co.

National Labor Relations Board - Board Decisions

Oct 12, 1948

79 N.L.R.B. 1316 (N.L.R.B. 1948)

In the Matter of DETROIT HARVESTER COMPANY (DURA DIVISION),
EMPLOYER and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIR-
CRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL
16 (CIO) , PETITIONER
Case No. 8-RC-111.-Decided October 12, 1948
DECISION
AND
DIRECTION OF ELECTIONS
Upon a petition 1 duly filed, a hearing was held before a hearing offi-
cer of the National Labor Relations Board. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The labor organization named below claims to represent employ-
ees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer, within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner contends that all salaried office workers in the
Employer's Dura Division plant at Toledo, Ohio, including clerical
and technical employees in the personnel and time-study departments,
and the chemist, but excluding confidential secretaries and supervi-
sors, constitute an appropriate bargaining unit. The Employer con-
tends (1) that the Petitioner cannot properly represent these office
employees because it is already the recognized bargaining represent-
ative of production and maintenance employees at this plant; and (2)
that the inclusion of certain employees discussed below in the office
unit is improper. The Employer and the Petitioner agree that con-
fidential secretaries and supervisors should be excluded from any unit
found appropriate by the Board.
1 The petition and other formal papers are hereby amended to show the correct name of
the Employer.
79 N. L. R. B., No. 180.
1316
DETROIT HARVESTER COMPANY 1317
At its Dura Division plant at Toledo, Ohio, the only plant
involved in this proceeding, the Employer manufactures automobile
parts and tractors. As noted above, the Petitioner is already the rec-
ognized bargaining representative of production and maintenance
employees at this plant. For reasons stated in earlier cases, we find
that the Employer's contention that the Petitioner may not also repre-
sent office workers at this plant in a separate appropriate bargaining
unit, is without merit.2
The Petitioner seeks primarily a unit of office clerical and technical
employees in the several office departments at the plant. The Peti-
tioner and the Employer disagree with respect to the unit placement
of the following employees, whom the Petitioner would include in,
and the Employer would exclude from, the unit of office workers.
Personnel department employees. The non-supervisory employees
in the personnel department include three nurses and three clerical
employees. The nurses are either graduate nurses or possessed of
wide experience in the field of industrial nursing. They perform
the duties customarily performed by industrial nurses. We find that
the nurses possess interests and perform duties dissimilar to those of
the other employees included in the unit and we shall, therefore, ex-
clude them from the unit.
The three clerical employees in this department are located in an
outer office adjoining that of the personnel manager, and through
which it is necessary to pass in order to enter the latter's office. All
files relating to personnel, contracts, and labor problems are located
in the personnel manager's office, and each of the clerical employees
has access to the files at all times. Any of the three employees may
go into the personnel manager's office whenever she finds it necessary
to refer to the files, without regard to who may be with the personnel
manager or what problems are being discussed. .
It is the function of the personnel manager to hire new employees,
keep records on individual employees, and handle all grievances and
all labor negotiations. He is assisted by the above-mentioned employ-
ees in a more intimate and confidential capacity than is customary.
These three employees, grouped in one room and under the direct
supervision of the personnel manager, handle the files, records, com-
munications, and correspondence concerning the personnel and labor
problems of the 1,350 employees at the plant involved herein. One
of these employees takes dictation from the personnel manager, works
with union committeemen on seniority lists, interviews applicants for
jobs, and may hire in the absence of the personnel manager.
2 Matter of International Salt Company , Inc., 74 N. L. R . B. 1253.
809095-49-vol. 79-84
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the record in this particular case , we are of the opinion that
the clerical employees in this personnel department are confidential
employees 8 and we shall therefore exclude them from the unit .4
Time-study department employees. There are two time-study men
and one typist in this department. The time-study men make time
studies of machine operations, and from these studies develop stand-
ards upon which the Employer bases (1) its quotations to custom-
ers for new business and (2) the amount of incentive pay that pro-
duction employees can earn. The method followed by the time-study
men in determining the standards is as follows :
The time-study man goes to the place where the job is being per-
formed. He observes the operation to see that the material is being
obtained with the greatest ease to the operator; he checks the speed of
the machine that is being operated; he observes the tools to see that
the entering and ejection of the work are smooth and unimpeded; he
studies the operator to see that he is putting forth a normal and reason-
able effort; and he determines that the operator possesses the requisite
skill to be used as a subject in establishing the time-study. Then, with
a stop watch, he times the various elements that enter into the complete
operation. He then returns to his office, analyzes the facts and figures,
and applies the set formula to his analysis, from which he determines
the piece rate.
The record shows that a time-study man must possess the necessary
experience and judgment (1) to determine whether the conditions of
the operation are proper and correct; (2) to determine whether the
operator under study has the necessary skill to serve as a basis for the
study; (3) to determine whether the operator is putting forth a nor-
mal and reasonable effort; (4) to determine the effect upon production
of gradual wear in the parts of the machine; and (5) to interpret
properly the facts and figures necessary to set up the rate.
The rates thus established by the time-study men are final and
binding upon the Employer unless a protest is made by production
employees. If a protest results from the rate set, it is first lodged
with the time-study man. The time-study man may retime the opera-
tion. If the matter is not settled between the operator and the time-
study man, the shop foreman, the time-study department supervisor,
and the shop union steward are called into a grievance procedure. The
plant manager does not see the rate until after it becomes final.
a Matter of Sheffield Farms Company, 73 N. L. R. B . 572, 573.
a Mr. Houston dissents , and would include the personnel department clerical employees
in the unit because, in his opinion, their duties do not classify them as confidential
employees within the Board 's definition thereof.
DETROIT HARVESTER COMPANY 1319
Upon the basis of the entire record, we find that the time-study men
are professional employees within the meaning of the Act and, as
such, are entitled to representation for collective bargaining purposes.5
The record shows that the Petitioner is the bargaining representa-
tive of the Employer's production employees. The Employer urges
that time-study employees should not be represented by the same labor
organization that is currently representing its production employees.
We do not agree with this contention.
The Act does prohibit the Board from certifying a labor organi-
zation as the representative of employees in a bargaining unit of
guards if such organization admits to membership employees other
than guards." But no such prohibition exists respecting representa-
tion of time-study employees. A review of the legislative history of
the amendments to the Act reveals that the Congress considered the
status of time-study employees in conjunction with supervisors and
guards.? In thereafter placing a limitation upon guards respecting
their choice of a bargaining representative, without referring to
time-study employes, the Congress, by negative implication, indi-
cated an intent that time-study employees were not to be similarly
restricted in their choice of a bargaining representative. Congress
not having so restricted their freedom of selection, this Board should
not assume authority to do so.
However, under Section 9 (b) of the amended Act, professional
employees may not be included in the same unit with non-professional
employees unless a majority of the professional employees vote for such
inclusion. Accordingly, we shall set up a separate voting group for
the time-study men to ascertain their desire with respect to their inclu-
sion in the unit with office and clerical employees. If, in the separate
election herein directed, a majority of the time-study men vote for the
Petitioner, they will be taken to have indicated their desire to be
included in the unit with the office and clerical employees.
The time-study clerk merely performs clerical work in the time-
study department. We find no basis for excluding the time-study
clerk and shall, therefore, include her in the unit."
The chemist. The chemist tests solutions of chemicals in the plating
vats and determines that the solutions therein meet the requirements
for the plating of metal of various types. The chemist works entirely
in the plant. The Employer contends that the chemist is a profes-
sional employee. Inasmuch as the record is insufficient to determine
Matter of Worthington Pump and Machinery Corporation , 75 N. L. R. B. 678.
8 Section 9 (b) (3).
a Conference Report ( House Report No . 510, 80th Cong ., let Sess., pp . 35, 36).
8 Matter of Federal-Mogul Corporation, 73 N. L. R. B. 359, 364.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his status as a professional or non-professional employee, we shall
exclude him from the unit.
We shall direct that separate elections be held in the following vot-
ing groups, and shall defer our determination as to the scope of the
unit until the results of these elections have been ascertained.
1. All office clerical and technical employees at the Employer's Dura
Division plant at Toledo, Ohio, including the typist in the time-study
department, but excluding the nurses and all other employees in the
personnel department, the chemist, confidential secretaries, and all
supervisors.
2. All time-study men in the time-study department.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, elections by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case
was heard, and subject to Sections 203.61 and 203.62 of National
Labor Relations Board Rules and Regulations-Series 5, as amended,
among the employees in the voting groups set forth in paragraph num-
bered 4, above, who were employed during the pay-roll period im-
mediately preceding the date of this Direction of Elections including
employees who did not work during said pay-roll period because they
were ill or on vacation or temporarily laid off, but excluding those
employees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the election, and
also excluding employees on strike who are not entitled to reinstate-
ment, to determine whether or not they desire to be represented, for
purposes of collective bargaining, by International Union, United
Automobile, Aircraft & Agricultural Implement Workers of Amer-
ica, Local 16 (CIO).
MEMBERS REYNOLDS and GRAY, concurring in part and dissenting in
part :
We dissent from the majority only insofar as it finds that time-
study men may be represented by the same union which currently
represents the production workers. The exercise by these employees
of their knowledge, skill, and judgment materially affects the wages
earned by the production employees. They are also involved in the
initial stages of labor grievances respecting the determination of the
incentive wage rate of the production employees. It is apparent that
the results of the time-studies conducted by those time-study employees
DETROIT HARVESTER COANY 1321
oftentimes will meet with strenuous objections from the production
employees. To this extent, the duties of the time-study employees
conflict with the interests of the production employees.
We do not think that the Board should create or perpetuate a bar-
gaining relationship which places the time-study men in a position
where their obligations as fellow union members of production em-
ployees may come in direct conflict with their primary duty to man-
agement of determining the incentive wage rates to be paid to the pro-
duction employees. We believe that the decision of the majority, in
allowing time-study men to be represented by the same labor organi-
zation which represents the Employer's production employees, will
give birth to this undesirable bargaining relationship. Accordingly,
we would exclude the time-study men from any unit found appropriate
in this case.