Dynalectron Corp.

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 1147 (N.L.R.B. 1977)

DYNALECTRON CORPORATION
Dynalectron Corporation and International Brother-
hood of Teamsters, Chauffeurs, W'arehousemen
and Helpers of America, Local Union 146, Peti-
tioner. Case 27-RC-5400
August 31, 1977
DECISION AND DIRECTION OF
ELECTION
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held by Hearing Officer Hobart Corning
on December 14, 1976, at Pueblo, Colorado. Thereaf-
ter, a reopened hearing was held before Hearing
Officer Robert L. McCabe at the same location on
January 14, 1977. Pursuant to Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, this case was transferred
by direction of the Regional Director for Region 27
to the National Labor Relations Board for decision.
Thereafter, the Employer and the Petitioner each
filed a brief.
The Board has reviewed the Hearing Officers'
rulings made at the respective hearings and finds that
no prejudicial error was committed. The rulings are
hereby affirmed.
Upon the entire record in this proceeding the
Board finds:
1. The parties stipulated and we find that the
Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists within
the meaning of Section 9(c)(1) and Section 2(6) and
(7) of the Act.
4. The Employer is a diversified engineering,
contracting, and technical services company head-
quartered in McLean, Virginia. It has operating
divisions and subsidiaries in several States and some
Canadian provinces. In 1976, the transportation
service division of the technical services group was
awarded the contract for operation and maintenance
of the United States Government Test Center at
Pueblo, Colorado. The Petitioner seeks a unit limited
to the production and maintenance employees at the
Employer's Pueblo, Colorado, transportation test
center. The Employer takes the position that the unit
must include all employees engaged in technical and
logistical support services for programs at the
transportation test center in Pueblo, Colorado. Thus,
as we read the record and the briefs of the parties, it
231 NLRB No. 185
appears that they agree that a plantwide unit is
appropriate. They disagree, however, with regard to
the technical employees whom the Petitioner would
exclude, and whom the Employer would include, in a
plantwide unit.
The record reveals that this is a unique facility for
the testing of railroad and mass transit rail vehicles.
Thus, it is not a production facility in the traditional
sense because no product is produced. Rather, the
operation consists of conducting tests and the end
products are the test results which are provided to
the Government.
The Employer has a group of employees grouped
under the general management heading of technical
services. The Petitioner contends that all these
employees, with the exception of the driver/courier,
should be excluded from the unit. In its brief, the
Employer concedes that these employees are techni-
cal employees within the meaning of the Act.
Nevertheless, however, it contends that because of
the nature of its operation and the interrelationship
between these and other groups of employees they
must be included in the unit.
As noted, the principal function of the transporta-
tion test center is to test various types of equipment,
and the functions carried on at the center are so
complex as to make comparison with ordinary
manufacturing plants and processes misleading. The
test activities which are among the major duties of all
employees are not separate steps in the production
process, as in other types of manufacture, but
constitute the production process itself.'
Thus, the Employer's "total site support" contract
in this case includes technical engineering services of
a broad nature-from the operation, maintenance,
and logistical support of the basic site facilities to the
actual maintenance and operation of rail vehicles.
The evidence shows that many job functions interre-
late and involve several different job skills, depend-
ing on the particular type of test being conducted at
a given time. The record further reflects that all
employees, including the technicals, share the same
work hours, benefits, similarity of skills, and jobs,
and, in many instances, common supervision, wage
and salary program, standards of employment, and
work location.
Regarding the technicals whom the Union wants
excluded, the record reveals that the statement above
is also true of them. Thus, Earl Thompson, manager
of technical services at the transportation test center,
testified that the electronic technicians from the rail
dynamics laboratory do cabling in concert with, and
sometimes in place of, electronic technicians in the
facilities services department. As an example of
See. e.g.. The Boeing Company. 144 NLRB 1110 (1963), citing
Airesearch Manufacturing Company of Arizona. a Division of the Garret
Corporation, 137 NLRB 632. 635 (1962).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overlap of functions, Thompson further testified that
with regard to placer cars "which the people in
Technical Services operate and also act as a pilot for
those cars . . . that function is also performed by the
people in the Track and Guideway section of
Facilities Services as well as the Rail Operations
people in Vehicle Services."
Giving a further example of how the technical
employees have contact with other employees,
Thompson testified at the reopened hearing that the
computer operator, for example, operates the compu-
ters, some of which are located in the rail dynamics
laboratory, and associates with electronic techni-
cians. When they operate computers for the rail
vehicles, they are working with rail operations people
who operate the vehicles or transit cars and with the
electrical technicians. The Employer produced evi-
dence of other instances in which the technicians
worked closely with employees of other departments
where special power and testing were needed to move
some computer operations from the rail dynamics
laboratory to the operations building. In such
instances, electronic technicians have worked along
with people from the facilities services department
toward that end. In another test situation designed to
record the impact of two trains to determine what
causes a train to puncture, the photographers will
come out and set up the cameras in conjunction with
the electrical people and actually help lay cable and
control and record the activity, as they are part of the
test team and responsible to the support engineer. In
some instances, there may be as many as 14 or 15
different skills involved in a particular test.
In view of the foregoing, and in view of the unique
nature of the work performed by the Employer, we
are of the view that the technical employees, on the
facts of this case, must be included in the overall
plantwide unit.2
Inasmuch as the Petitioner expressed interest in
participating in an election in any unit found
appropriate, we shall direct an election in that unit.
The Petitioner contends that persons designated as
foremen in the various service departments set forth
in the Employer's proposed unit description are
supervisors and should be excluded from the unit. It
also contends that two other individuals, listed as
2 Our dissenting colleagues acknowledge that in The Sheffield Corpora-
lion, 134 NLRB 1101 (1961), the Board reversed its previous practice of
automatically excluding technical employees from production and mainte-
nance units whenever their unit placement was in issue. They then proceed
to ignore its teachings by stating in effect that technicals must automatically
be excluded because their exclusion has been requested by the Union in this
case. We see no reason for stating that the technical employees here have no
interests in common with the production and maintenance employees. In
this connection, while our dissenting colleagues contend the record is
"sketchy" regarding factors supportive of finding the existence of a
community of interest. we note that they have set forth no factors which
yardmaster and motor pool dispatcher, should also
be excluded as supervisors.
Gustave A. Peyer, manager of facilities services,
testified that the persons classed as foremen are
hourly paid and are at the next level below the
salaried personnel who are admitted supervisors. A
foreman was further described as being both "a work
and assigner" of tasks. Thus, when a task is handed
to him by a supervisor, he will delegate work to
persons in his shop. Peyer testified further, "[H ]e also
performs the work and in fact he is probably, and by
virtue of being foreman, the senior journeyman ...
the most skilled journeyman in the shop."
These foremen receive the same benefits and have
the same hours and work conditions as do the other
employees. They do not have the authority to hire
and fire or to effectively recommend such action. If
the work to be done on a particular day is not
completed, overtime must be approved by a supervi-
sor.
On the basis of the foregoing, we are of the view
that these individuals designated as foremen are
leadmen rather than supervisors within the meaning
of the Act. Thus, we note that their work conditions
and benefits are the same as those of other
employees. Their role in making work assignments is
routine and dictated by the task assigned by a
supervisor and does not require independent judg-
ment. Accordingly, we shall include them in the unit.
Regarding the yardmaster, the record reveals that
his is the responsibility of locating railcars in the
yards. Upon receiving a request from someone who
wants a car moved, he will make out a switch list and
assign various operators to perform the task. Most of
the requirements for the location of cars, however,
are established by the Government, the test support
department, or someone else. Inasmuch as the
yardmaster does not otherwise possess supervisory
indicia, we find that he too is an employee and
entitled to vote.3
The Petitioner contends that the employees classi-
fied as records, property, and reproduction clerks
should be excluded from the unit. The record reveals
that the property clerks are assigned to the property
group. They conduct property surveys and are
responsible for all Government property which
comes to the site. The record clerk is assigned to
require a result different from that reached herein. They ignore the fact that,
absent evidence to the contrary, a production and maintenance unit,
including technicals, is appropriate under Sheffield Their position thus is
consistent with the line of cases preceding Sheffielda which give primacy in
unit placement to the parties' disagreement rather than the community of
interest that the technicals in this case have with the production and
maintenance employees.
3 The parties agreed that the switchboard operator and the emergency
service personnel should be excluded from the unit. Since the record fails to
establish exactly the situation regarding the motor pool dispatcher and the
draftsman, we shall permit them to vote subject to challenge.
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DYNALECTRON CORPORATION
several of the Employer's sections and keeps track of
materials and supply records. The reproduction clerk
runs the reproduction room which primarily involves
the operation of Xerox machines.
The above-described jobs are performed primarily
in the warehouse. Accordingly, we find that these are
plant clerical positions and the persons performing
such tasks are entitled to vote.
At the hearing, the Petitioner took the position that
the two buyers and the expediter should be excluded
from the unit on grounds that they are managerial
employees. While the record shows that the buyers
are responsible for placing all procurement for
services and supplies, it also shows that they have no
purchasing power inasmuch as all material requisi-
tions must be approved by management before they
get to the buyers. The position of expediter is a new
classification to help in the paper process of getting
information back on the status of a particular
procurement to a person who has requested an item.
As the record does not otherwise show that the
expediter and the buyers exercise any kind of
discreticn which makes them a part of management,
we conclude that they are rank-and-file employees
within the meaning of the Act and may be included
in the unit.
Based upon the foregoing, the following employees
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All technical, maintenance and plant employees,
and clerks of the Employer engaged in technical
and logistical support services for programs at the
Transportation Test Center, Pueblo, Colorado
and assigned to the following Departments of the
Employer: Facilities Services, Vehicle Services,
Technical Services, Management Services and
Project Management, excluding office clerical
employees, guards, firemen, salaried, administra-
tive, executive and professional employees and
supervisors as defined by the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
CHAIRMAN FANNING and MEMBER JENKINS, dissent-
ing:
Although the Petitioner sought a unit limited to
production and maintenance employees at the
Employer's Pueblo, Colorado, transportation test
center, the majority concludes that an appropriate
; It appears certain from the record that some classifications of technical
employees swork exclusively in the rail dynamics laboratory, have little or no
contact with service and maintenance employees. and spend a large part of
their workday in contact only with other technicals and with professional
engineers.
unit herein must include technical employees. Be-
cause this result represents a departure from the
approach traditionally taken by the Board in similar
cases involving unit determinations, and because of
the absence of special facts or circumstances in the
instant case which might justify such a departure, we
must dissent.
The Employer's test center employees are assigned
to one of five operating departments-facilities
services, vehicle services, emergency services, man-
agement services, and technical services-each of
which is under the general supervision of a depart-
ment manager. All of the approximately 94 employ-
ees in technical classifications are assigned to the
technical services department. According to the
Employer's industrial relations supervisor, all or
nearly all of the employees in technical classifications
in the technical services department are physically
located in the rail dynamics laboratory which is
separate from other buildings at the center.
In requiring the inclusion of technical employees in
the unit found appropriate, our colleagues rely on
what they characterize as the "unique nature" of this
Employer's work. They suggest also that the record
convincingly demonstrates an interrelationship of
job functions and skills, as well as a commonality of
terms and conditions among all groups of test center
employees, which warrants the result they reach. In
this regard they note testimony offered by the
Employer's witnesses concerning two or three in-
stances in which technical employees have come in
close contact with other test center employees in
connection with particular tests being conducted at
the facility.
In fact, the record evidence relied on by my
colleagues is at best sketchy and unpersuasive.
Although on occasion, for a specific test procedure,
some classifications of technical employees may
work closely with other groups of employees, there is
no clear evidence in the record either of the
frequency with which this occurs or of the number of
technical classifications that may be involved.5
Moreover, even when technical employees are
temporarily assigned to work on a special test project
of the type described in the majority opinion, the
record testimony indicates that as often as not
technical employees and other groups of employees
are not working concurrently on the project and are
not working under common supervisions
It is well settled, of course, that a petitioned-for
unit need only be an appropriate unit, rather than the
6 Thus, for example, the testimony of the manager of the facilities
services department indicates that, although maintenance employees from
his department may be assigned temporarily to a test project, much of their
work may he done in advance of the actual testing procedures and under the
immediate supervision of foremen from the facilities services department.
1149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
most appropriate unit. Morand Brothers Beverage
Co., et al., 91 NLRB 409 (1950), enfd. 190 F.2d 576
(C.A. 7, 1951). And the Board has noted that "the
Act does not compel labor organizations to seek
representation in the most comprehensive grouping
of employees unless such grouping constitutes the
only appropriate unit." Federal Electric Corporation,
Western Test Range, 157 NLRB 1130, 1132 (1966). In
The Sheffield Corporation, 134 NLRB 1101 (1961),
the Board reconsidered and reversed its previous
practice of automatically excluding technical employ-
ees from production and maintenance units whenev-
er their unit placement was in issue. The Board
announced that henceforth it would make a pragmat-
ic judgment in each case, considering, inter alia, the
desires of the parties, common supervision, similarity
of skills and job functions, contact and/or inter-
change, whether technical employees work in sepa-
rate areas, and whether any union seeks to represent
technical employees separately.
7 Cf. Electronic Research Company, 214 NLRB 587 (1974).
What is critical in the instant case is that the
Union, in petitioning for a production and mainte-
nance unit excluding technical employees, is seeking
a unit that is clearly an appropriate unit for collective
bargaining. The fact that in other circumstances the
Board, applying the Sheffield criteria, might find a
broader unit including technical employees also to be
an appropriate unit is irrelevant.7 Certainly the vague
and incomplete testimony about the alleged similari-
ty of job skills of employees in one or two technical
classifications and employees in other departments,
and the equally vague and incomplete references to
occasions on which some technical employees may
come in close contact with other center employees in
connection with a particular test do not warrant a
different conclusion or justify the majority in the
decision they reach herein. Accordingly, we would
direct an election in the production and maintenance
unit described in the petition.
1150