Foster-Wheeler Corp.

National Labor Relations Board - Board Decisions

Nov 14, 1945

64 N.L.R.B. 812 (N.L.R.B. 1945)

In the Matter of FOSTER-WHEELER CORPORATION and ARCHITECTURAL
AND ENGINEERING GUILD, LOCAL 66, INTERNATIONAL FEDERATION OF
TECHNICAL ENGINEERS, ARCHITECTS AND DRAFTSMEN'S UNIONS,
A. F. OF L.
Case No. 2-R-5664.-Decided November 4-1945
Fraser, Speir, Meyer ct Kidder, by Messrs. S. M. Meyer and J. W.
Matz, and Messrs. A. H. Egsielcer, J. H. Hinman, and Martin Frisch,
of New York City, for the Company.
Messrs. J. Lawernce Raimist, William Sommer, A. E. Ruckgauer,
O. H. Vanderbilt, John J. Feurey, and Howard A. Flood, for the
AFL.
Mr. Sidney Grossman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TIIE CASE
Upon an amended petition duly filed by Architectural and Engineer-
ing Guild, Local 66, International Federation of Technical Engineers,
Architects and Draftsmen's Unions, A. F. of L., herein called the AFL,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Foster-Wheeler Corporation, New
York City, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Richard J. Hickey, Trial Examiner. Said hearing was held at New
York City on June 25 and July 24, 1945. The Company and the AFL
appeared, participated, and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
All parties were afforded an opportunity to file briefs with the Board.
64 N. L. R. B., No. 142.
812
FOSTER-WHEELER CORPORATION 813
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Foster-Wheeler Corporation, a New York corporation, with prin-
cipal offices in New York City, is engaged in the manufacture, sale and
distribution of boilers, condensers, and other durable goods at its
Carteret, New Jersey, and Dansville, New York, plants. We are here
concerned with the Company's contract mechanical design depart-
ment located at 6 Church Street and 117 Liberty Street, New York
City. During the fiscal year ending May 31, 1945, the Company pur-
chased raw materials, principally consisting of steel and iron products,
in excess of $500,000 in value, of which over 50 percent was shipped
to its Carteret, New Jersey, plant, from places outside the State of
New Jersey, and over 50 percent was shipped to its Dansville, New
York, plant, from places outside the State of New York. During the
same period, the Company's sales of its finished products were valued
in excess of $700,000, of which over 50 percent was shipped to places
outside the States of their origin.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
Architectural and Engineering Guild, Local 66, International
Federation of Technical Engineers, Architects and Draftsmen's
Unions, affiliated with the American Federation of Labor, is a labor
organization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the AFL as the
exclusive bargaining representative of certain of its employees until
the AFL has been certified by the Board in an appropriate unit.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the AFL represents a substantial number of em-
ployees in the unit hereinafter found appropriate.,
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company within the meaning
of Section 9 (c) and Section ' (6) and (7) of the Act.
i The Field Examiner reported that the AFL submitted 60 membership application cards,
of which 49 bore dates between March and May 1945, and 11 were undated, in an alleged
appropriate unit consisting of 198 employees
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. TIIE APPROPRIATE UNIT
The AFL requests a unit consisting of all technical, engineering,
architectural and other technical employees of the Company's contract
mechanical design department, including technical engineers, archi-
tects, designers, draftsmen, checkers, tracers, apprentices, material
listers, layout men, special design engineers, squad leaders, section
leaders, and contract supervisors, but excluding office, clerical, and
non-technical employees, the process or chemical engineering depart-
ment employees at 165 Broadway, New York City, the manager, the
chief draftsman and the assistant chief draftsman, oil division, the
chief draftsman, steam division, the personnel manager, the labor
relations director, and all other supervisory employees. The Company
agrees with the general composition of the unit, but would exclude
therefrom squad leaders, section leaders, and contract supervisors as
supervisory employees, and special design engineers as confidential
employees.
Section leaders and contract supervisors. The Company classifies
9 employees as section leaders. They are in charge of squad leaders,
hereinafter discussed, who in turn direct the work of lower categories
of technical employees engaged in the final preparation of designs and
drawings. Generally, they issue technical instructions for employees
in their section, approve the release of drawings and material requisi-
tions, coordinate the work of the various sections, and may visit the
job site as the Company's representative. Section leaders interview
applicants for employment; their recommendations as to the hire or
rejection of such employees are followed by the Company. In addi-
tion, the evidence reveals that they possess other authority normally
exercised by supervisory employees. Above the section leaders in the
Company's supervisory hierarchy are the contract supervisors who
earn a commensurately higher salary and exercise broad Supervisory
authority within the sphere of their greater responsibilities. Although
section leaders and contract supervisors are subject to working condi-
tions similar to that of other technical employees with respect to vaca-
tions, over-time, holidays, and attendance records, the record clearly
indicates that they are supervisors within the meaning of the Board's
customary definition; we shall therefore exclude them from the unit.
Squad leaders. The Company classifies as squad leaders 16 employees
who direct the work of approximately 5 to 20 or more technical em-
ployees. They supervise the production of preliminary studies and
finished drawings, instruct men as to design, arrangement, and detail,
and assign work in accordance with employees' capabilities. Although
they may make sketches or preliminary studies for the guidance of
their men, they ordinarily devote their entire time to supervision and
generally earn a higher salary than other technical employees under
FOSTER-WHEELER CORPORATION 815
their direction. The Company contends that squad leaders possess au-
thority effectively to recommend the discharge, discipline, and change
of status of the employees they supervise, and referred to numerous
instances wherein squad leaders have exercised such authority. In
disputing such contention, the AFL maintains that the reports sub-
mitted by squad leaders are merely factual, unaccompanied by any
recommendations, and are no more effective than reports normally
made by experienced employees concerning less skilled workmen. The
evidence reveals that because of the technical and detailed nature of
the duties of the employees under them, squad leaders of necessity must
evaluate the work of their subordinates and that their reports are con-
sequently of such character as would normally influence the Company
in effecting changes in the status of the employees therein concerned.
In fact, the record shows that upon reports by squad leaders employees
have been disciplined, transferred, discharged, or have received wage
increases. Although, as in the case of section leaders and contract
supervisors, squad leaders work under working conditions similar to
that of other technical employees, we are of the opinion that they
possess sufficient indicia of supervisory authority to warrant their
exclusion from the unit; we shall therefore exclude them.
Special design engineers. The Company has 3 employees in this
category who work under the direction of the manager. It urges their
exclusion from the unit for the reason that they are concerned with
technical problems of a confidential nature. The evidence reveals that,
these employees do not possess information directly relating to prob-
lems pertaining to labor relations. We have frequently stated that
access to important information relating to business and not to labor
relation matters is of itself insufficient to justify the withholding of
the right to bargain collectively.2 Inasmuch as the information ac-
cessible to the special design engineers is not of such character as to^
warrant the conclusion that they are confidential employees within the
meaning of our customary definition, we shall include them in the unit.
We find that all technical, engineering, architectural, and other
technical employees of the Company's contract mechanical design,
department, including technical engineers, architects, designers,,
draftsmen, checkers, tracers, apprentices, material listers, layout
men, and special design engineers,3 but excluding office, clerical, and
nontechnical employees, the process or chemical engineering depart-
ment employees at 165 Broadway, New York City, the manager, the
chief draftsman and the assistant chief draftsman, oil division, the
chief draftsman, steam division, the personnel manager, the labor
relations director, contract supervisors, section leaders, squad leaders,
2 See Matter of Briggs Manufacturing Company , 63 N. L It. B. 860
3 Including J. Kupstas , who we find , contrary to the Company 's contention , does not
possess supervisory authority consonant with the Board 's customary definition thereof.
'816 DECISIQNS OF NATIONAL LABOR RELATIONS BOARD
and all other` supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit appro-
priate for the purposes of dollective bargaining within the meaning
-of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of
Election, herein, subject to the limitations and additions set forth in
the Direction.
DIRECTION ' OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Foster-Wheeler
'Corporation, New York City, an election by secret ballot shall be
conducted as early as possible, but not later than sixty (60) days
from the date of this Direction, under the direction and supervision
.of the Regional Director for the Second Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Article III, Sections 10 and 11, of said Rules and Regulations, among
the employees in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately preced-
ing the date of this Direction, including employees who did not work
-during said pay-roll period because they were ill or on vacation or
temporarily laid off, and including employees in the armed forces of
the United States who present themselves in person at the polls, but
-excluding any who have since quit or been discharged for cause and
have not been rehired or reinstated prior to the date of the election,
to determine whether or not they desire to be represented by Archi-
tectural and Engineering Guild, Local 66, International Federation
,of Technical Engineers, Architects and Draftsmen's Unions, A. F.
of L., for the purposes of collective bargaining.
MR. GERARD D. REILLY took no part in the consideration of the above
-Decision and Direction of Election.
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