Foster Wheeler Corp.

National Labor Relations Board - Board Decisions

Apr 28, 1950

89 N.L.R.B. 926 (N.L.R.B. 1950)

In the Matter of FOSTER WHEELER CORPORATION , EMPLOYER AND PETI-
TIONER and UNITED ELECTRICAL , RADIO AND MACHINE WORKERS OF
AMERICA, LOCAL No. 440, UNION
Case No. 4-Rl1-52.Decided April 28, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Harold Kowal,
hearing officer. - The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Reynolds, Murdock, and
Styles].
Upon the entire record in this case,z the Board finds :
1. The Employer, a New York corporation with is principal office
and plant at Carteret, New Jersey, manufactures steam generating,
oil refinery equipment. During the past year, it purchased equip-
ment and supplies valued in excess of $1,000,000, all of which were
shipped from points outside the State of New Jersey. During the
same period, the Employer manufactured finished products, valued
in excess of $7,000,000, all of which were shipped to points outside
the State of New Jersey. Although the Union declined to stipulate
that the Employer is engaged in commerce within the meaning of
the Act, we find that it is so engaged.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. The question concerning representation :
The Union contends that its current contract with the Employer,
I International Union of Electrical , Radio and Machine Workers, Local No. 440, CIO,
herein called the Intervenor , was permitted to intervene as a necessary party.
2 The Union 's request for oral argument is hereby denied , as the record and the briefs
submitted , in our opinion , adequately set forth the issues and the positions of the parties.
3 Although the Union refused to stipulate that the Intervenor ' s Local No . 440 is a labor
organization , and the Intervenor refused to so stipulate as to the Union ' s Local No . 440, we
find that both of such locals are labor organizations , as defined in the Act.
89 NLRB No. 105.
926
FOSTER WHEELER CORPORATION 927
which expires June 23, 1950, constitutes a bar to the petition filed
herein on November 18, 7949.4 The Employer has bargained with the
Union since 1941. On November 2, 1949, the Union was expelled and
disaffiliated from the C. I. 0., and a charter of affiliation was issued to
the Intervenor which now claims recognition under the above-men-
tioned contract. On November 4, 1949, by unanimous vote, the mem-
bers of the Union disaffiliated therefrom and affiliated with the In-
tervenor. On November 8, 1949, the Intervenor requested the Em-
ployer to sign a supplemental recognition agreement. The Employer
advised the Intervenor that such request would be referred to counsel
and that the Employer would recognize the. Intervenor's "present
Local Union Committee ... excepting as to dues collected," which
would be held in escrow pending a determination as to whom
they should be paid. Although the Employer received no connnunica-
tion from the Union subsequent to November 4, 1949, the Union
appeared at the hearing and not only raised the issues already men-
tioned, but also disputed the Intervenor's right to act as bargaining
representative under the contract.
For the reasons stated in Boston Machine TVorks Company,5 we find
that the Employer's contract with the Union does not bar a present
redetermination of representatives. We therefore conclude that the
conflicting claims to representation of the two labor organizations in-
volved herein can best be resolved by an election.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Employer and the Intervenor request a single unit, composed of
hourly ' and salaried ' employees. On the other hand, the Union con-
tends that hourly and salaried employees should constitute two sep-
arate units.
The Employer recognized the Union as representative of the hourly
employees in 1941, and of the salaried employees in 1943. Since 1943,
hourly and salaried employees have been handled in single bargaining
conferences,, and bargaining contracts have contained portions dealing
4 The Union moved to dismiss the proceeding upon this ground. For the reasons set
forth hereinafter, the motion is hereby denied.
5 89 NLRB 59.
6 Hourly employees are described in the petition as "all of the production and maintenance
employees of the Company and shop clerks, but excluding superintendents, assistant super-
intendents, foremen, and assistant foremen not performing manual work, watchmen, guards,
and olhee employees."
T Salaried employees are described in the petition as "all salaried employees in the follow-
ing departments : Accounting and Cost, Heat Exchanger, Machine Shop, Erection and As-
sembly, Boiler Shop, Receiving, Inspection Traffic, Mailing Messenger, Addressograph, First
Aid, and Firemen. but excluding all Department and Assistant Department Heads, Foremen
and Assistant Foremen."
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with both groups together and also portions dealing with each group
separately.' The hourly group is primarily a production and mainte-
nance body, while the salaried group is primarily an office clerical
force. Supervision for each group is different, and there is little inter-
change between them.
As the bargaining history of the employees involved tends to estab-
lish more clearly a pattern of bargaining on a two-unit than on a
single-unit basis, and as the record does not disclose the requisite homo-
geneity for a single unit of hourly and salaried employees, we are of
the opinion that the unit requested by the Employer and the Inter-
venor is inappropriate. Moreover, we perceive no justification for
including, in this instance, salaried employees, who constitute pri-
marily an office clerical force, with a group of rank-and-file production
and maintenance employees.9 Accordingly, we find that hourly and
salaried employees should constitute two separate units.10
We find that the following group of employees constitute separate
units appropriate for the purpose of collective bargaining within the
meaning of Section 9 (b) of the Act :
1. All production and maintenance employees it the Employer's
Carteret, New Jersey, plant, including shop clerks, but excluding
superintendents, assistant superintendents, foremen, assistant fore-
men not performing manual work, watchmen, guards, office clerical
employees, and supervisors as defined in the Act.
2. All salaried employees at the Employer's Carteret, New Jersey,
plant in the following departments: Accounting and Cost, Heat Ex-
changer, Machine Shop, Erection and Assembly, Boiler Shop, Re-
ceiving, Inspection Traffic, Mailing Messenger, Addressograph, First
Aid, and Firemen, but excluding all department heads, assistant de-
partment heads, foremen, assistant foremen, guards, professional em-
ployees, and supervisors as defined in the Act.
DIRECTION OF ELECTION
As part of ' the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
45 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
8 The current contract is divided into three parts. Part I applies to "Hourly and Salaried
Employees." Part II applies to "Hourly Employees Only." Part III applies to "Salaried
Employees Only." Hourly and salaried employees are defined in the contract in terms
identical with those set forth in the petition.
See Buckeye Rural Electric Co-operative, Inc., 88 NLRB 196, and cases cited therein.
10 See Sperry Gyroscope Company, 88 NLRB 907.
FOSTER WHEELER CORPORATION 929
Relations Board Rules and Regulations, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the payroll period immediately preceding the date
of this Direction of Election, including employees who did not work
during said payroll 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 rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
they desire to be represented, for purposes of collective bargaining,
by United Electrical, Radio and -Machine Workers of. America, Local
No. 440,11 or by International Union of Electrical, Radio and Machine
Workers, Local No. 440, CIO, or by neither.
"As United Electrical, Radio and Machine Workers of America, Local No. 440, is not in
compliance , the Regional Director is instructed that its name shall not be placed upon the
ballot unless it effects compliance within 2 weeks from the date of this Direction.