General Dynamics

National Labor Relations Board - Board Decisions

Feb 24, 1969

174 N.L.R.B. 717 (N.L.R.B. 1969)

GENERAL DYNAMICS, ELECTRONICS DIV.
General Dynamics, Electronics Division , San Diego
Operations and Engineers and Architects
Association , San Diego Chapter , Petitioner. Case
21-UC-22
February 24, 1969
DECISION AND ORDER DENYING
PETITION TO CLARIFY
CERTIFICATION
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
Upon a petition of Engineers and Architects
Association, San Diego Chapter, for clarification of
unit duly filed on November 17, 1967, and First
Amended petition filed on November 30, 1967,
under Section 9(b) of the National Laboi Relations
Act, as amended, a hearing' was held on January
17, 18, and 19, 1968, before Hearing Officer, Claude
R. Marston. On February 28, 1968, the Regional
Director for Region 21 issued an Order transferring
the case to the Board. Thereafter, briefs were timely
filed by Employer and Petitioner.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby
affirmed.
Upon the entire record in this case, the Board
finds:
1. 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. Petitioner and Intervenor are both labor
organizations within the meaning of the Act, and
both claim to represent certain employees of
Employer.
3. Employer is engaged in the production of
electronic equimpment in San Diego, Califormia.
Petitioner was certified as the bargaining
representative of a unit of hourly technical and
office employees of Employer, following an election
on June 21, 1963.2 Employer's professional
employees voted against representation by Petitioner
in the same election. Petitioner and Employer
currently are parties to an agreement for the period
from November 15, 1965, to December 9, 1970. The
agreement recognizes Petitioner in accordance with
the certification dated July 1, 1963, as the exclusive
'international Association of Machinists and Aerospace Workers,
Aeronautical Machinists Lodge 1125, Silvergate District Lodge 50, was
allowed to intervene at the hearing on the basis of Petntioner 's claim, in its
first amended petition , to represent a job classified as planner, currently
represented by Intervenor . The Hearing Officer granted Machinists'
request to be excused from the remainder of the hearing , after Petitioner
amended its petition to exclude the job classification represented by
Intervenor.
717
representative for technical and office employees
who are paid on an hourly basis.
In this proceeding, Petitioner is seeking
clarification of its certification to include all
employees who perform work that is described in
job descriptions represented by Petitioner.
Specifically, this group would include the following
classifications: Design Engineer, Engineering Writer,
Engineering Illustrator, Engineering Drawings
Checker, Manufacturing Engineer, Manufacturing
Analyst, and Tool Planning Analyst. Petitioner's
request, if granted, would result in the addition of
approximately 75 employees to the 100 employees it
currently represents. Petitioner contends that
whether by intention or neglect on the part of
Employer, all-real distinction that may have existed
between the aforementioned classifications and the
corresponding technical classifications represented
by Petitioner has been obliterated.3 Employer
contends that Petitioner seeks to comingle
professional and nonprofessional employees contrary
to the prohibition of the Act, that Petitioner has
failed to show that hourly work is being done by
salaried people on a regular and consistent basis,
and that the relief sought cannot be granted in a
clarification proceeding " The Board finds merit in
Employer's argument.
It is clear that all classifications in issue were in
existence and populated prior to the election and
certification in 1963. The classifications of
Manufacturing Analyst and Manufacturing Engineer
have never been included in either the mixed unit of
professional and nonprofessional employees certified
in 1961, or in the separate groups of professional
and nonprofessional employees who voted in the
1963 election. The classifications of Design
Engineer, Engineering Writer, Engineering
Illustrator, and Engineering Drawings Checker were
included in the separate professional group that
voted in 1963 against continued representation by
Petitioner. `
Petitioner's contention that the Design Engineers
spend substantial proportions of their time
performing tasks that are normally performed by
the represented Designer classification finds little
'Case 21-RM-927 (Not published in NLRB volumes.)
'Petitioner contended at the hearing that had its subpena duces tecum
been honored and all of the material outlined therein brought to the
hearing, such material would show that those persons occupying the
classifications claimed in the petition perform unit work more than 50
percent of the time in their present occupations . The Hearing Officer
granted Employer' s motion for revocation of Petitioner 's subpena
concerning various documents in Employer ' s possession , on the grounds
that the record was sufficiently clear and testimony concerning the material
sought in the subpena was adequately covered at the hearing
'Early in the hearing, Employer moved under Section 102.65 of Board's
Rules and Regulations , Series 8, as amended , to dismiss the petition on the
grounds that the petition was concerned with job disputes , the petition
seeks to question the propriety of assignments within the classifications,
and that the classifications sought were in existence in 1963, and in 1965,
when the parties bargained for the current agreement The motion was
directed to the Hearing Officer, who referred it to the Regional Director
The Regional Director found that there were factual issues that ought to
be determined in a hearing , and therefore , he denied the motion to dismiss
174 NLRB No. 107
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support in the record. Although there was evidence
that Design Engineers performed drafting and
layout tasks encompassed by the represented
Designer classification, there was no evidence that
all Design Engineers performed these tasks on a
regular basis or to the exclusion of their own job
responsibilities. The record indicates that the Design
Engineers performed drafting tasks sporadically for
undetermined periods and on a minimal basis.
As to the Engineering Drawings Checker
classification, Petitioner contends that the functions
of this classification are already encompassed in the
represented Designer classification. The duties of the
Engineering Drawings Checker classification include
the checking for the correctness of drawings, and the
clearing of completed drawings. There are currently
4 employees in this classification; 3 are salaried and
1 is hourly paid. Although some Designers have
done some checking work, these Designers and the 1
hourly employee presently doing checking work,
have never had the authority to sign-off drawings
for release. Here also, the record indicates only
sporadic checking on the part of represented
employees, and such checking has never been at a
level of responsibility comparable to that of the
Engineering Drawings Checker classification.
Petitioner contends that the Engineering Writer
classification performs tasks that were previously
performed by the represented Technical Writer
classification, a position that is not presently filled.
An Engineering Writer researches specifications,
obtains raw data, and writes various technical
documents. Although Petitioner contends that the
Engineering Writer now performs the tasks that
were formerly within the classification of Technical
Writer, the record indicates that only on occasion
do the Engineering Writers perform tasks that are
within the job description of Technical Writer.
Moreover, it is also clear from the record that the
duties performed by the Engineering Writers have
become increasingly more complex in the past 5
years.
It is Petitioner's view that the Engineering
Illustrator classification now performs substantially
those tasks encompassed by the represented
Technical Illustrator classification. The record
indicates that the Engineering Illustrator does
perform functions set forth in the job description of
Technical Illustrator, but only on occasion.
However, there was no evidence that the
Engineering Illustrators, who normally perform
more complex tasks than Technical Illustrators,
have consistently performed tasks that were within
unit job descriptions.
Petitioner contends that non-represented persons
in the classification of Manufacturing Engineer
perform tasks that are similar to or are covered by
the represented Tool and Operations Planner
classification. Petitioner attempted to show that the
Manufacturing Engineers perform planning tasks
that belong to the represented employees. However,
other than testimony that a certain Manufacturing
Engineer had performed some electrical assembly
planning, there was no evidence of the` frequency or
the extent of such planning. Moreover, there was no
evidence that there has been a substantial change in
the work of the Manufacturing Engineers since the
time of their exclusion from the represented unit in
1961.
As to the classification of Manufacturing Analyst
that Petitioner seeks herein, an employee, who is
presently a Manufacturing Analyst, testified that he
had knowledge that some Manufacturing Analysts
had performed planning tasks as late as November
1967, but not thereafter. This same individual stated
that he presently serves in an administrative
capacity, and that at the time of the hearing no
salaried employees were performing planning
functions that belong in the unit.
Finally, Petitioner seeks to include the
classification of Tool Planning Analyst. This
classification was included in the unit found
appropriate for salaried professional employees in
the 1963 election, and the_ employees voted against
representation by Petitioner. The only discussion of
this classification at the hearing was by Employer's
Manager of Industrial Relations. He testified that
this classification was in existence and populated at
the time of the election in 1963. However, he
testified further that such classification has not been
populated since the election.
As noted above, all of the classifications
Petitioner seeks herein have been in existence since
before the latest election and certification in 1963.
At that time, all of the classifications sought herein,
with the exception of the excluded Manufacturing
Analyst and Manufacturing Engineer classifications,
were included in a separate group of professional
employees who voted against representation by
Petitioner. It is clear that these professional
employees cannot be included in the unit without the
direction of an election as required by Section
9(b)(1) of the Act.5 Nor has Petitioner presented
evidence sufficient to show that the work performed
by the classifications in issue has significantly
changed since the 1963 certification so that their
interests now are more clearly aligned with the
represented employees than with the professional
group that they preferred at the time of the election.
Petitioner's contention that the classifications in
issue have performed unit work to the extent that
the bargaining unit has been eroded, is similarly
lacking in merit. The record evidence indicates only
an infrequent overlap of duties by nonrepresented
employees into that of represented classifications.
Such overlap was sporadic, at times unavoidable,
and occurred during periods of shortages of
employees in certain represented classifications.
As to the Manufacturing Analyst and the
Manufacturing Engineer, the record contains no
'Gibbs & Cox, Inc., 168 NLRB No 42
GENERAL DYNAMICS, ELECTRONICS DIV. 719
evidence that would warrant a conclusion that these
classifications should now be included in the unit,
notwithstanding the fact that they have been
excluded from all units since 1961. It is clear that
all of the classifications sought herein are salaried
employees, whereas the represented employees are
hourly paid. In view of the entire record, including
the prior exclusion of the classifications in issue
because of their professional standing or their close
community of interest with other professional
employees of Employer, the mode of payment of the
classifications sought, and the paucity of evidence
with respect to the type of unit work they performed
and the duration of such work, we find that the
salaried employees herein cannot, by means of a
unit clarification proceeding, be included in
Petitioner's unit of hourly technical and office
employees. Accordingly, we shall therefore dismiss
Petitioner's petition.
ORDER
It is hereby ordered that Petitioner's petition for
unit clarification be, and it hereby is, dismissed.