Kelsey Hayes Wheel Co.

National Labor Relations Board - Board Decisions

Aug 10, 1949

85 N.L.R.B. 666 (N.L.R.B. 1949)

In the Matter Of KELSEY HAYES WHEEL COMPANY, EMPLOYER and
VALDA RAYWORTH , PETITIONER and LOCAL 78, INTERNATIONAL
UNION, UNITED AUTOMOBILE , AIRCRAFT AND AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA, CIO, UNION
Case No. 7-RD-27.-Decided August 10, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a decertification petition duly filed , a hearing was held before
Francis E. Burger , 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 [Chairman Herzog and Members
Reynolds and Gray].
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 Petitioner, an employee of the Employer , asserts that the
Union is no longer the representative of the Employer 's employees
designated in the petition.
The Union, a labor organization affiliated with the CIO, is currently
recognized by the Employer as the exclusive bargaining representative
of the employees designated in the petition.
3. The question concerning representation :
The Union contends that the petition should be dismissed for several
reasons. It alleges that the Petitioner is a supervisor who may not,
under the Act, file a decertification petition . Although the Union
introduced certain evidence from which it might be inferred that he
is a supervisor , we find that he is not a supervisor but merely an
employee within the meaning of the Act, in view of the express testi-
mony of the Employer and the Petitioner that he does not effectively
direct other employees , does not hire , discharge , or effectively recom-
mend any change in status of other employees and is not authorized
by the Employer to do any of these things. We likewise reject the
85 N. L . R. B., No. 119.
666
KELSEY HAYES WHEEL COMPANY 667
Union's contention that the Petitioner does not represent an adequate
number of employees within the requested unit, because the showing
of interest is an administrative device of the Board, not litigable at a
hearing,, and we are administratively satisfied that an adequate show-
ing has been made.
The Union further contends that it has a present bargaining con-
tract with the Employer which is a bar to these proceedings. The
Union, however, concedes that no formal bargaining contract has ever
been executed. The record merely discloses the existence of a' wage
proposal dated June 15, 1948, which was presented by the Employer
pursuant to negotiations with the Union, and a subsequent notification
by the Union to the Employer that its membership had ratified the
proposal. Although neither the Employer's proposal nor the Union's
response mentioned the period during which the wage rates should be
effective, the Union asserts that the parties intended by these trans-
actions to enter into a contract for a term of 1 year with an expiration
date in June 1949. The Employer opposes this contention and asserts
that its negotiations with the Union constituted at best a "day to day
or week to week arrangement." We find that there is no written agree-
ment in existence, signed by the Employer and the Union, containing
substantive elements of a collective bargaining contract such. as we
have held necessary to sustain a claim of contract bar 2 We accord-
ingly reject the Union's contention.
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 Petitioner requests that a decertification election be held
among the following employees in the Employer's Military and Mc-
Graw plants at Detroit, Michigan : all draftsmen, tool designers, blue-
print machine operators, tool engineering employees, engineering de-
sign employees, metallurgists, chemists, chemical and physical labora-
tory employees, brake booster testing employees, and experimental
brake employees, excluding stenographers and supervisors.
The bargaining history
In 1936 the UAW-CIO, Local 174, predecessor to the Union, was
recognized by the Employer as bargaining representative for.a unit
composed of all production and maintenance employees at the Military
and McGraw plants. At about the same time the Employer recog-
nized the Society of Designing Engineers, affiliated with the CIO, as
representative for a unit composed of the employees designated in the
1 Matter of 0. D. Jennings and Company , 68 N. L . R. B. 516.
2 Matter of Swift and Company , 82 N. L. R. B. 994.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
present petition with the exception of the brake booster testing and
experimental brake employees, these classifications not then being in
existence. In 1939, following a Board-directed election, Local 174
was certified as bargaining representative for the Employer's pro-
duction and maintenance employees at all its Detroit plants' In 1942
the Society merged with, and assigned its bargaining rights, to, the
Federation of Architectural Engineers, Chemists and Technicians,
C10.. Thereafter, in 1943, the Federation assigned its bargaining
rights for these employees to Local 174. The Employer, however,
refused to recognize Local 174 without an election, and a consent elec-
tion was conducted by the Board 4 in 1943, which was won by Local
174. Since that time the Employer has recognized and bargained
with Local 174 and its successor, the Union, for a unit composed of
the production and maintenance employees and the employees in-
volved herein, but as noted above, no formal written bargaining con-
tract has ever been executed.
Scope of the unit
The Petitioner desires a decertification election in a unit of em-
ployees equivalent to the unit stipulated as appropriate in the 1943
consent election. The Employees designated in the petition are em-
ployed in those departments of the Employer's plants which perform
engineering, development, research and experimental functions. The
Petitioner asserts, however, that he does not desire a unit conforming
to these functional lines, but would exclude certain employees within
.these departments because they are not, in fact, members of the unit
which the Union represents.' He also desires to exclude certain cler-
ical employees and a group of tool and die makers who work ex-
clusively in these departments. He would include, however, the brake
booster testing and experimental brake testing employees, because the
employees in these classifications formerly had been employed in
other capacities which, in 1943, were included in the stipulated unit.
The Employer takes the same position as the Petitioner and argues
that the employees who are not presently represented by the Union
are perforce precluded from voting in a decertification election and
must therefore be excluded from the requested unit. The Union con-
tends that the unit is inappropriate because of the various. specific
inclusions and exclusions, the long bargaining history in which these
$ Including the Employer ' s Plymouth plant which has since ceased to operate.
6 Case No. 7-R-1646.
$ At the hearing, the Petitioner stated, as his reasons for seeking these exclusions, that
these employees had not voted in the 1943 consent election and that they were not mem-
bers of the Union . We interpret this testimony as meaning that the Petitioner believed
that they were not within the unit.
KELSEY HAYES WHEEL COMPANY 669
employees were part of a broader unit, the alignment of their in-
terests with those of the production and maintenance employees, and
because the Petitioner seeks to include professional employees in the
same unit with nonprofessional employees. .
The Employer manufactures automobile wheels, stampings, and
automotive parts and accessories in plants located in several States.
Only the Employer's Military and McGraw plants at Detroit, Mich-
igan, are involved in these proceedings. Approximately 3,000 em-
ployees are employed in these 2 plants, which have identical opera-
tions and are jointly managed and controlled.
The employees in the proposed unit work in the Production En-
gineering Department, the Development Engineering Department
and allied departments headed by the development engineer, and in
the Tool and Die Design Department. These departments include
all the Employer's complement of technical and professional em-
ployees, together with a number of employes who perform routine
tests and others who perform clerical duties. Essentially the tech-
nical and professional employees are engaged in designing and draft-
ing new products and tools, and in establishing and maintaining
quality standards. They conduct scientific experiments, tests, and
analyses in the performance of these functions. Most of these em-
ployees work on the second. floor of the Military plant next to the
Employer's executive offices.6 They are mainly highly paid salaried
employees whose hours and working conditions, vacation, and sick
leave benefits are different from those of the hourly paid production
and maintenance employees. It is apparent that, as a whole, the em-
ployees in these departments constitute a technical and professional
group such as we have found may constitute a separate unit,7 not-
withstanding a history of collective bargaining on a broader basis s
However, as Section 9 (b) (1) of the amended Act precludes the
Board from deciding that any unit is appropriate for the purposes
of collective bargaining which contains both professional and non-
professional employees, unless a majority of the professional em-
ployees vote for inclusion in such a unit, we shall establish separate
voting groups for the professional and the nonprofessional employees.
8 Some of the Tool and Die Design employees and three employees in the Physical and
Chemical Laboratory of the Production Engineering Department are located at the Mc-
Graw plant. Two physical wheel testing employees who are under the immediate super-
vision of the production engineer work on the first floor of the Military plant.
7 Matter of Consolidated Vultee Aircraft Corporation, 71 N. L. R. B. 1350; Matter of
Webster Manufacturing Inc., 69 N. L. R. B. 163.
8 The history of bargaining between the Employer and the Union without the execution
of a formal written contract would not in any event be sufficiently compelling to preclude
the establishment of a separate unit comprising these employees. Matter of Kelsey Hayes
Wheel Company, 74 N. L. R. B. 603.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There remain for consideration the specific inclusions and exclusions
and the unit placement of the professional employees.
The drafting employees
There are seven lay-out draftsmen senior and two detailers em-
ployed in the Drafting Department, and one designer senior, one
lay-out draftsman senior, and one lay-out draftsman junior in the
Gauge Design Department, of the Production Engineering Depart-
ment. A tool designer senior and lay-out draftsman senior work in
the Development Engineering Department. In the Tool and Die
Design Department there are two checkers and job leaders, one checker,
six designers senior, one designer junior, one lay-out draftsman senior,
four detailers senior, and one detailer junior. All of these employees
are highly trained and skilled draftsmen who draft designs of prod-
ucts presently being manufactured, experimental products, and the
gauges, tools, dies, and fixtures used in the production of these products.
We find that they are technical employees with a community of
interest different from that of the production and maintenance em-
ployees and shall include them in the voting group of technical
employees.9
Blueprint machine operators
There are two blueprint machine operators employed in the Draft-
ing Department of the Production Engineering Department and three
in the Tool and Die Design Department. These employees work in
close proximity to the draftsmen in their respective departments and
are subject to the same supervision. Their work consists of running
off prints of drawings completed by the draftsmen. The Union objects
to their inclusion for the reason that their duties require little training
or skill. Although these employees are not highly skilled technicians,
their duties and interests are intimately related to those of the drafts-
men whom we have included and we shall, therefore, include them in
the voting group of technical employees."
The record clerk
This employee works in the Drafting Department of the Production
Engineering Department in the same room and under the same super-
vision as the draftsmen and the blueprint machine operators. He
maintains records of finished drawings and recent changes and of
9 Matter of Ingersoll Milling Company , 78 N. L. R. B. 535; Matter of Kidder Press
Company, Inc ., 74 N. L. R. B. 503.
30 Matter of Welding Shipyards , Inc., 81 N. L. R. B. 936; Matter of F. W. Sickles Com-
pany, 81 N. L. R. B. 390 ; Matter of Edge Moor Iron Works, Inc., 72 N. L. R. B. 1173.
KELSEY HAYES WHEEL COMPANY 671
blueprints sent to other departments. The Union objects to the
inclusion of this employee for the reason that his duties are clerical
and do not involve technical skill or training. The Board has pre-
viously decided that employees performing duties similar to those
of this record clerk have interests in common with the draftsmen and
blueprint operators with whom they work. We shall include the
record clerk in the voting group of technical employees "
The testing employees
There are two physical testing employees who work in the Physical
and Chemical Laboratory of the Production Engineering Department.
One of these employees works in the foundry of the McGraw plant
where he makes chemical analyses of metals and determines the density
of sand. Although he is a college graduate, the record does not estab-
lish that his duties or skills are of a professional nature. The other
tester performs routine tests on an Olson Machine which gives hard-
ness readings of metals. There are two physical wheel testing em-
ployees who are directly supervised by the production engineer and
who check the impact strength and the fatigue life of wheels, hubs,
and drums manufactured by the Employer to determine whether
these products meet engineering standards. In the performance of
these tests they use a boring mill and special impact load testing
machines. Three brake testing employees are employed in the Brake
Testing Department which is directly under the development engi-
neer. These employees include one job leader, one test driver, and
one helper. Their duties consist of installing brakes in automobiles
which they drive over the open road. Instruments installed in the
automobiles record data showing performance of the brakes which is
submitted to the development engineer . Two physical laboratory
testers work in the Experimental Booster Testing Department which
is also under the development engineer . These employees perform
routine tests on brake assemblies to determine their efficiency. Part
of their work consists of disassembling these brakes to determine the
cause of test failures. They compile data and submit reports to the
experimental booster designer who is immediately in charge of this
department.
We find that all of these employees are engaged in work of a tech-
nical nature and that their interests differ from those of the Em-
ployer's production and maintenance employees 12 We shall include
them in the voting group of technical employees.
11 Matter of The Ingalls Shipbuilding Corporation , 73 N. L. R. B. 374.
12 Matter of Phillips Chemical Company, 83 N. L. R. B. 612; Matter of General
Electric Company, 81 N. L. R. B. 654.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The professional employees
There are two metallurgists and three chemists employed in the
Physical and Chemical Laboratory of the Production Engineering
Department. The metallurgists conduct research, tests, and analyses
to determine the composition and quality of metals. The chemists
perform tests to determine the chemical and physical properties of
materials used in the melting and casting of metals. The work of all
these employees calls for the exercise of professional skills and train-
ing. We shall include these employees in a separate voting group
of professional employees.
The experimental tool and die employees
The Experimental Department, which is allied with the Develop-
ment Engineering Department, contains an experimental toolroom
which produces tools used for experimental purposes. There are 43
employees in the toolroom consisting of 4 tool makers, 9 die makers,
2 tool grinders, 1 tool boring operator, 12 tool lathe operators, 2 (Niles)
tool lathe operators, 5 tool shaper and milling machine operators, 2
oilers, 1 tool shaper learner, 3 die set-up men, 1 experimental inspector,
and 1 sweeper. In addition there are in this department 2 clerks who
type purchase and production orders and an experimental follow-up
man, a mechanic, who expedites the production of foundry parts re-
quired by the toolroom. The duties and skills of these employees are
identical to those of the tool and die employees in the Employer's pro-
duction departments, the only functional difference being that the
experimental toolroom produces tools for experimental purposes
whereas the production toolroom produces tools used in the manu-
facture of the Employer's end products. We find that the Experi-
mental toolroom employees constitute a segment of a larger craft
group, possessing similar skills and performing comparable work,
whose interests are not aligned with those of the technical and pro-
fessional employees involved in this proceeding. We shall exclude
them.13 We shall also exclude the 2 order clerks and the experimental
follow-up man because their duties and interests are closely related
to those of the toolroom employees.
The engineers
A senior engineer is employed in the Drafting Department of the
Production Engineering Department who makes difficult mathematical
calculations and computations dealing with weight and stress factors.
13 Cf. Matter of Caterpillar Tractor Co., 77 N. L. R. B. 457.
KELSEY HAYES WHEEL COMPANY 673
He advises the Drafting Department supervisors on these matters in
connection with their work on designs of boosters and brake assem-
blies. There are one senior engineer, four junior engineers,'and two
design engineers who work in the Development Engineering Depart-
ment. These employees draft designs of brakes and other products
from ideas conceived by themselves or advanced by others. A junior
engineer assists the development engineer who is responsible for the
creation of designs for new products and the improvement of designs
of products in present production. There is also a junior engineer
who works with and directs the testers in the Experimental Booster
Testing Department.
The record does not reveal whether these engineers are professional
employees. The Petitioner desires to exclude all of these employees
for the reason that they are not members of the bargaining unit repre-
sented by the Union. The Union contends that their exclusion renders
the unit inappropriate for decertification. It is apparent that the
duties and interests of these employees are so closely integrated with
those of the other employees whom we have included that, were this
the usual severance proceeding, we would not permit these exclusions
and would include the engineers in either the technical or professional
voting groups. However, as this proceeding involves decertification
and as these employees are not in the unit represented by the Union,
we shall exclude them 14
The clerical employees
There are several typists, stenographers, secretaries, and clerks who
perform the usual duties of these clasifications and who are employed
in the various offices and sections of the Production Engineering De-
partment, Development Engineering Department, and the Tool and
Die Design Department. The Petitioner desires their exclusion be-
cause they are clerical employees and for the further reason that they
are not in the unit represented by the Union. The Board has con-
sistently maintained the policy of establishing separate units of tech-
nical and clerical employees whenever any party to a representation
proceeding objects to the inclusion of these employees in a single unit 15
Accordingly, as the Petitioner is opposed to their inclusion in the
technical unit which we have found appropriate, we shall exclude these
employees as clerical employees. We shall, moreover, exclude them
14 Matter of Mountain States Telephone and Telegraph Company, 83 N. L. R. B., No. 117.
16 Matter of American Smelting and Refining Company, 80 N. L. R. B. 68; Matter of The
Colson Corporation, 70 N. L. R. B. 1235; Matter of Wagner Electric Corporation, 67
N. L. R. B. '1104 , and cases cited therein.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the additional reason that they are not members of the bargaining
unit represented by the Union.1°
The Production Engineering and Development Engineering special
representatives
There are four employees who directly represent the production
engineer on special assignment work. The customer contact man
spends most of his time visiting the Employer's customers where he
confers with purchasing officers, engineers, and chief inspectors, re-
ceives complaints covering the Employer's products and endeavors to
resolve them. The quality control vzan follows designs emanating
from the Production Engineering Department to insure that quality
standards are met and to determine whether these designs create pro-
duction problems. His work is closely integrated with that of the
customer contact man. The production trouble man is essentially a
trouble-shooter who visits all the Employer's plants to iron out pro-
duction difficulties and to advise on the installation of methods for the
production of new products. The physical testing engineer is con-
cerned with the elimination of defective designs and the improvement
of the Employer's products by means of physical tests. He also is the
Employer's representative in the Tire and Rim Association.
An outside serviceman, who directly represents the development en-
gineers, spends most of his time in the engineering department of the
Ford Motor Company where he attempts to clear up engineering dif-
ficulties encountered by that company with the Employer's products.
As the customer contact man, the production trouble man, and the
outside serviceman spend most of their time away from the Employer's
plants, we find that their interests do not appear to be sufficiently iden-
tifiable with those of the other technical or professional employees to
justify their inclusion 17 We shall in any event, however, exclude all
the special representatives for the reason that they are not in the unit
represented by the Union 18
The purchase estimator
This employee works in the Tool and Die Design Department. His
duties consist of computing the ultimate cost of producing dies. He is
not in the unit represented by the Union and we shall therefore exclude
him is
1a Matter of Mountain States Telephone and Telegraph Company, supra.
" Matter of Continental Motors Corporation, 73 N. L. R. B. 888; Matter of De Leuw
Cat her & Company, 72 N. L. R. B 191.
18 Matter of Mountain. States Telephone and Telegraph Company, supra.
"Matter of Mountain States Telephone and Telegraph Company, ibid.
KELSEY HAYES WHEEL COMPANY 675
We shall direct that separate elections be held among the employees
in the technical voting group set forth in "Appendix A," attached
hereto, and among the employees in the professional voting group set
forth in "Appendix B," excluding from each group the employees set
forth in "Appendix C" and all supervisors as defined in the Act, for
the purpose of determining whether these employees desire to be rep-
resented by the Union . If a majority of the employees in either of
these voting groups do not select the Union, the Union will be decerti-
fied as to them.
5. The determination of representatives :
There are two cooperative students employed in the Physical and
Chemical Laboratory of the Production Engineering Department.
These students are replaced at 2-month intervals by other students and
have no expectation of permanent tenure. We shall exclude them from
voting as temporary employees.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer , separate elec-
tions 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 supervision of the Regional Director for the Seventh Region, and
subject to Sections 203.61 and 203.62 of National Labor Relations
Board Rules and Regulations , among the employees in the voting
groups described in parnigraph 4, above, who were employed during
the pay-roll period immediately preceding 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 , but ex-
cluding employees on strike who are not entitled to reinstatement, to
determine whether or not they desire to be represented by Local 78,
International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America, CIO ., for the purposes of collective
bargaining.
APPENDIX A
Production Engineering Department
Drafting Department
Lay-out draftsmen , senior
Detailers, senior
Record clerk
Blueprint machine operators
857829-50-vol. 85-44
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gauge Design Department
Designer, senior
Lay-out draftsman, senior
Lay-out draftsman, junior
Physical and Chemical Laboratory
Laboratory physical testers
Miscellaneous
Physical wheel testing employees
Development Engineering Department
Tool Designer, senior
Lay-out draftsman, senior
Experimental Booster Testing Department
Physical laboratory testers
Brake Testing Department
Job Leader
Test Driver
Helper
Tool and Die Design Department
Checkers and job leaders
Checker
Designers, senior
Designer, junior
Lay-out draftsman, senior
Detailers, senior
Detailer, junior
Blueprint machine operators
APPENDIX B
Production Engineering Department
Physical and Ghemical Laboratory
Metallurgist, senior Chemist, senior
Metallurgist, junior Chemists, junior
KELSEY HAYES WHEEL COMPANY
APPENDIX C
Production Engineering Department
Drafting Department
Senior engineer Stenographer
Typist
Physical and Chemical Laboratory
Stenographer Cooperative students
Miscellaneous
The production engineer's Quality control man
stenographer Production trouble man
Customer contact man Physical testing engineer
677
Development Engineering Department
Senior engineers The junior engineer who as-
Junior engineers sists the development engi-
Design engineers neer
Outside serviceman The secretary to the develop-
ment engineer
Experimental Booster Testing Department
Junior engineer
Experimental Department
All employees in the experimental toolroom, including the order
clerks and the experimental follow-up man
Tool and Die Design Department
Purchase estimator Typist