Lockheed Aircraft Corp.

National Labor Relations Board - Board Decisions

Dec 1, 1973

207 N.L.R.B. 686 (N.L.R.B. 1973)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lockheed-California Company, a Division of Lock-
heed Aircraft Corporation ' and International
Association of Machinists & Aerospace Workers,
AFL-CIO, Petitioner. Case 31-RC-2394
December 1, 1973
DECISION AND DIRECTION OF
ELECTION
BY CiIA MAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Norman H.
Greer. Following, the hearing and pursuant to
Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, and by direction of
the Regional Director for Region 31, this case was
transferred to the National Labor Relations Board
for decision. Thereafter, the Employer and Petitioner
filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.
Upon the entire record in this case, including the
briefs of the parties, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The Petitioner and the Intervenor 2 claim to
represent certain employees of the Employer.
3. We find that a question affecting commerce
exists concerning the representation of employees of
the Employer within the meaning of Sections 9(c)(1)
and 2(6) and (7) of the Act.
4. Petitioner seeks to represent a unit of all
aircraft pilots and flight engineers, excluding supervi-
sors. The Employer contends that pilots, except
engineering test pilots employed on the U-2 project,
are either supervisors or managerial employees and
should be excluded from any unit. The parties agree
that if the pilots whom Petitioner seeks to represent
are excluded, a unit limited to flight engineers and
U-2 pilots is appropriate.
The Employer is engaged in the manufacture of
L-1011 commercial aircraft, and P-3 and S-3A
military aircraft in Burbank, California. It employs,
inter alia, 26 pilots, classified as engineering test
pilots, pilots, and transport pilots.
The engineering test pilots are engaged in flight tests
during the experimental and developmental stage in
new types of aircraft of modified aircraft already in
production. Their primary function is: to fly "the
various tests that are laid down by the Federal
Aviation Administration (FAA), to prove the aircraft
airworthy and to satisfy the requirements" of the
Employer and the customer.
Typically the engineering test pilot, after the plane
is airborne,3 conducts some preliminary tests on the
basic systems of the aircraft and then proceeds to test
the plane's subsystems pursuant to the predeter-
mined flight plan.4 If any tests are not completed to
his satisfaction, he has the authority to retest, to
proceed to test other systems, to initiate, other tests
not on the flight plan, or to abort the flight at that
point. After the test flight is completed a flight test
report is written, and signed by the pilot, giving
details about what tests were made, and indicating
whether subsystems functioned according to specifi-
cations.
Employees classified as pilots fly each plane
produced for sale to customers. On production flight
tests, they check out the aircraft and its systems to
ensure that it conforms to the specifications of the
customer, and, in the case of commercial aircraft, to
FAA Certification requirements. When the plane is
deemed to have met customer and FAA require-
ments, the pilot delivers the plane to the customer.
When making L-1011 deliveries, pilots may be
required to remain away from the home plant in
order to train customer pilots.
The basic duties of transport pilots are similar to
those of engineering test pilots and pilots, but they
do not test aircraft. They fly Employer-owned planes
to transport personnel and cargo to and from
Burbank. The pilot is responsible for ' necessary
maintenance, refueling, and other care of the plane
while it is away from its home airport. They see to it
that other crew members, i.e., copilot and flight
engineer, are on "standby" to conduct the return
flight.
On engineering and production test flights, the
crew in the L-1011 consists of two pilots, one of
whom is in command, with the other designated as
copilot, one or two flight engineers, and between
1 The Employer's name appears as amended at the hearing . starting the engines, taxiing, and working with the control tower under
2 Engineers and Scientists Guild , Lockheed Section, was allowed to instrument flight rules
.intervene and participate in the proceeding on a sufficient showing of 4 The test flight plan is made up in advance by various engineers and
interest. pilots pursuant to FAA and customer requirements-
3 There is also a preflight procedure for all pilots; i .e, prestart checks,
207 NLRB No. 92
LOCKHEED-CALIFORNIA COMPANY 687
20-25 test personnel. The P-3 on an engineering
flight test carries a normal crew of two pilots, two
flight engineers, and four or five electronic instru-
ment operators. The crew of the S-3A on engineering
tests consists of two pilots and two electronic
specialists.
The Employer also delivers L-l011 aircraft to
customers away from Burbank. On these deliveries
the flight crew consists of two pilots and a flight
engineer. A pilot has the responsibility of taking care
of any problems that come up on the trip and to "get
the crew back home." At the time of the hearing,
some pilots were in England training customer pilots
to fly the L-10I1 aircraft. The pilot in charges of this
training detail has the responsibility to oversee the
whole operation; i.e., coordinate schedules and
assign Lockheed crews to train the customers' crews.
Section 2(11) of the Act defines "supervisor" as
follows:
The term "supervisor" means any individual
having authority, in the interest of the employer,
to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other
employees, or responsibly to direct them, or to
adjust their grievances, or effectively to recom-
mend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the
use of independent judgment.
The several authorities listed in Section 2(11) are
stated in the disjunctive, and, accordingly, the Board
and the courts have held that the possession of any
one of the enumerated functions is sufficient to
classify an individual as a supervisors
All pilots in issue are assigned alternatively as pilot
or copilot on a regular basis. The Employer requires
that all pilots have a commercial license, and that all
flights comply with Federal Aviation Administration
(FAA) regulations. Part 91.3 of the Federal Aviation
Regulations specifically provides that the pilot in
command of an aircraft "is directly responsible for
and is the final authority as to the operation of that
aircraft." As part of this responsibility, the pilot is in
control of all other personnel aboard the plane while
it is in flight. In the case of the L-1011 experimental
flight tests and production flight tests, the number of
persons aboard the plane consist of the 4-man crew,
and up to 25 other persons who are engaged in the
performance of various test or inspection activities.
5 The individual in charge of this group was the chief pilot of flight crew
training, a supervisor. In the future, however, Lockheed plans to designate
other pilots to supervise similar groups. The individuals so designated will
have authority to make assignments to various revenue flights, coordinate
flight schedules, oversee the Employer's operation, and order the return to
home base of any Lockheed employee for discipline.
6 NLRB. v. Edward G. Budd Manufacturing Co., 169 F.2d 571, 576
(C.A. 6), cert. denied 335 U.S. 908; Ohio Power Company v. N.LR.B., 176
In the case of the P-3, the crew consists of three
persons, with usually six inspectors and test person-
nel. In the case of the S LM, there are always four
persons aboard the aircraft.
In preflight the pilot in charge gives directions to
the crew relating to the entire flight plan. His
postflight duties relate to debriefing sessions on the
results of various tests during the flight with the crew
and engineering personnel. During any flight he is
responsible for the safety of the crew, for the safe
and efficient operation of the plane, and for the
completion of all tests. He has authority to make
deviations from predetermined tests either by (a)
aborting a flight or a particular test, or (b) conduct-
ing other tests, or (c) retesting a subsystem. While on
assignments away from the plant, a pilot, designated
as chief pilot, instructs crew members as to where
and when to report for work and grants time off.
The direction which the pilot exercises over
crewmen and other personnel aboard the plane is not
merely routine or clerical in nature but involves
independent judgment and great responsibility.
Whether a test program or a flight will be successful-
ly completed depends on the judgment of the pilot. A
miscalculation on his part can result in injury or
death to the personnel aboard the plane and to the
damage or destruction of the plane. The pilot's
authority and responsibility is therefore anything but
routine.
The direction which a plane pilot exercises with
respect to crewmen and other personnel aboard a
plane is at least comparable to the authority which a
ship's captain or pilot exercises as to ship's crew
personnel. In a number of cases, the Board has found
that ships' captains and pilots responsibly direct
ships' crews and on this ground alone has found the
captains and pilots to be supervisors.? We find,
therefore, that the pilots, except the U-2 pilots, are
supervisors within the meaning of the Act. Accord-
ingly, we shall exclude them from the unit-8
As previously stated the parties agree that a unit of
flight engineers and U-2 pilots may be appropriate.
Accordingly, we find the following unit of employees
to be appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All U-2 pilots, flight engineers-flight operations,
and flight engineers-engineering test, employed at
the Employer's Burbank, California, operation,
F.2d 385 (C.A. 6); Mardri4 Inc., 119 NLRB 1174, 1181.
' Bernhardt Bros. Tugboat Service, Inc., 142 NLRB 851, 854, enfd. 328
F.2d 757 (C.A. 7); Local 2a international Organization of Masters, Mates
and Pilots, AFL-CIO, etc., 136 NLRB 1175, 1203-04; Mardnd Inc., 119
NLRB 1174,1181-82.
8 In view of our finding that pilots are supervisors, we find it unnecessary
to pass on the Employer's alternative contention that pilots are managerial
employees.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excluding all other employees, pilots, engineering watchmen, guards, and supervisors as defined in
test pilots, transport pilots, technical employees, the Act.
office clerical employees, professional employees , [Direction of Election and Excelsior footnote
omitted from publication.]