Loew's Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1960

127 N.L.R.B. 976 (N.L.R.B. 1960)

976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guaranteed in Section 7 of the Act, and thereby engaged in unfair labor practices
within the meamng of Section 8(b) (1) (A) of the Act.
4. By picketing the Company from November 13, 1959, to January 15, 1960,
with an object of forcing and requiring the Company to recognize and bargain with
the Respondent as the collective -bargaining representative of the Company's em-
ployees and forcing and requiring employees of the Company to accept and select the
Respondent as their bargaining representative , although more than a reasonable
period elapsed after November 13, 1959, without a petition under Section 9(c) of
the Act being filed, the Respondent engaged in unfair labor practices within the
meaning of Section 8(b) (7) (C) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Loew's Inc., Petitioner and Office Employees International
Union , Local No. 174, AFL-CIO. Case No. 21-ISM-593. June 2,
1960
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Norman A. Greer, 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 Leedom and Members
Bean and Fanning].
Upon the entire record in this case, the Board finds:
1. The Employer-Petitioner is engaged in commerce within the
meaning of the Act.
2. The Union is a labor organization within the meaning of the
Act.
3. Since 1946 the Employer has voluntarily recognized the Union
as the collective-bargaining representative for all of its office em-
ployees within the confines of its studios at Culver City, California,
and has had continuing contractual relationships with the Union
covering "office, clerical, and accounting employees, office and tabulat-
ing machine operators. . . ." These office employees were scattered
throughout all factory and office departments, including the account-
ing and tabulating departments and other finance departments. The
only office employees who were excluded were a secretary, managerial
and professional employees, and supervisors. Beginning with 1957,
the Employer gradually replaced some of the manual tabulating op-
erations performed by office and tabulating machine operators within
the bargaining unit by a Remington Rand computer and then later
by an IBM 650 computer. It also delegated and split up duties which
had in the past been performed by managerial employees in the finance
127 NLRB No. 134.
LOEW'S INC. 977
,departments and outside auditors and accountants and created new
jobs in new departments called the systems and procedures, budget
and forecasting, and internal auditing departments, to perform these
duties.
The Employer seeks an election in a unit consisting of the em-
ployees in the newly created jobs who, it claims, are professional and
technical employees, or in any event, employees outside the existing
unit, the unit being described by the Employer as "all employees in
the Internal Auditing, Budget and Forecasting, and Systems and
Procedures Departments and programmers." The Union, on the
other hand, asserts that it represents these employees as part of its
existing unit, denies that it claims or has claimed to represent the
employees in the unit described in the petition, and further denies
that such unit is appropriate.' The Union does not seek an election
in any unit, and the Employer has, in effect, disclaimed any desire for
an election in any unit other than that petitioned for.
The employees in the internal auditing department perform some
of the auditing functions formerly performed by outside auditors and
accountants. Wagner, who was hired from the firm of outside audi-
tors and accountants to become the head of the department, respon-
sibly directs the other employees and has the power effectively to
recommend the hiring, transfer, and discharge of employees. Ac-
cordingly, in agreement with the Employer, we find that he is a
supervisor. Houston and Foss were transferred from jobs which they
had held in the accounting department within the bargaining unit to
be trained as junior auditors. Neither has yet received any training
to qualify him for conduct of an audit, and it has not been established
that, with training, either could be regarded as a technical or mana-
gerial employee, as contended by the Employer.2 Houston is utilizing
his prior experience with the Employer as laboratory accountant and
picture cost clerk in assisting the head of the systems and procedures
department in the compilation of factual 'data, on the basis of which
the head of the department may make recommendations concerning
the details of installation of a new cost accounting system. His duties
involve those of accounting and office clerical employees who are
within the unit. Foss is continuing to perform the same duties of
location auditor which he previously performed in the bargaining unit
and the evidence clearly establishes that this will be his principal job
in the future.
Prior to his transfer as head of the budget and forecasting depart-
ment, Charlton was the head of a systems and procedures group which
worked with the outside auditors and accountants and concerned
i The Union also contends its contract with the Employer is a bar to the petition. Be-
cause of our decision herein, we find it unnecessary to consider this contention
2Ltitton Industries of Maryland, Incorporated, 125 NLRB 722
560940-61-vol 127-63
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
itself also with budgets and forecasts and taxes. Prior to that Charl-
ton had been an accountant and an office manager with the Employer.
He is a graduate accountant and a CPA. He responsibly directs
employees and has the power effectively to recommend hiring, trans-
fers, and discharge of employees. He assigns work to his assistant,
Sykes, and receives reports from him as to the factual situation re-
garding departmental budgets and the cash position of the Employer.
Charlton then recommends to management appropriate action or
directs Sykes to attempt to effect voluntary budget reductions with
the department affected. We find, in agreement with the Employer,
that Charlton is a supervisor. While Sykes has an accounting degree
from a business school and has had an accounting background, having
been transferred to his present position from accounting work in the
accounting department, and while he exercises some degree of judg-
ment, we find that the record does not affirmatively establish that he
is a technical, professional, or managerial employees3 and that his
duties are like those of accounting employees included in the unit.
Wright was hired from the firm of outside auditors and accountants
as head of the systems and procedures department because he was
instrumental in formulating recommendations to the Employer re-
garding systems and procedures. He had been a senior accountant
with that firm. He responsibly directs Brookhart in the assignment
of work and overtime and may effectively recommend transfers. Ac-
cordingly, in agreement with the Employer, we find that he is a super-
visor. Brookhart was originally hired by the Employer as IBM 650
programmer in the data processing department. After 7 months he
was transferred in the same capacity to the systems and procedures
department and 6 months later was given his present position, which
involves recommending to the head of the department changes in
systems and procedures, including preparation of flow charts, which
will result in reduction of costs, and programming cost-data into the
IBM 650 computer. He had 4 months' prior employment history
as a computer programmer and prior to employment by the Employer
took a 2 weeks' IBM course in 650 programming and a 1 week's course
in 650 wiring. He has had no other technical background or training.
Contrary to the contentions of the Employer that he is a professional
or technical employee, we find that his duties are like those of office
and tabulating machine employees in the unit in the data processing
department, from which he was transferred.
Gan was hired by the Employer as assistant head of the data process-
ing department, with prior employment history in the fields of systems
programming and tabulating systems. His principal duties include
responsible direction of the second shift comprising punch and tabu-
'Litton Industries of Maryland, Incorporated, supra. Western Electric Company,
Incorporated, 126 NLRB 1346.
TERMINAL SYSTEM, INC., ETC. 979
lating machine operators in the department, who are admittedly in
the unit. He also effectively recommends hiring and discharge.
Accordingly, in agreement with the Employer, we find that he is a
supervisor. Miller was hired by the Employer in this department as
a tabulating machine operator, having had some prior experience in
this work. After 4 months, he was transferred to his present job of
programmer on the IBM 650, having received during his employment
2 weeks of IBM instruction on 650 programming. He programs into
the computer payroll data, laboratory billing, and other data which
formerly had to be manually computed on tabulating and other office
machines. Since his work involves office machine work like that of
tabulating operators in the unit who work alongside him, we find,
contrary to the contention of the Employer that he is not a technical
employee.
In view of the foregoing, and upon the entire record, we find that
all the individuals in the departments designated in the petition are
either supervisors or employees who are performing work within the
scope of the existing unit and are, therefore, in that unit.' Accord-
ingly, as the Employer seeks an election in an inappropriate unit
consisting of only a segment of the employees in the existing unit, and
the petition, therefore, apart from any other considerations, does not
raise a question concerning representation within the meaning of
Section 9(c) (1) and Section 2(6) and (7) of the Act, we shall dismiss
the petition.'
[The Board dismissed the petition.]
' We find no merit in the Employer's apparent contention that it can unilaterally re-
move employees or jobs from a unit such as that involved herein merely by changing their
department assignments and job titles.
Cf. Continental Can Company , Inc., 127 NLRB 286.
Terminal System , Inc., Bramble Cab Corporation , Clover Cab
Corporation , Elder Cab Corporation , Fennel Cab Corporation,
Fern Cab Corporation , Hawthorne Cab Corporation, Hazel
Cab Corporation , Iris Cab Corporation , Maple Cab Corpora-
tion , Meteor Cab Corporation , Shamrock Cab Corporation,
Stock Cab Corporation , Wags Transportation System, Inc.
and International Brotherhood of Teamsters , Chauffeurs,
Warehousemen , and Helpers of America , Taxi Driver's and
Terminal Employees , Local Union 826, Petitioner. Case No.
2-RC-9990. June 2, 1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Milton A. Shaham, hearing
127 NLRB No. 133.