The Babcock & Wilcox Co.

National Labor Relations Board - Board Decisions

Sep 28, 1943

52 N.L.R.B. 900 (N.L.R.B. 1943)

In the Matter of THE BABCOCK & WILCOX Co. and LOCAL 439, UNITED
ELECTRICAL RADIO & MACHINE WORKERS OF AMERICA , AFFILIATED WITH
THE CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. R-5878.-Decided September 28, 1943
Mr. Donald W. Ebbert, of Pittsburgh, Pa., for the Company.
Messrs. Joseph A. Lipman and Sol Potegal, of Bayonne, N. J., for
the Union.
Miss Muriel J. Levor, of counsel to the Board.
DECISION
AND
DIRECTION .OF ELECTION
STATEMENT OF THE CASE
Upon amended petition duly filed by Local 439, United Electrical
Radio & Machine Workers of America, affiliated with the Congress of
Industrial Organizations, herein called the Union, alleging that a
question affecting commerce had arisen concerning the representation
of employees of The Babcock & Wilcox Co., Bayonne, New Jersey,
herein called the Company,' the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before' Vincent M.
Rotolo, Trial Examiner. Said hearing was held at Bayonne, New
Jersey, on August 23, 1943. The Company and the Union appeared,
participated, and were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bearing
on the issues. The Trial Examiner's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.' All parties were
afforded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
I FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Babcock & Wilcox Co., a New Jersey corporation, maintains
its principal plant at Barberton, Ohio. The Company engages in the
I A motion was made and granted at the hearing to correct the petition and other
formal documents to set forth the name of the Company , as above
52 N. L. R. B., No. 160.
900
THE BABCOCK & -WILCOX CO . 901
manufacture of boilers and boiler castings at its Bayonne, New Jersey,
plant, with which this proceeding is concerned. Raw materials to
a value in excess of $50,000 were purchased by the Company for use
at the Bayonne plant for the 6-month period ending June 30, 1943,
of which 75 percent was shipped from points outside the State of New
Jersey. Finished products manufactured at the Bayonne plant dur-
ing the same period amounted to a value in excess of $50,000, of which
75 percent was shipped to points outside the State of New Jersey.
The Company concedes that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Local 439, United Electrical Radio & Machine Workers of America
is a labor organization affiliated with the Congress of Industrial Or-
ganizations, admitting to membership employees of the Company.
11
III. THE QUESTION CONCERNING REPRESENTATION
In a letter dated June 18, 1943, the Union asserted a claim to rep-
resent a majority of the Company's clerical employees and requested
a conference for the purpose of collective bargaining. The Company
refused recognition of the Union unless and until the Board certifies
the Union as exclusive bargaining agent.
A statement of the Regional Director, introduced in evidence at
the hearing, indicates that the Union represents a substantial number
of employees in the unit hereinafter found appropriate'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union claims as appropriate a unit composed of the Com-
pany's clerical employees working both in the general office and in
the "shop." The Company is opposed to a bargaining unit so con-
stituted on the ground that it is improper for clerical employees to
be represented by the Union since it is also the certified representa-
tive of the Company's production and maintenance employees, and
that office and shop clerical employees do not have sufficient community
of interest to justify their inclusion in a single unit. The Company
also urges that should the Board direct an election in a clerical unit
certain specified employees whom it claims to be confidential should
2 The Regional Director reported that the Union submitted 49 designations, of which
40, bearing apparently genuine original signatures , correspond with names on the Com-
pany 's pay roll of July 31 , 1943, which contains 74 names:
902 DECISIONS OF NAITTONAL LABOR RELATIONS BOARD
be excluded. At the hearing the Union agreed to the exclusion of
three of these employees who work in the personnel department .3
The parties further agreed on the exclusion of the nurse and chauf-
feur. The Union also desires the exclusion of supervisory employees
having the power to hire and discharge, with which position the
Company is in accord. The issues in dispute, concerning the pro-
priety of a bargaining unit of clerical employees and the exclusion
of alleged confidential employees, will be discussed below.
The Company's contention that the clerical employees involved
herein may not be represented in collective bargaining by the labor
organization which represents the production and maintenance em-
ployees, is based upon a misconstruction of our decision in the Mary-
-land Drydock case,4 where we were 'concerned solely with super-
visory employees. The reasons which led a majority of the Board
to conclude, in that case, that supervisory employees may not con-
stitute' appropriate bargaining units have no application to other,
non-supervisory, groups of employees.5 We have frequently held
that clerical employees, although they are generally excluded from
units of production and maintenance workers, may constitute sepa-
rate appropriate units,° and under proper circumstances that they
may even be included in a single unit with manual workers? In any
such appropriate unit they may, of course, be represented by what-
ever bargaining agency they choose.' 8 All the employees within the
unit proposed by the Union are paid on a weekly salary basis and
are engaged exclusively in clerical work with the exception of a few
expediters or shop tracers who carry parts about the shops in addi-
tion to doing clerical work .9 Moreover, the work of both office and
shop clerical employees is closely integrated, the work of each group
complementing the work of the other. Upon these facts, we find that
a unit composed of both office and shop clerical employees is suitable
for collective bargaining.l°
8 Licht, Campbell, Nevins.
4 49 N. L. R. B. 733.
s We so held in Matter of Maryland Drydock Company, 50 N . L. R. B. 363, although
the Company contended that the timekeepers and guards involved therein formed an
integral part of management, and in Matter of Todd Shipyards Corporation ( Hoboken
Division ), 51 N. L. R. B. 1206; see also ' Matter of United Wall Paper Factories, Inc,
49 N. L. R B. 1423, ( inspectors ) and Matter of Lockheed Aircraft Corporation and Vega
Aircraft Corporation, 50 N. L. R. B. 958, ( firemen).
8 Matter of Chrysler Corporation ( Mprysvtille Plant ), 36 N. L. R. B. 157.
7 Matter of Simmonds Aerocessories, Inc., 42 N. L. R. B. 179; Matter of Phoenix Iron
Company, 38 N. L. R B. 1320.
8 See Matter of Dravo Corporation, -52 N. L. R. B. 322; Matter of Revere Copper
and Brass, Inc., 51 N. L. R. B . 350; and Matter of Armour and Company, 49 N. L. R. B.
688.
8 Their exclusion from the unit is not desired except insofar as the Company objects
to the presence of all shop clericals in the same unit with office clerical employees.
10 Matter of United States Pipe d Foundry Company, 37 N. L. R. B. 1150.
THE BABCOCK & WILCOX CO. 903,
The Company contends, and the Union denies, that the secretary
to the assistant plant manager, the switchboard operator, and cerain
employees of the accounting department, together with all the em-
ployees of the personnel department, should be excluded on the ground
that their work is "confidential." It appears that the accounting de-
partment employees whom the' Company seeks to exclude are princi-
pally engaged in the calculation of labor costs, the preparation of the
Company's statements, and the making of deductions from the em-
ployee's pay. Although their work has its confidential aspects, it is
not concerned with labor relations. Their possession of information
which the Company regards as secret is not of itself sufficient to justify
depriving them of the right of collective bargaining.' Accordingly,
we shall include them in the unit. We shall also include the switch-
board operator as her duties are confined to making telephone con-
nections. However, since the employees of the personnel depart-
ment necessarily are conversant with information concerning labor
relations, we shall exclude them 12 We shall likewise exclude 'the
secretary to the assistant plant manager,1. and any other secretaries to
executives, since it appears that their stenographic duties entail work-
ing on correspondence which at times concerns labor relations.
We find that all offices and shop clerical employees of the Company
at its Bayonne, New Jersey, plant, including the switchboard operator
and all employees of the accounting department, but excluding the
secretary to the assistant plant manager and any other secretaries
to executives, the employees in the personnel department, and all super-
visory employees with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees, or ef-
fectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of sections,
9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of our Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.14
11 Matter of Creamery Package Manufacturing Company (Lake Mills Plant ), 34 N. L. R. B.
108.
12 Among these employees are Helen Prusek and Mary Massarelli as well as those listed
supra, footnote 3.
11 Joseph Kakascik.
1' The Company contends that certain specified employees are temporary and should
not be permitted to vote. All but one of these employees , the Company states, have
been hired for a term ending about the middle of September . Since they will have already
left the Company 's employ if its assertion is in accordance with the facts , they will not
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions'Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with The Babcock ,&
'Wilcox Co., Bayonne, New Jersey, an election by secret ballot shall
be conducted as early as possible, but not later than forty-five (45)
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Second Region, acting in this
matter as agent for the National Labor Relations Board, and subject to
Article III, Sections 10 and 11, of said Rules and Regulations, among
the employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding
the date of this Direction, including employees who (lid not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, and including employees in the armed forces of
the United States who present themselves in person at the polls,
but excluding those employees who have since quit or been discharged
for cause, to determine whether or not they desire to be represented by
Local 439, United Electrical Radio & Machine Workers of America,
affiliated with the Congress of Industrial Organizations, for the pur-
poses of collective bargaining.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Direction of Election.
be eligible to vote by the terms of our Direction of Election , infra. The remaining em-
ployee, the Company claims , should not be permitted to vote because she has given notice
of her desire to terminate her employment with the Company However, if she is still
regularly employed at the time of the election , she will be permitted to vote if she is
otherwise eligible.