The Electric Controller & Manufacturing Co.

National Labor Relations Board - Board Decisions

Aug 6, 1946

69 N.L.R.B. 1242 (N.L.R.B. 1946)

In the Matter of THE ELECTRIC CONTROLLER & MANUFACTURING COM-
PANY and UNITED ELECTRICAL, RADIO & • MACHINE WORKERS OF
AMERICA, C. I. O.
Case No. 8-R-2047.-Decided August 6,1946
Messrs. Frank C. Heath, R. G. Widdoivs, and A. G. Patterson, of
Cleveland, Ohio, for the Company.
Mr. David Scribner, by Mr. Henry A. Silver, of New York City, for
the Union.
Mr. A. Sumner Lawrence, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Electrical, Radio & Machine
Workers of America, C. I. 0., herein called the Union, alleging that a
question affecting commerce, had arisen concerning the representation
of employees of The Electric Controller & Manufacturing Company,
Cleveland, Ohio, herein called the Company, the National Labor Rela-
tions Board provided for an appropriate hearing upon due notice
before Thomas E. Shroyer, Trial Examiner. Said hearing was held
at Cleveland, Ohio, between February 26 and April 9, 1946. The
Company and the Union appeared and participated. All parties
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
The Trial Examiner's rulings made at the hearing are free from prej-
udicial error and are hereby affirmed. All parties were afforded full
opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Electric Controller & Manufacturing Company, an Ohio cor-
poration, has its principal office and place of business in Cleveland,
69 N. L. R. B., No. 147.
1242
THE ELECTRIC CONTROLLER Sr MANUFACTURING COMPANY 1243
Ohio, where it is engaged in the manufacture of industrial electric
motor controls. The Company's annual sales of finished products
exceed $3,000,000 in value, of which more than 50 percent involves
shipments to points outside the State of Ohio. The Company's annual
purchases of raw materials exceed $500,000 in value, of which more
than 30 percent is obtained from points outside the State of Ohio.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Electrical. Radio & Machine Workers of America, affiliated
with the Congress of Industrial Organizations, is a labor organization
admitting to membership employees of the Company.
III. TIIE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of certain employees of the Com-
pany until the Union has been certified by the Board in an appropriate
unit.
A statement of a Board agent, introduced into evidence at the hear-
ing, 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, which already represents the Company's production and
maintenance employees, seeks primarily a unit of clerical and technical
employees (engineers), including assistant supervisors; and in the
alternative, separate units of engineers and assistant supervisors, re-
spectively, apart from a unit of clerical employees. The Company
contends that the Union cannot represent both a unit of production and
maintenance employees and a unit of clerical employees. The Com-
pany also contends that the unit of clerical and technical employees
as sought by the Union is improper upon the ground that technical
employees 2 should not be included in the same unit with clerical
1 The Board agent reported that the Union had submitted 75 cards, 65 of which bore the
names of persons listed on the Company's pay roll of December 7, 1945, which contained
the names of 104 employees in the appropriate unit ; and that the cards were dated between
September 22 and October 25, 1945, with 1 card undated.
2 The only technical employees as to whom an issue exists are those in engineering
classifications. The Company admits that its draftsmen are essentially clerical rather
than technical employees.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. The Company further contends that neither the engineers
nor the assistant supervisors, who it claims should be excluded as
supervisory employees, may be represented by the Union in separate
units because of their relationship to management. In addition, to its
main contentions, the Company also takes issue with the Union with
respect to employees in specific job classifications who it claims should
be excluded as supervisory, managerial, or confidential employees.
With respect to the Company's contention that clerical employees
should not be represented by the same labor organization as represents
the production and maintenance employees, we have frequently held
that clerical employees, although they are generally excluded "rem
units of production and maintenance workers, may constitute separate
appropriate units. In any such unit they may, of course, be repre-
sented by whatever bargaining agent they choose.'
As regards the further contention of the Company that technical
employees should not be included in the same unit with clerical em-
ployees, a somewhat different situation is here presented than in-the
case of the contention previously considered. Although we have in-
cluded technical employees within a unit containing clerical workers,
absent contentions to the contrary, we have frequently had occasion to
recognize the difference in interests, backgrounds and functions be-
tween the two groups, and our general policy has been to place the
employees comprising these groups in separate units. Accordingly,
in view of the Company's objection to a single unit of clerical and
technical employees, we shall exclude technical or engineering em-
ployees from the unit of clerical employees.4 However, in view of the
fact that the Union has submitted evidence of substantial representa-
tion among the technical or engineering group as distinguished from
the clerical group,5 we are of the opinion that the clerical employees
and the engineering employees may properly constitute separate ap-
propriate units.e
With respect to the question of including assistant supervisors with-
in the unit of clerical employees, the record clearly establishes the fact
that all such assistant supervisors have authority effectively to recom-
mend changes in status of many employees in the clerical unit. We
shall, accordingly, exclude assistant supervisors from the unit of cleri-
cal employees hereinafter found appropriate. As regards the alter-
native request of the Union for a separate unit of assistant supervisors,
it appears that the supervisors and assistant supervisors have similar
3 See Matter of Bethlehem-Sparrows Point Shipyard, Inc., 65 N. L. R. B. 284.
i See Matter of American Central Manufacturing Corporation, 65 N. L. R. B. 342 ; Matter
of Wagner Electric Corporation, 67 N. L. R. B. 1104.
5 A supplementary report of the Regional Director indicates that the Union has designa-
tions from 8 out of 14 engineers in the group of technical employees.
6 See Matter of Spicer Manufacturing Company, 55 N. L. R. B. 1491 ; Matter of Mica-
mold Radio Corporation, 58 N. L. R. B. 888 Matter of American Central Manufacturing
Company, 65 N. L. R. B. 342.
THE ELECTRIC CONTROLLER & ALAN L' FACTURING COMPANY 1245
interests and responsibilities, and thus would together constitute
all appropriate unit. However, the Union is unwilling to include
supervisors in its proposed unit and we shall therefore deny the
Union's request for a supervisory unit limited to assistant supervisors.
There remains for consideration the question of specific inclusions
in and exclusions from the engineering and clerical units, respectively.
In the case of the engineering group, the only issue concerns em-
ployees in the classification of application engineers who the Company
contends should be excluded as managerial employees.? So far as
their duties are concerned, the record discloses that application
engineers determine the prices to be charged for special equipment
which the Company builds for its customers, and that in determining
such prices the application engineers have a large amount of discretion,
the prices thus determined not being subjected to control by any
other officials in the central office of the Company. Inasmuch as it
appears that application engineers may establish prices and thus com-
mit the Company financially to third parties, we find that such em-
ployees exercise a managerial function." Accordingly, we shall ex-
clude application engineers from the unit of engineers hereinafter
found appropriate.
With reference to the question of inclusions in and exclusions from
the clerical unit, the Union would include, whereas the Company
would exclude, employees in the classifications of coordinator-sales
and production, buyer, industrial nurse, secretary-Cleveland District
office, steno-clerk A, factory ledger and pay-roll leader, factory ledger
and pay-roll clerk, pay-roll and disbursement clerk, stationery stock-
room attendant, and general accountant.
Coordinator-Sales and Production: The Company contends that the
individual in this classification, who is primarily an outside expediter
and office contact man for customers' representatives, should be ex-
cluded as a managerial employee because of his authority to change
the priority of orders for delivery to customers. We do not, however,
regard the right to determine priorities on deliveries to customers such
an essential function of management as of necessity constitute the
holder thereof a managerial employees In the absence of evidence
that the individual herein concerned has supervisory authority, we
shall include him within the clerical unit hereinafter found appro-
priate.
1 The parties are agreed that the chief engineer , field engineers , and the patent attorney
engineer should be excluded from the unit of engineering employees.
8 See Matter of The Murray Ohio Manufacturing Company, 61 N. L. R. B. 47; Matter of
Westinghouse Air Brake Company, 64 N. L. R. B. 547; Matter of The Barrett Division,
Allied Chemical and Dye Corporation, 65 N. L. R. B. 903.
9 See Matter of Westinghouse Air Brake Company, 64 N. L. It. B. 547, wherein the Board
included In the unit an employee classified as "order correspondent " but otherwise having
authority similar to that of the employee herein classified as coordinator-sales and
production.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Buyer: The employee in this classification, although admittedly not
of supervisory rank, has substantially the same authority and responsi-
bility as the assistant purchasing agent. Such authority and respon-
sibility include the obligation to select sources of supply and to place
orders. Furthermore, this employee will at times commit the Com-
pany in very substantial sums for materials for which he has specific
responsibility. We find that the buyer is a managerial employee; ac-
cordingly, we shall exclude him from the unit.
The Industrial Nurse: The only employee in this classification is
a registered nurse whose regular duties are performed in the infirmary
or first-aid room for the benefit of both shop and office employees. In
addition to such duties, this employee has other duties common to
industrial nurses, such as checking on the alleged illnesses of employ-
ees, preparing reports of accidents in connection with workmen's com-
pensation claims and awarding special cafeteria privileges to employ-
ees who require special diets or access to the cafeteria at other than
meal hours. We are of the opinion that the duties and interests of the
industrial nurse are unlike those of the employees in the clerical unit.
We shall, therefore, exclude her from such unit.'°
Secretary-Cleveland District Office: The duties of the secretary
herein concerned are the usual duties of a secretary to an office manager
or department head. The Company contends that she should be ex-
cluded from the unit of clerical employees, on the ground that she is
a confidential and managerial employee. In the present instance, how-
ever, the record discloses that her immediate supervisor, the manager
of the Cleveland District office, is not in a position to formulate
effectively or determine managerial policies. In the absence of evi-
dence that the secretary in question acts in a confidential capacity
to a person who exercises a managerial function in the field of
labor relations, we find that she is not a confidential employee
within the meaning of our definition thereof' Moreover, we find that
she is not a managerial employee, since her alleged managerial func-
tion consists merely in furnishing customers with available informa-
tion as to prices and promised dates for the delivery of orders. Ac-.
cordingly, we shall include her within the unit of clerical employees.
Steno-Clerk A. The employees in this classification perform sec-
retarial duties to the heads of certain departments for whom they
handle confidential correspondence and maintain personnel files.
However, the record indicates that none of such supervisors parti-
cipate in collective bargaining conferences or otherwise have any
substantial managerial functions in regard to labor relations other
than the handling and disposition of grievances as brought to them
10 See Matter of Aluminum Company of America , 61 N. L. R. B. 1006, 1082 ; Matter of
Star Watch Case Company , 61 N. L. R. B. 1389, 1394 ; and Matter of United States Gauge
Company, 63 N. L . R. B. 1254, 1258.
11 See Matter of Ford Motor Company ( Chicago Branch ), 66 N. L. R. B. 1317.
THE ELECTRIC CONTROLLER & MANUFACTURING COMPANY 1247
by individual employees in accordance with the grievance procedure.
Insofar as the Company's over-all labor relations are concerned, it
appears that none of the individual department heads participate in
negotiations with the Union or are consulted by the Company except
with reference to the welfare, discipline, and promotion of employees
within their own departments. Under the circumstances, we find that
the employees within the classification of steno-clerk A are not con-
fidential employees within the meaning of our definition thereof.12
Factory Ledger and Pay-roll Leader; Factory Ledger and Pay-
roll Clerk; and Pay-roll and Disbursement Clerk: The employees in
this group of classifications perform similar functions and we shall
therefore consider them together. As regards the factory ledger and
pay-roll and disbursement clerk, it is clear that such employees per-
form the ordinary duties usually associated with pay-roll clerks.
In the absence of evidence that they exercise supervisory authority, we
shall include them within the unit.13 The only remaining question
relates to the factory ledger and pay-roll leader. This employee is
responsible for the preparation of the factory pay roll. Although
at times she directs the work of certain comptometer and file clerks,
she has no authority to change or effectively recommend changes in
the status of other employees. In addition to the foregoing duties,
this employee acts as a confidential clerk to her immediate superior,
the assistant supervisor of cost accounting. The latter has, in addi-
tion to supervisory duties, the special assignment of preparing com-
pany claims against the Government for losses arising out of the
termination of war contracts. Such claims when prepared are signed
by an executive officer of the Company without investigation and in
complete reliance upon the method used by the assistant supervisor in
the preparation of such claims. However, it does not appear that
the assistant supervisor of cost accounting exercises managerial
functions in the field of labor relations. Accordingly, we find that
the factory ledger and pay-roll leader who serves as a confidential
clerk to the assistant supervisor of cost accounting is not a con-
fidential employee within the meaning of our usual definition.14 We
shall include her within the unit.
The Stationery Stockroom Attendant: The record discloses that the
employee in this classification spends 70 to 75 percent of her time
in supervisory work and, in addition thereto, may effectively recom-
mend promotions for the several office girls under her supervision.
We find that the stationery stockroom attendant is a supervisory em-
ployee, and we shall therefore exclude her from the unit.
" See Matter of Ford Motor Company ( Chicago Branch ), supra.
13 See Matter of The Murray Ohio Manufacturing Company , supra; Matter of American
Central Manufacturing Company, supra.
14 See Matter of Ford Motor Company , supra.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Accountant: The employee in this classification is an
army veteran who is undergoing a training program to fit himself for
a clerical position with the Company. During the interim, he has
been classified as a general accountant, although he does not actually
perform the duties of general accountant but rotates from one clerical
position to another, as part of his training program. Although in
the course of such program, he has full access to the accounting
records of the Company, such fact does not establish that he is a
confidential employee.15 Inasmuch as it appears that the work which
he performs is that of a trainee for a clerical position, we shall in-
clude him within the unit of clerical employees in accordance with our
usual practice of including trainees in units of employees performing
work of a similar nature."
We find that all engineers of the Company, excluding the chief
engineer, field engineers, application engineers, the patent attorney
engineer, and all supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
We further find that all clerical employees of the Company, includ-
ing employees in the classifications of coordinator-sales and produc-
tion, the secretary-Cleveland District Office, Steno Clerk A, factory
ledger and pay-roll leader, factory ledger and pay-roll clerk, pay-roll
and disbursement clerk, general accountant, and the switchboard oper-
ator and receptionist,- but excluding engineering employees, the buyer,
the industrial nurse, secretaries,11 assistant supervisors, assistant to the
supervisor of spare parts," the stationery stockroom attendant, and all
other supervisory employees with the authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action; constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
V. 'Fill' 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-
11 See Matter of Cramp Shipbuilding Company , 64 N. L. R. B. 1145.
16 See Matter of Douglas Aircraft Company , Inc., 60 N . L. R. B. 876.
17 The parties agreed that the employee in the position of switchboard operator and
receptionist may be included within the unit of clerical employees.
15 The parties agreed that the two employees holding the positions of secretary to the
President and secretary to the Secretary -Treasurer should be excluded from the unit of
clerical employees.
m The assistant to the supervisor of spare parts has substantially the same authority as
the assistant supervisors hereinabove mentioned.
THE ELECTRIC CONTROLLER & MANUFACTURING COMPANY 1249
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with The Electric Con-
troller & Manufacturing Company, Cleveland, Ohio, an election by
secret ballot shall be conducted as early as possible, but not later than
thirty (30) days from the date of this Direction, under the direction
and supervision of the Regional Director for the Eighth 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 Regu-
lations, among the employees in the units found appropriate in Sec-
tion IV, above, who were employed during the pay-roll period im-
mediately 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, 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, and have not been rehired or reinstated prior
to the date of the election, to determine whether or not they desire
to be represented by United Electrical, Radio & Machine Workers of
America, C. I. 0., for the purposes of collective bargaining.
MR. GERARD D. REILLY, dissenting in part:
I disagree with that portion of the Decision and Direction of Elec-
tion which proposes that the employees classified as Secretary-Cleve-
land District Ofce, Steno-Clerk A, and Factory Ledger and Pay-
roll Leader be allowed to vote as a part of the general clerical unit.
Until the recent Ford case 20 I assumed the doctrine to be well estab-
lished that secretaries to officials who exercise managerial functions
could not properly be included in collective bargaining units, whether
such units were joined with the rank and file or not, because of the
confidential nature of their work. The Ford case limits the excluded
group to employees who serve in a confidential capacity to those who
20 Matter of Ford Motor Company ( Chicago Branch ), 66 N. L. R. B. 1317, overruling
The Yale & Towne Manufacturing Company. 60 N. L. R. B. 626.
701592-47-vol. 69--so
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exercise managerial functions in the field of labor relations. I cannot
agree with this limitation, as all of the considerations which have been
urged upon this Board for not using the processes of the Act to compel
employers to deal with unions representing their rank and file em-
ployees as representatives of their supervisors, as well, apply with
even greater force to employees who act in a confidential capacity to
officials who exercise managerial functions.