West Engineering Co.

National Labor Relations Board - Board Decisions

Jun 10, 1947

74 N.L.R.B. 36 (N.L.R.B. 1947)

In the Matter of E. E. WEST AND A. N. IVVINSLOW, CO-PARTNERS,,
D/B/A WEST ENGINEERING COMPANY, EMPLOYER and INTERNATIONAL
ASSOCIATION OF MACHINISTS , LODGE 10, PETITIONER
Case No. 5-R-4486.-Decided June 10, 1947
Kennon cC Livengood, by Mr. Charles A. Livengood, Jr.,-of Durham,.
N. C., for the Employer.
Mr. William Darneron, of Washington, D. C., and Mr. A. A. Thomp-
son, of Richmond, Va., for the Petitioner.
Miss Muriel J. Levor, of counsel to the Board.
DECISION
AND
DIRECTION
Upon a consent election agreement duly filed, the National Labor
Relations Board, on August 13, 1946, conducted a consent election
among employees of the Employer in the agreed appropriate unit to,
determine whether or not they desired to be represented by the Peti-
tioner for the purposes of collective bargaining.
At the close of the election, a Tally of Ballots was furnished the.
parties. The Tally shows that there are approximately 17 eligible
voters and that 16 of these eligible voters cast ballots, of which 4 were
for the Petitioner, 2 were against the Petitioner, and 10 were,
challenged.
A Report on Challenged Ballots was issued by the Regional Director
on November 29, 1946. On February 12, 1947, the Employer, the
Petitioner, and the Board entered into a stipulation that the consent
election be construed as a prehearing election and that a hearing be
held in accordance with the National Labor Relations Board Rules and
Regulations-Series 4, to determine the issues raised as a result of the
afore-mentioned election.
Thereafter, a hearing was held at Richmond, Virginia, on February
28, 1947, before Charles B. Slaughter, hearing officer. The hearing
officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed.'
'The petition and other formal papers were amended at the hearing to disclose the
correct name of the Employer
74 N. L. R. B, No. 10.
36
WEST ENGINEERING COMPANY 37
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
E. E. West and A. N. Winslow, co-partners, doing business.under-
the name of the West Engineering Company, and herein collectively
called the Employer, are engaged in the business of designing, build-
ing, and manufacturing special machinery parts. These operations
include experimentation with new or unperfected machinery, such
as bag making, bag stringing, and bagging machines and printing
presses; designing improvements in machines and machine parts;
making, fitting, and assembling such parts; tearing down and reas-
sembling machines; the operation of machines including study and
observation; adapting machines to new manufacturing processes;
and redesigning and repairing defective parts. The Employer also
does job shop work in repairing machinery and making replacement
parts, and contract work in making gears, sprockets, and other parts
on order, work amounting in all to not more than 25 percent of its
total business.
During the year 1946, the Employer purchased raw materials and
supplies, exceeding $10,000 in value, of which approximately 25 per-
cent was obtained from points outside the State of Virginia. Dur-
ing the same period, the Employer delivered finished products, ex-
ceeding $20,000 in value, of which approximately 50 percent was
shipped,outside the State of Virginia.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
The Petitioner- is an unaffiliated labor organization, claiming to
represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT
The Petitioner and the Employer agree that a unit of all production
and maintenance employees of the Employer, excluding office cleri-
'cals and supervisory employees, is appropriate. They disagree, how-
ever, with respect to certain categories of employees and as to the
supervisory status of an individual employee discussed below.
Employees who operate machines: The Petitioner contends that
Elizabeth Atkinson and Pearl Root should be excluded from the unit
on the ground that they operate bag machines and that such work
is not a part of the Employer's activities. The Employer contends
that they are solely employed by the Employer as part of the
Employer's regular operations.
In the Employer's business of repairing and developing machin-
ery, it is necessary to operate the machines under observation, to test
their capabilities or to check the repairs being made. Such is the
principal function of these employees. In addition to operating bag-
ging machines for test purposes, Atkinson and Root also dismantle
and reassemble such machines, and clean and paint the component
parts. In view of the foregoing, we find that employees operating
bagging machines are production employees and we shall, accord-
ingly, include them in the unit.
Employees who design and develop machinery : The Petitioner con-
tends that Earl Third should be excluded from the unit on the ground
that he is a draftsman and engineer, and that his work on machinery
is done in connection with the designing of machinery. The Em-
ployer contends that Wild is a production employee, and that, like
other production employees, he spends his entire working time mak-
ing parts and assembling machinery for experimental purposes.
Wild is engaged in developing, rebuilding and assembling ma-
chinery, particularly sewing machines. In connection with this work,
he drafts sketches of parts he is developing for this machinery. He
is a salaried employee who does creative work of a highly skilled
technical nature directly under the supervision of one of the part-
ners, or the plant superintendent. Although production employees
who are included in the unit do some work which is similar in nature,
as making parts for new or rebuilt machines, unlike Wild, they make
parts from designs and drawings of other people, they are hourly paid,
and they work under the supervision of the foreman. We find, in
view of the foregoing, that Wild lacks community of interest with
production and maintenance employees, and we shall, accordingly,
exclude Min from the unit.2
2 Matter of Air Utilities , Inc , 70 N. L. R . B. 887.
WEST ENGINEERING COMPANY 39'
The Petitioner contends that TV. S. K'usterer should be excluded
from the unit on the ground that he is a technical employee engaged
in drafting and experimental work. The Employer contends that 75,
percent of his One is spent in making parts and assembling machines--
in the same manner as other production employees.
Kusterer's duties are similar to those of Wild. He also does drafting
in connection with the 6special machinery upon which he works, and
makes parts from his own drawings. Kusterer, too, is salaried, works
under the supervision of a partner or the plant superintendent, and,.
in addition, is an industrial engineer. In view of Kusterer's special
training and skill, we shall exclude him, as a professional employee,
in accordance with our usual practice, from the unit of regular pro-
duction acid maintenance employees.-
Employees hired under the 0. I. training program': The Petitioner
contends that the training program does not, in and of itself, place
Robert Bell and Raymond 111ann on a temporary basis since they are
training with the expectation of becoming permanent employees and
they should therefore be included as such in the emit. The Employer
contends that all its employees, including these trainees, are in a
probationary status until they have been employed 6 months, and
that since this period has not as yet been completed they should be
excluded as not being regular employees.
It is clear that, on the basis of their work, Bell and Mannl, lathe
and machine operators, respectively, would be classified as production
employees. Inasmuch as Bell and Man u, as trainees, perform work
which is otherwise indisputably within the unit agreed upon by the
parties,' and inasmuch as they are, in effect, probationary employees
with a reasonable expectation of becoming permanent employees 5 We
shall include them within that unit in accordance with our usual
practice.
The Union contends that C. V. Allen is being trained to be a drafts-
man and as such should be excluded from the unit. The Employer
contends that Allen is engaged primarily in developing machinery,
the activity m which all its production employees are engaged.
Allen is being trained in mechanical drafting and machine desig l-
ing. He was already experienced in civil engineering drafting before
being hired by the. Employer for development into an employee
capable of design ning machinery, like Wild and Kusterer whom we
excluded. He spends approximately half of his time at the drawing
board located in the offices, and the other half in working on machinery
in the shop. In addition to drafting proposed parts or changes for
3 Matter of The Boardman Co , 62 N L R B 1112.
4jltatter of The Electric Controller cC Alanufacturnnq Connpanq , 60 N L R B 1242
6 Matter or Douglas Au C) aft Company. mc, 60 N L R B 876
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the machine he works on, he also does special lay-out work. From
these facts, it appears that Allen's work is partially drafting, which
is not production in character, and partially technical in nature, and
we shall, therefore, exclude him from the unit.
The status of H. G. Thrailkill: The Petitioner contends that this
employee is a supervisor in charge of the manufacture of bags, that
he is responsible for the work of Atkinson and Root, and that he should
therefore be excluded from the Unit. The Employer contends that
Thrailkill has no supervisory authority and that his work consists
of rebuilding, repairing, and adjusting special machinery.
Thrailkill, although formerly in charge of the bag-making depart-
ment which the Employer operated during the war, was relieved of
that position when bag making for production was discontinued. At
the present time, he works on the repair and rebuilding of bag and
stringing machines. He does not have the power to make effective
recommendations concerning Atkinson and Root, who operate the
machines for observation purposes, although, because of his superior
knowledge and skill, he tells them how to adjust the machines. Ac-
'cordingly, inasmuch as Thrailkill does not have supervisory authority
within our definition and since his work is similar to that of other
production employees, we shall include him in the unit.
We find that production and maintenance employees of the Em-
ployer, including' operators of bagging machines and trainees 6 but
excluding office clericals, professional, technical,' and supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively
recommend such action, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
Challenged ballots
As noted above, after the prehearing election, the Tally of Ballots
indicated that 4 ballots were casts for the Petitioner, 2 against the
Petitioner, and 10 were challenged.
As indicated in Section IV, supra, we have found that Elizabeth
Atkinson, Pearl Root, and H. G. Thrailkill, whose ballots were chal-
lenged by the Petitioner, and Robert Bell and Raymond Mann, whose
ballots were challenged by the Employer, are properly included in the
unit. Accordingly, we shall overrule challenges to their ballots. We
have further found that C. V. Allen, Earl Wild, and W. S. Kusterer,
° Robert Bell and Raymond Mann.
s Earl wild, w. S. Kusterer, and C. V. Allen.
WEST ENGINEERING COMPANY . 41
whose ballots were challenged by the Petitioner, are properly excluded
from the unit. Accordingly, we shall sustain challenges to their
ballots.
The ballots of Jolin and Edward West were challenged by the Peti-
tioner on the ground that they were sons of the owner and temporary
employees. John and Edward West are the sons of E. E. West, one of
the copartners of the Employer, and have been employed in the opera-
tion of lathes and other machinery in the shop during their summer
vacations from school.
The Employer contends that the West boys are employees not of
their parent but of the copartnership. As we said in the 0. U.
Hofmann case," in applying the policy and provisions of the Act to
each case, we are not bound by common law or local statutory con-
ceptions although we take such matters into consideration. We find
that John and Edward West are not employees within the meaning
of Section 2 (3) of the Act, and that they are, therefore, ineligible to
participate in elections. Accordingly, we sustain these challenges.
We shall direct that the ballots of Elizabeth Atkinson, Pearl Root,
Robert Bell, Raymond Mann, and H. G. Thrailkill be opened and
counted.
DIRECTION
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, of National Labor Relations Board Rules
and Regulations-Series 4, it is hereby
DIRECTED that , as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with E. E. West and
A. N. Winslow , co-partners d/b/a West Engineering Company, Rich-
mond, Virginia , the Regional Director of the Fifth Region shall, pur-
suant to said Rules and Regulations , within ten (10 ) days from the
date of this Direction, open and count the challenged ballots of Eliza-
beth Atkinson , Pearl Root, Robert Bell, Raymond Mann, and H. G.
Thrailkill, and shall , thereafter , prepare and cause to be served upon
the parties a Supplemental Tally of Ballots, including therein the
count of these challenged ballots.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction.
BMatter of 0. U. Hofmann, et al., 55 N. L. R. B. 683, enf'd 147 F. (2d) 697 (C. C A. 3)