Western Gear Corp.

National Labor Relations Board - Board Decisions

Jul 28, 1966

160 N.L.R.B. 272 (N.L.R.B. 1966)

272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
writing that it will comply with the foregoing Recommendations , the National Labor
Relations Board shall issue an Order requiring the Respondent to take the action
aforesaid.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 157, UNITED ASSOCIATION OF JOURNEYMEN
AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED
STATES AND CANADA, AFL-CIO
Pursuant to the Recommended Older of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT strike or encourage the employees of Modern Housing Facili-
ties Inc., Roach Plumbing and Heating, Usery and Sims, Prose Electric, or any
other employer engaged in the final assembly of prebuilt housing units manu-
factured by Midwest Homes, Inc., to engage in a strike or a concerted refusal
in the course of their employment to perform services when an object thereof
is to force or require Midwest Homes, Inc., to assign the plumbing work per-
formed in its prebuilt housing units at Carlisle, Indiana, to our members
rather than to employees of Midwest Homes, Inc., who were not members of
our labor organization unless Midwest Homes, Inc., fails to conform to an
order certifying us as the bargaining representative of the employees perform-
ing such work.
LOCAL 157, UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUS-
TRY OF THE UNITED STATES AND CANADA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its pro.
visions, they may communicate directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street , Indianapolis, Indiana 46204, Telephone 633-8921.
Western Gear Corporation , Heavy Machine Division and Local
No. 8, Office and Professional Employees International Union,
AFL-CIO, Petitioner. Case 19-RC-3870. July 08, 1966
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held at Seattle,
Washington, on March 9 and 22 and April 5 and 6, 1966, before
Hearing Officer John D. Nelson. Thereafter, the Petitioner and
Employer filed briefs. The I--Tearing 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 Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Jenkins and Zagoria].
160 NLRB No 25.
WESTERN GEAR CORPORATION 273
Upon the entire record in this case, including the briefs, the Board
finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.'
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Sections 9(c) (1) and 2(6) and (7) of the Act.
4. The appropriate unit:
The Petitioner's unit request is limited to office and plant clericals.
The Petitioner expressly does not seek to include any employee classi-
fications that may be found to be technical.
The Employer agrees on the appropriateness of a clerical unit, but
contends that if certain classifications it considers to be technical are
included in the unit as requested by the Petitioner, all technicals with
a sufficient community of interest should be included. The Employ-
er's request for the inclusion of certain technical employees it urges
have a community of interest with others sought is thus conditional
only.
Since Board precedents support and the parties agree upon the
appropriateness of a unit limited to clericals and excluding technicals,
we find it unnecessary here to explore the extent to which another
unit including technical employees might also be appropriate on the
basis of the principles laid down in The Sheffield Corporation, 134
NLRB 1101. We limit our consideration here, therefore, to the issue
contested : whether the disputed categories are clerical or technical.
The parties stipulated, and we find, that nine named classifications
are properly includable in the clerical unit.2 The parties do not agree
on whether certain other classifications should be included in the unit.
The Petitioner contends that the clerical unit should also include
accountants, blueprint machine operators, coordinators, dispatchers,.
and schedulers, classifications which the Employer would exclude as
technical and not clerical. The Employer would also include in the
clerical unit three buyer- classifications, application engineers, con-
tract administrators, and draftsmen.,' The Petitioner would exclude
the buyer classifications, primarily as managerial, and the latter
categories as technical.
International Association of Machinists and Aerospace Workers , Lodge No . 130, AFL-
CIO, which represents the Employer 's production and maintenance employees , was allowed
to intervene in this proceeding on the basis of a showing of interest.
2 The agreed -upon classifications are as follows : accounting clerks, senior tabulating
machine operators , clerk-typists , keypunch machine operators , general clerks , switchboard
operator -receptionists , stenographers , receiving clerks, and senior clerks.
257-551-6T-vol. 160-19
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The employees, in both the agreed-upon and disputed classifica-
tions, are practically all employed in five of the Employer's depart-
ments, located on two floors of a single building at its Everett plant.
The functions they perform are generally supportive of the Employ-
er's manufacturing operations. The dispatchers' and schedulers'
duties also require their periodic presence in particular areas of the
plant, to assure continuity of manufacturing, and to make certain
that delivery schedules on projects are met.
The task of determining whether employees, whose duties are
related to the production and manufacturing function in a plant of
the type here involved, are plant clerical employees or technical
employees is at times difficult. Generally, however, those held to be
technical employees are employees who do not meet the strict require-
ments of the term "professional employee" as defined in the Act, but
whose work is of a technical nature, involving the use of independent
judgment and requiring the exercise of specialized training usually
acquired in colleges or technical schools or through special courses.
Where employees have interests and working conditions similar to
those of production employees, but do not perform work of a tech-
nical nature, or possess specialized training or exercise independent
judgment in performing their duties, they are usually found to be
plant clerical employees.3 Bearing the above distinguishing character-
istics of plant clerical and technical employees in mind, the classifica-
tions in dispute are discussed below by department.
The Employer would exclude from the unit as technical employ-
ees four accountants, whom the Petitioner claims perform only rou-
time clerical duties. It is contended by the Employer that the educa-
tional training of these employees, and the independent nature of the
judgments they make, qualify them as technical employees. Two of
the accountants perform cost accounting functions, while the others
handle accounts payable and receivable and credit matters; and all
are subject to supervision by a chief accountant, who in turn reports
to the Employer's comptroller. The only accountant to testify, Slack,
a cost accountant, whose duties the evidence shows are also typical
of the remaining 3 accountants, described his own work as recurrent
and routine. None of the accountants are certified, although two are
college graduates who majored in accounting. The others lack exten-
sive education in accounting, although one has had considerable
experience in his present accounting position. Although the evidence
concerning these accountants shows that their weekly earnings range
from about $120 to $180, it does not in our opinion show that they
customarily use specialized educational training regularly to make
3 The Sheffield Corporation, 134 NLRB 1101 ; Litton Industries of Maryland , Incorporated,
125 NLRB 722, 724.
WESTERN GEAR CORPORATION 275
the kind of independent judgments which would qualify them as
technicals. Accordingly, as we find that they perform only-clerical
duties, we shall include the accountants in the unit.4
The Employer seeks to include the classification of application
engineer in the marketing department, contending that the employee
employed in that category performs only a routine clerical function
with respect to incoming invitations for bids, assigning them a num-
ber and processing them before bids are prepared. The Employer's
chief engineer, however, concedes that this position is presently filled
by Borst, a graduate engineer who screens bid invitation's to deter-
mine if they concern projects of a nature that the Employer is quali-
fied to bid on and manufacture. Borst refers to and discusses with
the engineering department invitations that he deems suitable, and
sends to the inquiring firm letters of quotation which he prepares.
The application engineer receives a salary between $600 and $700 per
month. We find, on the basis of the above evidence that the classifica-
tion of application engineer is at least a technical one, in view of the
application engineer's educational qualifications, his substantial con-
tacts with the engineering department, and the independent judgment
we find he exercises in analyzing a wide variety of bid invitations,
and referring selected ones to the engineering department. Accord-
ingly, we shall exclude this classification from the clerical unit.'
The Employer seeks to include in the unit three classifications in
its purchasing department: namely, buyer, buyer follow-up, and out-
side buyer follow-up, contending that the purchasing of materials
for its manufacturing operations by the employees assigned to these
classifications, is a routine clerical function, performed in accordance
with departmental requests which specify the needed materials or
shop supplies. The evidence shows, however, that the buyer has dis-
cretionary authority to pledge the Employer's credit up to $5,000.
The buyer follow-up, while presently performing some clerical duties,
is also given responsibility for the preparation of purchase orders
involving the Employer's credit. The evidence also shows that he
bears a trainee relationship to the buyer. The two outside buyers
follow-up expedite delivery of materials to the Employer, but spend
practically all of their time performing this function away from the
Everett plant. The buyer and outside buyers follow-up receive
monthly salaries in the $600 to $700 range, while the hourly earnings
of the buyer follow-up are about $500 per month. On the basis of
the above evidence which manifests the exercise of managerial respon-
sibility by the buyers we exclude them and the buyer follow-up,
4 Westinghouse Air Brake Company, 119 NLRB 1391, 1393.
5 Ladish Company, 126 NLRB 555, 558.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whom we find to be in a trainee status, from the units The outside
buyer follow-up category is also excluded from the unit as it is
apparent that employees in this category lack a sufficient community
of interest with the plant employees to be included in the office and
plant, clerical unit 7 in view of their almost continuous absence from
the plant.8
The Employer in its brief urges that four contract administrators
in its marketing, and contract administration departments should be
included in the unit because they merely perform routine clerical
functions in dealing with other companies. But the only relevant
testimony cited in the brief itself, in the discussion of the duties of
schedulers and planners, convinces us that contract administrators
consistently utilize fundamentally technical knowledge and training
in handling contract relations with the Employer's customers and
that their duties in this regard do require the use of independent
judgment. Accordingly, we find that the contract administrator
classification should be excluded from the unit as a technical category.
In the production control department the Petitioner would include
in the unit schedulers and dispatchers, contending that the evidence
shows that employees in both these classifications, at most, expedite
production, either at a single plant location, where a dispatcher is
ordinarily assigned; or throughout the plant, where schedulers
normally exercise a project responsibility; and that schedulers and
dispatchers do not exercise the independent judgment or have the
education or training usually possessed by technical employees. The
Employer contends that the evidence shows that dispatchers and
schedulers possess the requisite qualifications for exclusion from the
unit as technical employees and that employees in both classifications
utilize the type of independent judgment which technical employees
exercise.
As regards education and training, the schedulers and dispatchers
as a group have an adequate amount to qualify as technical employ-
0 Federal Television and Radio Company, 120 NLRB 1652, 1653.
7 Federal Television and Radio Company, supra , at 1655.
8 The record establishes that the buyer has discretionary authority to pledge the Em-
ployer's credit only on those apparently infrequent occasions when the purchasing agent
is not available, and it appears from the record that the buyer's duties are largely clerical
in nature , Member Zagoria would therefore include the buyer, and a fortiori the buyer
follow-up, in the clerical unit. The evidence concerning the outside buyers-follow-up con-
sists largely of testimony by the buyer, It appears from such testimony that as of the time
of the hearing one of the outside buyers-follow-up was spending 2 days each week work-
ing at the plant and the other was expected to return shortly from a field trip ; the wit-
ness was, however, apparently not familiar with the work of the former while in the plant
and not privy to management's plans for the latter upon his return. In addition, the record
fails to reflect sufficiently the overall division of time of these employees between in-plant
and out-plant duties, or the nature of their in-plant duties. In view of all these circum-
stances, Member Zagoria would permit the outside buyers-follow-up to vote subject to
challenge.
WESTERN GEAR CORPORATION 277
ees. Thus, the evidence reflects 100 hours formal training in Army
Engineering School in the case of one scheduler , and 2 years in engi-
neering in a junior college in the case of another . Other schedulers
and dispatchers have training in engineering and mechanical draw-
ing, as well as relevant technical on-the-job training . The scheduler
receives a monthly salary ranging from $600 to $725 , while the total
monthly hourly earnings of a dispatcher approximate $500. We find
adequate evidence that the schedulers regularly exercise independent
judgment, which utilizes their educational training and experience
in important phases of the Employer's heavy manufacturing opera-
tions. They must have a knowledge of different types of steel and
castings , and the various operations performed by numerous intri-
cate machines , and then regularly use this knowledge in scheduling
production work. Also, using the same data , schedulers can, where
a particular manufacturing machine becomes overloaded , direct par-
ticular work shifted to other machines, which perhaps will perform
the required operation less efficiently than the most desirable machine
to which the work could be assigned, but nevertheless will speed a
particular project to completion . This authority to control the pro-
duction load at particular manufacturing locations in the plant, and
to make prompt arrangements to compensate for any overload which
may result from assignments by other schedulers, requires the use
of independent judgment , and appears essential to enable the
Employer to meet its delivery commitments . In addition , schedulers
check the manufacturing orders prepared by planners to see that
they conform to the relevant engineering drawings before scheduling
a particular project for production . It also appears from the evidence
that schedulers are responsible for seeing that a major machinery
set-up is not completely disassembled and rebuilt if it can instead
be modified to handle forthcoming projects. On the basis of the above
evidence , we conclude that the schedulers ' duties are more complex
and responsible than those of ordinary production expediters, and
we find that this classification is a technical one requiring the use of
considerable independent judgment. Accordingly, we shall exclude
schedulers from the clerical unit.°
The record shows that schedulers have in the past, during some
periods , been assigned as dispatchers to a particular plant location,
where they have had no basic responsibility other than to assure expe-
ditious manufacturing of items and projects reaching their assigned
stations. They then functioned only as ordinary production expedit-
ers in their assigned areas. We include employees who may still be
Copeland Ref? ige) ation Coi poration, 118 NLRB 1364, 1366.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
performing such duties in this classification in the office and plant
clerical unit defined herein.10
The Employer also urges that an hourly coordinator who is
assigned to the production control department and whose principal
duty is to maintain an adequate inventory of material and parts at
the Employer's plant should be excluded from the unit as a technical
employee. The evidence shows, however, that the coordinator is able
to formulate most of his requests for necessary material and shop
supplies on the basis of information previously supplied to him by
the various departments of the Employer. Moreover, while the pres-
ent coordinator has had some courses in production-metal casting,
his principal educational background is in general business courses,
accounting methods, analysis, and sales. The coordinator is hourly
rated, earning between $2.50 and $3 per hour. On the basis of the
above evidence we conclude that the coordinator does not qualify as
a technical employee. We find that his duties are primarily clerical,
and we shall include him in the unit defined herein.
The Employer would exclude blueprint machine operators in the
engineering department, contending that they are technical employ-
ees (or that at least their duties relate closely to the engineering
department). However, the evidence shows that their principal duties
are to utilize copying machines to reproduce engineering drawings
and blueprints, and route the copies to various departments of the
Employer, which need to consult them, either during manufacturing
or in dealing with customers. There is a lack of evidence supporting
the contention that the blueprint machine operators are technical
employees, although it is true that in some past cases where blue-
print machine operators' functions were limited to serving personnel
performing engineering duties they have been placed in units with
engineers. In the present case, however, as the distribution function
performed by the blueprint machine operators serves several non-
engineering departments of the Employer, and as they have none of
the qualifications of technical employees, we shall include them in
the office clerical and plant clerical unit as the Petitioner requests."
Finally, the Employer contends that draftsmen in its engineering
department merely perform clerical functions, and do not qualify as
technical employees as Petitioner contends. We find no merit in this
contention of the Employer, as its own exhibits reflect that the drafts-
men have adequate education and training to qualify as technical
employees. Even draftsmen in the lowest skilled category have had
10 Kearney & Trecker Corporation, 121 NLRB 817 However, employees who exercise
duties requiring judgments of the independent and responsible type now made by sched-
ulers, either at particular work stations, or throughout the plant, are excluded from the
unit as technical employees.
"Albs-Chalmers Manufacturing Company-Ptttsburgh Works, 128 NLRB 87, 89.
J. C. PENNEY Co., INC. 279
training in engineering in junior colleges and engineering institutes.
The draftsmen prepare detailed drawings of components and assem-
blies using layouts and instructions received from design engineers.
However, it is clear that they use trigonometry, geometry, and a wide
variety of technical symbols in their work, exercise discretion in draw-
ing mating parts, and in some instances determine whether certain
parts should be machined or fabricated. On the basis of the above evi-
dence, we find that the draftsman classification should be excluded as
a technical one.12
Accordingly, we find that the following employees constitute a
unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All office clerical and plant clerical employees of the Employer's
Heavy Machine Division plant, Everett, Washington, including
accountants A, accountants B, accounting clerks, senior tabulating
machine operators, clerk-typists, keypunch machine operators, gen-
eral clerks, switchboard operator-receptionists, coordinators, dispatch-
ers, stenographers, receiving clerks, blueprint machine operators, and
senior clerks, but excluding application engineers, contract adminis-
trators, estimators, field service representatives, buyers, buyers follow-
up, outside buyers follow-up, schedulers, planners, tool designers,
draftsmen, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.] 13
13 Litton Industries of Maryland , Incorporated, 125 NLRB 722, 725
11 An election eligibility list, containing the names and addresses of all the eligible 'voters,
must be filed by the Employer with the Regional Director for Region 19 within 7 days after
the date of this Decision and Direction of Election . The Regional Director shall make the
list available to all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances . Failure to com-
ply with this requirement shall be grounds for setting aside the election whenel er proper
objections are filed. Excelsior Underwear Inc., 156 NLRB 1236.
J. C. Penney Co., -Inc. and International Brotherhood of Team
sters, Chauffeurs , Warehousemen and Helpers of America,
Local No. 452
J. C. Penney Co., Inc. and International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America,
Local Union No . 452, Petitioner . Cases 27-CA.-1769, 1821, and
27-RC-2773. July 29,1966
DECISION AND ORDER
On March 16, 1966, Trial Examiner David Karasick issued his
Decision in the above-entitled proceeding, finding that the Respond-
160 NLRB No. 26.