Westinghouse Air Brake Co.

National Labor Relations Board - Board Decisions

Jan 23, 1958

119 N.L.R.B. 1391 (N.L.R.B. 1958)

WESTINGHOUSE AIR BRAKE COMPANY 1391
dispute over the assignment of -work is here presented which is
cognizable in a Section 10 (k) proceeding.
Accordingly, I would quash the notice of hearing herein.
twrvng Company etc ), 119 NLRB 307 However, this question is not involved in
this proceeding
Westinghouse Air Brake Company, Union Switch & Signal Di-
vision ' and Westinghouse Air Brake Office and Technical
Union, Petitioner. Case No. 6-RC-1970. January 23, 1958
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 H. G. Borchardt,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, 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 em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit of all office and plant clerical and
technical employees at the Employer's Swissvale, Pennsylvania, plant
including time-study employees, but excluding all professionals,
guards, and supervisors as defined in the Act. The Employer con-
tends that the time-study and technical employees should be excluded
from such unit. It further contends that a large number of the em-
ployees sought are confidential and a few are professional and should
be excluded on those bases. It would also exclude temporary and
laid-off employees.
In the alternative, the Petitioner seeks separate units of clerical
and technical employees. If the Board should find such units appro-
priate, it requests a Globe election. The Petitioner will, however,
accept any unit or combination of units the Board finds appropriate.
The Employer maintains that the Board should not consider the Peti-
tioner's alternative unit positions,
The Petitioner asserts that it does not seek to represent any em-
ployees currently represented by other labor organizations.a More-
'The name of the Employer appears as amended at the hem anti
o The Society of Engineers, Union Switch and Signal Company was certified on
February 13, 1948 , as the bargaining representative for all engineering employees, in-
119 NtI B irTo.169.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over, the parties stipulated that certain employees were professionals 3
and should be excluded from any unit the Board might find appro-
priate herein.
It is well established that the Board will not include technical em-
ployees in a unit with office and plant clerical employees, if any party
objects to their inclusion.' The Petitioner argues that the combined
unit it seeks is however, appropriate, because it is, in effect, a residual
unit of office, plant clerical, and technical employees. Some technical
employees are presently represented by the Society of Engineers.
We find no merit in such contention. If the technical employees are
to be represented, they must be grouped in a separate unit.
Ordinarily, the Board will find inappropriate a technical unit which
does not comprise all the Employer's technical employees.' Neverthe-
less, in a situation such as this, we will recognize a residual unit of
all 6 the remaining unrepresented technical employees.' Here, no
other union seeks to represent the residual technicals and they will
go unrepresented if we dismiss the petition insofar as it seeks to
represent them. Accordingly, we find that the Petitioner's alternate
unit request is the proper one and we find appropriate two separate
units : a unit of office and plant clerical employees and a residual unit
of technical employees.
The Technical Unit
The parties are in agreement that the employees in the classifications
of diagram draftsman-class A and B, detail draftsman-class A and B,
and wiring plan designer-class A, B, and C are technical employees.
The remaining employees who allegedly are technicals have the
following classifications : accountant, artist-class A and B, advertising
eluding industrial design engineers in the Engineering Brake Division , tool engineers in
the Tool Design Department, apprentice engineers , and laboratory technicians. On May 13,
1953, the United Electrical, Radio and Machine Workers of America, Local 610 (UE),
was certified for all production and maintenance employees, electrical and mechanical
inspectors, inspection department employees, chasers, and storeroom employees. The
Employer is still recognizing both unions as representatives of their respective units of
employees. It has a current contract with the UE but, at present, there is no written
contract with the Society of Engineers, now designated as Union Switch and Signal'
Division, Society of Engineers.
8 These employees have the following job titles : transportation engineer, equipment
planning engineer and senior engineer, process engineer-class A and B, synthetic standards
engineer, tool standards engineer, plant and senior plant engineer, industrial engineer,
patent engineer, patent attorney-class B, service engineer-class A and B and senior service
engineer, inspection engineer, manufacturing engineer-class A and B, sales engineer-class
A and B, technical writer-class A and B, economic analyst, and test engineer-class A
and B. The parties also stipulated that the librarian was a professional employee and
should be excluded on that basis.
4 Plankinton Packing Company, 116 NLRB 1225.
The Monarch Machine Tool Co., 98 NLRB 1243.
e No party contends and it nowhere appears that there are unrepresented technicals
other than those in dispute.
7 Cf. Allis-Chalmers Manufacturing Company, 117 NLRB 749 ; Boeing Airplane Corn-
pany, 116 NLRB 1775.
WESTINGHOUSE AIR BRAKE COMPANY 1393
and publicity copywriter, layout designer, cost estimator-class A
and B, tabulating machine operator-class A and B, photographer-class
A and B, photographic technician, tester-class A and B, tracer-- class
A and B, time-study observer-class A and B, and production control
-expediter-class A and B.
The Employer contends that its accountants are professional, man-
agerial, or technical employees. Although all the accountants have
college degrees and some have master's degrees in accounting, neither
their work nor their training satisfies the definition of professionals in
Section 2 (12) of the Act.' Moreover, it does not appear that they
qualify as managerial or technical employees. Accordingly, we shall
include them in the clerical unit.
The Employer also contends that the layout designers are pro-
fessional employees. These employees work with the design engineers
and, at times, with the senior engineers and engineers-class A. They
make the initial layout after components are designed or planned.
They also make preliminary layouts for overall machinery. Although
they are highly trained, it appears that they are technical rather than
professional employees. We shall, therefore, include them in the
technical unit.
With regard to the time-study observers-class A and B, the Em-
ployer contends that they are managerial or confidential employees.
They run tests and make proposals to management recommending
changes which may effect changes in pay rates and production methods.
It does not appear from the record that their duties and responsibilities
are more confidential or managerial in nature than those of time-study
men in general . As neither party questions their standing as technical
employees, we shall include them in the unit.'
The artists-class A and B have art school, in addition to high
school, training. They work in the Employer's advertising and pub-
licity department and make layouts for ads carried in trade papers.
They also do the layout and artwork for handbooks published for the
use of the Employer' s customers . The Petitioner did not refute the
Employer's contention that these employees are technicals and it
appears that they do exercise considerable skill in performing non-
repetitive, detailed work. Accordingly, we shall include them in the
unit.10
The advertising and publicity copywriters have high school educa-
tions plus formal education which equips them for comprehending
highly technical engineering subjects and language and translating
such subjects and language into ideas and terms that laymen can
s Automatic Electric Company, 78 NLRB 1057.
0 Florence Stove Company, 98 NLRB 16.
10 National Cash Register Company, 95 NLRB 27. 30-31.
476321-58-vol. 119-89
'1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
understand. Again, the Petitioner presented nothing to refute these
employees' technical status and we find that they are technical
employees and shall include them in the unit.
The photographers-class A and B have specialized training in
photography school or as apprentices to commercial photographers.
The photographic technicians have specialized training in technical
laboratory work. The Petitioner took no position regarding the
Employer's contention that such employees are technicals and we find
that their training and work warrants including them in the technical
unit. We, therefore, include them.
The Employer contends that the production control expediters-
class A and B are technicals and also managerial employees. The
Petitioner contends that they are plant clerical employees. The record
fails to reveal that the expediters have any special training to qualify
them as technical employees and, although they have considerable au-
thority with regard to the routing of the Employer's production proc-
esses, there is no evidence that they are managerial employees. Their
powers are those generally exercised by expediters in industrial enter-
prises. Although there is testimony that they may recommend the
hiring or firing of the clericals who work with them, any such recom-
mendation would be channeled through the expediter's supervisor to
the superintendent and there is no evidence that the expediters' recom-
mendations are effective. Accordingly, we find that the production
control expediters-class A and B are plant clericals and we shall in-
clude them in the office and plant clerical unit."
The Employer urges that tracers-class A and B are technical em-
ployees. Essentially, these employees are beginning draftsmen who
work closely with the draftsmen and eventually progress into their
positions. They are in the same department. as the draftsmen and are
subject to the same supervision. On these facts, we shall include them
in the technical unit."
The testers-class A and B work primarily in the Employer's quality
control department and, at times, in some of the sections of the en-
gineering department. These employees perform testing and develop-
ing work. They are skilled employees with a knowledge of the
Employer's various equipment, devices, materials, and processes.
They make calculations, plot data, and write final and progress reports.
They must plan test procedures and suggest improvements on devices
and methods. We find that they are technical employees and shall
include them in the unit."
The Employer contends that the cost estimators-class A and B are
also technical employees rather than clerical ones. These workers
11 La Pointe Machine Tool Company. 109 NLRB 514.
12 Cf. Bethlehem Steel Company. 95 NLRB 1508.
13 Kelsey Hayes Wheel Company, 85 NLRB 600, 671.
WESTINGHOUSE AIR BRAKE COMPANY 1395
have specialized schooling in engineering and accounting. They must
be able to read and understand engineering drawings and must be
familiar with the Employer's manufacturing operations. We find,
on these facts, that they are technicals and we include them in the
unit.
With regards to the tabulating machine operators-class A and B,
the Employer alleges that they, too, are technicals. However, the
Employer concedes that the tabulating machine operators-class C are
properly within the office and plant clerical unit. Although the ma-
chines involved in the operations and the duties of the tabulating
machine operators-class A and B require considerable skill, it would
appear that these employees are trained office clericals rather than
technical employees. Accordingly, we shall include them in the
clerical unit.14
Office and Plant Clerical Unit
The Petitioner and Employer are in agreement concerning most of
the employees to be included in the unit. However, the Employer
contends that approximately 50 of the employees sought are confiden-
tial employees and should be excluded.
The Employer's works manager and director of employee relations
testified regarding the duties of some of these employees. The parties
then stipulated that, were testimony taken on the other employees, it
would be to substantially the same effect.l5
Most of the employees alleged to be confidential perform secretarial,
stenographic, typing, or clerical work for supervisors, who, perforce,
handle some labor relations matters such as grievances, pay raises, etc.
The record testimony reveals that these alleged confidential employees
work on grievance reports, rate changes, and that some may take min-
utes occasionally at meetings involving labor problems.
It is the Board's policy to exclude from bargaining units as confi-
dential employees only those persons who assist and act in a confiden-
tial capacity to officials who formulate, determine, and effectuate
management policies in the field of labor relations. Moreover, the
Board adheres strictly to such definition of what constitutes a confi-
dential employee. 16 Most of the alleged confidential employees do not
satisfy that definition.
14 Lockheed Aircraft Corporation, 100 NLRB No. 147 (not reported in printed volumes
of Board Decisions and Orders).
15 The stipulation specifically did not apply to key punch operators, tabulating machine
operators-class A. the librarian, and paymaster clerks. With regard to these employees,
the record reveals that the librarian is stipulated by the parties to be a professional and
excluded . The basis urged by the Employer for finding the others to be confidential are
the following : the key punch operators and tabulating machine operators-class A work
on figures involving wage rates and the paymaster clerks receive labor policy information
in advance for distribution to the employees.
11 The B. F. Goodrich Company, 115 NLRB 722.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is the Petitioner's position that the following employees might
be confidential employees and should, perhaps, be excluded : the secre-
taries to the vice president, plant manager, director of employee rela-
tions, personnel manager, and the heads of the engineering, sales,
accounting, and purchasing departments. We find no merit in the
contention that the secretaries to the heads of the engineering, sales,
accounting, and purchasing departments are in a confidential relation-
ship to those formulating, determining, and effectuating labor rela-
tions policies. Accordingly, we shall exclude as confidential only the
secretaries to the vice president, plant manager, director of employee
relations, and personnel manager from the office and plant clerical unit
found appropriate herein.
Temporary and Laid-Off Employees
The Employer contends that 11 of the employees on its payroll at
the time of the hearing were temporary employees and should be ex-
cluded from any unit found appropriate. The Petitioner took no
stand on the matter.
The record reveals that most of such employees were students or
teachers working during their summer vacations. Temporary
employees do not share the fringe and other benefits enjoyed by the
regular employees and have no recall rights. Under these circum-
stances, we shall exclude the temporary employees.
The Employer would also exclude 10 employees who, at the time of
the hearing, were laid off. The Petitioner contends that these
employees have a reasonable expectation of reemployment and should
be permitted to vote. The testimony adduced at the hearing indicates
that there is virtually no possibility of these employees being recalled
within the next year or for a long period thereafter. Accordingly,
we shall not permit such employees to vote in the election and shall
exclude them from the unit.
In view of the foregoing, we shall direct that elections be conducted
in the following units of employees at the Employer's Swissvale, Penn-
sylvania, plant: 14
(A) All office and plant clerical employees, including the account-
ants, production control expediters-class A and B, and tabulating
machine operators-class A and B, but excluding as confidential
employee the secretaries to officials who formulate and effectuate labor
policy, namely the vice president, plant manager, director of employee
relations, and personnel manager; also excluding temporary and laid-
off employees without reasonable expectation of reemployment, all
other employees, professionals, guards, and supervisors as defined in
the Act.
11 We find no merit in and hereby deny the Petitioner's request for a Globe election.
SWIFT & COMPANY 1397
(B) All technical employees, including the diagram draftsmen-
class A and B, detail draftsmen-class A and B, wiring plan design-
ers-class A, B, and C, artists-class A and B, advertising and pub-
licity copywriters, layout designers, cost estimators-class A and B,
photographers-class A and B, photographic technicians, testers-class
A and B, tracers-class A and B, and time-study observers-class A
and B, but excluding temporary and laid-off employees without rea-
sonable expectation of reemployment, all other employees, profes-
sionals, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER FANNING took no part in the consideration of the above
Decision and Direction of Election.
Swift & Company and United Packinghouse Workers of Amer-
ica, AFL-CIO, Petitioner. Case No. 15-RC-1567. January 24,
1958
DECISION AND CERTIFICATION OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted on May 15, 1957, under the
direction and supervision of the Regional Director for the Fifteenth
Region, among employees at the Employer's Selma, Alabama, plant.
At the conclusion of the election, the parties were furnished a tally
of ballots which showed that, of approximately 41 eligible voters, 41
cast ballots, of which 25 were for the Petitioner, 9 were against the
Petitioner, and there were 7 challenged ballots, a number insufficient
to affect the results of the election.
On May 20, 1957, the Employer filed an objection to conduct affect-
ing the results of the election. After an investigation, the Regional
Director, on November 20, 1957, issued and duly served upon the
parties his report, in which he found that : (1) the Employer's ob-
jection failed to allege any facts which, if true, would warrant setting
the election aside, and recommended, accordingly, that the objection
be overruled for lack of specificity; and (2) the objection did not
raise substantial and material issues with respect to conduct affecting
the results of the election, and recommended, alternatively, that the
objection be overruled for lack of merit.' Thereafter, the Employer
1 The Regional Director 's recommendation for dismissal on the merits was based upon
findings that the conduct in question occurred prior to the date of execution of the
stipulation for certification upon consent election ; was based upon hearsay which was
contradicted by direct evidence ; was engaged in by unidentified individuals or by in-
dividuals not authorized to speak for the Petitioner ; or would not , if true, constitute
grounds for setting aside the election.
119 NLRB No. 172.