Westinghouse Airbrake Co.

National Labor Relations Board - Board Decisions

Dec 4, 1937

4 N.L.R.B. 403 (N.L.R.B. 1937)

In the Matter Of WESTINGHOUSE AIRBRAKE COMPANY and UNITED
ELECTRIC AND RADIO WORKERS Or AMERICA, RAILWAY EQUIPMENT
I\TORKERS LOCAL No. 610
Case No. R-282.-Decided December 4, 1937
Air Brake and Machinery Industry-Investigation of Representatives: con-
troversy concerning representation of employees : substantial doubt as to
majority status; refusal of employer to recognize and bargain with union until
question of representation is determined by Board-Unit Appropriate for Col-
lective Bargaining : production and maintenance employees , excluding engineer-
ing, clerical , and medical employees ; occupational differences , dissimilarity of
interests ; eligibility for membership in both rival organizations-Election
Ordered-Certification of Representatives.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
On June 16, 1937, United Electrical and Radio Workers of Amer-
ica, Railway Equipment Workers Local No. 610, herein called the
U. E. R. W., filed with the Regional Director for the Sixth Region
(Pittsburgh, Pennsylvania) a petition alleging that a question af-
fecting commerce had arisen concerning the representation of the
employees,of Westinghouse Airbrake Company, Wilmerding, Penn-
sylvania, herein called the Company, and requesting an investiga-
tion and certification of representatives pursuant to Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On July 20, 1937, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the
Act and Article III, Section 3, of National Labor Relations Board
Rules and Regulations-Series 1, as amended, ordered an investiga-
tion and authorized the Regional Director to conduct it and to pro-
vide for an appropriate hearing upon due notice.
On August 5, 1937, the Regional Director issued a notice of hearing
and on August 12, 1937, a notice of change of time of hearing. The
Company, the U. E. R. W., and United Employees Association of
the Westinghouse Airbrake Company, herein called the Association,
a labor organization purporting to represent employees directly
affected by the investigation, were duly served with copies of both
notices. Pursuant to the notice, the hearing was held at Pittsburgh,
403
404 NATIONAL LABOR RELATIONS BOARD
Pennsylvania, on September 9, 1937, before Alvin J. Rockwell, the
Trial Examiner duly designated by the Board.
At the hearing the Association filed a petition for leave to intervene
and be made a party to the proceeding, and the motion was granted
by the Trial Examiner. The Board, the Company, the U. E. R. W.,
and the Association were represented by counsel and participated
in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues
was afforded all the parties. At the conclusion of the hearing the
U. E. R. W. and the Association filed briefs which have been given
careful consideration.
During the course of the hearing the Trial Examiner made several
rulings on motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
After examining the record in the case, the Board concluded that
a question affecting commerce had arisen concerning the representa-
tion of employees of the Company, and on the basis of such conclu-
sion, and acting pursuant to Article III, Section 8, of the Rules and
Regulations, issued a Direction of Election on October 22, 1937,1 in
which it found that all the production and maintenance employees
of the Company at its Wilmerding, Pennsylvania, plant, except super-
intendents, foremen, assistant foremen, group leaders, working group
leaders, inspectors, clerical employees, and all employees in the engi-
neering and drafting departments, constitute a unit appropriate for
the purposes of collective bargaining. Merely for the purpose of
expediting the election and thus to insure to the employees of the
Company the full benefit of their right to collective bargaining as
early as possible, the Board directed the election without at the same
time issuing a decision embodying complete findings of fact and
conclusions of law.
Pursuant to an Amendment to the Direction of Election issued
October 29, 1937, extending the time for conducting the election ten
days, an election by secret ballot was conducted on November 9, 1937,
by the Regional Director for the Sixth Region among the employees
of the Company constituting the unit found appropriate by the
Board. Full opportunity was accorded all the parties to this pro-
ceeding to participate in the conduct of the ballot and to make
challenges.
On November 6, 1937, the Association filed with the Regional
Director for the Sixth Region preliminary objections to the Direction
of Election and to the manner of procedure in the conduct of the
election determined by the Regional Director. These objections per-
13N L R.B 867.
DECISIONS AND ORDERS 405.
rained to the bargaining unit determined by the Board, to the post-
ponement of the election, to the holdiiig of the election outside of the
Company's plant, and to the form of the ballot. On November 12,
1937, the Regional Director issued his Intermediate Report upon the
secret ballot, which was duly served upon the parties to the pro-
ceeding. On November 16, 1937, the Association filed objections to,
the Intermediate Report; these objections, in addition to repeating
those raised in its preliminary objections, pertained to the conduct
of the ballot among the Company's employees. No other objections,
with respect to the conduct of the ballot or to the Intermediate Re-
port were filed. The Regional Director, having found that no sub-
stantial and material issues we. -e raised thereby, forwarded the Inter-
mediate Report and the objections of the Association to the Board
in Washington, District of Columbia. The Board has given careful
consideration to the objections and concurs in the finding of the
Regional Director that no substantial and material issues with respect
to the conduct of the ballot or to the Intermediate Report are raised
thereby.
As to the results of the secret ballot, the Regional Director reported
the following :
Total number of ballots cast---------------------------------- 445
Total number of blank ballots --------------------------------- a
Total number of void ballots __________________________________ 5
Total number of ballots cast for United Employees Association of
Westinghouse Airbrake Company ____________________________ 190S
Total number of ballots cast for United Electrical , Radio and
Machine Workers of America , Railway Equipment Workers
Local No 610,' affiliated with the C I. O____________________ 2369
Total number of ballots cast for neither organization ------------ 95
Total number of challenged ballots_____________________________ 75
1 Subsequent to the filing of the petition in this proceeding , the patent Union changed
Its name to United Electrical , Radio and Machine Workers of America No objection
was made to the above coriespondmg change of name on the ballot
Upon the entire record in the case, the, Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE CO MPANY
The Company, incorporated in Pennsylvania in 1869, has its prin-
cipal business office and factory at Wilmerding, Pennsylvania. It
also maintains sales and service offices in the following cities : New
York City; Boston, Massachusetts; Washington, District of Co-
lumbia; Atlanta, Georgia; Pittsburgh, Pennsylvania; Chicago,
Illinois; St. Paul, Minnesota; Denver, Colorado; Topeka, Kansas,
Cleveland, Ohio; St. Louis, Missouri; Houston, Texas; San Fran-
cisco, California; Seattle, Washington; Los Angeles, California;
-406 NATIONAL LABOR RELATIONS BOARD
Tokyo, Japan; Mexico City, Mexico; and Sao Paulo, Brazil. The
Company wholly owns the following subsidiaries: American Brake
Company, National Brake and Electric Company, Westinghouse Air
Brake Home Building Company, Westinghouse Pacific Coast Brake
Company, and Wilmerding Corporation. The Company also par-
tially owns Union Switch and Signal Company and Westinghouse
International Brake and Signal Company.
The Company's principal products are airbrake equipment for
:steam railroads, electric railways, trucks, and busses. Only two or
three other companies in the United States manufacture railroad
-airbrakes.
It was stipulated by the Company that approximately 58 per cent
-of the materials purchased by the Company come from states other
than Pennsylvania and that 99.9 per cent of these materials are re-
ceived by railroad. It was also stipulated by the Company that ap-
proximately 70 per cent of the finished products are shipped outside
-the State of Pennsylvania and that 99 per cent are shipped by rail-
road. The Company's products are shipped to practically every state
yin the United States and to most of the principal foreign countries.
II. THE ORGANIZATIONS INVOLVED
United Electrical and Radio Workers of America, Railway Equip-
ment Workers Local No. 610, is a labor organization affiliated with
the Committee for Industrial Organization. It admits to member-
ship production and maintenance employees of the Company, and
excludes supervisory, clerical, and salaried employees.
United Employees Association of the Westinghouse Airbrake Com-
pany is a labor organization without outside affiliation. It admits to
membership all employees of the Company, except officers and em-
ployees in supervisory capacities.
III. THE QUESTION CONCERNING REPRESENTATION
On May 28, 1937, and June 9, 1937, the U. E. R. W. met with the
,Company and asked it to recognize that union as the exclusive bar-
gaining representative for the production employees of the Com-
pany. This request the Company rejected on the ground that there
was another organization -within the plant asking for the same rights.
-On June 10, 1937, the Company posted on its bulletin boards a notice
to its employees that it had been approached by two committees, rep-
resenting two different organizations of its employees, each demand-
ing recognition as exclusive bargaining representative for the em-
ployees; the notice announced that, without proof of its authority to
represent the workers the Company could recognize neither commit-
tee as exclusive representative, and suggested that either group peti-
DECISIONS AND ORDERS 407
tion the Board to hold an election whereby the employees' could select
the organization which they wished to have represent them. On July
2, 1937, the Company wrote to the Regional Director setting forth
its position substantially as announced in the above notice and agree-
ing to an election to be held by the Board, "providing the terms and
conditions thereof are mutually acceptable to the two organizations
involved."
We find, therefore, that a question has arisen concerning the repre-
sentation of employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several states and
with foreign countries, and tends to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The U. E. R. W. in its original petition stated as the appropriate
unit "5000 production workers." At the hearing it amended its peti-
tion as to the appropriate unit to read as follows : "all hourly paid
and piece-rate production workers, excluding inspectors, excluding
all supervisory employees (within this classification, superintendents,
foremen, assistant foremen, and group leaders) and excluding all
clerical and salaried employees (within this classification, time-study
clerks, production clerks, time clerks, and shop clerks)."
The Association contends that the appropriate unit should consist
of all nonsupervisory employees of the Company. including produc-
tion, maintenance, engineering and drafting, and clerical employees.
As of August 31, 1937, for the purposes of the issues here involved,
the Company's employees at its Wilmerding, Pennsylvania, plant
may be classified as follows :
Production employees :
Supervisory-------------------------------------------------- 165
Non-supervisory---------------------------------------------- 4947
Engineering and drafting employees :
Supervisory-------------------------------------------------- 33
Non-supervisory---------------------------------------------- 251
Clerical employees :
Supervisory-------------------------------------------------- 30
Non-supervisory---------------------------------------------- 513
Janitors and miscellaneous general office employees :
Supervisory-------------------------------------------------- 0
Non-supervisory---------------------------------------------- 23
67573-38-vol. iv-27
408 NATIONAL LABOR RELATIONS BOARD
Hospital department employees :
Supervisory-------------------------------------------------- 2
Non-supervisory---------------------------------------------- 3
Relief and pension department employees :
Supervisory-------------------------------------------------- 2
Non-supervisory---------------------------------------------- 19
Officers---------------------------------------------- ------------ 13
Total------------------------------------------------------ 6001
Supervisory-------------------------------------------------- 245
Non-supervisory---------------------------------------------- 5756
The Company's assistant works manager testified that between
June 16, 1937, the date of the filing of the petition in this proceeding,
and August 31, 1937, the date of the pay roll submitted at the hearing
and upon which the above classification of employees is based, no
employees were dropped from the pay roll and 94'summer workers
were added to the pay roll. These summer workers were taken on
during the school vacation period; and between August 31, 1937, and
the date of the hearing approximately 50 per cent of these summer
workers had left the employ of the Company to return to school.
Neither the U. E. R. W. nor the Association objected to the group-
ing together of production and maintenance employees. Included
among those classified as nonsupervisory production employees are
25 to 30 watchmen, who patrol the plant and check on fire hazards
and on persons and vehicles entering or leaving the plant gates; they
are unarmed, and are not guards or police officers. The miscellaneous
general office employees include wash and scrub women. They to-
gether with the janitors are under the supervision of the maintenance
department. No facts were presented at the hearing to indicate that
all the Company's nonsupervisory production and maintenance
employees should not be included within the same bargaining unit.
The record indicates that at the Company's plant group leaders
and working group leaders, as well as foremen and assistant foremen,
are supervisory employees. The working group leaders, in addition
to producing themselves, supervise the work of the other employees
in the group; they receive the orders for the group and have the
duty of seeing that the workers in the group perform their work
properly. Accordingly, group leaders and working group leaders
have been excluded from the bargaining unit containing the non-
supervisory employees. .
The engineering and drafting employees handle the development
and testing of new equipment. A substantial number of them are en-
gineers, designers, draftsmen, tracers, and testers, and are university
graduates or have received training at technical schools. The
economic interests of these employees are on an entirely different
plane from those of the production and maintenance workers. Also
DECISIONS AND ORDERS 409
included among the nonsupervisory engineering and drafting em-
ployees are approximately 40 or 50 semi-skilled mechanics and un-
skilled workers, who assist the engineers in erecting equipment for
testing purposes, and approximately 70 inspectors who, under the
direction of the engineering and drafting department, check ma-
terials manufactured by the production employees. These employees
are an integral part of the engineering and drafting department,
and have no community of interest with the production and main-
tenance employees. Accordingly, all, the, employees in the Com-
pany's engineering and drafting departments have been excluded
from the bargaining unit.
The clerical employees of the Company's Wilmerding, Pennsyl-
vania, plant are stationed both at the main office of the Company,
which is some distance away from the plant, and at the plant itself.
The plant clerical employees include : shop clerks, who take care of
handling orders, distribute work sheets, assemble time sheets, and
forward them to the cost department; cost clerks, who calculate the
cost of various machines and equipment on individual orders; time
study men, who check the time required to complete any given opera-
tion in the production process, make sure that tools and machines,
are in proper shape and that conditions are normal for proper pro-
duction, and indirectly assist in determining rates of pay for pro-
duction employees; timekeepers, who keep records of the working
time of employees and prepare and send these records to the pay-
master; production clerks, who check incoming orders, production of
orders as they are completed, and disposition of parts; pay office
clerks; and purchasing department clerks. The work of the Com-
pany's clerical employees brings them into close and intimate rela-
tions with its officers, foremen, and other supervisory employees.
The dissimilarity in interests between the clerical and the production
and maintenance employees in a plant like that of the Company,
and the difference in the type of work performed by them, prompt
us to exclude the clerical employees from the bargaining unit.
The employees in the hospital and the relief and pension depart-
ments are doctors, nurses, and,clerks. The dissimilarity of their
work, their training, and their interests from those of the production
and maintenance employees prompts us to exclude these employees
from the unit.
We find that all the production and maintenance employees of the
Company at its Wilmerding, Pennsylvania, plant, except superinten-
dents, foremen, assistant foremen, group leaders, working group
leaders, inspectors, clerical employees, and all employees in the engi-
neering and drafting departments, constitute a unit appropriate for
the purposes of collective bargaining and that said unit will insure
to the Company's employees the full benefit,of their right to self-
410 NATIONAL LABOR RELATIONS BOARD
organization and collective bargaining and otherwise to effectuate
the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
No evidence was introduced at the hearing upon the basis of which
we could make a finding that a majority of the employees in the
appropriate unit has designated and selected a representative for
the purposes of collective bargaining. We, therefore, directed an
election by secret ballot to determine their representative.
In accordance with our usual practice, we directed that the em-
ployees in the appropriate unit who were on the Company's pay roll
for the week including the date of the petition, June 16, 1937, should
be eligible to vote in the election.
We find that United Electrical and Radio Workers of America,
Railway Equipment Workers Local No. 610, has been designated
and selected by a majority of the employees in the appropriate unit
as their representative for the purposes of collective bargaining. It
is, therefore, the exclusive representative of all the employees in
such unit for the purposes of collective bargaining, and we will so
certify.
On the basis of the above findings of fact, and upon the entire
record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Westinghouse Airbrake Company at its
Wilmerding, Pennsylvania, plant, within the meaning of Section 9
(c) and Section 2 (6) and (7) of the National Labor Relations Act.
2. All the production and maintenance employees of the Company
at its Wilmerding, Pennsylvania, plant, except superintendents, fore-
men, assistant foremen, group leaders, working group leaders, inspec-
tors, clerical employees, and all employees in the engineering and
drafting departments, constitute a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of the
National Labor Relations Act.
3. United Electrical and Radio Workers of America, Railway
-Equipment Workers Local No. 610, is the exclusive representative
'of all the employees in such unit for the purposes of collective bar-
gaining, within the meaning of Section 9 (a) of the National Labor
Relations Act.
CERTIFICATION OF REPRESENTATIVES
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor
DECISIONS AND ORDERS 411
Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8,
of National Labor Relations Board Rules and Regulations-Series 1,
as amended,
IT IS HEREBY CERTIFIED that United Electrical and Radio Workers
of America, Railway Equipment Workers Local No. 610 has been
designated and selected by a majority of the production and mainte-
nance employees of the Westinghouse Airbrake Company at its
Wilmerding, Pennsylvania, plant, except superintendents, foremen,
assistant foremen, group leaders, working group leaders, inspectors,
clerical employees, and all employees in the engineering and drafting
departments, as their representative for the purposes of collective
bargaining, and that, pursuant to Section 9 (a) of the Act, United
Electrical and Radio Workers of America, Railway Equipment
Workers Local No. 610 is the exclusive representative of all such
employees for the purposes of collective bargaining in respect to
rates of pay, wages, hours of employment, and other conditions of
employment.