Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Apr 6, 1967

163 N.L.R.B. 914 (N.L.R.B. 1967)

914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Side Grocery, Cotton Foods Shop, Stone Meat
Packing, Inc., or any other person other than Oak
Ridge Dairy and John Pralle, where an object thereof
is to force or require any person other than Oak Ridge
Dairy to cease doing business with John Pralle.
DAIRY EMPLOYEES UNION,
LOCAL 754, INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(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 provisions, they may communicate
directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 S. Dearborn
Street, Chicago, Ill. 60604, Telephone 353-7597.
Westinghouse Electric Corporation and Oil,
Chemical and Atomic Workers Interna-
tional Union , AFL-CIO, Petitioner. Case
15-RC-3477.
April 6, 1967
DECISION AND DIRECTIONS OF ELECTIONS
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act. as amended, a
hearing was held before Hearing Officer R. Kelly
Baird. The hearing officer's rulings made at the
hearing are free from prejudicial error and are
hereby affirmed. The Employer, Petitioner, and the
Intervenors have filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer, Westinghouse Electric
Corporation, is engaged in commerce within the
meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. It is undisputed, and we find, that Petitioner,
Oil, Chemical and Atomic Workers International
Union, AFL-CIO, and Intervenors: Building & Con-
' Homer Knost is a well-established Louisiana corporation
engaged in heavy industrial contracting and maintenance work. It
has operated this business for 10 years in the New Orleans area.
struction Trades Council of Greater New Orleans;
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, Local Union
No. 60; Construction & General Laborers' Local
Union 689; and New Orleans Carpenters District
Council, AFL-CIO, are labor organizations within
the meaning of Section 2(5) of the Act.
3. A question affecting commerce exists
concerning the representation of certain employees
of the Employer within the meaning of
Section 9(c)(1) and Section 2(6) and (7) of the Act.
4. Union Carbide Corporation recently con-
structed a petrochemical facility at Taft, Louisiana.
The facility is a highly technical, automated, and
computerized operation and was in part designed
and built by the Westinghouse Electric Corporation.
To assure the proper performance of this facility,
Union Carbide entered into a 3-year contract with
Westinghouse on or about May 1, 1966, by which the
latter undertook to provide whatever maintenance
was required by this facility. In June 1966,
Westinghouse began hiring maintenance employees
to perform the needed services. In the first week of
August, Westinghouse solicited bids from
companies for the subcontracting of their
maintenance work. On August 18, a subcontract was
awarded to the Homer Knost Construction
Company' for the maintenance work. Westinghouse
agreed to reimburse Homer Knost for certain
obligations incurred, including the cost of labor
provided, plus a subcontractor fee of 4.6 percent of
the payroll costs.
Soon after entering into this agreement with
Homer Knost, Westinghouse informed the
employees it had already hired to perform
maintenance work that their work had been
subcontracted but that they would be given an
opportunity to work for Homer Knost if they wished.
Most of these maintenance mechanics thereafter
accepted work from Homer Knost.
The maintenance work at the Taft facility is
initiated each day on orders submitted to
Westinghouse by Union Carbide. Westinghouse
employees, who are specialists in such fields as
computerization and production flow systems,
analyze the work orders, determine material
requirements, and plan and schedule the work to be
done. These specialists then meet with foremen of
Homer Knost and inform them of the work that
maintenance employees will be required to perform.
The Petitioner seeks to represent all
Westinghouse employees at the Union Carbide
facility at Taft, Louisiana. It contends that such a
unit would consist of shipping attendants,
instrument systems analysts, and maintenance
employees. While the maintenance employees are
For the past 6 years, it has been performing a maintenance
agreement for the Borden Chemical Company in Geismar,
Louisiana.
163 NLRB No. 121
WESTINGHOUSE ELECTRIC CORP. 915
presently on the payroll of Homer Knost
Construction Company, Petitioner maintains that
Homer Knost is an alter ego of Westinghouse and
that the latter in effect is the employer of these
employees. Westinghouse and the Intervenors
assert that Westinghouse and Homer Knost are
separate, distinct, and unrelated employers; that
they are neither joint nor alter ego employers of any
employees; and that as the maintenance workers are
only employees of Homer Knost, they should not be
included in the unit of Westinghouse employees
sought by Petitioner. Westinghouse further
contends that the unit should be limited to shipping
attendants on its payroll at the Taft, Louisiana,
operation. The Intervenors do not take any position
with respect to the unit placement of any employees
other than the maintenance employees on this
jobsite.
In support of its position that Westinghouse and
Homer Knost have an alter ego relationship,
Petitioner relied to some extent on evidence that the
maintenance employees were given orders directly
by supervisors of Westinghouse and that these
supervisors also had occasion to call maintenance
employees to perform overtime work. However, the
record reveals that the instances of such direct
supervision were isolated and occurred after a
supervisor of Homer Knost had assigned the
particular maintenance employees to a job or area.
Further, it appears that Westinghouse supervisors
called these employees for overtime work only in
emergencies after securing approval from a
supervisor of Homer Knost. The latter determined
the number of employees and crafts required to
work overtime. Moreover, while the subcontract
contains a provision under which Westinghouse
could require Homer Knost to exclude disorderly,
incompetent, or objectionable persons from working
at the site, on the one occasion when an employee
was discharged pursuant to such a Westinghouse
request his employment was terminated only after a
separate investigation by Homer Knost and after the
employee's union representative and all parties
concerned had discussed the matter at a grievance
meeting.
Other evidence discloses that Homer Knost and
Westinghouse share the same house trailer as an
office. Plant tools used by maintenance employees
are charged to Westinghouse. Also maintenance
employees are wearing Westinghouse hats and using
Westinghouse identification cards until Homer
Knost can obtain its own equipment.
Westinghouse and Homer Knost do not have any
financial or other relationship between them, apart
from those dealings arising from the instant
subcontract. Both companies have separate and
distinct labor relations policies. Westinghouse
employees must pass preemployment physical
examinations not required of those employed by
Homer Knost. Westinghouse has its own seniority
system and a companywide pension and insurance
plan, vacation, and holiday benefits not applicable to
the maintenance employees.
Homer Knost has collective-bargaining contracts
with several unions in the New Orleans Building and
Construction Trades Council, through whom it hires
its craft employees including the maintenance
employees involved herein. Homer Knost negotiates
and administers such agreements and adjusts any
grievances arising therefrom. Under these
agreements Homer Knost determines which
individuals on the maintenance crew at the Union
Carbide plant are entitled to wage increases and
which are to be laid off during a reduction in force.
At the site, work is generally assigned to these craft
employees by the foreman of Homer Knost.
Employees must arrange any time off with their
superintendent and their craft foreman. Homer
Knost keeps its own payroll and deducts various
payroll taxes and contributions including social
security, unemployment compensation, accident,
and health insurance. It also remits union dues when
authorized by a checkoff provision in the applicable
contract.
Employees of both Westinghouse and Homer
Knost observe the general safety rules maintained
by Union Carbide at the site. In addition,
Westinghouse and Homer Knost have their own
rules which each applies to its employees. Thus,
there was evidence that Homer Knost discharged
two employees at the site for violating its rule against
excessive absenteeism.
It is apparent from the foregoing that control of
wages, hours of employment, fringe benefits, day-to-
day operations, grievances, and labor relations
matters directly affecting the maintenance
employees is lodged with Homer Knost. While the
record reveals that Westinghouse reviews the
timesheets of Homer Knost employees for the
purposes of auditing, and on occasion has directly
supervised the work of these employees, such
conduct is clearly consistent with that of a
contractor seeking to police its subcontract. In any
event, this modicum of control would itself hardly
suffice to establish an alter ego relationship.
Accordingly, we find, upon the entire record, that
Homer Knost is not an alter ego of Westinghouse
and that Westinghouse is not the employer of the
maintenance employees here involved.2 In these
circumstances, we find that there is no basis for
their inclusion in a unit covering Westinghouse
employees.
As already indicated, Petitioner requests a unit
that includes instrument systems analysts and
shipping attendants. Westinghouse asks the unit be
limited to shipping attendants, asserting that
L Space Services International Corporation, 156 NLRB 1227
295-269 0-69-59
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instrument systems analysts are technical
employees who should be excluded.
The record discloses that instrument systems
analysts are primarily engaged in troubleshooting for
problems that arise in the facility 's instrumentation
system . In the performance of this work, they
employ sophisticated skills requiring a thorough
knowledge of electronics and the ability to devise
electronic systems. They must be able to analyze
problems and devise methods and procedures for
locating the source of trouble . Utilizing these
procedures , they must trace the system's
complicated "loop" control circuits to find the
malfunction . To accomplish this, analysts must have
a thorough knowledge of electronics and of the
individual components comprising the system and
must be able to read and interpret complex
schematic diagrams and to devise systems and
controls. To qualify for this position , an individual
must have an electronic background and previous
work experience in process instrumentation.
Westinghouse generally recruits only those
individuals who have 4 or 5 years of such experience,
but will accept individuals with an electronic trade
school or college background provided the individual
also possesses some experience in this field. On the
basis of the foregoing , we find that instrument
systems analysts are technical employees.3
Technical employees are not automatically
excluded from the units of other employees
whenever their unit placement is in issue . Rather,
the Board will determine their unit placement on the
basis of their community of interests.'
The record reveals that instrument systems
analysts work on a day-shift basis, in all areas of the
plant . They receive direction from Westinghouse's
electrical superintendent and work with plant
engineers at the site . Occasionally, they give
technical advice to craft employees. Instrument
systems analysts, who earn 20 to 30 percent more
than shipping attendants , are paid on a salary basis,
receiving the applicable pension , vacation , and sick
leave benefits. In contrast , shipping attendants are
hourly paid employees who work only on a rotating
shift basis . They perform physical labor and do not
possess any particular skills, experience, or
electronic background . They perform their duties in
a few designated loading and unloading areas under
their own supervision . Unlike the systems analysts,
they do not receive life insurance or personal leave
benefits . Nor is there any interchange between the
two groups of employees.
In light of the different skills and training
required , work functions performed , working
conditions , methods of payment and benefits
received , separate supervision , the absence of any
interchange , and the separate community of
interests fostered thereby, we find that two separate
and distinct units are appropriate .5 Therefore, we
shall direct elections in two separate units composed
of (1) instrument systems analysts and (2) shipping
attendants.6
Accordingly, we find that the following
employees' employed by Westinghouse Electric
Corporation at the Union Carbide facility in Taft,
Louisiana, constitute separate units appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act: (1) all instrument
systems analysts and technical employees,
excluding office clerical, confidential and
managerial employees, professional employees,
guards, and all supervisors as defined in the Act;
(2) all shipping attendants, excluding office clerical
employees, technical employees, confidential and
managerial employees, professional employees,
guards, and all supervisors as defined in the Act.
[Text of Directions of Elections8 omitted from
publication.]
'The Armstrong Rubber Co , Pacific Coast Division , 144 NLR B
1115,1119
Robbins & Myers, Inc, 144 NLR B 295 , The Sheffield
Corporation , 134 NLRB 1101
The Armstrong Rubber Co , supra
^ As the original showing of interest was for a unit different
from those found appropriate , the Directions of Elections are
subject to an administrative showing of interest in the units found
appropriate Robbins & Myers, Inc , supra , at fn 11
At the hearing the parties stipulated that office clericals
should be excluded from any bargaining unit found appropriate
8 An election eligibility list , containing the names and
addresses of all the eligible voters in each of the respective units
in which an election is hereby directed , must be filed by the
Employer with the Regional Director for Region 15 within 7 days
after the date of this Decision and Directions of Elections These
lists may initially be used by the Regional Director to assist in
determining adequate showings of interest The Regional Director
shall make these lists available to all parties to the elections when
lie shall have determined that an adequate showing of interest
among the employees in each unit found appropriate has been
established No extension of time to file these lists shall be
granted by the Regional Director except in extraordinary
circumstances Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper objections
are filed Excelsior Underwear Inc , 156 NLR B 1236
Maryland Specialty Wire , Inc. and United
Steelworkers of America , AFL-CIO. Case
5-CA-3521.
April 6,1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On December 30, 1966, Trial Examiner Eugene F.
Frey issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
163 NLRB No. 124