Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Mar 31, 1967

163 N.L.R.B. 723 (N.L.R.B. 1967)

WESTINGHOUSE ELECTRIC CORPORATION 723
Westinghouse Electric Corporation and
American Federation of Technical
Engineers , AFL-CIO, Petitioner.' Case
13-RC-10446.
March 31, 1967
DECISION ON REVIEW, DIRECTION, AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, BROWN, AND ZAGORIA
On February 12, 1965, the Regional Director for
Region 13 issued a Decision and Direction of
Election in the above-entitled proceeding finding
appropriate, in accord with the Petitioner's request,
a unit confined to steam service field engineers2
based at the Employer's Chicago, Illinois, district
offices, excluding all senior service assistants and all
other employees. Thereafter, in accordance with
Section 102.67 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Employer filed a timely request for review of the
Regional Director's unit determination, in which it
questioned the employee status of the requested
steam engineers on grounds that they perform duties
of a managerial or supervisory character, and also
asserted that, in any event, the unit was too narrow
in scope because it excluded electric service field
engineers. The Employer also concurrently filed a
motion to reopen the record for the receipt of further
evidence.
By telegraphic order of March 16, 1965, the
National Labor Relations Board granted the
Employer's request for review to the extent it related
to the employee status of the requested engineers.
The Board further stayed the election pending
decision on review, and reserved ruling as to other
issues raised by the request for review.3
On March 29, 1965, the Board, pursuant to the
Employer's motion, remanded the proceeding to the
Regional Director for the purpose of conducting a
further hearing with respect to the alleged
supervisory status of the requested steam engineers.
On April 28 and 29, 1965, such further hearing was
conducted before Hearing Officer Stephen Rubin.
The case was thereafter returned to the Board.
Subsequently, the Petitioner filed a brief and the
Employer filed a supplemental brief in which, among
other things, the Employer moved that the petition
be dismissed. For reasons set forth below, this
motion is denied.
The Board has reviewed the rulings of the Hearing
Officer made at the supplemental hearing and finds
they are free from prejudicial error. The rulings are
hereby affirmed.
The Board has considered the request for review
and the entire record in this case with respect to the
Regional Director's determination under review, and
makes the following findings:
A. The Facts
Through its nationwide Steam Service
Department, the Employer is engaged in the sale,
installation, and service of the steam turbine,
hydroelectric, and related electric-generating
machinery and equipment it manufactures. It has
organized this part of its operation into five area
divisions, with a number of district offices under
each division.4 Each district office has a staff of
steam engineers employed to service customer
orders within the district's territorial jurisdiction.
The engineers here requested, approximately 18 in
number, comprise the steam engineering
complement based in the two Chicago, Illinois,
district offices.5 Although there is some history of
bargaining for steam engineers assigned to other
districts, there is none for the requested engineers.6
The engineers here involved are salaried, and
have some specialized technical or professional
knowledge and training in installing, servicing, or
repairing Employer-manufactured steam-generating
equipment. They all have some orientation in
mechanical engineering, and some have academic
degrees.7 While all are employed in jobs similarly
titled, senior employees with extensive on-the-job
experience are rated on the internal records of the
Employer as class "A" engineers. Others are rated
as class "B" or class "C" engineers, the latter being
the entrance rating. The Employer confines certain
' Federation of Westinghouse Independent Salaried Unions
was granted permission to intervene in the proceedings before
notice of hearing had issued on the basis of showing of interest
among the requested engineers. However, although notified, it did
not appear at the hearing , and has not since filed any documents
in the case.
s Hereinafter sometimes referred to as either "steam
engineers" or as "engineers."
J The Board is now satisfied that , except for the matters on
which review was granted, the Employer 's request for review
raises no material issues of fact or law. Accordingly, the Board
hereby denies that part of said request for review as to which it
heretofore reserved ruling
" Each area division is headed by an area manager, and each
district office is headed by a district manager The latter
immediately supervises the operations of the district office and,
with the assistance of one or more senior service assistants
163 NLRB No. 96
(admitted supervisors ) assigns to steam engineers within that
office the work hereafter described
S Both these offices are located in the Merchandise Mart and
are part of the Employer's Central Area division
6 The Employer has bargained and is currently bargaining with
the Intervenor for steam engineers employed in the New York
City, and the Detroit, Pittsburgh, and Cincinnati districts. The
latter three are part of the Central Area division. In each case, the
engineers are part of larger units extending in scope to other
salaried classifications . This bargaining history goes back many
years and precedes the Employer 's institution, in late 1963, of
certain new engineering services of relevance to its position here
7 The petition had originally described the engineers as
"technicals ." The Regional Director described them as
"professionals " None of the parties disputed this description in
any documents filed with the Board.
295-269 0-69-47
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lead assignments involving major work projects to a
group of its A-rated engineers , using the others for
the routine service and repair work or for
subordinate engineering posts on major projects.
The record shows that all job duties of the
engineers are assigned with reference to specific
customer job orders. When the Employer receives a
customer job order, it usually assigns a team of at
least two steam engineers to perform the
professional or technical work the order may call for,
designating one as the "lead" engineer and any
others as assistant or phase engineers." A lead
engineer has overall responsibility for the successful
completion of the project work, and his association
with a particular project usually begins at the prejob
stage and terminates with the completion of the
project.9 An assistant engineer 's responsibilities, on
the other hand, are normally limited to one phase or
portion of the project work, and his association with
a given project is usually limited to the particular
phase involved.
The major portion of the work assigned to steam
engineers is performed at customers' sites.10
Engineers perform such work without supervision."
Each such assignment involves either an order for
the repair or servicing of existing power units, or one
for the assembly and installation of new units. In all
cases, the completion of the ordered project work
requires the cooperative efforts of both steam
engineers and crews of skilled labor-the former to
supply the professional and technical guidance for
the project work, and the latter to do the manual
tasks all project work entails.12 As indicated below,
such manual craftsmen may be supplied either by
the customer or by the Employer, depending upon
the terms of the formal prejob service contract
between the customer and the Employer.
8 There is normally only one individual designated as a "lead"
engineer for any customer work project, but there may be several
assigned as phase or assistant engineers during the duration of a
project, the precise number depending on the size of the project
and/or the nature of the engineering problems involved
The Employer specifies what duties each assistant engineer
shall perform in advance of assignment to a given project Among
other things , it appears that some engineers have acquired special
experience in particular phases of turbine installation and repair
work (one example being the setting of controls), and are usually
assigned such work when the order calls for it
0 There is no contention, and no evidence, that leadmen have or
exercise any supervisory authority over assistant engineers on any
projects
10 At the prejob stages of major projects , an engineer prepares
a time, labor , and materials estimate and sits in with the
Employer 's officials at preliminary negotiations with a customer
to give technical advice The engineer has no authority, however,
to commit the Employer in any way in such negotiations
11 While management officials occasionally visit the jobsite,
none of -hem are regularly present to supervise the project work
12 The installation or servicing of the power plant or machinery
customarily requires a combination of both the professional or
technical know -how of the steam engineers and the physical
efforts of laborers possessing craft-type skills of the kind
associated with journeymen steamfitters, millwrights, mechanics,
carpenters, plumbers, electricians, and the like The record
The Employer currently offers its customers two
types of service arrangements. These are identified
as: (1) a "technical supervision only" service; and
(2) a "labor contract" service.13 In providing
"technical supervision" service, the Employer
furnishes parts and materials at listed prices, and
engineering guidance at specified hourly rates per
engineer. The Employer does not assume any
obligation to supply or pay for the manual labor for
the project work, and it confines its liability for the
job to "matters of technical judgment only." In
providing "labor contract" service, however, the
Employer, in return for a total project fee, takes on
all responsibility for the project work, including the
obligation to hire and pay all laborers under terms
and conditions it may establish independently," and
to furnish all the specified materials and supplies. It
gives the customer a completed job and an
unconditional guarantee for the performance of the
project work. The Employer makes either type of
service available without regard to whether the work
order entails installation of new machinery or the
repair or maintenance of existing installations. It
appears, however, that in practice the Employer
contracts most new installation work on a labor-
contract-service basis, and repair work on a
technical-supervision basis.
Engineers assigned to technical supervision
projects work directly with and through a customer's
project supervisor and/or line foreman.15 The lead
engineer, with the assistance of phase or assistant
engineers, and in cooperation, with the customer,
makes out the overall schedules, plans, and layouts
of the specific tasks the craftsmen are to do and the
sequence in which they are to do them. In making
the requisite determinations, the engineers take into
consideration the number of craftsmen the customer
identifies the workmen who performed the manual work
described herein as "union " journeymen. The record also
indicates that , in all cases , the craft crews are of sufficient size to
require, under union conditions , the designation of a journeyman
to head the crew as a line foreman Such foreman may supervise
several types of craftsmen.
13 This service was newly instituted in late 1963.
14 The necessary hiring arrangements are customarily made at
the prejob stages by Employer officials who contract to obtain the
needed project workmen through labor suppliers in the project
area While the Employer sometimes uses a labor broker as a
source of labor supply, it more usually arranges to obtain project
workmen directly through building trades labor unions In either
instance , its project workmen are employed under such union
conditions as prevail in the project area and/or as are
implemented by special negotiations
15 On technical supervision projects, the line supervisors, like
the individual workers, are employees of the customer On
smaller projects, the customer ' s project supervisor and line
foreman may be the same individual On larger projects, the
customer may have a number of line supervisors with duties
limited to a particular work crew, and an overall project
supervisor with duties extending to the entire project Where
there is such a project supervisor representing the customer, the
lead engineer works through him in issuing the plans , schedules,
and supplementary professional or technical advice about the
work
WESTINGHOUSE ELECTRIC CORPORATION 725
chooses to make available for the project work,16
the nature of the prejob construction plan, and,
once the work commences, the amount of work
actually completed. The lead and/or assistant
engineer also inspect the work as it progresses. In
performing these functions, the engineers advise the
line foreman what their day-to-day work plans and
schedules call for by way of manual labor, and
implement this advice with other necessary
technical instructions about the work. The line
foreman, in turn, actively supervises and directs the
individual laborers' work activity. The line foreman
(not the engineer) regularly distributes and assigns
the work tasks described in the engineers' work
plans to the individual members of the labor crew.
Such foreman also regularly issues to each
crewmember any verbal instructions about the
work; checks each individual's work performance
(as distinguished from the total work result), and
administers any reprimands or disciplinary
measures when required.
Engineers at project sites operated under labor
contracts have some job duties similar in nature to
those of engineers assigned to technical supervision
service projects. These similar duties include such
tasks as the planning, scheduling, and laying out of
the work tasks of the craft crews, and the inspection
of the work as it progresses to insure a satisfactory
work result. However, consonant with the additional
obligations the Employer has assumed vis-a-vis its
customers, lead engineers on these projects are
given certain additional administrative duties and
responsibilities. These special duties include
purchasing construction materials and supplies from
specified sources, as well as incidental materials;
requisitioning from labor unions or other suppliers of
labor the necessary craftsmen and line supervisors;
establishing a payroll and project account system;
paying all bills; and making any incidental
arrangements for subcontracting of certain work,
should the construction plan so specify.[' In thus
regulating the project work in accord with the
Employer's contractual commitments, lead
engineers have limited authority to vary certain
parts of the construction plan and to direct
occasional overtime work. Should they decide,
however, that some course of action is necessary
which would result in a substantial increase in the
costs of the job, lead engineers must obtain the
specific approval of higher management before
proceeding.
While their duties on labor contract projects are
primarily professional in nature, lead engineers, in
performing their functions, may at times be called
upon to make decisions of a supervisory character
vis-a-vis the craftsmen doing the project work. Thus,
there is evidence that line foremen, who
immediately supervise the craft crews and make
selective termination decisions in the first instance,
seek the approval or concurrence of the lead
engineer before making the decision final. The
record further shows that union stewards
representing the interests of project craftsmen have
presented grievances to lead engineers of a
jurisdictional nature and have accepted such
engineers' determinations of the controversy
involved.
Assistant engineers assigned to labor contract
projects have responsibilities substantially identical
to those of assistant engineers on technical
supervision projects. Their primary function is to
provide the leadman with technical support and
guidance with reference to particular phases or
portions of the construction work. In performing this
function, they are expected to make the professional
or technical judgments required in order to obtain a
satisfactory work result. But, in so doing, they
neither reprimand, discipline, nor otherwise take
any independent action affecting the employee
status of any individual workman; nor are they
authorized to do so. Thus, according to undisputed
evidence, the Employer has never directly or
indirectly instructed or advised any engineers,
except those assigned as leadmen on labor contract
projects, that their responsibilities for project work
contemplate or permit their initiation or exercise of
any disciplinary or other supervisory action over
project craftsmen. Moreover, according to the
undisputed testimony of engineers who testified at
the hearing, none except those who served as
leadmen on labor contract projects ever assumed he
had any supervisory authority, or ever attempted to
exercise any such authority, in the course of
planning or observing any project work, or in issuing
technical instructions with respect to such work.
B. Conclusions
As appears from the foregoing facts, the scope of
an engineer's functions and the nature and extent of
the judgments an engineer is called upon to make
varies from job to job, depending in part upon the
16 On most orders of this type, the customer is usually able to
supply the requisite craftsmen from among his regular plant
employees Should it become necessary for the customer to hire
other employees , it normally obtains them from labor union
sources in the area under terms and conditions it negotiates
independently of the Employer
it For purposes of establishing a payroll system and doing the
paperwork necessary to requisition supplies, and to keep track of
costs , the Employer furnishes each leadman with a kit containing
such things as timeslips and tax , insurance , and certification
forms.
The Employer also provides the leadman with a project bank
account in his (the engineer's) name to pay the wages and other
previously contracted obligations of the Employer in connection
with the project 's operations . The lead engineer has authority to
draw on this account also for extra purchases up to a
preestablished amount (usually at least $500) without getting
specific approval from the district office.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
type of contract involved, and in part upon whether
the engineer' s assignment is to a lead or to an
assistant engineer position. In our view, the status of
an engineer as a "supervisory" or "managerial"
agent of the Employer, and his right therefore to be
represented as an employee, varies accordingly.18
Contrary to the Employer's contention, the record
does not justify a finding that engineers possess or
exercise any managerial or supervisory authority,
within the meaning of the Act, when serving on
technical supervision projects either as lead or
assistant engineers, or on labor contract projects as
assistant engineers. We are persuaded, rather, that
the duties and responsibilities engineers perform in
such capacities are basically professional in nature.
It is true, of course, that proper performance of all
such engineering work requires a high degree of
technical competence and the use of independent
judgment with respect to matters of importance to
the Employer's financial and other managerial
interests. But such characteristics are typical of the
work which Section 2(12) of the National Labor
'Relations Act, as amended, defines as
"professional" work.19 So far as the record shows,
the responsibilities thus entrusted to the
independent judgment of the engineers involved do
not include matters of policy such as the
establishment of the Employer's contract with the
customer, the determination of the contract's scope,
or the making of any commitments which would
entail a pledge of the Employer's credit in any
significant amounts.20 We therefore find no merit in
the Employer's claim that some of the work
responsibilities of lead or assistant engineers on
technical supervision projects, or of assistant
engineers on labor contract projects, are
"managerial" in nature. Nor do we find that any of
the regular duties of these engineers contemplates
or requires the exercise, within the meaning of the
Act, of "supervisory" authority over any of the
project workmen whose work activity, as a group,
the engineers plan for, lay out, and coordinate.
When engineers are assigned by the Employer to
technical supervision projects, it is conceded that on
such projects the project workmen and their
immediate supervisors are employed and paid by the
customer-not the Employer. Therefore, and wholly
19 In evaluating the critical record facts, we have not regarded
as relevant the title held by an engineer on any given work
assignment For it is clear that an individual's status under the
Act is determined by his job content and responsibilities rather
than by his title
19 Our review of precedents in this area reveals a number of
cases in which the Board has found, over this Employer's
objections, that certain of its professional or technical employees
with work responsibilities of a comparable character, having no
less important bearing on the Employer's financial or other
managerial interests than those of the instant engineers, were not
so closely allied to management as to preclude their inclusion in
units of professional or technical employees See, for example,
our rulings in Westinghouse Electric Co , 113 NLRB 337 (as to
manufacturing engineers ), Westinghouse Electric Co , 97 NLRB
1
apart from any other considerations, established
precedent precludes a finding that such engineers
on such projects are employed as "supervisors," in
the statutory sense.21 With respect to assistant
engineers assigned to labor contract projects, the
record evidence, summarized above, fails to
establish either that they have been advised by the
Employer's officials that they have any
"supervisory" authority with reference to the project
workmen, or that they customarily perform their
duties in such a manner as to warrant attributing
supervisory status to them.
We conclude, accordingly, that engineers on
technical supervision service jobs (in either the lead
or in assistant positions), as well as assistant
engineers on labor contract service jobs, do not
possess or exercise any managerial or supervisory
authority. We shall therefore include within the unit
found appropriate by the Regional Director,22 all
Chicago-based steam service field engineers who
have heretofore served only as lead engineers on
labor contract projects.
The status of engineers assigned as leadmen on
labor contract projects poses a more difficult issue.
It is true, as the Petitioner points out, that a
substantial portion of their work is primarily
professional in character. However, we are satisfied
that they also have certain special duties and
responsibilities, vis-a-vis the craftsmen employed by
the Employer for the project work, that are clearly
supervisory in character. In these circumstances we
find, in agreement with the Employer, that when
engaged as lead engineers on labor contract
projects, the individuals so assigned have
supervisory status within the meaning of the Act.
Remaining as a problem is the unit placement and
eligibility of those individual engineers who, during
the course of their employment, have been or
presently are sometimes called upon to serve as lead
engineers on labor contract jobs. Depending upon
their availability and the Employer's requirements,
those given the lead engineer assignments are
selected from a pool of senior engineers who
otherwise perform nonsupervisory engineering
work.
The Employer seeks the wholesale exclusion of all
within this pool of senior engineers. It would
1271, 1272 (as to method engineers), and Westinghouse Electric
Co , 92 NLRB 871, 872 (as to a tool engineer ). Other cases with
rulings of relevance here include Puget Sound Power and Light
Co, 117 NLRB 1825, and Western Electric Co , 100 NLRB 420
20 As indicated by one or more of the cases cited supra , neither
the fact that management officials may rely upon the engineers'
recommendations in dealing and contracting with customers, nor
the fact that they rely upon the engineers ' time and material
reports for purposes of billing customers, supports attributing
"managerial" status to the engineers
21 See , for example , ILGWU (AFL-CIO) v N L.R B, 339 F 2d
116 (C A 2); Textile Workers Union ofAmerica, et al, 139 NLRB
800, 802, and Lindsay Newspapers, Inc, 130 NLRB 680
22 We have not disturbed the Regional Director 's findings as to
the appropriate scope of the unit. See fn . 3, supra
T
WESTINGHOUSE ELECTRIC CORPORATION
apparently justify such a class exclusion because of
evidence showing that, over a 12-month business
period covered by the record,23 each of the six
Chicago-based engineers then identified as part of
the lead engineer pool actually performed some
supervisory lead work. However, an analysis of the
individual work records of these engineers
establishes a wide variation, as between individuals,
in the proportion of the work year's time each spent
in supervisory lead engineer work, from a high of
about 95 percent to a low of about 15 percent. This
analysis further establishes that three of the six
engineers spent more , and the others less, than one-
half of their work year in such work.24 We do not
believe, therefore, that we should ignore the actual
work experience of each individual engineer in
resolving the unit and eligibility problems involved.
Nor, in the circumstances of this case, do we
believe we should wholly deny the benefits of
employee status to any engineer who acquires the
major part of his work experience during a work year
in nonsupervisory work, as here defined, simply
because he has spent some of his time during such
year in supervisory lead work. For it is clear that
such engineers are primarily attached to the
nonsupervisory work force and that they share a
substantial community of interest with their fellow
nonsupervisory engineers in the conditions
governing the performance of unit work. Their
situation is, we believe , similar to that of the
seasonal supervisors we considered in the Great
Western Sugar Company case ,25 and , under the
concept of that case, the engineers here involved
who are primarily attached to the nonsupervisory
force should likewise be granted a right to
representation limited to periods they are employed
in nonsupervisory engineering work.
23 The record reveals that all parties adopted a 12-month
business period as a basis in offering arguments on the basic issue
as to whether all engineers are regularly called upon to perform
supervisory duties for a substantial part of their worktime. And
the record otherwise persuades us that, in any event, use of a 12-
month period for testing the status of any of the engineers here
involved is equitable in view of the nature of the Employer's
operations and the fluctuations in its engineering needs for
supervisory lead work, on the one hand , or nonsupervisory work,
on the other , which occur as a result of such external factors as
customer choice Accordingly, when speaking of a "work year"
hereafter we shall be referring to a 12 - month calendar period.
24 The record shows that these wide variations in individual
employment histories occurred despite the fact that in the period
considered the Employer expended more of its total engineering
hours in performing labor contract orders than it did in
performing technical supervision orders It is therefore evident
that the factors which produced the wide disparity in the
employment history of individual engineers were unrelated to the
amount of work ordered on a labor contract basis Accordingly, to
the extent that the Employer claims that an excess of labor
contract commitments over technical supervision commitments is
relevant to a determination of the unit placement issue here
involved, we find its argument to be without merit.
25 Great Western Sugar Company, 137 NLRB 551 There the
Board considered the question of whether individuals employed
in a seasonal industry who spent the major portion of the work
year as rank- and-file employees , but who were assigned
727
Thus, the record here reveals that the supervisory
jobs which the senior engineers may be called upon
to perform are not regularly and closely intermingled
with their nonsupervisory work activity. Rather,
depending on the Employer's assignment, their
status shifts, full-time, from supervisory to
nonsupervisory work for a measurable and
continuous period of time, and their duties in each
position are sharply demarcated. Moreover, when
employed as supervisory leadmen, their right to
exercise supervisory authority does not extend to
any other engineers but is limited, rather, to the
nonprofessional craft employees hired for the
project work.26
In accord with the principles established in the
Great Western Sugar case, we shall therefore qualify
as eligible to vote and include within the unit any
engineer currently employed during the payroll
period preceding the date of this Decision and on the
election date who, during the 12 months preceding
the date of this Decision, spent 50 percent or more of
his working time (excluding leave or waiting time, if
any) performing nonsupervisory duties, as defined
herein. This formula shall be determinative
notwithstanding the type of assignment any given
engineers might have at the time of the election, with
the condition that, in the event a bargaining
representative is selected, it may not represent any
engineer with respect to his supervisory duties.
DIRECTION
The case is hereby remanded to the Regional
Director for Region 13 for the purposes of holding an
election pursuant to his Decision and Direction of
Election , with the following amendments:
(1) The eligibility status of engineers the
supervisory duties for a remaining period, should be excluded
from the rank -and-file unit and denied a voice in the selection of a
bargaining representative. The Board there held that such
individuals had a right to be included in the unit , but only with
respect to their rank-and-file duties It held further, that , as each
of them had a substantial interest in the choice of a rank - and-file
bargaining representative , each of them was eligible to vote in the
election, irrespective of his job assignment as of the date of the
election.
2e Here, as in Great Western Sugar, we have given due
consideration to the fact that even with this limited grant of a right
to representation to such engineers for nonsupervisory work only,
there may be problems for both the Employer and the Union
based upon fears of "divided loyalty " As we noted in that case,
this problem is commonplace whenever an employer decides to
promote a rank -and-file employee to be a supervisor , i e , when
there is a shift in employee status, up or down . The problem
would seem to be minimal here, if it exists at all, as the
supervisory authority of engineers here involved is exercised with
reference to a separately organizable and differently oriented
group of temporary workers wholly outside the scope of the unit
We note, in this connection that , should a union seek to represent
any group of craft employees of the employer in a unit including
also any of the subject engineers , Section 9(b)(1) of the Act would
preclude establishment of such a unit in the absence of the
express consent of the professional engineers , as manifested in a
Board election.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer has heretofore assigned as "lead"
engineers on labor contract projects shall be
determined in accord with the formula set out in this
Decision; and (2) the payroll period for determining
eligibility shall be that immediately preceding the
date above.
ORDER
The Employer' s motion to dismiss the petition is
hereby denied.
Sandy's Stores , Inc. and Local 1325, Retail
Clerks International Association , AFL-CIO.
Case 1-CA-4818.
March 31, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND ZAGORIA
On April 5, 1966, Trial Examiner George J. Bott
issued his Decision in the above-entitled proceeding,
finding that the 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 Trial
Examiner also found that the Respondent had not
engaged in certain other alleged unfair labor
practices. Thereafter, the General Counsel and the
Respondent filed exceptions to the Trial Examiner's
Decision and supporting briefs. The Respondent
also filed a motion to amend its exceptions,' and an
answering brief.
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.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
entire record in this case, including the Trial
Examiner's Decision, the exceptions, and the briefs,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner or'7 to the
extent they are consistent with the Board's Decision
herein.2
1. We find, in agreement with the Trial Examiner,
that on numerous occasions between June and
December 1964, Respondent coercively interrogated
employees about their union activities , threatened
employees with reprisals for engaging in union
activities , created an impression of surveillance of
union activities , and promised and granted to
employees benefits to discourage union activities, in
violation of Section 8(a)(1).3
2. In agreement with the Trial Examiner , and for
the reasons stated by him , we find that Respondent
discharged employee Kearns on December 23, 1964,
because of her union activity in violation of
Section 8 (a)(3) and (1).
3. The Trial Examiner found that the Respondent
did not violate Section 8(a)(5) by refusing to bargain
with the Union on August 26, 1964 . We disagree, for
the following reasons.
The basic facts are as follows. In June 1964,
Local 1325 , Retail Clerks International Association,
AFL-CIO, herein the Union, began efforts to
organize the employees of Sandy's Stores, Inc., the
Respondent herein , at its store at North Attleboro,
Massachusetts , including employees in leased
departments . Between June 9 and August 25, 1964, -
the Union secured authorization cards from 57
employees . On August 25, 1964, the Union filed a
representation petition in Case 1-RC-8016 in which
it sought an election among all full-time and regular
part -time employees in the above store and in leased
departments at that store . On the same day, the
Union wrote Respondent requesting recognition in
that unit and offering to submit proof of its majority
to an impartial person ; the Union reminded the
Respondent that its filing of the representation
petition did not relieve the Respondent of its duty to
bargain . By letter dated September 1, Respondent
rejected the demand for recognition for the reason
that the unit sought was inappropriate. On
October 14 , a representation hearing was held, and
on November 4, 1964, the Regional Director issued a
decision finding the unit sought was appropriate and
directing an election .4 On December 2, 1964, the
original charges were filed in the instant case.
The Trial Examiner initially found , and we agree,
that the appropriate unit comprises all full- and
regular part -time employees at the Respondent's
North Attleboro store including employees in the
leased departments .-" The Trial Examiner also found
that on August 26, 1964, the date on which the
Respondent received the Union 's request for
' In the absence of any opposition thereto, we hereby grant this
motion, in reaching our decision, we have considered
Respondent's additional exceptions
' In the absence of exception, we adopt pro forma the Trial
Examiner's findings that the Respondent did not violate
Section 8(a)(1) by Supervisor Stryer's comments around the end
of November 1964, to employee Linda Crawford, or by
Respondent's granting of Christmas bonuses in 1964
3 The complaint alleges that the Respondent committed other
unfair labor practices in violation of Section 9(a)(1) in addition to
those found herein, the General Counsel filed exceptions to the
Trial Examiner's failure to find such violations However, we find
it unnecessary to consider or pass on such incidents and shall
make no additional findings regarding these allegations, as in our
opinion such findings would merely be cumulative and would not
affect the remedy
Respondent filed no request for review of this decision
This, as noted, was the unit petitioned for by the Union and
the unit found appropriate by the Regional Director in the
representation proceeding
163 NLRB No. 95