Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Mar 28, 1946

66 N.L.R.B. 1297 (N.L.R.B. 1946)

In the Matter Of WESTINGHOUSE ELECTRIC CORPORATION (EAST
SPRINGFIELD WORKS) and FOREMAN'S ASSOCIATION OF AMERICA,
CHAPTER #215
Case No. 1-R-2488.-Decided March 28, 1946
Messrs. Robert D. Blasier and Job Taylor , of Pittsburgh , Pa., and
Mr. John W. Steen, of Baltimore , Md., for the Company.
Mr. Bernard E. Konopka , of Detroit , Mich., for the Union.
Mr. Bernard Goldberg , of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon a petition duly filed by Foreman's Association of America,
Chapter 215, herein called the Union, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Westinghouse Electric Corporation (East Springfield
Works), Springfield, Massachusetts, herein called the Company, the
National Labor Relations Board provided for an appropriate hear-
ing upon due notice before Karl Dieffenbach, Trial Examiner. The
hearing was held at Springfield, Massachusetts, on various dates from
June 28 to August 3, 1945. The Company and the Union appeared
and participated. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. At the hearing, the Company moved to
dismiss the petition. The Trial Examiner referred this motion to
the Board. For reasons stated hereinafter, the motion is hereby
denied. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. Subsequent to the
close of the hearing, the Company and the Union filed a number of
written motions with the Board as follows: (a) a motion by the
Company dated August 13, 1945, for the correction of alleged errors
in the transcript of testimony taken at the hearing; (b) a motion
by the Union dated August 31, 1945, for the correction of additional
errors in the transcript; (c) a supplemental motion by the Company
dated November 19, 1945, for the correction of further errors in the
transcript; and (d) a motion by the Company dated December 19,
66 N. L. R. B., No. 154.
1297
686 72--46-o
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1945, for the reopening of the record to include an affidavit showing
changes in personnel since the close of the hearing. The Union
has agreed to the corrections proposed in the Company's August 13,
1945, motion except for the changes suggested for page 1557 of the
transcript; it opposes granting of the Company's November 19, 1945,
motion in its entirety; and it consents to the Company's motion
for the reopening of the record to include the affidavit showing
personnel changes since the termination of the hearing. The Com-
pany has not indicated whether it acquiesces in or opposes granting
of the Union's motion of August 31, 1945, for the correction of
errors not specified in the Company's own motions. In accordance
with the agreement of the parties, the Company's motion of August
13, 1945, except as to page 1557, and the Company's motion of De-
cember 19, 1945, are hereby granted. Inasmuch as no agreement
exists as to the Union's motion of August 31, 1945, and the Com-
pany's motion of November 19, 1945, they are hereby denied. The
Company's request for oral argument is denied. All parties were
afforded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Westinghouse Electric Corporation, a Pennsylvania corporation
having its principal office and place of business in Pittsburgh, Penn-
sylvania, is engaged in the manufacture of a wide variety of electrical
products at a number of plants situated in different parts of the
United States. The present proceeding is concerned only with the
East Springfield, Massachusetts, plant, where the Company annually
manufactures in excess of $1,000,000 worth of finished products. At
least 50 percent of the raw materials used at the plant is shipped into
the Commonwealth of Massachusetts from sources outside the Com-
monwealth and about the same proportion of the finished products
manufactured at the plant is shipped out of the Commonwealth.
The Company admits for the purpose of this proceeding that it
is engaged in commerce within the meaning of the National Labor
Relations Act.
II. THE ORGANIZATION INVOLVED
Foreman's Association of America, Chapter #215, unaffiliated, is
;i labor organization admitting supervisory employees of the Company
into membership.
WESTINGHOUSE ELECTRIC CORPORATION 1299
III, THE QUESTION CONCERNING REPRESENTATION
The Company has declined to recognize the Union as the collective
bargaining representative of its supervisory employees.
The Company contends that the Board lacks jurisdiction to certify
the Union as the collective bargaining representative of the foremen
involved in this proceeding on the ground that the foremen are
,'employers" rather than "employees" under the definitions contained
in the Act. The status of foremen under the Act has been considered
in a number of Board and court decisions. Both the Board I and
the courts 2 have held that, in relation to their employer, foremen
are employees within the meaning of the Act. Accordingly, we find
that the foremen who are the subject of this proceeding are employees
within the meaning of Section 2 (3) of the Act.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the Union represents a substantial number
of employees in the unit alleged to be appropriate.3
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company. within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT : 'rIIE DE'rER_IIINA'rION OF REPRESENTATIVES
Position of the Partie.,
The Union seeks a unit of all foremen f e]a5^es A. B. & C), assistant
general foremen,4 staff general foremen, foremen of quality control.
chief production clerks, clerical supervisors, clerical division stall
supervisors, accounting division supervisors, assistant division staff'
supervisors, manufacturing engineers , maintenance engineers, plant
lay-out engineers , supervisors of traffic and mailing, and guard
supervisors, but excluding general foremen and all other supervisors
above the rank of assistant general foremen.
The Company contends, inter alia, that a unit of foremen and
assistant general foremen "would not effectuate the policies of the
IMatter of Ross Manufacturing Company, et al . 36 N L R It 348 Matte; of Packard
Motor Car Company , 61 N. L R. B. 4, and 64 N L R B 1212: Matter of L A. Younn
Spring & Wire Corporation , 63 N. L. R. B. 298; Matter of The B. F Goodrich Company.
65 N. L. R. B. 294; Matter of Simmons Company , 63 N L R B. 984; Matter of The
Midland Steel Products Company, 65 N. L R. B. 997
2N L R. B. v. Armour and Co ., 154 F. (2d) 370 (C C. A. 10) . Jones & Laughlin
Steel Corporation v. N. L. R B, 146 F. ( 2d) 718 (C C A. 5) ; N L R B v Skinner d
Kennedy Stationery Company , 113 F. ( 2d) 667 (C C A 8).
a The Field Examiner reported that the Union submitted 182 authorization cards and
that there were 214 employees in the unit which the Union asserts is appropriate.
4 The assistant general foi emen are popularly referred to as general foremen. There
i' only one supervisor classified by the Company as general foreman This individual.
H Sebolt. is an agreed exclusion
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOAR
Act and would not be `appropriate' within the meaning of Section 9
of the Act," and that even if such a unit is appropriate, it would not
effectuate the policies of the Act to include in the unit the various
clerical supervisors, assistant division staff supervisors, traffic and
mailing supervisors, guard supervisors, and engineers.
Organizational Structure
The East Springfield plant employs approximately 5,000 indi-
viduals. It has a full-time supervisory staff consisting of the
following :
1 Works Manager
1 Assistant Works Manager
13 Division Superintendents and Managers (including 1 general
foreman not in the claimed bargaining unit)
17 Assistant General Foremen (including staff general foremen)
113 Foremen (A, B, & C)
Division superintendents and managers are in charge of divisions;
they supervise assistant general foremen and staff general foremen,
who are on the same level of supervision. Assistant general foremen
are the principal divisional subordinates; they supervise foremen.
The foremen are variously classified as A, B, or C, depending on
the kind or size of department supervised; they are in immediate
charge of rank and file employees, including group leaders. All of
the alphabetical foremen classifications are on the same level of
supervision.
Foremen represent the Company in the first stage of the grievance
procedure established for rank and file employees; assistant general
foremen represent the Company in the second stage. Each division
superintendent regularly holds staff meetings with his assistant
general foremen. At these meetings the division superintendent
passes on information and instructions which he has received from his
-uperiors and leads discussions as to matters of interest. In turn,
each assistant general foreman holds similar periodic meetings with
his own subordinate foremen. Assistant general foremen have the
power effectively to recommend a change in the status of the foremen
whom they supervise.
Average monthly base salaries for the different foremen supervisors
are as follows :
Assistant general foremen (line) ........................$340
General foremen ( staff ) ................................ 325
Foreman A (line) .....................................
Foreman A (staff) ....................................
oreman B line)
310
300
..................................... 281
WESTINGHOUSE ELECTRIC CORPORATION 1301
Foreman B (staff ) .................................... 270
Foreman C (line) ..................................... 247
Foreman C ( staff) ..................................... 232
The Company's Contentions
The initial argument made by the Company in its brief is that a
unit of its foremen and assistant general foremen would not effectuate
the policies of the Act and would not be appropriate. To sustain
this argument the Company has sought to differentiate its foremen
and assistant general foremen from the foremen involved in the
Packard case; particularly on the basis that the Company is not
engaged in mass production and that the foremen and assistant fore-
men are not "traffic cops of industry" but as the result of training.
powers, duties, and privileges are part of management. The Com-
pany also opposes the establishment of a unit of its supervisors on
i lie ground that such action would be detrimental to the supervisors.
the Company, the rank and file employees, and the general public.
In a number of decisions since the Packard case, the majority of
the Board has clarified the reasoning of that case and has considered
arguments similar to those made by the Company in the instant
proceeding. In the Young 6 and Goodrich 7 cases, the majority of
the Board held that the rights of foremen under the Act stem from
the fact that they are "employees" within the definition contained
therein; that as "employees" foremen are entitled to be placed in
some appropriate unit under Section 9 (b) ; that the type of industry
in which they are employed, whether mass production or non-mass
production, is immaterial; and that the nature of their duties and
responsibilities is relevant only insofar as it bears on the question
of proper grouping of the foremen for collective bargaining purposes.
In the Midland Steel case,8 the majority further rejected the argu-
nient that a unit of foremen would not effectuate the policies of the
.Vet, pointing out that the National Labor Relations Act was intended
to encourage the practice of collective bargaining as a means of
settling labor disputes and that this policy was as applicable to labor
disputes involving foremen as to those pertaining to rank and file
employees.
In connection with its initial contention, the Company has also
raised some question as to the propriety of a unit which includes
two levels of supervision, the upper one having the power to make
effective recommendations for a change in the status of the lower.
Matter of Packard Motor Car Company, 61 N L R. B. 4.
B Matter of L A. Young Spring & Wire Corporation, 65 N. L R. B 298
'Matter of The B . F. Goodrich Company, 6.5 N. L. R B. 294.
"Matter of The Midland Steel Products Company, 65 N. L. it. B 997.
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This question of the grouping of different levels of supervision in
the same unit was considered in the Midland Steel case. The Board
there held that assistant foremen, foremen, and departmental super-
intendents had a community of interest deriving from their common
backgrounds, interests, and problems which justified their establish-
ment as a single bargaining unit despite the fact that the foremen
and departmental superintendents exercised supervisory authority
over lower ranking supervisors in the same unit. However, a majority
of the Board 9 in the cited case also decided that, before being included
in the unit, departmental superintendents, because they were few in
number relative to the foremen and assistant foremen and occupied
a higher, more clearly defined position in the supervisory hierarchy,
should be permitted to vote separately on whether they desired to
be in the same unit with foremen and assistant foremen. In the
instant case, it appears that the position of the assistant general
foremen vis-a-vie the foremen is essentially analogous to that of the
departmental superintendents relative to the foremen and assistant
foremen in the Midland Steel case. In these circumstances, a majority
of the Board 10 believe that the assistant general foremen should be
given the opportunity by separate voting to determine whether or
not they desire to be in the same unit with foremen. Accordingly,
we shall make no final unit determination at this time, but will be
guided by the desires of the employees involved as expressed in the
elections ordered hereinafter. In the event that the employees in
the voting groups described below, voting separately, select the
Union, they shall together constitute a single appropriate unit.
Without waiving its initial argument that no unit of supervisors
would be appropriate, the Company contends that the categories of
employees discussed below should be excluded from the unit sought
by the Union.
The Company's rank and file employees are at present organized
into four separate units comprising the following : (a) a unit of
production and maintenance employees, including shop clerical em-
ployees; (b) a unit of police guards; (c) a unit of clerical employees,
excluding shop clerical employees; and (d) a unit of time and
methods analysts. Units (a) and (b) are represented by United
Electrical, Radio and Machine Workers of America, CIO; unit (c)
is represented by Association of Westinghouse Salaried Employees
(East Springfield plant) ; and unit (d) is represented by Time R
Methods Analysts Association (Independent).
So far as appears from the record, there exists no history of col-
lective bargaining for supervisors in the electrical manufacturing
0 Chairman Herzog and Member Reilly.
10 Chairman Herzog and Member Reilly.
WESTINGHOUSE ELECTRrC CORPORATION 1303
industry , including the Company . In the absence of such history.
and accepted unit patterns , we believe that supervisors should be
organized in separate units apart from employees who do not exercise
supervisory functions with respect to other employees , and that the
pattern of organization for such supervisory employees should gen-
erally follow the patterns sanctioned by the Board for rank and file
employees . For example , supervisors of production and maintenance
employees should be organized in one unit , and supervisors of clerical
employees in another . In the present proceeding , the Union has
petitioned for a unit of supervisors of production and maintenance
employees plus the fringe classifications treated separately below :
Chief Clerk or Chief Production Clerk (3-0-17.5): The work
performed by employees in this classification is clerical in nature and
identical with that performed by "clerical group leaders" who are
included in the clerical unit. By the terms of a 1944 agreement
with the labor organization which then represented the clerical
workers, all employees assigned to these positions in the future will
be classified as "clerical group leaders " and constituted part of the
clerical unit . Inasmuch as the duties of the chief clerks or chief
production clerks are clerical and their position is identical with
that of group leaders who are included in the rank and file clerical
unit, we shall exclude them from the present unit.
Clerical Supervisor ( 3-C-118 ) : The employees in this classifica-
tion supervise groups of clerical workers who are included in the
rank and file clerical unit. Inasmuch as they are supervisors of
clerical employees , we shall exclude them from the unit.
Clerical Division Staff Supervisor (3-C-134): Employees in this
classification supervise the clerical supervisors discussed immediately
above. We shall exclude them as clerical supervisors.
Accounting Division Supervisor ( 3-C-131 A and B ) : Employees
in this classification supervise clerical employees who are included
in the rank and file clerical unit . We shall exclude them as clerical
supervisors.
Assistant Division Staff Supervisor (3-W-317B ): These em-
ployees supervise groups of production clerks and piece counters who
are apparently included in the rank and file production and mainte-
nance unit as shop clerical employees. For analogous reasons, we shall
include the supervisors of the shop clerical employees in the unit of
supervisors of production and maintenance employees . Assistant
division staff supervisors ( 3-W-117B ) are on the same level of super-
vision as foremen . We shall therefore include them in the voting
group of foremen.
Assistant Division Staff Supervisor-Production (.3-IV-117.2):
Employees in this classification supervise assistant division staff
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors (3-W-117B) whom we have included in the voting group
of foremen. The assistant division staff supervisors (production)
appear to be on the same level of supervision as assistant general
foremen. We shall include them in the voting group of the latter."
Assistant Division Staff Supervisor-Time Study (3-W-117J):
These employees supervise methods engineers and time and motion
analysts, who are excluded from the rank and file production and
maintenance unit. We shall exclude them.
Assistant Division Staff Supervisor-Special Assignment (3-TV-
117.5) : Employees in this classification are "trouble shooters," work-
ing on special assignments for the division superintendents. They
have no subordinates and never substitute for regular supervisors.
Inasmuch as they are not supervisory employees within the Board's
definition, we shall exclude them from the unit.12
Manufacturing Engineer Class A (4-W-9) : These employees act
in a consulting engineer capacity. They generally have no sub-
ordinates. We shall exclude them.
Plant Lay-out Engineer-Sr., (4-TV-4.5) and- Jr. (4-TV-2): These
employees have no subordinates and act in a professional capacity.
We shall exclude them.
Staff Assistant-Purchases or Traffic (4-PT-1): The employee in
this classification is known as the traffic manager. He advises on
the routing of shipments to and from the plant and is responsible
for traffic rates. He supervises a group of traffic clerks and the
employees in the mailing department through which incoming and
outgoing mail passes. The traffic manager appears to be a clerical
supervisor; we shall exclude him.
Sergeant of Police (3-W-110.1) and Police Lieutenant (3-W-
110.2) : There are two sergeants of police, one police lieutenant and
a police captain 13 in charge of a guard force which inspects and
patrols plant property, reports infractions of rules and regulations
by employees including supervisory employees, checks employees in
and out of the plant, and generally does police work. Most of the
guards, the sergeants, and lieutenant are special policemen of the
City of Springfield, where the plant is located. As previously stated,
the guards are organized in a separate unit apart from production
and maintenance employees. The reasons which have impelled the
Board to exclude guards having monitorial duties from units of rank
and file production and maintenance employees equally justify the
II Both parties have indicated that they do not desire to include Mr. F. A. Thomas
who, while he holds the job classification of assistant division staff supervisor (produc-
tion), is actually on a higher level of supervision than the other employees in the classi-
fication. We shall exclude him.
"Cf. Matter of Packard Motor Car Company, supra.
13 The Union does not desire to include the police captain.
WESTINGHOUSE ELECTRIC CORPORATION 1305
exclusion of supervisors of such guards from units of supervisors of
production and maintenance employees. Accordingly, we shall ex-
clude the sergeants of police and the police lieutenant.''
The petitioner is a local of the Foreman's Association of America.
In a number of cases , the Board has found that this organization
is independent and unaffiliated. In accord with previous determina-
tions involving the Foreman's Association and its locals, we find
that the Union is an independent, unaffiliated labor organization
organized for the exclusive purpose of representing supervisory
employees.'a
We shall direct that separate elections be held among the employees
in the voting groups described below who were employed during the
pay-roll period immediately preceding the date of the Direction of
Elections herein, subject to the limitations and additions set forth
in the Direction :
(1) All foremen , A, B, and C (3-W-113), including foremen of
quality control (3-W-113), and assistant division staff supervisors
(3-W-117B), but excluding assistant general foremen (3-W-120),
staff general foremen (3-W-120), chief clerks or chief production
clerks (3-C-17.5), clerical supervisors (3-C-118), clerical division
staff supervisors (3-C-134), accounting division supervisors (3-A-134
A and B), assistant division staff supervisors-time study (3-W-
117.1), assistant division staff supervisors-production (3-W-117.2),
assistant division staff supervisors-special assignment (3-W-117.5),
manufacturing engineers-class A (4-W-9), maintenance engineers
(4-W-6), plant lay-out engineers-senior (4-W-4.5), plant lay-out
engineers-junior (4-W-2), staff assistants-purchases or traffic
(4-PT-1), sergeants of police (3-AV-110.1), police lieutenants (3-W-
110.2), and all other supervisors above the rank of foreman.
(2) All assistant general foremen (3-W-120), staff general fore-
men (3-W-120), and assistant division staff supervisors-production
(3-W-117.2),16 but excluding foremen, A, B, and C (3-W-113),
foremen of quality control (3-W-113), assistant division staff super-
visors (3-W-117B), chief clerks or chief production clerks (3-C-
17.5), clerical supervisors (3-C-118), clerical division staff super-
visors (3-C-134), accounting division supervisors (3-A-134 A and
11), assistant division staff supervisors-time study (3-WWW-117.1) ,
'* Cf. The Midland Steel Products Company, 65 N. L. R. B 997, where the Board
included the chief of plant protection in a unit of supervisors of production and main-
tenance employees despite the fact that the guards were organized in a separate unit.
However, in that case the guards had only one supervisor, the chief of plant protection.
Inasmuch as a unit of one is not appropriate under Board of principles , the chief was
included in the production and maintenance supervisors unit.
u Matter of Packard Motor Car Company, supra ; Matter of L. A. Young Spring a Wire
Corporation, supra ; Matter of The B . F. Goodrich Company, supra ; Matter of Simmons
Company, supra ; Matter of The Midland Steel Products Company, supra.
24 This does not include Mr. F. A. Thomas, who is excluded from the unit.
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assistant division staff supervisors-special assignment (3-W-117.5),
manufacturing engineers-Class A (4-W-9), maintenance engineers
(4-W-6), plant lay-out engineers-senior (4-W-4.5), plant lay-out
engineers-junior (4-W-2), staff assistants-purchases or traffic (4-
PT-1), sergeants of police (3-WWW-110.1) , police lieutenants (3-
W110.2), and all other supervisors above the rank of assistant general
foreman and staff general foreman.
As stated above, there will be no final determination of the appro-
priate unit pending the results of the elections.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Westinghouse
Electric Corporation (East Springfield Works), Springfield, Massa-
chusetts, separate elections by secret ballot shall be conducted as
early as possible, but not later than thirty (30) days from, the date
of this Direction, under the direction and supervision of the Regional
Director for the First Region, acting in this matter as agent for
the National Labor Relations Board, and subject to Article III, Sec-
tions 10 and 11, of said Rules and Regulations, among employees in
the voting groups described in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this
Direction, including employees who did not work during said pay-
roll period because they were ill or on vacation or temporarily laid
off, and including employees in the armed forces of the United States
who present themselves in person at the polls, but excluding those
employees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the elections, to
determine in each of the voting groups whether or not they desire
to be represented by Foreman's Association of America, Chapter
#215, for the purposes of collective bargaining.
MR. GERARD D. REILLY, concurring separately :
My position in this case is the same as that expressed in my con-
curring opinion in the Matter of The Midland Steel Products Coni-
pany.17 As in that case. I would direct no election in this matter
since all the persons who are the subject of this petition are super-
17 65 N L R. B. 997
WESTINGHOUSE ELECTRIC CORPORATION 1307
visors and the business involved here does not differ in any relevant
respect fxom the kind of business carried on by the Packard Com-
pany.ls Since the majority of the Board entertain a contrary view,
however, I wish to concur in the conclusion that the assistant general
foremen should be balloted separately so as to ascertain whether or
not they desire to be in the same bargaining unit which includes
the foremen. There is sufficient evidence in the record to indicate
that the duties and responsibilities of the assistant general foremen
group are distinguishable from those of the foremen.
MR. JOHN M. HOUSTON . concurring separately :
For the reasons stated in my concurring opinion in The Midland
Steel case , cited above , which I find equally applicable here, I would
provide for only one voting group of foremen and assistant general
foremen.
18 My views on this basic question are contained in the dissenting opinion in the Matter
of Packard Motor Car Company, 61 'C L. R B. 4