Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Nov 22, 1948

80 N.L.R.B. 591 (N.L.R.B. 1948)

In the Matter of WESTINGHOUSE ELECTRIC CORPORATION, LAMP Di-
VISION, EMPLOYER and ASSOCIATION OF TECHNICAL AND PROFESSIONAL
EMPLOYEES, PETITIONER
In the Matter Of WESTINGHOUSE ELECTRIC CORPORATION, LAMP Di-
VISION, EMPLOYER and ASSOCIATION OF ENGINEERS IN THE BLOOM-
FIELD, NEW JERSEY, PLANT OF THE WESTINGHOUSE ELECTRIC CORPO-
RATION , PETITIONER
Cases Nos. P-R-7713 and 2-RC-160, respectively.Decided November
22,1948
DECISION
AND
DIRECTION OF ELECTIONS
Upon separate petitions duly filed, a consolidation thereof was
ordered, and a hearing held before a hearing officer of the National
Labor Relations Board. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. Association of Technical and Professional Employees, herein
called the Research Union, and Association of Engineers in the
Bloomfield, New Jersey, Plant of the Westinghouse Electric Corpo-
ration, herein called the Engineers Union, both unaffiliated, and
United Electrical, Radio & Machine Workers of America, and its
Local 412, affiliated with the Congress of Industrial Organizations
and herein jointly called the Intervenors, are labor organizations
claiming to represent employees of the Employer.,'
* Chairman Herzog and Members Reynolds and Gray.
1 The Intervenors ' contention that the record fails to establish that the Engineers Union
and the Research Union are labor organizations within the meaning of the Act is without
merit.
80 N. L. R. B., No. 101.
591
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. At the hearing the Intervenors moved to dismiss the petitions,
alleging that their 1947 contract with the Employer, as extended to
April 1, 1949, is a bar to a determination of representatives. The
Petitioners argue that their representation claims were timely made
before the Intervenors' 1947 contract was extended, and that in any
event the extension of the contract was premature.
The current contract between the Employer and the Intervenors
was executed on April 17, 1947, to remain in effect until April 1, 1948,
and from year to year thereafter in the absence of notice of a desire
to terminate given 30 days before any anniversary date. The Research
Union requested recognition and filed its original petition herein be-
fore that contract was executed.2 The Engineers Union made its cur-
rent request for recognition on January 27, 1948. Such request was
timely with respect to the 1948 automatic renewal date of the contract,
and was made 2 days before the Employer and the Intervenors signed
an agreement waiving their right to terminate their contract before
its 1949 anniversary date.3 In these circumstances, it is clear that
neither the contract of April 17, 1947, nor the agreement waiving the
right to terminate it in 1948, precludes the Board from proceeding to
a determination of representatives upon either of the petitions herein.
Accordingly, the Intervenors' motion to dismiss is denied.4
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit ; the determination of representatives :
The Research Union seeks a unit consisting of all salaried profes-
sional and technical employees in the Research Department of the
Employer's Bloomfield, New Jersey, plant.5 The Engineers Union
seeks a unit consisting of all professional employees with engineering
classifications in the entire Bloomfield plant.6 The Employer con-
7 Although the Research Union's request for recognition was not made before the March 1,
1947 , automatic renewal date of an earlier contract between the Employer and the Inter-
venor, the new contract which was executed on April 17, 1947, has superseded this earlier
contract . As this earlier contract is no longer in effect, it cannot serve as a bar.
8 The Engineers Union pursued its request for recognition by filing a timely petition with
the Board on February 2, 1948. Cf. Matter of General Electric X -Ray Corporation , 67 N. L.
R. B. 997.
4It is unnecessary here to determine whether the 1947 contract between the Employer
and the Intervenors was prematurely extended by their agreement to waive the right to
terminate it in 1948.
O This proposed unit includes the following job classifications in the Research Depart-
ment: Engineer , Associate Engineer , Assistant Engineer , Junior Engineer , Technician
Specialist , Laboratory Technician , Laboratory Assistant , and Laboratory Attendant.
6 The Engineers ' proposed unit includes the following job classifications , Engineer, Asso-
ciate Engineer , Assistant Engineer , Junior Engineer , Product Specialist I, Product Special-
ist II , Test Engineer I, Test Engineer II, Maintenance Engineer I, Maintenance Engineer
II, Plant Layout Engineer I, and Plant Layout Engineer II.
WESTINGHOUSE ELECTRIC CORPORATION 593
cedes that either unit or both units could be appropriate.7 The Inter-
venors, however, maintain that neither unit is appropriate, on the
ground that neither includes all the professional employees at the
Employer's Bloomfield plant, and that both include individuals who
are not professional employees within the meaning of the amended
Act."
The Research Unit
A. The professional employees
Although the Employer maintains a large research laboratory at its
main plant at East Pittsburgh, Pennsylvania, the record demonstrates
that the Research Department of the Bloomfield, New Jersey, plant
is an independent research organization. It is located in the Engineer-
ing and Administration building, which also houses the other engineer-
ing and technical employees hereinafter discussed. The work of the
Research Department is limited for the most part to problems of pure
science which are not directly connected with the Employer's manu-
facturing operations; there is very little interchange of personnel
between this department and other departments of the Employer's
operations, either in Bloomfield or elsewhere. The employees in this
department who are classified as Engineer, Associate Engineer and
Assistant Engineer generally work by themselves on individual proj-
ects. They are mainly college graduates, many of whom have pursued
further courses of advanced study in scientific fields. Those few who
are not college graduates have acquired comparable skill in their
specialized fields by individual study and experience, and by taking
numerous courses of instruction in institutions of higher learning.
The results accomplished by these employees cannot be standardized
in relation to any given period of time, and their work is predomi-
nantly intellectual and varied in character, involving the constant
exercise of discretion and judgment. We find that the employees in
the above-named job classifications in the Research Department are
professional employees within the meaning of Section 2 (12) of the
amended Act.
4 Although both units include the classifications of Engineer, Associate Engineer, Assist-
ant Engineer, and Junior Engineer in the Research Department, the Employer believes that
certain differences between the duties and qualifications of such employees in its Research
Department and employees so classified in its other departments warrants the exclusion of
those in the Research Department from the broader unit sought by the Engineers Union.
b Pursuant to Stipulations for Certification upon Consent Election (Cases Nos. R-5705
and 2-R-5097), the Intervenors became the certified bargaining representative for all the
employees here involved and certain other salaried employees in the Employer's Bloomfield
plant in 1943 and 1944. Thereafter, the Intervenors entered into a series of contracts with
the Employer covering these employees, the latest of which, as already noted, remains in
effect until April 1, 1949.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The employees classified as Junior Engineers in the Research
Department are principally recent college graduates and, although
they do not possess the skills of the more experienced engineers, they
perform work related to their academic training under the profes-
sional supervision of an older employee in order to achieve professional
status. We conclude, therefore, that the Junior Engineers, like the
other personnel with engineering classifications in the Research
Department of the Employer's Bloomfield plant, are professional
employees within the meaning of the amended Act .9
B. The non-professional employees
All the parties agree that the remainder of the employees in the
unit sought by the Research Union (those classified as Laboratory
Attendant, Laboratory Assistant, Laboratory Technician, and Tech-
nician Specialist) are not professional employees within the meaning
of the Act.- Nevertheless, the Employer, like the Research Union,
would include these employees in the unit with those whom we have
found to be professionals . The Intervenors oppose this grouping;
the Engineers Union takes no position with regard to it.
The employees in question are principally technicians, who are
engaged in carrying out laboratory tests and experiments in connec-
tion with the work of the professional employees of the Research
Department. Although much of their work is routine, it requires cer-
tain technical skills and is an integral part of the work performed by
their Department. We are convinced that the interests of these
employees are more closely allied with those of the other personnel of
the Research Department than with those of the employees in the over-
all salaried unit currently represented by the Intervenors.
We find that all Engineers, Associate Engineers, Assistant Engi-
neers, Junior Engineers, Technician Specialists, Laboratory Techni-
cians, Laboratory Assistants, and Laboratory Attendants employed in
the Research Department of the Employer's Bloomfield, New Jersey,
plant, excluding supervisors, may constitute a unit appropriate for
° All the job classifications alleged to be professional by the Research Union and the
Engineers Union, except that of Junior Engineer, are treated by the Employer as profes-
sional under the Fair Labor Standards Act of 1938 , which defines "professional employees"
In language almost identical to that contained in the Labor Management Relations Act,
1947 . Junior Engineers are not treated as professional under the former Act because their
starting wage is slightly below the $200 per month minimum salary required to qualify as
professional employees under Section 541.3 of the Regulations of the Wage -Hour Adminis.
trator. The Labor Management Relations Act, 1947, and the regulations issued there-
under by the Board contain no salary limitation in the definition of professional employees.
10 At the time of the hearing the Research Department employed approximately 21
employees with job classifications which we have found to be professional and approximately
6 employees with non -professional job classifications.
WESTINGHOUSE ELECTRIC CORPORATION 595
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act 11
The Engineers Unit
The Engineers Union seeks to represent the entire professional
engineering complement of the Employer's Bloomfield plant. Aside
from employees so classified in the Research Department, the re-
mainder of the employees sought by the Engineers Union are, for the
most part, graduates of recognized engineering colleges and universi-
ties. When they are first employed, the Employer places these grad-
uates in its student engineering training program, which consists of a
period of orientation for several months in its main plant at East
Pittsburgh. Thereafter, the student engineers are sent to the Em-
ployer's various manufacturing plants throughout the country for
a period of further instruction. Upon completion of 1 year's train-
ing, they are placed upon the permanent pay roll of one of the plants
as Junior Engineers. Aside from the training period, there is no
general policy of interchange of personnel between the Employer's
several plants, nor does the record contain any evidence of an Em-
ployer-wide system of job classifications. The few employees within
the unit sought by the Engineers Union who are not graduate engineers
have had some scientific or technical education and they are considered
by the Employer to possess technical skills and aptitudes comparable
to that of the graduate engineers.
Most of the employees whom the Engineers Union seeks to repre-
sent are housed in the Engineering and Administration Building of
the Bloomfield plant. However, aside from the research engineers,
they work throughout the Bloomfield plant and many of them are
called upon to visit the plants of suppliers and customers. They are
assigned to the following departments : the Products Design and De-
velopment Division, covering electronics engineering, lamp engineer-
ing, chemical engineering and metallurgical engineering; the Stand-
ardizing Department, which prepares production specifications; and
the experimental factory, where production techniques are perfected.
Like the research engineers, these employees work either inde-
pendently or in teams without regard to job classification and with
little supervision. It is difficult to estimate the time which any given
11 Section 9 (b) (1) of the amended Act precludes the Board from deciding that any unit
is appropriate for the purposes of collective bargaining which contains both professional
-ahd non-professional employees, unless a majority of the professional employees vote for
inclusion in such a unit . However , as the above -described unit is composed predominantly
of professional employees within the meaning of Section 2 (12) of the Act, we believe that
Section 9 (b) (1) does not preclude our finding that the group may constitute a single
appropriate unit. See Matter of Continental Motors Corporation , 77 N. L. R. B. 345.
817319-49-vol. 80-39
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
project will take to complete, or to measure the output of any individ-
ual in relation to time spent on the project.
The Intervenors take the position that few of the employees sought
by the Engineers Union or the Research Union are "professional em-
ployees" under the laws of the State of New Jersey, and assert that
there are some employees in the Bloomfield plant who are classified
as engineers whom the Engineers Union does not seek to represent.
With regard to the first contention, the record discloses that under
New Jersey laws a "professional engineer" must secure a license,
analogous to that issued a lawyer or an architect, before he can prac-
tice as a public engineer. The law requires no special license of
engineers who are employed by manufacturers and who do not offer
their services to the public at large, regardless of their qualifications
or the work in which they are engaged. With regard to its second
contention, the Intervenor has adduced no evidence that the Engineers
Union seeks to exclude from its proposed unit any bona fide engineer
employed at the Bloomfield plant.12 In view of the foregoing, and
upon the entire record in the case, we find that all the employees in the
job classifications which the Engineers Union seeks to represent 13
are professional employees within the meaning of Section 2 (12) of
the amended Act. We further find that such employees may con-
stitute a unit appropriate for collective bargaining within the mean-
ing of Section 9 (b) of the Act.
As noted above, the unit sought by the Engineers Union would in-
clude most of the employees who we have found may properly consti-
tute a separate research unit. However, these employees could also
properly be part of the over-all engineering unit sought by the Engi-
neers Union. The employees in the Research Department have a
greater community of interest with the other employees sought by the
Engineers Union than they do with the remainder of the Employer's
salaried personnel. For the most part, both groups share common
basis educational backgrounds and experience and, although their
assignments range from problems of pure science to questions involv-
ing the practical application of manufactured products, their needs,
and interests as scientific personnel are essentially the same. We find,
therefore, that the employees in the proposed research unit may also
appropriately constitute part of the proposed over-all unit of engi-
neering employees in the Employer's Bloomfield plant above set forth.
12 The record establishes that the Employer's Order Interpretation Engineers, whom the
Engineers Union would exclude from their proposed unit, are in reality clerks with high
school education only.
13 See footnote 6, supra.
WESTINGHOUSE ELECTRIC CORPORATION 597
We shall direct that separate elections by secret ballot be held in the
following voting groups :
Voting group I
All employees employed in the Research Department of the Em-
ployer's Bloomfield, New Jersey, plant who are classified as Engineer,
Associate Engineer, Assistant Engineer, Junior Engineer, Technician
Specialist, Laboratory Technician, Laboratory Assistant, or Labora-
tory Attendant, but excluding all supervisors.
Voting group II
All employees of the Employer's Bloomfield, New Jersey, plant who
are classified as Engineer, Associate Engineer, Assistant Engineer,
Junior Engineer, Product Specialist I, Product Specialist II, Test
Engineer I, Test Engineer II, Maintenance Engineer I, Main-
tenance Engineer II, Plant Layout Engineer I, and Plant Layout
Engineer II, but excluding all employees in voting group I, and all
supervisors.
Pending the outcome of these elections, we shall make no final unit
determination.
DIRECTION OF ELECTIONS 14
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, separate elections
by secret ballot shall be conducted as early as possible, but not later
than 30 days from the date of this Direction, under the direction and
supervision of the Regional Director for the Second Region, and sub-
ject to the foregoing Decision and to Sections 203.61 and 203.62 of
National Labor Relations Board Rules and Regulations-Series 5,
as amended, among the employees in the two voting groups described
in paragraph numbered 4, above, who were employed during the
pay-roll period immediately preceding the date of this Direction, in-
cluding employees who did not work during said pay-roll period be-
cause they were ill or on vacation or temporarily laid off, 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,
and also excluding employees on strike who are not entitled to rein-
statement, to determine :
14 As the Intervenors have failed to achieve compliance or to initiate steps for compliance
with the filing requirements of Section 9 (f), (g), and ( h) of the Act, they will not be
accorded a place on the ballots in these elections.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) Whether the employees in voting group I desire to be repre-
sented, for the purposes of collective bargaining, by Association of
Technical and Professional Employees, or by Association of Engineers
in the Bloomfield, New Jersey, Plant of the Westinghouse Electric Cor-
poration, or by neither;
(2) Whether or not the employees in voting group II desire to be
represented, for the purposes of collective bargaining, by Association
of Engineers in the Bloomfield, New Jersey, Plant of the Westing-
house Electric Corporation.