Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Jan 27, 1949

81 N.L.R.B. 337 (N.L.R.B. 1949)

In the Matter Of WESTINGHOUSE ELECTRIC CORPORATION, EMPLOYER
and ASSOCIATION OF WESTINGHOUSE SALARIED EMPLOYEES,
F. W. I. S. U., PETITIONER
Case No. 6-RC-62 and 6-RC-150.-Decided January 27, 1949
DECISION
AND
DIRECTION OF ELECTIONS
Upon petitions duly filed, a consolidated hearing was 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.
At the hearing the Intervenor moved to dismiss the petitions on
the grounds (1) that its contract with the Employer constituted a bar
to this proceeding, and (2) that the units requested by the Petitioner
were inappropriate for the purposes of collective bargaining. The
hearing officer referred the motion to the Board. For the reasons set
forth hereinafter, the motion is hereby denied.
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 Westinghouse Salaried Employees, F. W. I. S. U.,
herein called the Petitioner, and United Electrical, Radio and Machine
Workers of America, C. I. 0., Local No. 601, herein called the Inter-
venor, are labor organizations claiming to represent certain employees
of the Employer.
*Chairman Herzog and Members Houston and Gray.
I The record has been corrected pursuant to the unopposed motion of the Employer filed
with the Board subsequent to the hearing
81 N. L. R. B., No. 59.
337
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Questions affecting commerce exist concerning the representa-
tion of certain employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act 2
4. The appropriate units; the determination of representatives:
In this proceeding the Petitioners seeks to sever, in Case No.
6-RC-62, junior and senior order clerks and, in Case No. 6-RC-150,
junior tool designers , associate tool designers , tool designers , and senior
tool designers 4 from the unit represented by the Intervenor ,5 and to
merge them into its existing unit. The Petitioner contends that such
severance and merger is proper, because the junior and senior order
clerks and tool designers are all salaried employees whose interests
lie with the other salaried employees whom it represents. The Inter-
venor contends that, because of the bargaining history, because the
interests of these employees lie with the other employees whom it
represents, and because it adequately represents such employees, such
severance is improper. The Employer expressed no opinion regard-
ing this question.
a. The bargaining history
On July 9, 1937, the Intervenor was certified by the Board, on the
basis of a union-membership check, as the exclusive bargaining repre-
2 Contrary to the contention of the Intervenor , we find that its contract with the
Employer is not a bar to the determination of representatives in this proceeding. Irre-
spective of any other factors, both the petition in Case No . 6-RC-62 and the petition in
Case No. 6-RC-150 were filed prior to the execution of Supplement II to the 1-year,
renewable , national agreement of April 1 , 1947 . Supplement II, executed on June 20, 1948,
after negotiations which commenced on February 9, 1948, provided for changes in various
of the substantive provisions of the contract , including maintenance of membership , check-
off, overtime , holidays and vacations , and further provided for a general wage and salary
increase . In addition , Supplement II extended the period of notice required for termi-
nation of the contract from 80 days to 60 days , and extended the term of the contract
to March 31 , 1950. Although Supplement II is denominated as a supplement or amend-
ment to the existing contract , and although that contract contained a provision permitting
negotiations at any time on any subject pertinent thereto , the broad scope of the negotia-
tions and the changes resulting therefrom make it clear that the Employer and the
Intervenor in substance negotiated for and executed a new agreement . Moreover, the
supplemental agreement was a premature extension of the original contract . Accord-
ingly, both petitions were timely . Matter of Westinghouse Electric Corporation, 80
N. L. R. B . 121; Matter of E. I . duPont de Nemours & Company, Inc, Neoprene Plant,
73 N. L . R. B. 439; Matter of Houston Packing Company, 71 N. L. R. B. 1232.
S The Petitioner is presently the certified bargaining representative of "the salaried
employees of Westinghouse Electric & Mfg. Co. at its East Pittsburgh Unit, excluding
supervisory employees ." Matter of Westinghouse Electric & M fg. Co., 23 N. L. R. B. 1049,
1051.
4 Herein collectively referred to as tool designers.
6 The Intervenor is presently the certified bargaining representative of "all hourly rate
employees of Westinghouse Electric & Manufacturing Company at its East Pittsburgh
plant, . . . Including all tool designers and machine tool designers , telephone mainte-
nance employees , and junior and senior order clerks in the shipping department whether
paid by salary or by the hour , but excluding supervisory employees." Matter of Westing-
house Electric & Manufacturing Company, East Pittsburgh Plant, 33 N . L. R. B. 463, 466.
WESTINGHOUSE ELECTRIC CORPORATION 339
sentative of "all hourly rate employees" at the Employer's Bast
Pittsburgh, Pennsylvania, plant, such designation being interpreted
by the Board in its decision to include only production employees,
and to exclude clerical employees." On May 22,1940, on the basis of the
results of three separate elections, the Petitioner was certified by the
Board as the exclusive bargaining representative of all salaried em-
ployees at the Employer's East Pittsburgh plant.7 This unit consisted
largely of engineers, draftsmen, salesmen, and office-clerical em-
ployees. It also included, as the consequence of the aforesaid separate
elections, certain "fringe" groups of employees, all salaried, such
as production, file, ledger, and record clerks, stenographers, typists,
inspectors, inspectors' stenographers, and powerhouse employees.
Despite its certification in 1937, as the representative of the hourly
paid employees only, the Intervenor had bargained for these "fringe"
employees until the elections in 1940. In its Decisions and Directions
of Elections in 1940, the Board held, however, that these "fringe"
employees shared interests with both the hourly paid employees then
represented by the Intervenor, and also the other salaried employees
then sought by the Petitioner, and could, therefore, appropriately be
included in either unit. This salaried unit did not include, however,
certain hourly paid plant-clerical employees and inspectors, whose
duties differed from those of certain of the employees in the "fringe"
groups principally in the degree of skill and responsibility associated
with their tasks ; in addition, the hourly paid plant-clerical employees
were supervised by divisional foremen, whereas the clericals in the
"fringe" groups were supervised by production supervisors 8
Subsequently, a dispute arose as to which of the foregoing units
properly included junior and senior order clerks, tool designers, and
telephone maintenance employees. Some of these employees were
paid by the hour, some by salary, and some first by the hour and sub-
sequently by salary. Based upon the stipulation of the parties, the
Board directed that three separate elections be held." The intervenor
won all three elections; and on July 15, 1941, it was certified as the
exclusive bargaining representative of these employees as part of its
previously existing unit 10 Since that time it has represented them
as part of such unit.
"Matter of Westinghouse Electric & Manufacturing Company, 3 N. L. R. B. 1.
' Matter of Westinghouse Electric & Manufacturing Company, 23 N. L. R. B. 1049.
8 Matter of Westinghouse Electric & Manufacturing Company, 19 N. L. R. B. 640, 22
N. L. R. B. 956.
'Matter of Westinghouse Electric & Manufacturing Company, East Pittsburgh Plant,
32 N. L. R B. 188.
10 Footnote 5, supra.
829595-50-vol. 81 23
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The order clerks
The junior and senior order clerks are employed in the Shipping
Department , which is part of the Factory Service Division at the
Employer's East Pittsburgh plant. An individual , to be employed
as an order clerk, must have a high school education . Their duties
consist of performing certain of the paper work necessary for the
shipment of orders to the Employer's customers , or to other of the
Employer 's plants . They determine whether material delivered to
the shipping floor for shipment corresponds with material ordered
for shipment and, where discrepancies exist, initiate steps to correct
them. They perform no manual labor . They perform the bulk of
their work while sitting at their desks . Occasionally , in order to ex-
pedite certain shipments , they make personal contacts with employees
on the shipping floor.
The junior and senior order clerks work in an enclosed office at one
end of the shipping floor. Also working in the same office are such
clerical employees as master order clerks , order service clerks, order
correspondents , traffic and claims clerks , and time and rate clerks, some
of whom also perform paperwork necessary for the shipment of
orders. The junior and senior order clerks are under the immediate
supervision of two chief clerks , as are file clerks, typists , and master
order clerks . The chief clerks are under the immediate supervision
of an assistant divisional staff superintendent , who in turn is super-
vised by the superintendent of shipping, receiving and plant trans-
portation. With the exception of the junior and senior order clerks,
all employees in the office in which they work, and all employees under
the supervision of the chief clerks, are part of the unit represented by
the Petitioner. The first common line of supervision for both the
junior and senior order clerks and any other employees in the unit
represented by the Intervenor is the superintendent of shipping, re-
ceiving, and plant transportation.
The natural line of advancement for order clerks is from junior
order clerk to senior order clerk to master order clerk. All three
levels have similar duties ; their duties differ principally in the amount
of experience required for their performance , and the complexity of
the orders assigned to each level . Because master order clerks are in
the unit represented by the Petitioner , and because of the terms of
the contract between the Petitioner and the Employer, senior order
clerks , unless they have special qualifications, are barred from com-
peting for master order clerk positions unless there are no employees
within the Petitioner's unit who are qualified for such positions ; this
has n A , however, prevented senior order clerks from being promoted
WESTINGHOUSE ELECTRIC CORPORATION 341
to master order clerk positions. Likewise, in the event of a reduction
in force, junior and senior order clerks cannot compete for other cleri-
cal positions at the Employer's East Pittsburgh plant, but rather
compete only for non-clerical positions within the Intervenor's unit;
the duties of certain of such positions are, however, clerical in part.
c. The tool designers
Tool designers are employed in six ll of the seven divisions of the
Employer's East Pittsburgh plant. Their duties 12 consist of design-
ing tools used by the Employer in the manufacture of its products.
They perform no manual labor, their work consisting entirely of
design drafting and such non-manual activities as consultation with
sales and manufacturing engineers and with tool makers. A tech-
nical education is considered desirable for employment in the lower
tool designer classifications and essential for employment in the higher
classifications. In addition, practical experience as a tool maker is
considered necessary.
The tool designers are scattered throughout the plant, and are lo-
cated in enclosed offices adjacent to the production areas of the divi-
sions in which they are employed. Also located in the same offices are
such employees as sales engineers, manufacturing engineers, time and
motion analysts, and clerical employees, all of whom are in the unit
represented by the Petitioner. The supervision of the tool designers
varies from division to division. In certain divisions they are under
common supervision with such employees as manufacturing engi-
neers; in others they are under common supervision with tool makers,
who are production employees in the unit represented by the Inter-
venor.
The tool designers are skilled draftsmen whose work is similar to
that of other draftsmen employed by the Employer; all such other
draftsmen are in the unit represented by the Petitioner. The natural
line of progression from the top tool designer classification is into one
of the Employer's engineering classifications. As in the case of the
junior and senior order clerks, however, such progression is barred
unless no employee in the Petitioner's unit possesses the necessary
qualifications. Likewise, in the case of a reduction in force, the tool
designers cannot compete for other positions as draftsman, but must
compete for such positions as tool makers or machine operators.
11 Switchgear and Control Division, Transportation and Generator Division, Factory
Service Division, Feeder Division, Micarta Division, and Industrial Control Division
12 The dutes of the four grades of tool designers differ principally in the complexity of
the tools designed and the degree of experience and technical supervision required.
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
d. Conclusions
On the basis of the foregoing, and on the entire record in this case,
it is clear, and we find, that the junior and senior order clerks and the
tool designers are, respectively, clerical and technical employees whose
training, skills, duties, and interests are more closely related to those
of the clerical and technical employees in the unit represented by the
Petitioner than to those of the production and maintenance employees
in the unit represented by the Intervenor. 113 Accordingly, if the
matter of the unit placement of the junior and senior order clerks and
the tool designers had been presented here de novo, we would have in-
cluded them in the unit represented by the Petitioner. However, be-
cause of the bargaining history, we shall afford them an opportunity
to express their desires with respect to their unit placement. Accord-
ingly, we shall make no final unit determination at this time, but shall
first ascertain the desires of these employees, as expressed in separate
elections which we shall direct to be conducted among the following
voting groups at the Employer's East Pittsburgh, Pennsylvania, plant,
excluding supervisors as defined in the Act :
(1) All junior and senior order clerks.
(2) All junior tool designers, associate tool designers, tool
designers, and senior tool designers.
If a majority in either or both of the voting groups select the Peti-
tioner, they will be taken to have indicated their desire to be severed
from the unit represented by the Intervenor, and to be merged into the
unit represented by the Petitioner.
DIRECTION OF ELECTIONS
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 super-
vision of the Regional Director for the Sixth Region, and subject to
Sections 203.61 and 203.62 of National Labor Relations Board Rules
is See Matter of Westinghouse Electric & Manufacturing Company, 24 N L. R. B. 601,
in which affiliates of the Petitioner and the Intervenor herein stipulated that tool designers
be excluded from a production and maintenance unit at the Employer ' s Mansfield, Ohio,
plant, and Matter of Westinghouse Electric & Manufacturing Company , 62 N. L. R. B. 137,
in which an affiliate of the Petitioner herein and the International union with which the
Intervenor herein is affiliated, agreed that order clerks be included in an office and clerical
unit at the Employer 's Detroit, Michigan , plant. But see Matter of Westinghouse Electric
& Manufacturing Company, 60 N. L. R. B . 782, in which the Board refused to sever
salaried tool designers from an established production and maintenance unit. The peti-
tioner in that case , however, sought a predominately clerical unit which included draftsmen
but excluded engineers and also excluded hourly paid tool designers.
WESTINGHOUSE ELECTRIC CORPORATION 343
and Regulations-Series 5, as amended, among the employees in the
voting groups described in Section 4 (d), above, who were employed
during the pay-roll period immediately preceding the date of this Di-
rection of Elections, including employees who did not work during said
pay-roll period because they were ill or on vacation or temporarily
laid off, but excluding those employees who have since quit or been dis-
charged for cause and have not been rehired or reinstated prior to the
date of the election, and also excluding employees on strike who are
not entitled to reinstatement, to determine whether or not they desire
to be represented, for purposes of collective bargaining, by Association
of Westinghouse Salaried Employees F. W. I. S. U .14
14 As the Intervenor is not in compliance , and has not initiated action to effect compliance,
with Section 9 (f) and ( h) of the amended Act , it will not be accorded a place on the ballot.