Westinghouse Electric & Manufacturing Co.

National Labor Relations Board - Board Decisions

Feb 19, 1945

60 N.L.R.B. 782 (N.L.R.B. 1945)

In the Matter Of WESTINGHOUSE ELECTRIC & MANUFACTURING COBi-
PANY and , ASSOCIATION OF WESTINGHOUSE SALARIED EMPLOYEES
Case No. 1-R-22,06.-Decided February 19, 19.45
Mr. Robert D. Blasier, of Pittsburgh, Pa., and Mr. Thomas 0. Arm-
strong, of Springfield, Mass., for the Company.
Messrs. R. W. Allison, Leo F. Bollens, and W. J. Grohs, of Pitts-
burgh, Pa., for the Independent.
Messrs. David Scribner, Frederick R. Livingston, and Edward J.
Matthews, of New York City, for the C. I. 0.
Mr. Donald H. Frank, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEIIIENT OF THE CASE
Upon a petition duly filed by Association of Westinghouse Salaried
Employees ( East Springfield Plant), affiliated with the Federation
of Westinghouse Independent Salaried Unions, herein called the Inde-
pendent, alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Westinghouse Electric &
Manufacturing Company (East Springfield Plant), herein called the
Company, the National-Labor Relations Board provided for an appro-
priate hearing upon due notice before Leo J. Halloran, Trial Ex-
aminer. Said hearing was held at Springfield, Massachusetts, on
January 19, 1945. The Company, the Independent, and United Elec-
trical, Radio and Machine Workers of America, Local 202 (C. I. 0.),
herein called the C. I. 0., appeared and participated' All parties
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. All parties were afforded
an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
1 International-Council of Office Employees Unions, A F L., was requested in writing to,
submit representation evidence, if any, but failed to appear or participate.
60 N. L. R. B., No. 134.
782
WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 783
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is a Pennsylvania corporation, with its principal
office and place of business located in Pittsburgh, Pennsylvania. The -
Company has a number of plants in various States. Its plant at East
Springfield, Massachusetts, is the only one involved in the instant
proceeding. The Company is presently engaged at that plant in the
manufacture of torpedo devices and various types of electrical equip-
ment. The plant's total production goes to the United States Army
and Navy. The principal raw materials used by the Company at its
East Springfield plant are steel, copper, brass, rubber, and oils.
During the calendar year 1944, the Company purchased for the East
Springfield plant raw materials valued in excess of $2,000,000, approxi-
mately 90 percent of which was purchased outside the Commonwealth
of Massachusetts. During the same year, the East Springfield plant
manufactured finished products valued in excess of $10,000,000.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act, and we so find.
11. THE ORGANIZATIONS INVOLVED
Association of Westinghouse Salaried Employees (East Spring-
field Plant), affiliated with the Federation of Westinghouse Independ-
ent Salaried Unions, is a labor organization admitting to membership
employees of the Company.
United Electrical, Radio and Machine Workers of America, Local
202, affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Independent
as the exclusive bargaining representative of certain of its employees
until the Independent has been certified by the Board in an ap-
propriate unit.
The C. I. O. contends that its contract with the Company, made
April 1, 1944, is a bar to the present proceeding. That contract re-
peats the provision of the 1942 and 1943 contracts between the same
parties, reciting that the contract is terminable upon 30 days' notice
by either party thereto. We hold, therefore, that the contract does
not constitute a bar to the present petition for a determination of
iepresentatives.2 The showing by the C. I. O. that it was the practice
2 Matter of Antioch Foundry, Delco -Reny Division of General Motors Corporation, 55
N L R B 1419, Matter of Westinghouse rlectrwc cC Manufacturing Company, 53
N L R B 1073
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the parties not to terminate their contracts before a year had elapsed
does not persuade us that these were in reality 1-year contracts. Pri-
vate practices and oral agreements outside the written provisions of the
contract cannot alter those provisions so as to foreclose the right of
employees relying thereon to seek a determination of representatives.
Moreover, assuming the validity of the C. I. O.'s contention, there
would remain only 6 weeks until the expiration of the existing contract.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Independent represents a substantial number of
employees in the unit sought.'
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
On March 29, 1940, the Board issued a Decision and Order,4 con-
cerning, the employees of the Company's East Springfield plant, in
which it found, in accordance with the agreement of the parties in-
volved, that an appropriate unit in the East Springfield plant, con-
sisted of all production and maintenance employees, including among
others, shop clerical workers and tool designers. The C. I. O. was
found to represent the majority of the workers in the unit at that
time. On January 12, 1942, the Board issued a Decision and "Certifi-
cation of Representatives,' concerning the employees of the Company
herein, in which it found that an appropriate unit in the East Spring-
field plant consisted of all clerical employees, including draftsmen,
and certified, on the basis of a consent comparison of records, that
the C. I. O. had been selected by a majority of employees in that
unit as their collective bargaining representatives The finding did
not expressly exclude from the unit shop clerical workers and tool
designers. In the three resultant contracts (1942, 1943, 1944) be-
tween the Company and the C. I. 0., however, the units stated to be
covered therein placed the shop clerical workers and the tool designers
in the production and maintenance unit, using the exact wording of
the two Board findings.
The Independent seeks in the instant proceeding a unit consisting
of all salaried employees in the East Springfield plant, including
draftsmen, but excluding technical and service engineers, confidential
' The Field Examiner reported that the Independent submitted 171 authorization cards,
162 of which bore apparently genuine original signatures of persons appearing on the
Company's pay roll of December 2, 1944, which contained the names of 477 employees in
the unit sought
Matter of Westinghouse Electric & Manufacturing Company, et al., 22 N. L. R B. 147.
° Matter of Westinghouse Electric & Manufacturing Company, 38 N. L. It. B. 178.
° The Independent was not a party in either of these proceedings.
i
WESTINGHOUSE ELECTRIC'& MANUFACTURING COMPANY 785
secretaries, confidential pay-roll and savings clerks, nurses, police,
time and methods analysts, executives, and supervisors. This unit
would cut across the two units previously adjudged appropriate. The
record discloses that some of the shop clerical workers, tool designers,
and draftsmen are hourly-paid, and some are salaried employees. It
appears that the unit requested is the same as the clerical unit pre-
viously found appropriate, except that the unit sought would include
the salaried shop clerical workers and tool designers, at present a
part of the production and maintenance unit, and would omit those
draftsmen who are hourly paid. Nothing appears in the record, how-
ever, to show any community of interest distinctive to the salaried
employees, which would set them apart from the other office workers.
The different method of payment was not explained, nor was any
evidence introduced to show whether or not the total wage received
under the two methods of payment varied. We have often held
that the fact of similar method of payment is not sufficient per se
to warrant an appropriate unit finding.? Since the Board has pre-
viously determined the appropriate bargaining units in the East
Springfield plants and since collective bargaining on the basis of
those determinations has been conducted over a period of several
years, we are of the opinion that the unit sought is not appropriate.
We note, however, that the requested unit, with very few exceptions,
is the same as the clerical unit previously found appropriate by the
Board. With the exception of the hourly-paid draftsmen, it does not
appear that any categories of non-salaried employees would be added
to the requested unit by substituting the word "clerical" for the word
"salaried" in the unit request. We shall not,. therefore, dismiss the
Independent's petition, but shall proceed with a determination of
representatives of the employees in the clerical unit previously de-
termined to be appropriate.
We find that all clerical employees of the Company's East Spring-
field plant, including draftsmen, but excluding shop clerical work-
ers, tool designers, technical and service engineers, confidential secre-
taries, confidential pay-roll and savings clerks, nurses, police, time
and methods analysts, executives, supervisors, and all other super-
visory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees, or effectively
recommend such action, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b)
of the Act.
'Matter of Jones & Laughlin Steel Corporation, Pittsburgh Works, 57 N. L. R. B. 357,
and cases cited therein.
a As to the propriety of including shop clerical workers in a production and maintenance
unit, see Matter of Chicago Rawhide Manufacturing Company, 59 N L. R. B. 1234;
Matter of Westinghouse Electric d Manufactiirmg Company, 50 N. L. R B. 427.
628563-45-vol 60-51
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning' representation which
has axisen be resolved by an election by secret ballot among the
employees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of the Direction of
Election herein, subject to the limitations and additions set forth in
the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions 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 & Manufacturing Company (East Springfield Plant), East
Springfield, Massachusetts, an election by secret ballot shall be con-
ducted 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, Sections 10 and 11, of said Rules and Regulations, among the
employees in the unit found appropriate 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 the 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 any who have since quit or been discharged for cause
and have not been rehired or reinstated prior to the date of the elec-
tion, to determine whether they desire to be represented by Associa-
tion of Westinghouse Salaried Employees (East Springfield Plant),
affiliated with the Federation of Westinghouse Independent Salaried
Unions, or by United Electrical, Radio and Machine Workers of
America, Local 202, UE-CIO, for the purposes of collective bar-
gaining, or by neither.