Bendix Aviation Corp.

National Labor Relations Board - Board Decisions

Sep 3, 1942

43 N.L.R.B. 912 (N.L.R.B. 1942)

In, the Matter of BENDIX PRODUCTS DIVISION OF THE BENDIX AVIATION
CORPORATION and BENDIX LOCAL NO. 9, UNITED AUTOMOBILE, AIRCRAFT
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AFFILIATED WITH
THE C. I. O.
Case No. 11-4077. Decided September 3, 1042
Jurisdiction : aircraft and automobile parts manufacturing industry.
'Investigation and Certification of Representatives : existence of question:
dispute as to appropriate unit; election necessary.
Unit Appropriate for Collective Bargaining :, laboratory employees held to con-
stitute an appropriate unit notwithstanding Company's contention that they
should not have a representative because of the confidential nature of their
work.
Mr. Edwin 11 . Cassels, of Chicago, Ill., for the Company.
Mr. Oliver A. Switzer, of South Bend, Ind., for the Union.
Mr. Bertram Diamond, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition and an amended petition duly filed by Bendix Local
No. 9, United Automobile, Aircraft & Agricultural Implement Workers
of America, affiliated with-the C. I. 0., herein called the Union, alleg-
ing that a question affecting commerce had arisen concerning the rep-
resentation of employees of Benclix Products Division of-the Bendix
Aviation Corporation, South Bend,' Indiana, herein called the Com-
pany, the National Labor Relations Board provided for an appropriate
hearing upon due notice before Russell Packard, Trial Examiner.
Said hearing was held at South Bend, Indiana, on July 24, 1942. The
Company and the Union appeared, participated, and were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to'introcluce evidence bearing on the issues. The Trial Examiner's
,rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF TIIE COMPANY
Bendix Aviation Corporation, of which Bendix Products Division
is a part, is a corporation organized under the laws of the State of
43 N L R B., No 157.
912
BENDIX PRODUCTS DIVISION 913
Delaware. Bendix Products Division has its principal office and place
of business in South Bend, Indiana; where it is engaged in the mane'
facture, sale, and distribution of aircraft and automobile parts. Be-
tween January 1 and September 1, 1941, Bendix Products Division
purchased raw materials totaling appi oxunately 52,232,000 pounds, of
which about 13,952,000 pounds were obtained from' sources outside the
State of Indiana. During the same period the Division manufactured,
sold, and distributed finished products weighing approximately 29,2
274,000 pounds. Of the total volume of goods produced during that
period approximately 22,486,000' pounds were shipped to points out-
side the State of Indiana.' The Company is, for the most part, engaged
in war production.
II, THE ORGANIZATION INVOLVED
Bendix Local No. 9, United Automobile, Aircraft &- Agricultural
Implethent Workers,of America-, is a labor organization,-affiliated-with
the Congress of Industrial Organizations, admitting to membership
employees of the Company.
- 1 ,
III. THE QUESTION CONCERNING REPRESENTATION
In March 1942 the Union informed the Company that it represented
the employees in Department 33, consisting of laboratory employees,
and requested the Company to bargain with it as exclusive bargaining
agent for such employees . Apparently the Union then claimed that
the employees of Department 33 should be included in the industrial
unit for which the Union was already the exclusive bargaining agency.'
The Company contended that Department 33 was not part of the
Union's bargaining unit. These positions were stated a t several sub;
Sequent conferences between the Union and the Company.
As set forth in Section IV below , in its amended petition and at the
hearing the Union requested that Department 33 be found a separate
1 The above-stated facts concerning the operations of the Company are as set forth iii
Mattes of Bendix Products D;ession and Pattern Maters League of North, Are; ica, South
Bend Association, affiliated with the A F of L, 39 N L. R B 81 It was stipulated by
the parties that the current operations of the Company aie substantially as set forth in
the cited decision
2In Septembei 1937 the Boaid ceitified the Union as exclusive representative of the
hourly paid employees of the Company , including apprentices , factoiy clerks, and time-
keepers, but excluding other clerical workers and supervisory employees , Matter o f Rendis
Products Corpwataon and Inte;national Union, United Automobile We;!ers of America,
Bendib Local No 9, 3 N L P B 682 The first signed exclusiNe bargaining contract
between the ' Company and the Union was concluded on September 11, 1939, it covered
all employees , excluding "direct' representatives of llnnagement such as Supeiintendents,
Foremen , Assistant Foremen, Time Study Men, administrative office and' salaried ens-
pleyees " The contract was renewed in November 1 940, effectil e for 1 year and terminable
theie.itter on 60 days' notice At the time of the heaung a new contract w as in the
process of negotiation The scope of the recognition afforded the Union has not changed
since 1939 and remains substantially the same in the contract being negotiated _
481039-42-vol 43-58
I
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate unit; the Company took position that such employees
ought not to be represented by any union.
A statement of the Regional Director introduced into evidence at
the hearing,-indicates that the Union represents a substantial number
of employees in the unit. hereinafter found 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 National Labor
Relations Act.
IV. THE APPROPRIATE UNIT
The amended, petition alleges that the appropriate unit consists of
"all, employees engaged in the South Bend plant of the Company in
Department 33, in the application of metallurgy and the science of
metals including metal chemistry, - tempentture meter maintenance,
foundry inspection and radiography, and excluding supervisory em-
ployees." The Company contends'such a unit is inappropriate because
the employees in Department 33 are part of management, in that they
engage or assist in professional and confidential work.
At the time of the hearing there were about 33 employees in De-
partment 33. ' The employees were classified as follows : 8 metal-
lurgists, 6 Chemists, 6 technicians, 11 non-professional technicians, '1
clerk, and 1 errand boy.
Department 33 was created in September 1941 and is the designation
applied to three separate laboratories located in different parts of the
Company's premises, i. e., the main factory laboratory, the foundry
laboratory, and the new plant 11 heat treat laboratory. The estab-
lishment of 'a separate department for laboratory employees seems to
have been the result of a substantial increase in their number.4 Prior
. to 1940 it appears that laboratory employees were attached directly to
production departments. There is no indication that the Union has
ever bargained for the employees in question. -
Laboratory employees perform numerous functions. Metallurgists
are engaged principally in ascertaining the physical properties of cer-
tain metals for the purpose either of determinnig the proper heat
treatment to be used in production or of checking the result of the
heat treatment. Chemists are engaged mainly in analysis of metals
- and other materials employed- in production-and in controlling plat-
3 The Regional Director reported that the Union submitted 23 applications for member-
ship, of winch 22 had apparently genuine of iginal signatures Of the 22 apparently genuine
signatures, 18 were names of persons whose names appeared on the Company s pay loll
of April 25, 1942 That pay roll contained the names of 26 persons within the alleged
appropriate unit Of the designations bearing apparently genuine signatures correspond-
ing to names on the Company's pay roll, 4 were dated in December 1941, 10 in March 1942,
and 4 were undated. -
4 The bulk of eiuployees now working in Department 33 have been assigned to laboratory
uunl: within the past 2 years
BENDIX PRODUCTS, DIVISION 915
ing processes . The technicians look after heating equipment , meters
and controls , are responsible for the procedures of magnetic inspec-
tion and for the training of inspection -machine operators , subject to
preliminary microscopic examination metals used in the Company's
products , and are responsible for the development of certain struc-
tural features of experimental castings and for the adoption of cor-
rective measures to eliminate scrap in production.
Except insofar as the foundry technician is rated non -confidential
and a student-metallurgists is rated non -professional , job descriptions
furnished by the Company indicate that the chemists , metallurgists,
and technicians are considered confidential and professional employees
and are qualified for their work by reason of substantial academic
training or practical experience , or both.
The remaining group in Department 33 consists of non -professional
technicians .' These are employees who, in conjunction with techni-
cians, operate X-ray machines and develop X-ray negatives of metal
parts, or maintain meters and controls , or check casting measurements,
or make routine chemical analyses . They are not rated by the Com-
pany as confidential employees.
Department 33 is under the supervision of the chief metallurgist,
who is also the`superintendent of the beat treat and plating division.
All the metallurgists, and some of the technicians are salared em-
ployees. The chemists and the non -professional technicians are hourly
paid. The average hourly rate in Department 33 is about the same
as the average for production` employees:
It was stipulated by the , parties that metallurgists and chemists
spend the greater part of their -,working time in the laboratories, and
that technicians and non-professional technicians spend a consider-
able portion of their time in production departments of the plant, in
addition to working in the laboratories.
The Company advanced the following grounds for the contention
that the employees in Department 33 should not have a ny bargaining
representative , at least - for the duration of the present emergency.
First, they are engaged in confidential work related to the war effort.
Second, the Company has to rely upon them for technical advice.
Third some of the knowledge acquired by such employees could not-
be disclosed to competitors or customers .without the consent of man-
agement. Finally, the functions of laboratory employees require
them to check- the performance of, and guard against sabotage by,
production employees . Since these employees do not, by virtue of
their positions with the Company , have access to information relating
A chemist testified that about 25 percent' of his working hours was spent in production
departments.
916, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to collective bargaining that might be in the possession cif manage-
ment, we find the Company's contention to be without merit.' Both
the Company and the Union were apparently in agreement as to the
inclusion of professional and non-professional employees in a single
unit, if such.a unit were- found appropriate. We shall, therefore, in-
clude both classes of laboratory employees in the unit.
The Company and the Union agreed that A. B. Mattel n, who super-
vises the work of the chemists, should be excluded from anv unit of
Department 33 employees that might be found appropriate. It is the
Company's contention, which the Union opposes, that Alex Juroff,
Donald A. Johnson, Bernard A. Bombrys, and James S. Bartz, classi-
fied as foundry laboratory foreman, chief X-ray technician, general
duty clerk, and errand boy, respectively, should likewise be excluded.
Alex Juro ff is classified as foreman of the foundry laboratory. He
has the power to recommend to his superiors the hiie or discharge of
the eight, or more, employees under his supervision. Juroff directs
the metallurgical work done. in the foundry'•laboratzory., He is a
salaried employee and receives 10 to 15 percent more than employees
under him. ,
'Donald A. Johnson is classified as chief X-ray technician. He
supervises and directs the work of about eight X-ray technicians and
operators, who are non-professional, and is assistant to Juroff. The
Director of Industrial Relations for the Company stated that Johnson
could recommend the hire, or discharge of X-ray technicians and
operators. He is a salaried employee and is paid 5 to 10 percent more
than employees under him, although some other salaries in Department
33 exceed his.
Because of their supervisory status, we shall exclude Juroff and
Johnson. from the unit herein found appropriate. I
Bernard A. Boinbrys is classified as general duty- clerk,. He does the
clerical work for the head of Department 33 and.for the factory labora-
tory, typing and filing letters and reports. The job description fur-
nished by the Company designates him as .a confidential employee and
states that all personnel information relating 'to the division passes
through his hands. Because of his relation to the head of Department
33, we shall exclude Bombrys from the appropriate unit.
Janes S. Bartz is classified as errand boy. He runs errands for the
laboratory and prepares chemical and metallurgical samples. Since
9 See Matter of Bull Doq Electric Products Company and Local B-1063, International
Bi otherhood of Electrical Workers, affiliated with the A'F. L, 22 N. L R B 104d. It should
bo noted that 'in pr i or proceedings involving the Company , policemen employed by it were
held to constitute an appropriate unit . Matter of Bendix Products Corporation and Inter-
national Union, United,Automobite 1Vorbers of America, Bendix Local No 9, 3 N. L. R B
652. Matter of Bendix Products Corporation and Pattern Makers Association-of, South
.
Bend, 15 N L R- 13.9 05.
BENDIX PRODUCTS DIVISION ' 917
Bartz does some laboratory work, we shall include him in the appro-
priate unit.
Upon the basis of the entire record, we find that all employees, includ-
ing the errand boy, engaged in the South Bend plant of the-company
in Department 33 in the application of metallurgy and the science of
metals, including metal chemistry, temperature meter maintenance,
foundry inspection and radiography, and excluding supervisory em-
ployees, the chief, chemist, the foreman of the foundry laboratory, the
chief X-ray techniciai ► , and the general duty clerk, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
V. THE DETERMINAI ION OF REPRESENTATIVES
We find that the question concerning representation which has arisen
can best be resolved by an election by secret ballot. -
Union counsel stated at the hearing, without explanation, that the
Union was "willing to accept the pay-roll date next preceding the'date
of the hearing..'.', , In accordance, with ,our usual practice,• however, we
shall direct that those eligible to vote in the election shall be the em-
ployees 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 Relations Act,
and pursuant to Article III, Section 8, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DIR.OTrb that, as part of the investigation ordered by the Board, to
ascertain representatives for the purposes of collective bargaining with
Bendix Products Division of the Bendix Aviation Corporation, an
election 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 Thir-
teenth Region, acting in this matter as agent for the National Labor
Relations'Board, and subject to Article III, Section 9, of said Rules
and Regulations, among the employees in the unit found appropriate
in Section IV, above, who were employed at the Company's South
Bend, Indiana, plant during the pay-roll'Iperiod immediately preced-
ing the date of this Direction, including any such employees who did
not work during such pay-roll period because they were ill or on vaca-
tion or in the active military service or training of the United States,
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or temporarily laid off, but excluding any who have since quit or been
discharged for cause, to determine whether or not they desire to be
represented by Bendix Local No. 9, United Automobile, Aircraft &
Agricultural Implement Workers 6f America, affiliated with the
C. I. 0., for the purpose of collective bargaining.
CHAIRMAN MrLLIs took no part in the consideration of the above
Decision and Direction of Election.