Electronic Research Co.

National Labor Relations Board - Board DecisionsNov 1, 1974

214 N.L.R.B. 587 (N.L.R.B. 1974)

ELECTRONIC RESEARCH COMPANY Electronic Research Company and Communications Workers of America , AFL-CIO, Petitioner. Case 17-RC-7426 November 1, 1974 DECISION ON REVIEW BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 24, 1974, the Regional Director for Re- gion 17 issued a Decision and Direction of Election in the above-entitled proceeding in which he found appropriate, in accord with the Petitioner's request, a unit of all production and maintenance employees employed by the Employer at its Overland Park and Lenexa, Kansas, facilities, including such employees in the crystal, operations, and new products divi- sions, technicians and order fillers. Thereafter, in ac- cordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for re- view of the Regional Director's Decision on the grounds, inter aka, that in including technicians and new products division employees in the unit found appropriate he made erroneous findings as to sub- stantial factual issues and departed from officially reported Board precedent. The National Labor Relations Board, by tele- graphic order dated May 20, 1974, granted the re- quest for review and stayed the election pending de- cision on review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this proceeding with respect to the issues under review, and hereby affirms the Regional Director's Decision for the following reasons: The Regional Director found the requested overall unit appropriate notwithstanding the fact that in a 1970 proceeding involving the Employer herein (Case 17-RC-6226), in accord with the request of another labor organization, he found appropriate a unit of all the Employer's production and mainte- nance employees, excluding technical employees. In distinguishing the prior case, the Regional Director noted that under guidelines set forth in Sheffield the unit placement of technicians is a matter of pragmat- ic judgment in each case.' The Employer asserts that 1 The Sheffield Corporation, 134 NLRB 1101, 1103, (1961) The pragmatic judgment is based upon an analysis of the following factors, among others desires of the parties , history of bargaining, similarity of skills and job func- 587 the present record is devoid of evidence warranting a conclusion different from that reached in the prior proceeding, and that technicians and new products division employees should not be included in the unit found appropriate. Our review of the record in appli- cation of the Sheffield criteria persuades us the Employer's contention is lacking in ment. In 1970 the Employer was engaged in the manu- facture and wholesale distribution of electronic prod- ucts and temperature controls at its Overland Park facility. Its operations were then divided into three divisions: crystal, temperature products, and elec- tronic products. Each of these divisions included an engineering department, where research and devel- opment was done and prototypes of new products were built prior to being sent into production. All of the Employer's technical employees, i.e., laboratory assistants and laboratory and production techni- cians, were employed in the electronic products divi- sion. Since 1970 certain changes have occurred in the Employer's operations. The Employer is currently engaged in the manufacture and distribution of elec- tronic products and watches. As indicated, there are three manufacturing divisions: crystal, new products, and operations. The crystal and new products divi- sions, and part of the operations division, are located at the same address in Overland Park, and the other segment of the operations division is located at Le- nexa. Although the present crystal division appears to perform the same functions as in 1970, and the operations division appears to perform functions comparable to those previously accomplished in the electronic products division, there now exists no divi- sion of temperature products. The new products divi- sion is new. The record reveals that approximately 35-40 tech- nicians currently work in the three divisions. In the crystal division they spend about 60 percent of their time working in areas contiguous to the production floor. The remainder of their time is spent in design work, and working at engineering tables or in ma- chine shops. In the electronic department of the op- erations division, technicians test equipment from the production line in areas next to the production area. When repairs are necessary, they either make them in those areas or return the equipment to the production line for repair. Technicians who work in the crystal engineering, qualified products , filter en- gineering, and oscillator laboratories, all within the operations division, work in isolated areas and have pons, common supervision , contact and/or interchange with other employ- ees, similarity of working conditions , type of industry , organization of plant, whether the technical employees work in separately situated and separately controlled areas , and whether any union seeks to represent the technical employees separately 214 NLRB No. 132 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD minimal interchange with production and mainte- nance employees.' Technicians and production and maintenance employees undergo the same hiring process, are hourly paid, punch a timeclock, and have the same wage progression schedule. There are 20 employees in the new products divi- sion, performing the work of technicians, machinists, toolmakers, and assembler operators, who the Em- ployer contends also should be excluded from the unit. These employees make prototypes of new prod- ucts prior to their introduction to the production lines and carry out certain experimental functions. Although this division is located at the same ad- dress as the crystal division and part of the opera- tions division, the record does not provide any details as to physical proximity. The new products division is under the direction of the Employer's vice presi- dent. Although the record evidence is unclear in some respects, there was testimony that within the division there is a production manager who supervis- es approximately 10 employees, a production manag- er for watch and hybrids, a manager for machine design, and chief engineers of hybrids, product and development, liquid crystal display, watch, and avionics. There was no testimony as to the specific functions of technicians in the division. The assem- bler operators have counterparts in other divisions.' Although employees were transferred from the other two divisions to the new products division, there ap- pears to be no temporary interchange involving new products division employees. Like production and maintenance employees and technicians in the other divisions, new products division employees are hour- ly paid, punch a timeclock, have the same pay pro- gression schedule, and undergo the same prehiring process. At the outset, it must be emphasized that here, un- like the situation in the earlier proceeding, the peti- tioning labor organization urges as appropriate a broad unit combining production and maintenance employees and technicians. Further, there is no labor organization seeking to represent the technicians or the new products division employees on any other basis. With respect to the technicians in the operations and crystal divisions, although some of these techni- cians work in areas isolated from production and maintenance employees, all perform functions which are closely related to production. Further, techni- 2 The Regional Director found that the duties of the technicians in the engineering laboratories of the operations divisions "appear to consist of making pre -production and prototype parts and components " This would appear to be, in part , similar to work performed in the new products divi- sion , discussed infra. 3 The Employer testified that at present it has machinists and toolmakers only in the new products division cians in the crystal division spend a majority of their time in areas adjacent to the production areas, and those in the electronic department of the operations division work in laboratories next to the production area. While it is true that employees in the new prod- ucts division are engaged in work which appears re- lated to research and development, have little contact with employees in the other two divisions, and are supervised separately, there are other factors which support the Petitioner's request for their inclusion in an overall unit. Thus, their work is performed in an area geographically proximate to facilities of the other two divisions; machinists, toolmakers, and as- sembler operators are generally included in produc- tion and maintenance units; and there are assembler operators in all divisions. Finally, as stated, all the employees involved have certain working conditions in common. For these reasons, we believe that technical em- ployees in all divisions and the other classifications, above-discussed, in the new products division have a sufficient community of interest with production and maintenance employees of the Employer to warrant their inclusion in the unit as requested by the Peti- tioner' Accordingly, the case is remanded to the Regional Director in order that he may conduct an election pursuant to his Decision and Direction of Election, as affirmed herein, except that the eligibility period therefor shall be that immediately preceding the date of this Decision on Review.' CHAIRMAN MILLER , dissenting: In a prior proceeding the Regional Director ex- cluded technical employees from a production and maintenance unit. In the instant proceeding he in- cluded them. My colleagues affirm. So far as I can see the only reason for the depar- Our dissenting colleague misconceives the significance of the fact that here, unlike the situation in the earlier proceeding, the petitioning Union is seeking to represent a broad production and maintenance unit, including certain disputed employees, mainly the technicians What is critical is our conclusion that under the criteria set forth in Sheffield the requested unit is an appropriate one for collective- bargaining purposes, without gainsaying that the unit earlier sought by another labor organization , a unit which excluded the technicians , applying the same criteria , was also an appropri- ate unit Cf Tallahassee Coca-Cola Bottling Company, Inc, 168 NLRB 1037 (1967), enfd 409 F 2d 201 (C A 5, 1969) s In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236 (1966), N L R B v Wyman-Gordon Co, 394 U S 759 (1969) Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters , must be filed by the Employer with the Regional Director for Region 17 within 7 days of the date of this Decision on Review The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary cir- cumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed ELECTRONIC RESEARCH COMPANY 589 ture from the former ruling 6 is that in the previous case the union did not seek to include them whereas 6 My colleagues appear to treat this as a case in which there had been no prior ruling on the inclusion or exclusion of technicians, whereas the fact is that there was a specific ruling in the pnor proceeding that under the very Sheffield criteria to which my colleagues refer "the laboratory assistants and laboratory technicians lack a sufficient community of interest with the manufacturing employees to warrant inclusion in the unit " The Board, in the pnor proceeding , was requested to review and reverse on this issue, and declined to do so this time it does. Other than that, the facts are the same as before. The technicians in the operations and crystal divisions are doing just what they were doing before, and the technicians in the new prod- ucts division are doing work paralleling that of the technicians in the other divisions. It seems apparent to me that the Regional Director and my colleagues are relying solely on extent of or- ganization in departing from the prior holding. That is prohibited by statute. I therefore dissent.