Emerson Radio & Phonograph Co.

National Labor Relations Board - Board Decisions

Dec 16, 1943

53 N.L.R.B. 1359 (N.L.R.B. 1943)

In the Matter Of EMERSON RADIO & PHONOGRAPH Co. and I+EDEEA-
TION OF ARCHITECTS, ENGINEERS, CHEMISTS AND TECHNICIANS-
C. I. O. CH. No. 31
Case No. 2-R-4211.-Decided December 16, 1943
Chadbourne, Hunt, Jaeckel cC Brown, by Mr. Newton D. Crane, of
New York City, for the Company.
M11r. Thomas R. Sullivan, of New York City, for the Federation.
Mr. A. Sumner Lawrence, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Federation of Architects, Engineers,
Chemists and Technicians-C. I. 0., Chapter No. 31, herein called the
Federation, alleging that a question affecting commerce had arisen
concerning the representation of employees of Emerson Radio & Phon-
ograph Co., New York City, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing upon due
notice before Jack Davis, Trial Examiner. Said hearing was held at
New York City on November 2, 3, and 6, 1943. The Company and the
Federation appeared, participated, and were afforded an 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.
The Company's motions to dismiss are overruled for reasons herein-
after stated. All parties were afforded an opportunity to file briefs
with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Emerson Radio & Phonograph Co. is a corporation having its
principal office and place of business in New York City , where it is
'While the United Electrical, Radio & Machine Workeis of America, herein referred to
as the UE, was not served with notice of hearing and filed no formal appearance as a party
to the proceeding, a representative of the UE participated in the hearing as a witness for
the Federation.
53 N. L. R. B., No. 248.
1359
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in the manufacture of radios and electronic equipment. The
Company obtains annually from points outside the State of New
York and for use at its New York City plant, raw materials having a
value in excess of $1,000,000. The value of the products shipped by
the Company from its New York City plant to points outside the
State of New York is also in excess of $1,000,000 annually.
II. THE ORGANIZATION INVOLVED
Federation of Architects, Engineers, Chemists and Technicians,
Chapter No. 31, is a labor organization affiliated with the Congress of
Industrial Organizations, admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
On June 12, 1943, the Federation requested in writing that the
Company recognize it as exclusive bargaining representative for
laboratory workers employed by the Company. After numerous meet-
ings at which the Company, the Federation, and the UE, conferred
with the object of attempting to reach an agreement upon the cate-
gories of employees represented by the several unions, the Company
declined to continue further with the matter upon the ground that to
discuss the laboratory workers would be a breach of the secrecy re-
quirements of the Army and Navy authorities with which the Com-
pany is under contract.
A statement of the Regional Director, together with other evidence
introduced at the hearing, indicates that the Federation represents a
substantial number of employees in the unit hereinafter found ap-
propriate.'
We find that a question affecting commerce has arisen concerning the
representation of employees of the Company, within the meaning of
Section 2 (6) and (7) of the National Labor Relations Act.
IV. THE APPROPRIATE UNIT
-The Federation contends that all engineering and technical em-
ployees of the Company, including apprentices, tracers, draftsmen,
blueprint operators, laboratory helpers, laboratory assistants, labora-
' The Regional Director reported that the Federation had submitted 58 application-for-
membership cards dated between March and August 1943, including 21 undated , all of which
bore the apparently genuine original signatures of persons in a claimed appropriate unit of
approximately 100 employees The Regional Director further reported that the Company
had been requested to submit a list of employees but that none had been submitted to date.
The Trial Examiner reported that at the hearing the Company had submitted a pay-roll
list containing the names of 109 employees in the claimed appropriate unit as of October 23,
1943, and referred to by the company witness as laboratory employees The Trial Examiner
further reported that the Federation had presented at the hearing 66 membership cards
dated between March and September 1943, of which 55 bore the names of those who
appeared on the pay-roll list of•the Company.
EMERSON RADIO & PHONOGRAPH CO. 1361
tory technicians, engineering assistants, student engineers, junior
engineers, assistant engineers, and associate engineers, but excluding
department heads, senior engineers, production, clerical, and mainte-
nance employees, constitute a unit appropriate for collective bargain-
ing. The Company, on the other hand, maintains that the proposed
unit, in effect a unit of laboratory workers, is inappropriate upon the
grounds (1) that the plant has been organized by the UE upon a
plant-wide basis including both laboratory and production employees,
and (2) that there is no clear division between the duties and func-
tions of the laboratory employees in question and those of -the general
production employees.
With respect to the history of collective bargaining in relation to
the question of the appropriate unit, it appears that while the Com-
pany, under date of May 10, 1941, had executed a contract with the
UE which it is claimed indicates the appropriateness of a plant-wide
unit including both technical and production employees, an inspec-
tion of the contract relied upon discloses that it does not provide for
recognition of the UE as exclusive representative of all such em-
ployees, but is merely a temporary agreement between the Company
and the UE as representative of its own members, having as its prin-
cipal objective the termination of a then existing strike! The agree-
ment provides for the arbitration of future grievances on the part
of the UE pending certification by the Board of some labor organ-
ization as the sole and exclusive bargaining agent for the employees
,concerned,3 and that the Company will not enter into any contract
with any labor organization unless and until such labor organization
has been certified by the Board as representing the majority of the
Company's employees. Moreover, while the contract makes no
reference to any particular categories of employees, the uncertainty
of the coverage thereby intended was subsequently resolved in part
by an agreement between the Company and the UE for a cross-check
under a petition filed by the UE with the Board in March of 1943, at
which time the Company proposed and the UE agreed that employees
under the general classification of laboratory workers should be ex-
cluded from the group represented by the UE.
There remains for consideration the further contention of the
Company that there is no clear line of division between the employees
in the proposed unit and the production employees generally as rep-
resented by the UE. The contention is, however, not supported by
8 While the UE originally began its organizing campaign by admitting to membership both
laboratory and production employees of the Company, it had never presented any grievances
for settlement on behalf of the laboratory workers, though it has presented grievances on
behalf of the production employees . The UE ' has, moreover , formally conceded to the
Federation all jurisdiction over the laboratory employees herein claimed as the basis of the
appropriate unit,
1362 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
the evidence as to the functions and responsibilities of the respective
groups herein concerned.4 The record shows that, production em-
ployees as 'a class, perform one or a series of repeated operations with
respect to radio equipment in the process of production, without re-
sponsibility for the successful completion of the product as a whole.
On the other hand, it is clear that technical or laboratory employees
are distinguishable .from production employees in that the former
are required to use their own judgment and initiative in the building
or testing of radio equipment and are responsible for the effectiveness
of the results thereby achieved. The difference in ability and skill
of the two groups is indicated by the fact that while there are varying
degrees within each category, the minimum wages for production
employees doing routine wire and assembly work is $20 a week, while
the minimum for assistant engineers, who also do wiring but from
schematic drawings, is $35 a week.-' So far as interchange of em-
ployees between the engineering and production groups is concerned,
it appears that transfers have been mainly from the engineering
group to supervisory positions among the production employees.6
The latter have apparently few, if any, social relations with the
engineering group other than occasional contacts in connection with
the use of equipment or the delivery of material between plant and
laboratory. Although employees in the engineering and laboratory
groups have responsible duties in connection with the Company's
operations, there is no claim that any of such employees should be
denied the right of representation as supervisory employees or that,
they are any way concerned with labor relations. Moreover, the mere-
fact that the work done by the employees within the proposed unit
may be limited to the duration of the present war,.does not deprive
4 The present overlapping of groups and the confusion resulting therefrom appears to be
largely the result of the Company 's recent attempt to place its engineering and laboratory
personnel into functional categories corresponding to similar groups existing among the pro
duction employees The artificiality of this method of classification is indicated by the
admission of the Company that up until the beginning of negotiations with the petitioner
there had been no necessity for preparing a list of functional classifications for laboratory
employees . Moreover, it appears that throughout the conferences between the Company,
the Federation, and the UE, the Company's representative took the position that he would
much prefer to have but one union in the plant.
5 The Company 's contention that the 36 persons referred to by the Company as having
pay-roll classification of engineers of one grade or another but whose functional duties are
wiring and assembling , are indistinguishable from production employees , is without merit.
witnesses for the Federation testified that the group of 36 actually do engineering work;
that when hired they were queried as to their experience and technical knowledge ; and that
their duties require the submission of engineering reports Several of the witnesses testified
as to their knowledge and technical training and that their duties are confined to engineering
work. We find that they are engineering employees to be included within the appropriate
unit. '
6 The Company claimed at the hearing that "a couple of dozen" transfers had occurred
between the plant and the proposed unit during the past year The evidence offered by the
Company did not, however , specify the proportion of transfers in either direction. The
testimony of witnesses for the Federation was to the effect that there have been substan-
tially no transfers other than transfers of engineering employees to supervisory factory
,positions.
EMERSON RADIO & PHONOGRAPH CO: 1363
such employees of the right to bargain collectively upon the ground
that they occupy the status of temporary employees.?
We find that all engineering and laboratory employees, student
engineers, junior engineers, assistant engineers, and associate engi-
neers, including draftsmen, blueprint operators, laboratory assistants,
laboratory technicians, supervisors," trouble shooters, raw material
inspectors,9 and chemists, within the functional and pay-roll classifi-
cations listed in Schedule A, annexed hereto, but excluding clerical
employees, senior engineers, department heads, and any other super-
visory employees with authority to hires promote, discharge, discipline,
or otherwise effect changes in the status of employees, or effectively
recommend such action, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act.10
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among 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' 9, of National Labor Relations
Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Emerson Radio &
Phonograph Co., New York City, 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 Second 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
4 See Matter of The Hoosier Crown Corporation , 51 N L. R. B. 1353. The fact that
laboratory employees are engaged in war work is immaterial so far as their right of collec-
tive bargaining is concerned . See Matter of Bendix Products Division of the Bendix Aviation
Corporation, 43 N. L. R. B. 912.
8 By the term " supervisors" is meant a group of 16 engineering employees referred to as
"supervisors." These employees spend part of their time instructing production employees
in the plant ,' but otherwise have no supervisory authority.
B These employees are classified as assistant engineers and perform technical work in the
inspection of incoming material.
10 See Matter of Bull Dog Electric Products Co , 22 N. L. R. B 1042 ; Matter of Bendix
Products Division of the Bendsx Aviation Corporation, 43 N L. R. B. 912; Matter of The
Permanents Metals Corporation, 45 N. L . R. B. 931.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
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
those employees who have since quit or been discharged for cause and
have not been rehired or reinstated prior to the date of the election, to
determine whether or not they desire to be represented by Federation of
Architects, Engineers, Chemists and Technicians-C. I. 0., Chapter
No. 31, for the purposes of collective bargaining.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.
SCHEDULE A
Associate-Packing Engineer.
Assistant-Wiring and Assembly.
Associate-Wiring and Assembly.
Junior-Wiring and Assembly.
Associate-Wiring and Develop-
ing.
Assistant-Wiring and Develop-
ing.
Associate-Wiring, Special.
Assistant, Supervisor.
Associate Supervisor.
Assistant Draftswoman.
Junior Draftswoman.
Junior Draftsman.
Assistant Draftsman.
Associate Draftsman.
Student Draftsman.
Student Draftswoman.
Assistant Trouble Shooter.
Associate Trouble Shooter.
Associate Project Engineer.
Associate-Contract Engineer.
Associate Special Engineer.
Associate-Chemist.
Assistant-Laboratory Assistant.
Student-Blue Prints.
Assistant-General.
Assistant-Raw Material Inspec-
tion.