FWD Corp.

National Labor Relations Board - Board Decisions

Aug 30, 1962

138 N.L.R.B. 386 (N.L.R.B. 1962)

386 DECISIONS OR NATIONAL LABOR RELATIONS BOARD
employees, professional employees, guards, the head meat cutter, pro-
duce department head, assistant manager, and all other supervisors a
as defined in the Act.
[Text of Directon of Election omitted from publication.]
s The Petitioner contends that the Collins Mart section or department heads are non-
supervisory employees . The Intervenor and the Employers took no position on this matter.
As the head meatcutter, produce department head , and assistant manager possess the
authority to discharge employees , we find that they are supervisors within the meaning
of .the Act, and exclude them.
FWD Corporation and Associated Unions of America, Office and
Professional Workers Local 15.1 Case No. 18-RC-4898. Au-
gust 30, 196$
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Max Rotenberg, hearing of-
ficer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of the
Act. C
2. The Petitioner claims to represent certain employees of the Em-
ployer.
3. On March 31, 1942, the Petitioner was certified as the collective-
bargaining representative for a unit of office, local sales, technical,
and other salaried employees at the Employer's plant at Clinton-
ville, Wisconsin. In July 1960 the Petitioner requested the Board to
clarify its certification to find that certain employees were included
within the certified unit. The Board ordered a hearing on the issues
raised by the motion for clarification and on May 6, 1961, issued its
Supplemental Decision and Order 2 in which it stated:
In view of the age of the certificate, the numerous changes from
the certificate's unit description made by the parties in the col-
lective-bargaining contracts negotiated since the certification, and
the exclusion of some or all of the individuals in dispute from some
or all of these contracts, we find that the unit for which the Peti-
tioner is bargaining representative is too indeterminate at this time
'The Petitioner's name appears as amended at the hearing.
'FWD Corporation, 131 NLRB 404.
138 NLRB No. 44.
FWD CORPORATION 387
to permit resolving by motion for clarification the question whether
the disputed individuals belong in the unit. The Petitioner should
file a new petition for certification of representatives to resolve this
question. The Board will then decide in the light of present con-
ditions what is the appropriate unit and whether any employees
because of bargaining history should be permitted to vote sep-
arately before including them in the unit.
The bargaining contract for the office and clerical unit expired August
31, 1961, and shortly thereafter, pursuant to the Board's invitation,
the Petitioner filed the instant petition seeking a unit of all salaried
office employees at the Clintonville plant.
The Employer now urges the Board to examine whether the Peti-
tioner has submitted a showing of interest amounting to at least 30
percent of the employees in its requested unit, and contends that the
petition should be dismissed in the absence of such -a showing. We
believe this contention to be without merit. The petitioning Union has
represented most of the employee classifications in the unit for 20
years; its last contract with the Employer required that the employees
whom it represented become and remain members of the Union, pursu-
ant to a valid union-security provision; and the Board had already ad-
vised the Petitioner that it would only determine the issues with re-
spect to the scope of the unit if a petition were filed. We are satisfied,
under these circumstances, that the Petitioner has a current interest
in an office unit which is sufficient to justify the holding of an election
even though it has not submitted authorization cards from as many
as 30 percent of the employees in its requested unit.'
We find that a question affecting commerce exists concerning the
representation of certain employees of the Employer within the mean-
ing of Section 9(c) (1) and Section 2(6) and (7) of the Act.
4. The Employer is engaged in the manufacture and distribution
of heavy-duty trucks at its principal plant and general offices at
Clintonville, Wisconsin. The Petitioner described the unit it seeks
as:
All salaried office employees at the Clintonville works excluding
executives, field representatives, office managers, department
heads and supervisors, professional and confidential employees
as defined in the Act, and guards and other employees excluded
under the, Act.
The number of employees whom the Petitioner considers to be within
this unit description is approximately 200. All of them work in the
8 Acme Brewing Company, et al., 72 NLRB 1005, 1006; Brewery Proprietors of Mil-
waukee, Wisconsin, et al., 62 NLRB 163; see also The Pantasote Company, 103 NLRB
1271 . Although questions regarding showings of interest are not litigable, the Board
will normally, on its own motion, dismiss a petition if it is satisfied that a petitioner's
interest in holding an election is inadequate to justify the admnistrative burden involved.
662353-63-vol. 138-26
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same office area, and all punch timeclocks. They work an 8-hour day,
but those whose duties require them to deal frequently with plant
personnel work the same hours as the plant, 7:30 to 4 pm, with a half-
hour lunch. The others work from 8 am to 5 pm, with an hour for
lunch. They are all salaried. The parties agree that approximately
140 employees are in classifications presently within the scope of the
Petitioner's request or who should now be added to such a unit.4
There are two major areas of disagreement between the parties as
to inclusions within the unit : (1) about 11 employees in four classi-
fications who have been previously included in the unit but whom the
Employer would now exclude for various reasons; and (2) some 50
employees who have not recently been considered as being within the
unit but who the Petitioner contends occupy positions which properly
belong within the scope of an office unit. These 50 employees were
the subject of the Petitioner's earlier motion for clarification which
the Board dismissed.
Classifications Presently Included
The four classifications constituting the group previously covered
but which the Employer would now exclude are :
1. Junior layout draftsmen: The Employer contends that they are
either professional or technical employees who should, in either event,
be excluded. They are required to have a working knowledge of
mechanical, structural, and electrical layout drafting; be familiar
with manufacturing procedures, machine shop practices, assembly, in-
spection, and test methods, and must be able to read complicated blue-
prints. They have no responsibility for design, but are expected to
make recommendations concerning revisions in layouts. They pre-
pare layouts of trucks, parts, etc., from general instructions and data
furnished by a design engineer. The job description for this classi-
fication states that the educational requirements are a college educa-
tion or 4 years' equivalent of college training. None of the persons
occupying this position does in fact have a college degree. We find
that the junior layout draftsmen do not meet the requirements estab-
lished by Section 2(12) of the Act for "professional employees," but
that their work is of a technical nature involving some independent
judgment and requiring the exercise of specialized training usually
acquired in colleges or technical schools or through special courses.'
They have been included within the bargaining unit for at least the•
* This number includes some employees who have apparently not been previously in-
cluded but who the Employer agrees are properly part of an office unit. They are the
secretaries to the advertising manager, service manager, director of process engineering
and director of material control ; a typist ; a material follow-up clerk ; a card analyst
clerk ; and four order planners.
67ritton Industries of Maryland, Incorporated, 125 NLRB 722 , and Waldorf Instrument
Company, 122 NLRB 803, 805.
FWD CORPORATION 389
past 12 years, their working conditions and skills are similar to those
of other employees properly within the unit, and no union is seeking
to represent a separate unit of technical employees. We find, there-
fore, that the junior layout draftsmen are technical employees who
have a sufficiently close community of interest with the office employees
to warrant their inclusion within the unit.'
2. Clerk-billing and typist: This employee operates billing ma,
,chines, applies discount rates, calculates excise and transportation
taxes, and types tax returns and other special confidential reports.
She is assigned to the accounting department. The Employer con-
tends that she should be excluded as a confidential employee in view
of the nature of the information available to her in her work. We
find that she is not a confidential employee since she does not assist
or act in a confidential capacity to persons who formulate, determine,
and effectuate management labor relations policy 7 We shall include
her in the unit.
3. Receptionist-secretary, industrial relations department: This
employee acts as a receptionist whose duties are to prescreen job ap-
plications and to transcribe dictation in the industrial relations de-
partment. Another secretary in the same department acts as the
assistant to the supervisors in this department, and is presently ex-
cluded as confidential. The Employer would exclude the receptionist
also as a confidential employee. We are satisfied that her principal
function is to act as a receptionist and that her work is primarily non-
confidential. We shall include her in the unit.
4. Supervisor, printing division: The Employer's job description
defines this position as having semi-routine duties involving the use
of duplicating machines and the assignment of work in accordance
with job tickets. There are from three to six other people working in
the printing division. The job is primarily manual, involving the ac-
tual running and use of the various copying machines, and the super-
vision merely entails distributing work to other employees in accord-
ance with the availability of the machines. The occupant does not
appear to have the authority to responsibly direct the work of others or
to make effective recommendations regarding their status. We find,
contrary to the Employer's position, that this employee is not a super-
visor and we shall include her in the unit.
Classifications Presently Excluded
There were at the time of the first hearing approximately 50 em-
ployees who were excluded from the bargaining unit, all of whom the
Petitioner would include. Their names and job positions were num-
bered in exhibits admitted in evidence at the first hearing and for
9 Cf. The Sheffield Corporation, 134 NLRB 1101.
7 Vulcanized Rubber and Plastics Company, Inc., 129 NLRB 1256, 1259.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ease of identification, the numbers identifying each person will be used
in this Decision. Since the first hearing, four employees (Nos. 18,
22) 23, and 28) have been transferred to jobs within the unit; three
employees (Nos. 7, 40, and 43) have left the Employer's employ ; and
three employees have been newly added (Nos. 52, 53, and 54). These
three and the remaining employees are in classifications which the
Employer considers to be professional, technical, confidential, mana-
gerial, or supervisory. At the first hearing, the Employer contended
as a general ground for excluding many of these employees that they
were then being paid a salary higher than the rate ranges set forth in
the latest agreement and that they would otherwise be adversely af-
fected with respect to seniority and certain fringe benefits if they were
included within the unit. We agree with the Petitioner that neither
of these considerations is decisive as to whether the presently excluded
employees should now be added to, or be reinstated within, the bargain-
ing unit, since their rates of pay and fringe benefits are matters to be
bargained about if it is decided that they should be included within
the existing unit based on their general community of interests with
other employees in the unit. An undisclosed number of the 50-or-so
employees involved herein were formerly considered to be within the
certified unit, but were removed by the Employer at various times upon
its representation to the Union that their duties had been changed or
their salaries increased beyond the rate ranges prescribed in the
agreement.
There remains for consideration the question of their status in the
light of the specific grounds set forth by the Employer.
Marketing division: The Employer would exclude 10 employees
assigned to this division :
R. Prichard (No. 50) is employed as assistant branch manager at
Duncan, Oklahoma, and was assigned to the Employer's plant at
Clintonville for a 6-month training period. In view of his temporary
assignment at the Clintonville Works, we shall exclude Prichard from
the unit.
F. Goerlinger (No. 42), service and maintenance instructor, is re-
sponsible to the service manager for the training and development of
dealers, customers, and service trainees regarding the service of the
Employer's equipment. He conducts training sessions both in the
field and at the Employer's plant. He is used on field assignments
only when it is not expedient to use a field service man. Despite the
Employer's contention that he is a professional employee, we find that
his work does not meet the requirements of Section 2(12) of the Act
and we shall include him in the unit.
G. Backes (No. 19) is referred to as a division sales manager by the
Employer and as a sales correspondent by the Petitioner. He corre-
sponds with franchise dealers in Latin America regarding the Em-
FWD CORPORATION 391
ployer's products. The Employer asserts he supervises two employees,
one in Mexico City and another in Brazil. In the absence of specific
evidence as to the scope of his responsibilities and duties with respect
to these employees, we find that he is not a supervisor or a managerial
employee and shall include him in the unit.
The remaining employees in dispute in the marketing division are :
Christianson (No. 16), Sengstock (No. 17), Schroeder (No. 20) and
Scheider (No. 21), sales correspondents; Marcy (No. 51), contract
administrator; Hill (No. 29), technical writer; and Roemer (No. 1),
catalogs and specifications. They have no supervisory functions but
the Employer contends that some of them are managerial or "field
representatives." In the absence of any evidence that any of these em-
ployees satisfies the Board's definition of a managerial employee or
actually serves as a field representative outside of the Employer's
plant, we include them in the unit.
Product scheduling department :
J. Eggleston (No. 39) is classified as a product planner. He main-
tains records of inventory and materials requirements and expedites
the production of critical parts likely to affect contract schedules. As
the record discloses that his work is neither managerial nor super-
visory, we shall include him in the unit.
Material control department:
L. Stichman (Ne. 25) is classified as purchased parts supervisor.
He is under the supervision of the manager of material control, help-
ing to administer the Employer's system of parts control as well as
maintaining inventory records. The Employer stated that he pos-
sesses the authority tp hire and discharge at least two employees under
him and has indirect supervision over two other employees. We find he
is a supervisor and shall exclude him from the unit.
Colyar (No. 24), Hedtke (No. 27), Marotz (No. 38) and Huebner
(No. 26) are classified as material specialists. Each is said to super-
vise one employee, apparently an assistant engaged in doing similar
work. It appears that the authority exercised over them is routine,
and we therefore And that these employees are to be included.
Knapp (No. 2) is assistant scheduling supervisor, laying out work
for the stock chasers. Although he is authorized to act for his super-
visor in the latter's absence, his authority when doing so is apparently
limited. We include him in the unit.
Loberg (No. 3) and Green (No. 4) are dispatchers for the machine
shop, but are also sometimes referred to as foremen-trainees or assistant
foremen. Whatever their actual title, they apparently do not sub-
stitute for a production foreman since they are assigned to an office
department. In the absence, of any supervisory duties, we include them
in the unit.
Office of the treasurer :
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Collier (No. 32) is the assistant credit manager under the supervision
of the assistant treasurer. He investigates customer and dealer credits,
determining within the limits of established policy, terms, and
amounts of credit. The record indicates that he does not possess any
supervisory authority, and we shall accordingly include him in the
unit.
Scheel (No. 34), chief file clerk, is responsible for microfilming and
storage of fiscal records. She does not supervise any employees and
the material she is responsible for does not include files relating to
labor relations. She is neither a supervisor nor a confidential em-
ployee, and we shall include her in the unit.
Steinbach (No. 30), cost and profit analyst, is supervised by the
cost accountant. He is responsible for corporate cost and price control
and does all the technical work required thereby. His job description
does not include any supervisory duties, but the Employer maintains
that he is responsible for the work of two employees. One of these is
a clerk who works for him on a part-time basis and the other is Jepson
(No. 31), sales order pricer, whom the Employer also considers to be a
supervisor although he apparently has no supervisory functions at all.
We shall include Steinbach and Jepson in the unit since the record
does not substantiate that they possess or exercise any supervisory
functions.
Myszka (No. 33), assistant manager, accounting section, is under
the general supervision of the assistant comptroller. He prepares or
supervises the preparation of accounting data relating to sales, cost
of goods, and other fiscal information. He has five or six employees in
his unit whom he responsibly directs. We find that he is a supervisor
and exclude him from the unit.
S. Miller (No. 44) is supervisor of the tabulating department, in
charge of all tabulating equipment. IIe supervises 10 or 12 machine
operators and key punch operators, responsibly directing their work.
We shall exclude him as a supervisor.
Purchasing department:
Stromberg (No. 35) and Billings (No. 36) are classified by the
Employer as section chiefs of purchasing for the material and special
equipment sections. The Petitioner characterizes their classification as
that of buyers. Each has one employee in his section who apparently
assists in detail work. In the absence of evidence that Stromberg or
Billings possess or exercise authority to direct other than routine work,
we shall include them in the unit.'
Fandrey (No. 37) is classified as manager of surplus and salvage.
He is supervised by the director of purchasing and makes recom-
mendations with respect to selling or converting surplus and salvage
goods back into production. These responsibilities do not establish
8 American Radiator & Standard Sanitary Corporation , 119 NLRB 1715, 1717.
MD-CORPORATION 393'
that he is a managerial employee.9 He does not supervise any em-
ployees in the office, but on occasion, when he goes into the plant and'
requires that material be moved or inventoried, he may request plant
employees to do such work. At most, this consumes about 5 percent
of his time. We find that he is not a supervisor and shall include him
in the unit.
Design analysis and estimating department:
Riemer (No. 15) is the design analysis supervisor, reporting to the
design analysis and estimating director. He has five employees in his
section. Since he appears to responsibly direct on a full-time basis a
substantial number of employees, we shall exclude him as a supervisor.
Lewis (No. 13), Westphal (No. 9), Wolff (No. 53), and Lemke
(No. 52) are design analysts in Reimer's section. They regularly pre-
pare recommendations for redesign, working closely with project
engineers and market managers. Their job descriptions do not call
for any supervisory functions. We shall include them in the unit.
Hoffman (No. 14) and Zingler (No. 11) are classified as estima-
tors. They prepare estimates on products assigned to them by the
supervisor of estimating. There is no evidence that either of them
presently supervises anyone and, in fact, another estimator is ad-
mittedly within the bargaining unit. We shall include the estimators,
in the unit.
Engineering division :
Kuckuk (No. 5) is classified as parts number and standards clerk.
He issues numbers for all parts used in designing new units, keeps
manuals and other books of specification. A witness for the Employer
testified that Kuckuk supervises a typist. In the absence of more
specific evidence as to the nature of his supervisory duties, we find
that he is not a supervisor and shall include him in the unit.
Brusewitz (No. 6), specifications supervisor, is responsible for the
preparation of bills of material for trucks and optional equipment.
He checks items listed on sales orders and prepares various reports.
He supervises at least three employees and may effectively recommend
pay increases for them. We find that he is a supervisor and exclude
him from the unit.
Manufacturing engineering :
Jozwiak (No. 54) and Mauel (No. 10), methods analysts, establish
the methods and processes used in manufacturing the Employer's
products. Magee (No. 8) is a methods analyst or engineer who pre-
pares proposals for changes in the physical layout of the plant. They
are not shown to possess or exercise any supervisory functions over
other employees, and we shall include them in the unit.
Kort (No. 41) is a tool designer. He designs and makes drawings
of jigs and fixtures. The Employer asserts that he is a professional
e K trap County Automobile Dealers Association , 124 NLRB 933.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee. The skills he exercises have been learned in specialized
training, but are not necessarily acquired in a course of professional
study. We find that he is, at most, a technical employee and shall
include him in the unit.
J. Miller (No. 12) is a process engineer under the supervision of
the manager of the industrial engineering department. He supervises
several persons, including Jozwiak and Mauel, and is responsible for
their ratings and for recommending their hire and discharge. We
find that he is a supervisor and exclude him from the unit.
Engineering department :
Mueller, Hess, Sousek, Dicek, and Doran (Nos. 45 through 49)
are classified as junior designers. They are required to design com-
plex layouts of trucks, parts, or equipment from instructions, and
data furnished them. The education required is either a B.S. degree
from an engineering school, or if not a graduate, then high school
mathematics and physics courses plus completion of certain mechan-
ical and engineering drawing courses offered by the University of
Wisconsin. In lieu of graduation from an engineering school, 6 years
of drafting and technical experience is deemed to be satisfactory.
The Employer contends that they are professional employees, but
neither their education nor specific duties indicate satisfaction with
the requirements of Section 2(12) of the Act. We find that they are
technical employees and include them in the unit."
Under these circumstances, we find that the 50 or so employees pres-
ently considered by the Employer to be excluded from the certified
unit on the ground that they are "staff employees" do in fact possess
employment interests which are substantially similar to those of em-
ployees who are within the unit and, except for those whom we have
found above to be supervisory employees, may approximately be added
to the existing salaried office unit. Some of these individuals have
never been considered as within the unit; others have at one time been
included, but were thereafter removed as their jobs were reclassified
or as they were promoted beyond the rate ranges established by the
bargaining agreements; certain of these employees were removed from
the unit as recently as 1960, just prior to the time that the Petitioner
sought to have the Board clarify the certified unit. In view of the
many changes in personnel and job classifications which have taken
place since 1942, the frequency with which employees have been shifted
into and outside the unit, and the difficulty of determining when any
particular job classification or employee has been considered as being
within the unit, we believe that there is no identifiable fringe group of
employees whose positions have always been excluded from the certi-
fied unit. Thus, even under the Zia case, 108 NLRB 1134, which has
10 Allis Chalmers Manufacturing Company, Pittsburgh Works, 128 NLRB 87, 88; Wal-
dorf Instrument Co., supra.
ALLURE SHOE CORPORATION 395
in any event been modified in this respect," we would not have directed
a separate election for these so-called "staff employees."
Accordingly, we find that the following employees of the Employer
at its Clintonville, Wisconsin, plant constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9(b) of theAct:12
All salaried office employees, excluding executives, field representa-
tives, office managers, department heads, professional and confidential
employees, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
n D.V. Displays Corp , 134 NLRB 568.
"Included within the general coverage of the unit are those employees and classifica-
tions specifically found above as being appropriately part of a salaried office unit. Of
course, the inclusion within the unit of any particular job title or Individual does not mean
that similar jobs or these employees , If promoted or reclassified , are to be automatically
excluded In all cases , the proper test for exclusion from the unit is whether the in-
dividual , although a salaried office employee , is within a category specifically excluded
from the above unit description.
Allure Shoe Corporation and Local 885, Retail , Wholesale and
Department Store Union , AFL-CIO and Cipriano C. Dopico,
Paulina Garcia . Cases Nos. 12-CA-1937, 12-CA-1982, 12-CA-
2007, 12-CA-2127, and 12-CA-2132. August-31, 1962
DECISION AND ORDER
On May 22, 1962, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Interme-
diate Report. He also found that the Respondent had not engaged
in certain other unfair labor practices, and recommended dismissal of
the complaint as to them. Thereafter, the Respondent and Local 885,
Retail, Wholesale and Department Store Union, AFL-CIO, filed ex-
ceptions to the Intermediate Report and supporting briefs.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
i Local 885 ' s exceptions and briefs were filed on behalf of Itself and on behalf of
Samuel Rivera , Gladys Rivera, Ana Canut , Alejandrina Zamora, Paulina Garcia, and
Alphonso Delgado.
138 NLRB No. 47.