Miller Electric Co.

National Labor Relations Board - Board Decisions

Dec 11, 1952

101 N.L.R.B. 1014 (N.L.R.B. 1952)

1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties. I do not foresee the gloomy prospect for the administrative
process which my colleagues fear.
Certainly no salutary policy is served by a strict requirement by
this Board under Section 8 (a) (3) of the Act that contracts must
specify a 30-day grace period for employees not members of the union
even though it is apparent to the contracting parties that no such
employees exist.
For this Board to deny to contracting parties the right to fashion
their contract to the facts of employment existing on the date of the
contract, and to hold them rigidly to a stereotype form of contract to
lighten the burden of the Board, is hardly compatible with stabilizing
labor relations.
MILLER ELECTRIC COMPANY and AMERICAN FEDERATION OF TECHNICAL
ENGINEERS , AFL, PETITIONER. Cage NO. 11-RC-.457. December 11,
1952
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 Robert Cohn, hearing
officer. 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 [Members Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.'
2. The labor organization involved claims to represent certain
employees of the Employer.
I The Employer entered into the following stipulation of facts concerning the nature of
its business : "The Miller Electric Company is a Florida Corporation engaged in the
electrical contracting business with principal offices in Jacksonville , Florida. At present
the Employer is engaged in operations in the States of Georgia, Florida, South Carolina
and North Carolina. Gross annual revenues for the past year exceeded $100,000. The
Employer is presently engaged in the installation of electrical equipment on the Savannah
River Project pursuant to a contract with the E. I. DuPont de Nemours & Co. The value
of this contract exceeds $100,000. The project is one devoted to the defense effort." The
Employer contends that because in this particular job it supplies no materials , but merely
handles materials supplied by the Government and installs said materials , it is not engaged
in interstate commerce within the meaning of the Act. It has long been a settled policy
of the Board to determine jurisdiction based on the over-all operations of tile Employer.
This applies to firms in the construction industry as well as other firms. Paul W. Speer,
Inc., 94 NLRB 317.
In any event, since the Employer is doing business on an atonic energy reservation, his
operations are so identified with the Government' s national defense program as to warrant
the full exercise of the Board' s power to assert jurisdiction conferred on it by the Act.
Richland Laundry and Dry Cleaners , 93 NLRB 680.
101 NLRB No. 180.
MILLER ELECTRIC COMPANY 1015
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner requests the Board to find appropriate a unit
consisting of engineering clerks, draftsmen, engineers, engineer
trainees, estimators, and area engineers 2 at the Employer's Savannah
River Project.
The parties agree that engineers, engineer trainees, estimators, and
draftsmen may constitute an appropriate unit for collective bargain-
ing purposes within the meaning of the Act. However, the Employer
contends that the engineers are professional employees within the
meaning of Section 2 (12) of the Act and that the remaining employ-
ees are nonprofessional employees. The Petitioner contends that all
the employees are professional employees within the meaning of the
Act.
Of the approximately 57 employees covered by this petition ap-
proximately 40 are engineers. The parties agree and the record
supports their contention that these employees are professional em-
ployees within the meaning of the Act. About 25 percent of the
engineers work primarily in the office under the supervision of the
chief engineer. The other engineers work out in the project under
the supervision of the superintendent or area superintendent. The
engineers do temporary construction design work, material takeoffs,
and supervise the installation of electrical equipment materials. They
are required to have a college degree or the equivalent thereof in
experience. They are hired as engineers A or B in accordance with
their ability and experience. The record shows that their work is
not routine or repetitive but requires the use of independent judgment
based on their educational training. We find that they are profes-
sional employees within the meaning of the Act .a
The engineer trainees are required to have a degree in electrical
engineering or an equivalent amount of experience. They work with
the engineers and are expected to become engineers after acquiring
experience on the job. We find that the engineer trainees are pro-
fessional employees within the meaning of the Act.
The draftsmen are not required to meet any particular educational
requirements, but must be qualified draftsmen, which according to
the superintendent's testimony requires about 5 years of drafting
experience. The Employer employs two draftsmen on this job.
They work under the supervision of the chief design engineer and are
responsible for the drafting of blueprints and less complicated
drawings for temporary construction work.
2 The Employer's contention that the petition is defective because it employs no employees
under the classifications of engineering clerks and engineers is clearly without merit.
4 Worden-Allen Co., 99 NLRB 410.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Two of the employees covered by this petition are estimators.
Their main duties are estimating the cost of various phases of the
work done by the Employer such as estimating the cost of a proposed
piece of equipment designed by the engineers for use on the project.
No specific educational background is required of estimators. How-
ever, they must have experience in the electrical field as materials
takeoff men and a wide knowledge of the installation of electrical
equipment.
Some of the testimony in the record indicates that the employer
has not maintained clear-cut distinctions in the duties of these various
classifications and that at times the draftsmen and estimators may
perform work ordinarily performed by engineers or engineer trainees.
It does not appear, however, that their regular work as draftsmen
or estimators requires "knowledge of an advanced type in a field of
science or learning customarily acquired by a prolonged course of
specialized intellectual instruction and study in an institution of
higher learning." Therefore, we find that they are not professional
employees within the meaning of the Act .4
As the engineers, draftsmen, and estimators are engaged in closely
related work, are under common supervision, and share the same
working conditions, we find that they may constitute an appropriate
unit.
Accordingly, we find that all engineers, engineer trainees, estimators,
and draftsmen employed by the Employer at the Savannah River
Project, Jackson, South Carolina, but excluding office and clerical
employees, guards and all supervisors as defined in the Act, and all
other employees, constitute a unit appropriate for purposes of col-
lective bargaining within the meaning of Section 9 (b) of the Act s
5. The Employer contends that an election should not be directed
at this time because of the temporary nature of the activities involved.
In support of this contention the Employer's witness testified that
the employees covered by this petition were hired for the duration
of the work on the project and that they have no expectation of being
transferred to any of the Employer's other operations. He stated
that they were beginning to lay off employees because they were no
longer required. He also testified that the Employer was still near
peak employment on this project and that the job might last for 1 or
2 years. The Employer expects to have about 50 percent of its present
force a year from the date of the hearing. Under all the circum-
stances and particularly in view of the substantial number of em-
4 Co , supra
R There are approximately 50 professional employees and 4 technical employees in the
unit found appropriate As the unit is predominantly professional , we shall not grant a
separate election to those employees found to be professional . Federal Telecommunica-
tions Laboratories , Inc, 92 NLRB 1395; Pacific Gas and Electric Company, 98 NLRB
No 130.
TEXAS CONSOLIDATED TRANSPORTATION COMPANY 1017
ployees presently working and the inconclusiveness of the testimony
concerning the completion date of the Employer's operations, we
believe that the Act will best be effectuated by the direction of an
election at this time.6
[Text of Direction of Election omitted from publication in this
volume.]
The Brush Beryllium Co., 96 NLRB 1383, The Girdler Corporation , 96 NLRB 889
R. C. DELAVAN , R. A. DELAVAN , EDDIE DAUGHET 'r, AND COLEMAN
DELAVAN, CO -PARTNERS , D/B/A TEXAS CONSOLIDATED TRANSPORTATION
COMPANY and GENERAL DRIVERS AND HELPERS LOCAL UNION No.
657, AFL. Case No. 39-CA-018. December 12, 1952
Decision and Order
On May 15, 1952, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of
the Act, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed 2 The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner only insofar as they are consistent with our
findings, conclusions, and order herein set forth.3
] 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 Herzog and
Members Houston and Murdock].
' We reject the Respondent ' s contention that the hearing did not comply with legal re-
quirements because the Trial Examiner was not a lawyer . For purposes of this proceeding,
it suffices that the Trial Examiner was duly qualified , certified , and designated as a hearing
examiner under applicable law. International Union, United Mine Workers of America,
et al., 83 NLRB 916. We also find that the record does not sustain the Respondent ' s asser-
tion of bias and prejudice by the Trial Examiner against the Respondent and its counsel.
I The Trial Examiner properly denied Respondent 's motion to dismiss the complaint for
lack of i urisdiction . The record shows that the Respondent is engaged in the business of
transporting aviation gasoline from refineries in Texas to a number of United States Air
Force bases in that State It delivered to Randolph Field and Kelly Field aviation gasoline
valued in excess of $500 , 000. Its operations are, therefore , sufficiently identified with the
national defense effort to warrant the assertion of jurisdiction in this case . Johnnie W.
Miller Sandwich Co , 95 NLRB 463
101 NLRB No. 174.