Roper Corp.

National Labor Relations Board - Board Decisions

Nov 9, 1970

186 N.L.R.B. 437 (N.L.R.B. 1970)

ROPER CORPORATION NEWARK DIVISION
Roper Corporation Newark Division and Office and
Professional Employees International Union and its
Local 173, AFL-CIO-CLC, Petitioner. Case
8-UC-51
November 9, 1970
DECISION AND ORDER DENYING
PETITION TO CLARIFY CERTIFICATION
By MEMBERS FANNING, BROWN, AND JENKINS
In a petition for unit clarification filed under
Section 9(b) of the National Labor Relations Act, as
amended, the Petitioner seeks to have placed within
its certified bargaining unit' of office and factory
clerical employees working at the Employer's manu-
facturing plant in Newark, Ohio, certain office
secretaries, production schedulers, and the steel
planner who are not represented by any labor
organization. On May 7 and June 23 and 24, 1970,2 a
hearing was held before Hearing Officer Michael E.
Temsey for the purpose of taking testimony with
respect to the issues raised by this petition. Following
the hearing, on July 24, the Regional Director for
Region 8 issued an order transferring the case for
decision by the Board in Washington, D.C., pursuant
to Section 102.67 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended.
Subsequently, the Petitioner and the Employer filed
briefs with the Board.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.
Upon the entire record in this case, including the
briefs filed by the parties, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
1 On June 19, 1950 , the Board certified Office Employees International
Union , AFL-CIO , as the exclusive representative of the instant office and
factory clerical bargaining unit . However, this certification was not
originally reported in the bound volumes of the Board's decisions , except
that in a previous Decision and Order Clarifying Certification , Newark
Stove Company 143 NLRB 583, the Board cited and described the certified
bargaining unit
2 All dates occur in 1970, unless otherwise specified
3 The basic unit is described as follows
All office and factory clerical employees including chief clerk,
timekeepers , cost time clerks, production clerks, office janitors , senior
clerks , stenographers , billing machine operators , clerk-typists , junior
accountant , junior clerk , messenger , mail clerk , switchboard operator,
437
3. The Petitioner, since 1950, has been the certified
agent for collective bargaining in behalf of an
appropriate office and factory clerical unit at the
Employer's manufacturing plant in Newark, Ohio.3
By virtue of the petition for unit clarification, the
Union is now seeking a further accretion to its
bargaining unit of a group of five secretarial positions,
three production schedulers, and one steel planner, all
of whom have been historically excluded. The
Petitioner contends, in part, that these employment
classifications should be added to the bargaining unit
because upon the termination of a prolonged strike in
1969, the Employer effected certain changes in work
methods and job assignments which have resulted in
these disputed employees now performing work
formerly done by members of Petitioner's bargaining
unit, and therefore they now belong in the unit.4 As
for the five secretaries involved in the petition, the
Union further maintains that a substantial reorgani-
zation and modification of the corporate executive or
managerial structure has abolished, or severely
reduced, the confidential nature of these positions,
thereby warranting their inclusion in the unit. Finally,
according to the Petitioner, the subject production
schedulers and the steel planner are currently per-
forming a significant volume of work belonging to the
certified unit so as to justify accreting these jobs to the
unit.
The Employer urges the dismissal of the petition
principally on the ground that, in these circumstances,
a proceeding to clarify the bargaining unit is not the
equitable or proper procedure for adding the employ-
ees in these categories to the existing unit inasmuch as
the petition presents a question concerning represent-
ation determinable only by a petition seeking an
election among these employees. Further, according
to the Employer, assuming arguendo that the Board
should consider that a question concerning represent-
ation has not been raised by the Petitioner, neverthe-
less, the petition must be dismissed as to the
production schedulers and the steel planner because
they are appropriately excludable from the unit as
technical employees, and they lack a community of
interest with the employees comprising the existing
unit. Finally, the Employer maintains that Petitioner's
suitable recourse for disposition of the issues herein
tabulating machine operator , and key punch operator, excluding other
employees, guards and supervisors , as defined by the Act.
The above unit was amended in 1963 to also include All employees
engaged in operating data processing or computer equipment, which
includes data processing systems and procedures analysts, programmers,
computer operators , and operators of collateral and related data processing
equipment , and including assistants to the payroll and data processing
department manager
4 At the outset, we note the absence of persuasive record evidence
tending to substantiate this broad contention Consequently, we reject it
and we will proceed to dispose of the issues presented by the petition
through our application of principles and precedents involved in the
clarification , or amendment, of bargaining units
186 NLRB No. 63
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should be to the grievance and arbitration provisions
in the parties' bargaining agreement rather than to the
Board's unit clarification procedures.5
The Secretarial Positions: The Petitioner seeks to
augment the existing bargaining unit by including five
secretarial positions involving the following employ-
ees: S. Davis, secretary to the production control
manager; S. Bibart, secretary to the merchandise
manager; C. Warrick, secretary to the director of
purchasing; K. Sutton, secretary to the buyers in the
purchasing department; and D. Pfeffer, secretary to
the director of contract sales.
All of the controlling considerations relate in equal
fashion to each such employee and position. In 1950,
when the Union was recognized by the Employer's
predecessor and certified by the Board as the
statutory bargaining agent, there were approximately
five secretaries assigned to various corporate execu-
tives. Since that time, due primarily to the growth of
the Employer's business, the number of secretaries
has increased until at the time of the hearing there
were 11 employees serving in this classification.6
Although Petitioner now contends that in 1950, all of
the secretaries were excluded by mutual agreement
because of their exercise of confidential duties, there
is record evidence which tends to belie this conten-
tion, e.g., the presently sought positions of secretary to
the director of purchasing and secretary to the
merchandise manager had been in existence prior to
the year of certification and were not included in the
unit even though they have never performed as bona
fide confidential employees.7 Contrary to the Peti-
tioner, the Employer maintains that all of the
secretarial jobs have been deliberately kept out of the
unit because of the parties' basic realization that the
secretaries' duties and terms and conditions of
employment so substantially differ from those of the
other employees in the unit that, as a consequence,
there is no prevailing community of interest among
them.
We hereby deny the petition as to the secretarial
positions because, although the secretarial classifica-
tion was in existence at the time of the Board's
certification in 1950, secretaries did not vote in any
election, were excluded by agreement of the parties,
and have never been covered by the numerous
5 Cf. Carey v. Westinghouse Electric Corp., 375 U.S. 261.
6 Petitioner does not seek to include the remaining six secretaries within
the unit, presumably because their positions are concededly exempt
pursuant to the Board 's customary exclusion of confidential employees.
r The Union attempts to elaborate its contention that the five secretaries
it seeks somehow perform less confidential duties currently than was true
originally because of certain changes as a result of corporate
reorganization . We find that this position is not sustainable on the record
and even if it were we would find it unavailing in view of our disposition of
the issue.
6 Westinghouse Electric Corp., 173 NLRB No. 51; General Electric
Company, 144 NLRB 88.
bargaining agreements between the parties. Manifest-
ly, then, the five secretaries in issue cannot be
included at this time as a proper accretion to the
existing unit. Therefore, even if some or, all of the
secretaries may appropriately be included in the
existing office and factory clerical unit, a matter
which we need not presently decide, they would be
entitled to a self-determination election for that
purpose and we would find that the petition for unit
clarification raises a question concerning representa-
tion as to them not resolvable in this proceeding.8
The Production Schedulers and Steel Planner: The
Petitioner also seeks to have the Board clarify the
bargaining unit by including production schedulers F.
Cortez, L. Ridgeway, and D. McFarland.9 As already
mentioned, Petitioner's major contention concerning
these employees is that the scope and nature of their
job responsibilities have been altered recently, with
the result that they are now performing a not
inconsiderable amount of work formerly done by unit
clerical employees. Consequently, Petitioner main-
tains that they should be accreted to the unit. As in the
case of the secretaries, the Employer argues that the
petition should be dismissed because Petitioner has
raised a question concerning representation not
properly resolvable in a unit clarification proceeding.
We find merit in the Employer's position.
The record does tend to sustain the Union's view
that substantial changes have occurred since Decem-
ber 1969, in the job structure and activities of the
production shcedulers. Formerly, these employees
scheduled production according to management's
blocking order concept, which has now been super-
seded by the economic order quantity system, or shop
floor control method.10 However, from our scrutiny
of the record we fail to perceive that these modifica-
tions in the Employer's production management
concepts and practices have resulted in their doing
such amounts of clerical work within the scope of the
certified unit that they must necessarily be deemed an
accretion thereto. The fact that this evidence deli-
neates the often close on-the-job contacts among
department clerks and production schedulers does
not detract from the vastly wider responsibilities of
the latter category of employees.
As for the steel planner, R. Bell, the Petitioner
9 Cortez schedules production for the paint department ; Ridgeway for
the weld and machine shop and McFarland for the pressroom. Production
schedulers perform under the overall supervision of the production control
manager and by working under the master assembly schedule determine
the quantities and the sequence of the many product components to be
manufactured in the various departments . When breakdowns or other
delays in production occur, the scheduler is responsible for investigating
the cause and working with the appropriate production foremen to
eradicate the problem.
10 In view of our disposition of this case , we consider it unnecessary to
describe more fully the various elements of these techniques for industrial
planning and control.
ROPER CORPORATION NEWARK DIVISION 439
requests his inclusion in the bargaining unit for
substantially the same reasons and in reference to the
cited alterations in production control techniques,
which it relies on in the instance of the production
schedulers. The steel planner is charged with the
function of determining all of the steel requirements
for this sizeable plant. At Newark, the Employer
manufactures some 700,000 lawn mowers per year,
most of which are various types of power-driven
machines. In addition, the plant produces large
quantities of snow blowers and minibikes. Bell plans
for the plant's steel needs both on a short-term and
long-term basis, and it is his duty to assure that the
necessary tubular, rolled, bar, sheet, coil, and other
steel supplies are on hand so as to guarantee the
uniterruped operation of the plant. In connection with
the performance of his responsibilities, the steel
planner inevitably does some recordkeeping, but the
11 We note the testimony of employee Harvey in this regard, but, even
assuming that the steel planner performs the clerical function of
maintaining the "theoretical inventory," we find that this circumstance
does not funish an adequate basis for accreting this classification to the
existing unit
12 Considering our disposition of the petition herein, we find it
unnecessary to reach the questions , as contended by the Employer, that the
clerical aspects of this position appear to us to be
minimal.11 In view of the foregoing, we find, for the
same reasons as in the case of the five secretaries
sought by Petitioner, that, since the classifications of
production schedulers and steel planner existed at the
time the unit was certified and they have been
historically excluded from the unit, they may not be
added to the unit without a self-determination
election, assuming these employees otherwise would
belong in the existing unit.12
In view of the foregoing and the entire record
herein, the petition for unit clarification is denied and
we shall dismiss the petition.13
ORDER
It is hereby ordered that the petition be, and it
hereby is, dismissed.
schedulers and planner are also excludable from the unit on the ground
that they are technicians , or that they do not have interests in common
with the unit employees becuase of the nature of their work and
responsibilities
13 Ladish Co, 176 NLRB No 150, Westinghouse Electric Corp, supra.
Of course, we intimate no conclusions with respect to any of the issues
which might be raised in such proceedings.