The Budd Co.

National Labor Relations Board - Board DecisionsAug 11, 1965

154 N.L.R.B. 421 (N.L.R.B. 1965)

THE BUDD COMPANY AUTOMOTIVE DIV., DETROIT PLANT 421 WE WILL NOT make any threat of reprisal or engage in any reprisal in order to induce or encourage any employee to vote against any union in any election conducted by the National Labor Relations Board. WE WILL NOT engage in any surveillance, or keep under watch and observa- tion, any union or other lawful organizational activity of our employees, or any union hall or other place where such activities, including meetings, are taking place. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by Congress to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection, or to refrain from engaging in any or all such activities. WE WILL NOT in any manner interfere with the right of our employees to make a free and untrammeled choice in any election conducted by the National Labor Relations Board. All employees are free to become, remain, or to refrain from becoming or remaining, members of Textile Workers Union of America, AFL-CIO, CLC, or any other labor organization. MORGANTON DYEING AND FINISHING CORPORATION Employer Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1831 Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Tele- phone No. 723-2381. The Budd Company Automotive Division , Detroit Plant and In- ternational Union , United Automobile, Aerospace and Agricul- tural Implement Workers of America , (UAW) AFL-CIO, Petitioner. Cases Nos. 7-RC-6572 and 7-RC-6574. August 11, 1965 DECISION AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held in these consolidated cases before Hearing Officers Jack G. Handler and Joseph Kulkis. The Hearing Officers' 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 National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Mem- bers Brown and Zagoria]. Upon the entire record in these cases, 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 jurisdic- tion herein. 154 NLRB No. 26. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The labor organization involved claims to represent certain eniplnvees of the Employer. 3. The Employer, at its Charlevoix Avenue, Detroit, Michigan, plant, involved herein, manufactures automotive parts. The Petitioner currently represents 3 separate units in the plant: (1) the production and maintenance employees numbering about 4,000; (2) a unit of technical employees numbering about 91; and (3) a unit of office clerical employees numbering about 250. The Petitioner was certified as the representative of the technical and office clerical units in 1963 (Case No. 7-RC-5659) pursuant to a consent-election agreement and its current contracts covering them expire November 30, 1965. In the instant cases , the Petitioner requests elections in a unit of engineers and a unit of accountants and related classifications, as described below, who comprise all the unrepresented employees at this plant. The Employer moved to dismiss the petitions on the ground that they are barred by the agreement for consent election in Case No. 7- RC-5659, the current collective-bargaining contracts covering the technical and office clerical units, and a strike settlement agreement executed on May 17, 1964, in all of which the Petitioner allegedly agreed not to represent the requested employee during the term of the aforesaid current collective-bargaining contracts. In the agree- ment for consent election and the current contracts, the parties agreed, as to the office clerical unit, to exclude technical employees, as to the technical unit, to exclude office clerical employees; and as to both units, to exclude professional employees, confidential employees, all employees in the Employer's divisional offices in Detroit, Michigan, all executive and managerial employees, secretarial employees, guards, supervisors, and all employees currently covered by collective- bargaining agreements. The strike-settlement agreement, that in- volved the technical unit, provided inter alia, that : "All Industrial Engineering employees [were] to be excluded from Unit representa- tion on the basis of being Confidential employees." In support of its contention that the Petitioner, by thus agreeing to the exclusion of the employees involved herein from the existing units, in fact agreed not to seek to represent them, the Employer relies upon the Briggs Indiana 1 case. In that case the Board held that where a collective-bargaining agreement contains a provision by which the union obligates itself to refrain from seeking to represent certain employees, the Board will not during the life of that agreement entertain a petition for representation of such employees by that union. However, as explained in Cessna Aircraft,2 the Board applies this rule only where the contract itself contains an express promise on the part 1 Briggs Indiana Corporation , 63 NLRB 1270 2 The Cessna Aircraft Company, 123 NLRB 855, 857. THE BUDD COMPANY AUTOMOTIVE DIV., DETROIT PLANT 423 of the union to refrain from seeking representation of the employees in question, and such a promise will not be implied from a mere unit exclusion; nor will the rule be applied on the basis of an alleged under- standing of the parties during contract negotiations. As the above- described collective-bargaining contracts contain no express agreement on the part of the Petitioner that it will not seek to represent the two groups of employees here involved,' we find no bar to the instant petitions.4 4. In its brief to the Board, the Petitioner makes the following unit requests, excluding from each unit all employees in the Em- ployer's divisional offices in Detroit, guards, supervisors, and all employees presently represented by Petitioner : In Case No. 7-RC-6572, the Petitioner seeks a unit of all chemical, industrial, and metallurgical engineers, excluding office clerical em- ployees. In Case No. 7-RC-6574, the Petitioner seeks a unit of all employees classified as accounting clerk A, cost analyst, accounting clerk leader, accounting clerk A leader, paymaster, cost accountant, and cost analyst leader. Alternatively, the Petitioner is willing to represent these employees as part of its existing technical and office clerical units, respectively. The Employer contends that all the requested employees except the cost accountant and accounting clerk A are either managerial, confidential, or supervisory. It further asserts that if the Board directs elections, the employees requested in Case No. 7-RC-6572 are professional employees entitled to a self-de- termination election as to whether they wish to be included in the existing technical unit, and the employees requested in Case No. 7-RC- 6574 would be properly part of the existing office clerical unit : Case No. 7-RC-6572 There are 13 employees involved in this group of whom 2 are clas- sified as chemical engineers, 4 as metallurgical engineers, and the remainder as industrial engineers. The first two classifications work in department 525, known as the metallurgical and chemical laboratory. Chemical engineers: One of the chemical engineers has a B.S. degree in chemical engineering, and works only in the laboratory running ferrous and nonferrous chemical analyses of metals and other 'Even If the Board were to treat a promise not to represent certain employees, con- tained in a consent-election or strike-settlement agreement , as a bar to an election among such employees , neither the consent election nor the strike -settlement agreements in- volved herein contains such an express promise by the Petitioner Moreover , as an oral promise not to represent employees , even if made , is not a bar , the Employee 's motion to reopen the record to receive evidence that the Petitioner, at the time it executed the agreement for consent election , orally agreed not to seek representation of the instant employees , is hereby denied. 'Chairman McCulloch would exclude the industrial engineers from the voting group with the chemical and metallurgical engineers at this time on the ground that, in his view, the 'Union in the written strike-settlement agreement on May 17, 1964, had agreed not to seek to represent the industrial engineers in the unit of technical employees 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD materials. The other chemical engineer does not possess a degree, but did receive 4 years of technical school training in his field; he was advanced to his present classification in 1943 from the position of metallurgist with the Employer, and obtained most of the knowledge used by him in his present position on the job at the plant. These employees make chemical testings of materials approved for use in the shop, and chemically analyze other industrial materials, purchased or to be purchased by the Employer, to determine whether they meet established specifications. The materials tested include metals, oils, cleaners, sound deadeners, and sealers. There is evidence that about 95 percent of the tests run on the various industrial materials are performed according to standard specifications. Their opinions on the results of tests are transmitted either orally or in written form to the laboratory supervisor, who generally accepts these reports and relies on their accuracy. On occasions, however, he may require addi- tional tests to be made or seek the advice of other plant personnel. Working with the chemical engineers is a laboratory technician, included in the existing technical unit, who runs tests on paints and checks concentration on cleaners, which duties the chemical engineers have at times performed. Metallurgical engineers: Of the four employees in this classifica- tion, one has a degree in metallurgical and chemical engineering, another has a degree with specialization courses in metallurgy, and the third is a trade school graduate. These three are engaged in the function of testing metals to determine hardness, tensile strength, and other structural characteristics, as well as the location of physical flaws and defects. Reports of such tests are made to the laboratory supervisor and accepted by him -without question. In their work they use X-Ray and photographic equipment for diagnosing flaws in such things as castings. In addition they use equipment described as a cutoff saw with grinder for preparing metal, a Pernell hardness machine for measuring depth of penetration of steel, a Rockwell hardness tester, metalographic equipment consisting of polishing machines and a mounting press, a high-power microscope for determin- ing errors in the microstructure of steel after certain processing, and tensile machines for strength testing metals by stretching. The fourth metallurgical engineer has no degree but has taken courses in metallur- gical engineering. He works in the tool-hardening room overseeing the heat treatment of parts by employees of the production and mainte- nance unit known as tool hardeners. This he does by specifying what heat-treating cycles the tools, dies, and fixtures coming into the shop should go through, using a Pernell machine or a Rockwell hardness tester. THE BUDD COMPANY AUTOMOTIVE DIV., DETROIT PLANT 425 Since the work performed by the chemical and metallurgical engi- neers consists chiefly of the analysis and physical testing of metals and other materials according to standard specifications, it does not require knowledge of an advanced type in fields of science or engi- neering customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning. We therefore find, contrary to the Employer's contention, that these are not professional employees. As the work of the employees in these classifications does, however, involve the use of independent judgment and require the exercise of skills learned from specialized training, we find they are technical employees.5 Industrial engineers: All the employees in this classification per- form the sane functions, primarily making time studies as to produc- tion on the plant floor with the aid of stop watches, and preparing reports thereof. Their time-study data is used in the preparation and rechecking of production standards for use by the industrial relations department in its negotiations with the Petitioner. The reports compiled by the industrial engineers based on their time studies are used in preparing standards assessing machine capability and tool life. Making these time studies through the actual observation of employees at their machines requires some discretion by the industrial engineers because of the manner in which various movements are broken down and deviations from prescribed procedures are noted. It is sometimes necessary for the industrial engineers to make numerous time studies of the job under consideration in order to arrive at a production standard, because consideration must be given to such elements as fatigue and.skill. In accord with established precedent as to employees doing essentially the same work as the employees involved herein, we find the industrial engineers to be technical, rather than professional, employees.6 There is no evidence that they formulate, determine, and effectuate management policies, assist anyone in the performance of that function in the field of labor relations,' or that they possess any indicia of supervisory authority. We find therefore that they are neither confidential, managerial, nor supervisory employees.,, Case No. 7-RC-6574 There are 12 employees involved in this group, all of whom are located in the main office area of the plant. As noted above, it is the Employer's contention that most of these employees are either mana- gerial, confidential, or supervisory. 6 Western Electric Company, Incorporated, 126 NLRB 1346. 6 Western Electric Company, Incorporated, supra, at 1354. ' Ford Motor Company (Chicago Branch), 66 NLRB 1317, 1322. 8 The B. F. Goodrich Company, 115 NLRB 722, 724. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Paymaster (Patterson) : The paymaster's duties consist of disburs- ing the weekly payroll checks and distributing other employee compen- sation checks; keeping control of all blank checks, payroll accounts, and the cash balance; and recording the receipt of checks and depos- iting them in the bank. The paymaster works in the same general office area as accounting clerk A (Gentile), who the Employer concedes is an office clerical employee. Gentile prepares the payroll and helps distribute the checks. Both Gentile and Patterson have knowledge of the vault combination but only Patterson knows the combination of the safe in the vault. Patterson has no authority to hire or discharge employees, nor responsibility to direct them; not does be me,ke policy decisions of such a nature as would constitute him a managerial employee. We accordingly find him, as well as Gentile, to be office clerical employees. Accounting clerk leader (Longobardi) : This employee is part of department 857, treasury, but works in department 853, cost and budget, with three other employees who are included in the office clerical unit, preparing data on salary payroll for the tabulating section. The blank checks for salaries are transmitted by the pay- master to Longobardi and he passes them to tabulating with the infor- mation required to prepare the salary checks for the week. Longobardi also instructs the employees working with him in the nature of their duties. Accounting clerk A leaders (Ackerman and Marsh) : Seventy percent of Ackerman's time is spent compiling statistics pertaining to various products manufactured or sold by the company from infor- mation supplied to the cost accounting department by the industrial engineering , or time-study, department to determine the cost of each part or operation made or performed in the plant. In preparing such statistics Ackerman works according to fixed instructions. The other 30 percent of Ackerman's time is spent making corrections, obtaining statistics from other departments, and other clerical work. He per- forms his duties alongside employees in the existing office clerical unit. Although he instructs new clerks in this work, he has no one under him and has never been advised that he was a supervisor. Marsh, also referred to as a cost accounting clerk leader, develops amortization rates and periods, works on orders and miscellaneous costs, vendor customer charges, and performs related duties. He works with three office clerical unit employees. One of these clerks assists him in ledger posting, and all three work with him placing account numbers on shop orders and requests for appropriations, and making cost distribution of requisitions. None of the accounting clerk or accounting clerk A leaders has authority to hire, discharge, discipline, or change the status of any employee. Although they make recommendations in some of these THE BUDD COMPANY AUTOMOTIVE DIV., DETROIT PLANT 427 respects, such recommendations are subject to independent investiga- tion and action by higher supervision. Moreover, while they instruct new employees, any direction of the work of others they perform does not require the use of independent judgment, but rather appears to be routine in nature, reflecting the relationship of the more experienced to the less experienced employee. Accordingly, we find, contrary to the Employer's contention, that they are not supervisors but are office clerical employees. Cost analysts (Lowery, Doherty, Mette, Norris, Stark) and cost analyst leader (Swoish) : s Cost analysts are assigned to plant area managers to advise them as to financial programming relative to such matters as costs, profit and loss, and budgets prepared for the area by the controller's office. They check cost records for errors, and advise the area manager on ways to reduce costs or bring them into line with the financial program for the area. Although most of their time is spent in the office area, the latter task often takes them into the plant where they may make or check a cost estimate based upon their knowledge of the operations of the area. To assist them in their work, they are furnished a list of instructions by the cost analyst supervisor, Guetschoff. Although financial programming has an impact on manpower levels and cost analysts are informed of labor contract provisions which bear on financial plans for their area, the cost analysts do not participate in collective bargaining or grievance matters. The cost analysts sometimes attend management meetings which deal with the consideration of changes in financial plans of the Company, and may provide information at such meetings relating to their specialized field of cost analysis. Their function in this regard does not extend to the area of decision making, and, in fact, they cannot independently correct cost errors made in written reports of management meetings but can only draw such errors to the attention of the cost analyst supervisor. One of the cost analysts, Swoish, is classified as a leader; his main function is the coordination of the work of this group and at the same time he handles cost matters pertaining to the foundry area. Like the other cost analysts, Swoish handles detailed office work; in addition, he assists them with their problems and instructs them in the more complex aspects of cost analysis. Swoish, like the others, reports to Guetschoff. There is no evidence that the foregoing cost analysts are engaged, or assist, in the formulation, determination, or effectuation of policies in the field of labor relations. We therefore find they are not confi- dential employees.10 As they do not take part in the formulation and determination of management policy, we find that they are not mana- 6 The record indicates that Schweigel, cost accountant, performs duties substantially Identical to those of cost analysts. 10 The B. P. Goodrich Company, supra. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gerial employees.1' We further find, contrary to the Employer's con- tention, that Cost Analyst Leader Swoish possesses none of the indicia of supervisory authority. However, in accord with the Petitioner's contention, and the alternate position of the Employer, we find that the cost analysts and the cost analyst leader are office clerical employees. In view of the fact that there are in this plant established units of technical and office clerical employees, that those units are represented by the Petitioner, and no other union seeks in this proceeding to represent the employees involved herein, we find that the separate residual units requested are inappropriate.12 However, as the requested classifications were in existence prior to the certification of the estab- lished units from which they were excluded, and as they share common interests with the employees in the comparable established units, they may appropriately be included in such units if a majority of each group so desire.13 Accordingly, we shall direct elections in the following voting groups at the Employer's Charlevoix Avenue, Detroit, Michigan, plant, excluding from each group all employees in the Employer's divisional offices in Detroit, Michigan, guards, all employees presently repre- sented by Petitioner, and supervisors as defined in the Act : (a) All chemical, industrial, and metallurgical engineers, excluding office clerical employees. (b) All employees classified as accounting clerk A, cost analyst, accounting clerk leader, accounting clerk A leader, paymaster, cost accountant, cost analyst leader, and cost accounting clerk leader. If a majority of the employees in voting group (a) cast their ballots for the Petitioner, they will be taken to have indicated their desire to constitute a part of the existing unit of technical employees currently represented by the Petitioner, and the Petitioner may bargain for such employees as part of that unit. If a majority of them vote against the Petitioner, they will be taken to have indicated their desire to remain unrepresented, and the Regional Director will issue a certifi- cation of results of election to that effect. If a majority of the employees in voting group (b) cast their ballots for the Petitioner, they will be taken to have indicated their desire to constitute a part of the existing unit of office clerical employees currently represented by the Petitioner, and the Petitioner may bargain for such employees as part of that unit. If a majority of "Ford Motor Company ( Chicago Branch ), supra 'Cf. ACF Industries , Incorporated, 115 NLRB 1106, 1109 ; Ohio Ferro Alloys Corpo- ration, 107 NLRB 504, 506. 32 Westinghouse Electric Corporation , 142 NLRB 317, 319-320 EARL LATSHA LUMBER CO. 429 them vote against the Petitioner, they will be taken to have indicated their desire to remain unrepresented, and the Regional Director will issue a certification of results of election to that effect. [Text of Direction of Elections omitted from publication.] Earl Latsha Lumber Co . and Local 776, International Brother- hood of Teamsters, Chauffeurs, Warehousemen , and Helpers of America. Case No. 4-CA-3448. August 12, 1965 DECISION AND ORDER On June 2, 1965, Trial Examiner Arthur Christopher, Jr., issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner 's Decision . Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed an answering brief in opposition to the Respondent's exceptions. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. 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 Trial Examiner's Decision, the exceptions and briefs," and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders 1 The Respondent 's request for oral argument is hereby denied because the record, in- cluding the exceptions and briefs , adequately presents the issues and the positions of the parties. 2 The Respondent excepts to an Order dated January 7, 1965, before the hearing by Trial Examiner Charles W . Schneider denying the Respondent 's motions to strike sub- paragraph 5(c) of the complaint and for a more definite statement. As the complaint conformed with the requirements of Section 10(b) of the National Labor Relations Act, as amended, and Section 102.15 of the Board's Rules and Regulations, Series 8, as amended, revised January 1, 1965, we find no merit in this exception. 154 NLRB No. 30.