The Electric Controller & Manufacturing Co.

National Labor Relations Board - Board DecisionsAug 6, 1946

69 N.L.R.B. 1242 (N.L.R.B. 1946)

In the Matter of THE ELECTRIC CONTROLLER & MANUFACTURING COM- PANY and UNITED ELECTRICAL, RADIO & â€¢ MACHINE WORKERS OF AMERICA, C. I. O. Case No. 8-R-2047.-Decided August 6,1946 Messrs. Frank C. Heath, R. G. Widdoivs, and A. G. Patterson, of Cleveland, Ohio, for the Company. Mr. David Scribner, by Mr. Henry A. Silver, of New York City, for the Union. Mr. A. Sumner Lawrence, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by United Electrical, Radio & Machine Workers of America, C. I. 0., herein called the Union, alleging that a question affecting commerce, had arisen concerning the representation of employees of The Electric Controller & Manufacturing Company, Cleveland, Ohio, herein called the Company, the National Labor Rela- tions Board provided for an appropriate hearing upon due notice before Thomas E. Shroyer, Trial Examiner. Said hearing was held at Cleveland, Ohio, between February 26 and April 9, 1946. The Company and the Union appeared and participated. All parties were afforded full 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 prej- udicial error and are hereby affirmed. All parties were afforded full opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Electric Controller & Manufacturing Company, an Ohio cor- poration, has its principal office and place of business in Cleveland, 69 N. L. R. B., No. 147. 1242 THE ELECTRIC CONTROLLER Sr MANUFACTURING COMPANY 1243 Ohio, where it is engaged in the manufacture of industrial electric motor controls. The Company's annual sales of finished products exceed $3,000,000 in value, of which more than 50 percent involves shipments to points outside the State of Ohio. The Company's annual purchases of raw materials exceed $500,000 in value, of which more than 30 percent is obtained from points outside the State of Ohio. We find that the Company is engaged in commerce within the mean- ing of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED United Electrical. Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Company. III. TIIE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the exclusive bargaining representative of certain employees of the Com- pany until the Union has been certified by the Board in an appropriate unit. A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the Union represents a substantial number of employees in the unit hereinafter found appropriate.- We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Union, which already represents the Company's production and maintenance employees, seeks primarily a unit of clerical and technical employees (engineers), including assistant supervisors; and in the alternative, separate units of engineers and assistant supervisors, re- spectively, apart from a unit of clerical employees. The Company contends that the Union cannot represent both a unit of production and maintenance employees and a unit of clerical employees. The Com- pany also contends that the unit of clerical and technical employees as sought by the Union is improper upon the ground that technical employees 2 should not be included in the same unit with clerical 1 The Board agent reported that the Union had submitted 75 cards, 65 of which bore the names of persons listed on the Company's pay roll of December 7, 1945, which contained the names of 104 employees in the appropriate unit ; and that the cards were dated between September 22 and October 25, 1945, with 1 card undated. 2 The only technical employees as to whom an issue exists are those in engineering classifications. The Company admits that its draftsmen are essentially clerical rather than technical employees. 1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees. The Company further contends that neither the engineers nor the assistant supervisors, who it claims should be excluded as supervisory employees, may be represented by the Union in separate units because of their relationship to management. In addition, to its main contentions, the Company also takes issue with the Union with respect to employees in specific job classifications who it claims should be excluded as supervisory, managerial, or confidential employees. With respect to the Company's contention that clerical employees should not be represented by the same labor organization as represents the production and maintenance employees, we have frequently held that clerical employees, although they are generally excluded "rem units of production and maintenance workers, may constitute separate appropriate units. In any such unit they may, of course, be repre- sented by whatever bargaining agent they choose.' As regards the further contention of the Company that technical employees should not be included in the same unit with clerical em- ployees, a somewhat different situation is here presented than in-the case of the contention previously considered. Although we have in- cluded technical employees within a unit containing clerical workers, absent contentions to the contrary, we have frequently had occasion to recognize the difference in interests, backgrounds and functions be- tween the two groups, and our general policy has been to place the employees comprising these groups in separate units. Accordingly, in view of the Company's objection to a single unit of clerical and technical employees, we shall exclude technical or engineering em- ployees from the unit of clerical employees.4 However, in view of the fact that the Union has submitted evidence of substantial representa- tion among the technical or engineering group as distinguished from the clerical group,5 we are of the opinion that the clerical employees and the engineering employees may properly constitute separate ap- propriate units.e With respect to the question of including assistant supervisors with- in the unit of clerical employees, the record clearly establishes the fact that all such assistant supervisors have authority effectively to recom- mend changes in status of many employees in the clerical unit. We shall, accordingly, exclude assistant supervisors from the unit of cleri- cal employees hereinafter found appropriate. As regards the alter- native request of the Union for a separate unit of assistant supervisors, it appears that the supervisors and assistant supervisors have similar 3 See Matter of Bethlehem-Sparrows Point Shipyard, Inc., 65 N. L. R. B. 284. i See Matter of American Central Manufacturing Corporation, 65 N. L. R. B. 342 ; Matter of Wagner Electric Corporation, 67 N. L. R. B. 1104. 5 A supplementary report of the Regional Director indicates that the Union has designa- tions from 8 out of 14 engineers in the group of technical employees. 6 See Matter of Spicer Manufacturing Company, 55 N. L. R. B. 1491 ; Matter of Mica- mold Radio Corporation, 58 N. L. R. B. 888 Matter of American Central Manufacturing Company, 65 N. L. R. B. 342. THE ELECTRIC CONTROLLER & ALAN L' FACTURING COMPANY 1245 interests and responsibilities, and thus would together constitute all appropriate unit. However, the Union is unwilling to include supervisors in its proposed unit and we shall therefore deny the Union's request for a supervisory unit limited to assistant supervisors. There remains for consideration the question of specific inclusions in and exclusions from the engineering and clerical units, respectively. In the case of the engineering group, the only issue concerns em- ployees in the classification of application engineers who the Company contends should be excluded as managerial employees.? So far as their duties are concerned, the record discloses that application engineers determine the prices to be charged for special equipment which the Company builds for its customers, and that in determining such prices the application engineers have a large amount of discretion, the prices thus determined not being subjected to control by any other officials in the central office of the Company. Inasmuch as it appears that application engineers may establish prices and thus com- mit the Company financially to third parties, we find that such em- ployees exercise a managerial function." Accordingly, we shall ex- clude application engineers from the unit of engineers hereinafter found appropriate. With reference to the question of inclusions in and exclusions from the clerical unit, the Union would include, whereas the Company would exclude, employees in the classifications of coordinator-sales and production, buyer, industrial nurse, secretary-Cleveland District office, steno-clerk A, factory ledger and pay-roll leader, factory ledger and pay-roll clerk, pay-roll and disbursement clerk, stationery stock- room attendant, and general accountant. Coordinator-Sales and Production: The Company contends that the individual in this classification, who is primarily an outside expediter and office contact man for customers' representatives, should be ex- cluded as a managerial employee because of his authority to change the priority of orders for delivery to customers. We do not, however, regard the right to determine priorities on deliveries to customers such an essential function of management as of necessity constitute the holder thereof a managerial employees In the absence of evidence that the individual herein concerned has supervisory authority, we shall include him within the clerical unit hereinafter found appro- priate. 1 The parties are agreed that the chief engineer , field engineers , and the patent attorney engineer should be excluded from the unit of engineering employees. 8 See Matter of The Murray Ohio Manufacturing Company, 61 N. L. R. B. 47; Matter of Westinghouse Air Brake Company, 64 N. L. R. B. 547; Matter of The Barrett Division, Allied Chemical and Dye Corporation, 65 N. L. R. B. 903. 9 See Matter of Westinghouse Air Brake Company, 64 N. L. It. B. 547, wherein the Board included In the unit an employee classified as "order correspondent " but otherwise having authority similar to that of the employee herein classified as coordinator-sales and production. 1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Buyer: The employee in this classification, although admittedly not of supervisory rank, has substantially the same authority and responsi- bility as the assistant purchasing agent. Such authority and respon- sibility include the obligation to select sources of supply and to place orders. Furthermore, this employee will at times commit the Com- pany in very substantial sums for materials for which he has specific responsibility. We find that the buyer is a managerial employee; ac- cordingly, we shall exclude him from the unit. The Industrial Nurse: The only employee in this classification is a registered nurse whose regular duties are performed in the infirmary or first-aid room for the benefit of both shop and office employees. In addition to such duties, this employee has other duties common to industrial nurses, such as checking on the alleged illnesses of employ- ees, preparing reports of accidents in connection with workmen's com- pensation claims and awarding special cafeteria privileges to employ- ees who require special diets or access to the cafeteria at other than meal hours. We are of the opinion that the duties and interests of the industrial nurse are unlike those of the employees in the clerical unit. We shall, therefore, exclude her from such unit.'Â° Secretary-Cleveland District Office: The duties of the secretary herein concerned are the usual duties of a secretary to an office manager or department head. The Company contends that she should be ex- cluded from the unit of clerical employees, on the ground that she is a confidential and managerial employee. In the present instance, how- ever, the record discloses that her immediate supervisor, the manager of the Cleveland District office, is not in a position to formulate effectively or determine managerial policies. In the absence of evi- dence that the secretary in question acts in a confidential capacity to a person who exercises a managerial function in the field of labor relations, we find that she is not a confidential employee within the meaning of our definition thereof' Moreover, we find that she is not a managerial employee, since her alleged managerial func- tion consists merely in furnishing customers with available informa- tion as to prices and promised dates for the delivery of orders. Ac-. cordingly, we shall include her within the unit of clerical employees. Steno-Clerk A. The employees in this classification perform sec- retarial duties to the heads of certain departments for whom they handle confidential correspondence and maintain personnel files. However, the record indicates that none of such supervisors parti- cipate in collective bargaining conferences or otherwise have any substantial managerial functions in regard to labor relations other than the handling and disposition of grievances as brought to them 10 See Matter of Aluminum Company of America , 61 N. L. R. B. 1006, 1082 ; Matter of Star Watch Case Company , 61 N. L. R. B. 1389, 1394 ; and Matter of United States Gauge Company, 63 N. L . R. B. 1254, 1258. 11 See Matter of Ford Motor Company ( Chicago Branch ), 66 N. L. R. B. 1317. THE ELECTRIC CONTROLLER & MANUFACTURING COMPANY 1247 by individual employees in accordance with the grievance procedure. Insofar as the Company's over-all labor relations are concerned, it appears that none of the individual department heads participate in negotiations with the Union or are consulted by the Company except with reference to the welfare, discipline, and promotion of employees within their own departments. Under the circumstances, we find that the employees within the classification of steno-clerk A are not con- fidential employees within the meaning of our definition thereof.12 Factory Ledger and Pay-roll Leader; Factory Ledger and Pay- roll Clerk; and Pay-roll and Disbursement Clerk: The employees in this group of classifications perform similar functions and we shall therefore consider them together. As regards the factory ledger and pay-roll and disbursement clerk, it is clear that such employees per- form the ordinary duties usually associated with pay-roll clerks. In the absence of evidence that they exercise supervisory authority, we shall include them within the unit.13 The only remaining question relates to the factory ledger and pay-roll leader. This employee is responsible for the preparation of the factory pay roll. Although at times she directs the work of certain comptometer and file clerks, she has no authority to change or effectively recommend changes in the status of other employees. In addition to the foregoing duties, this employee acts as a confidential clerk to her immediate superior, the assistant supervisor of cost accounting. The latter has, in addi- tion to supervisory duties, the special assignment of preparing com- pany claims against the Government for losses arising out of the termination of war contracts. Such claims when prepared are signed by an executive officer of the Company without investigation and in complete reliance upon the method used by the assistant supervisor in the preparation of such claims. However, it does not appear that the assistant supervisor of cost accounting exercises managerial functions in the field of labor relations. Accordingly, we find that the factory ledger and pay-roll leader who serves as a confidential clerk to the assistant supervisor of cost accounting is not a con- fidential employee within the meaning of our usual definition.14 We shall include her within the unit. The Stationery Stockroom Attendant: The record discloses that the employee in this classification spends 70 to 75 percent of her time in supervisory work and, in addition thereto, may effectively recom- mend promotions for the several office girls under her supervision. We find that the stationery stockroom attendant is a supervisory em- ployee, and we shall therefore exclude her from the unit. " See Matter of Ford Motor Company ( Chicago Branch ), supra. 13 See Matter of The Murray Ohio Manufacturing Company , supra; Matter of American Central Manufacturing Company, supra. 14 See Matter of Ford Motor Company , supra. 1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Accountant: The employee in this classification is an army veteran who is undergoing a training program to fit himself for a clerical position with the Company. During the interim, he has been classified as a general accountant, although he does not actually perform the duties of general accountant but rotates from one clerical position to another, as part of his training program. Although in the course of such program, he has full access to the accounting records of the Company, such fact does not establish that he is a confidential employee.15 Inasmuch as it appears that the work which he performs is that of a trainee for a clerical position, we shall in- clude him within the unit of clerical employees in accordance with our usual practice of including trainees in units of employees performing work of a similar nature." We find that all engineers of the Company, excluding the chief engineer, field engineers, application engineers, the patent attorney engineer, and all supervisory employees with authority to hire, pro- mote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. We further find that all clerical employees of the Company, includ- ing employees in the classifications of coordinator-sales and produc- tion, the secretary-Cleveland District Office, Steno Clerk A, factory ledger and pay-roll leader, factory ledger and pay-roll clerk, pay-roll and disbursement clerk, general accountant, and the switchboard oper- ator and receptionist,- but excluding engineering employees, the buyer, the industrial nurse, secretaries,11 assistant supervisors, assistant to the supervisor of spare parts," the stationery stockroom attendant, and all other supervisory employees with the authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action; constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. 'Fill' 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- 11 See Matter of Cramp Shipbuilding Company , 64 N. L. R. B. 1145. 16 See Matter of Douglas Aircraft Company , Inc., 60 N . L. R. B. 876. 17 The parties agreed that the employee in the position of switchboard operator and receptionist may be included within the unit of clerical employees. 15 The parties agreed that the two employees holding the positions of secretary to the President and secretary to the Secretary -Treasurer should be excluded from the unit of clerical employees. m The assistant to the supervisor of spare parts has substantially the same authority as the assistant supervisors hereinabove mentioned. THE ELECTRIC CONTROLLER & MANUFACTURING COMPANY 1249 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 ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with The Electric Con- troller & Manufacturing Company, Cleveland, Ohio, 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 Eighth 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 Regu- lations, among the employees in the units found appropriate in Sec- tion IV, above, who were employed during the pay-roll period im- mediately 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 United Electrical, Radio & Machine Workers of America, C. I. 0., for the purposes of collective bargaining. MR. GERARD D. REILLY, dissenting in part: I disagree with that portion of the Decision and Direction of Elec- tion which proposes that the employees classified as Secretary-Cleve- land District Ofce, Steno-Clerk A, and Factory Ledger and Pay- roll Leader be allowed to vote as a part of the general clerical unit. Until the recent Ford case 20 I assumed the doctrine to be well estab- lished that secretaries to officials who exercise managerial functions could not properly be included in collective bargaining units, whether such units were joined with the rank and file or not, because of the confidential nature of their work. The Ford case limits the excluded group to employees who serve in a confidential capacity to those who 20 Matter of Ford Motor Company ( Chicago Branch ), 66 N. L. R. B. 1317, overruling The Yale & Towne Manufacturing Company. 60 N. L. R. B. 626. 701592-47-vol. 69--so 1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exercise managerial functions in the field of labor relations. I cannot agree with this limitation, as all of the considerations which have been urged upon this Board for not using the processes of the Act to compel employers to deal with unions representing their rank and file em- ployees as representatives of their supervisors, as well, apply with even greater force to employees who act in a confidential capacity to officials who exercise managerial functions.