Westinghouse Airbrake Co.

National Labor Relations Board - Board DecisionsNov 2, 1955

114 N.L.R.B. 893 (N.L.R.B. 1955)

LE ROI DIVISION, WESTINGHOUSE AIRBRAKE CO. 893 We find that all technical employees at the Employer's Milwaukee, Wisconsin, plant, including time-study men, time-study analysts, process engineers,8 process planners,' and tool designers, but exclud- ing technical clerks,10 time-study clerks," file clerks and all other cleri- cal employees, time-study engineers, all other professional employees, tool control men, all other employees, and all guards and supervisors as defined in the Act,12 constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] MEMBER MuRDOOK took no part in the consideration of the above Decision and Direction of Election. 8 Including Beck, who is assigned to the tool design department. Â® Including Gaffney in the tool design department, Tanko in the development engineering department , and Obst assigned as staff man to the quality control manager in the manu- facturing division. 10 Nelson is excluded as a technical clerk. li Although the Petitioner in its petition sought to Include time -study clerks, no testimony was elicited at the hearing to justify their inclusion . In view of their classification as clerks, we shall exclude them. 12 The classifications of technical employees specifically included encompass junior and senior grades . The record does not indicate that other classifications of technical em- ployees are present in the plant. Le Roi Division, Westinghouse Airbrake Co. and Sam C. Corso, et al., Petitioner and International Union , United Automobile, Aircraft & Agricultural Implement Workers of America, CIO. Case No. 13-RD-f38. November 2,1955 SUPPLEMENTAL DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a Decision and Direction of Election' dated July 25, 1955, an election by secret ballot was conducted in this proceeding on August 15, 1955, under the direction and supervision of the Regional Director for the Thirteenth Region among the employees of the Em- ployer in the unit found appropriate by the Board. At the conclu- sion of the election, the parties were furnished with a tally of ballots. ,The tally shows that of approximately 11 eligible voters, 2 voted for, and 6 voted against, the Union, with 3 ballots being challenged. On August 1711955, the Union filed timely objections to the election and conduct affecting the results of the election. In accordance with the Board's Rules and Regulations, the Regional Director conducted I .t Rod Division, Westinghouse Air Brake Company, 113 NLRB 271. 114 NLRB No. 139. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an investigation of the objections, and on September 20, 1955, issued and served upon the parties his report on objections in which he found that the Union's objections were without merit and in which he rec- ommended that the Board dismiss the objections and issue a certifica- tion of results of the election. The Union thereafter filed timely ex- ceptions to the Regional Director's report. In its objections and exceptions the Union contends that: (1) The petition herein should be dismissed because it was filed within 6 months of the dismissal of another decertification petition for the unit here involved; (2) the petition should be barred because of the pend- ency of an appeal from the dismissal of unfair labor practice charges filed by the Union; and (3) the Petitioner's showing of interest was insufficient to support the petition. As to contention (1), which was also raised by the Union before the election, the Board noted in the Decision and Direction of Elec- tion herein that the earlier decertification petition had been found to have been improperly filed and had been dismissed "without preju- dice." The Board there stated that under such circumstances no wait- ing period is required for the filing of a new petition. No matter not previously considered by the Board has now been advanced by the Union to support its present contention. The contention is therefore found to be without merit. The substance of the Union's present contention (2) was also ad- dressed to the Board before the election was held. In its Decision and Direction of Election herein, the Board rejected the Union's conten- tion that the petition herein should be dismissed because of the pend- ency of unfair labor practice charges filed by the Union, the Board stating that the Regional Director had refused to issue complaints upon the Union's charges, and that the General Counsel had there- after sustained this action on appeal. It now appears that the latter statement was erroneous, as the Union's appeal was in fact pend- ing at the time the Decision issued. The appeal, however, has since been denied.' That the election herein was held during the pendency of the Union's appeal is not a sufficient reason to set it aside. The Regional Director states in his report that he noted the erroneous factual state- ment in the Board's Decision and Direction of Election, that he con- sidered the matter, and that, exercising his discretion he advised the Union on August 5, 1955, that the election would proceed even though the Union's appeal was still pending. Under established Board rule, an election may be held during the pendency of an appeal from the a Letters with respect to Cases Nos. 13-CA-1874 and 13-CA-1927, dated October 6. 1955, from the General Counsel to the Union. LE ROI DIVISION, WESTINGHOUSE AIRBRAKE CO. 895 dismissal of unfair labor practice charges .3 Accordingly,' in all these circumstances we are satisfied that the Union was not prejudiced either by the erroneous factual statement in the Board's Decision nor by the Regional Director's action in proceeding with the election which the Board had directed. We therefore find no merit in the Union's contention (2). As to the Union's contention (3), the Board found appropriate in the Decision and Direction of Election herein a unit larger than the one designated in the decertification petition. The Board noted in the Decision that the Petitioner had made an adequate showing of interest in the unit designated in the petition; and also instructed the Regional Director not to proceed with the election until he had first determined that the Petitioner had made an adequate showing in the enlarged unit. In his report, the Regional Director states that before the elec- tion he made the determination which the Board instructed him to make. In its exceptions, the Union asks the Board to reverse its rule that showing of interest is an administrative matter "insofar as that rule relates to decertification proceedings." It further asks for a ruling "that under such circumstances as are here found, the sufficiency of interest in support of the decertification petition should be a condi- tion for proceeding with the hearing, rather than the election." We perceive no valid reason for granting the Union's requests. We adhere to the view that a showing of interest is just as much an ad- ministrative matter in the case of the processing of a decertification petition as it is where a representation petition is being processed. As to the procedure that was here followed, it is not at variance with the Board practice of proceeding to an election if a petitioner makes an adequate showing in a unit as enlarged by the Board' We there- fore find that the Union's contention (3) lacks merit. In view of the foregoing, we shall adopt the Regional 'Director's recommendations. As the Union failed to receive a majority of the valid ballots cast, we shall certify the results of the election. - [The Board certified that a majority of the valid ballots was not cast for International Union, United Automobile, Aircraft and Agri- cultural Implement Workers of America, CIO, and that this union is not the exclusive representative of the technical employees at the Em- ployer's West Allis, Wisconsin, internal combustion engine and air compressor plant, in the unit found to be appropriate.] MEMBER MURDOCK took no part in the consideration of the above Suppplemental Decision and Certification of Results of Election. 3 Stewart-Warner Corp., 112 NLRB 1222; Mc Quay Incorporated, 107 NLRB 787. & See S. S. Wrote Dental Manufacturing Company, 109 NLRB 1117 at 1123; and' Comfort Slipper Corporation, 111 NLRB 188 at 190.