Westinghouse Electric & Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 14, 1940

27 N.L.R.B. 1358 (N.L.R.B. 1940)

In the Matter Of WESTINGHOUSE ELECTRIC & MANUFACTURING COM-
PANY, R. D. NUTTALL PLANT and UNITED ELECTRICAL, RADIO & MA-
CHINE WORKERS OF AMERICA, LOCAL 601
-Case No. R-2087.-Decided November 14, 1940
Jurisdiction : mechanical equipment manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord recognition to union;, election necessary.
Units Appropriate for Collective Bargaining : all production and maintenance
employees at the Company's Nuttall Plant, including shipping and receiving
employees, testers, truck drivers and police (paid by the hour), but excluding
supervisory employees, clerical workers, engineers, and salaried employees
other than inspectors, and including or excluding the non-supervisory salaried
inspectors depending upon the result of an election to be conducted among them ;
all the salaried employees at the Plant, exclusive of salaried inspectors and
supervisory employees, and including or excluding the non-supervisory salaried
inspectors- depending upon the result of an election to be conducted among
them.
Special police not barred-from inclusion in production and maintenance
unit, as requested by both labor organizations, over Company objection because
of their commission as special city policemen.
Mr. William E. Miller, of Pittsburgh, Pa., for the Company.
Mr. Charles Newell and Mr. Hugh Harley, Jr., of East Pittsburgh,
Pa., for the United. ,
Mr. Robert J. Dalzell, of Pittsburgh, Pa., for the Association.
Mr. Milton E. Harris, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On August 26, 1940, United Electrical, Radio and Machine
Workers of America, Westinghouse Local 601, herein called the
United,' filed with the Regional Director for the Sixth Region
(Pittsburgh, Pennsylvania) a petition alleging that a question affect-
ing commerce had arisenr concerning the representation of employees
' While differing versions of the United's name appear in various parts of the record,
we use the form followed by the United on its letterhead
27 N L. R B , No. 214.
1358
WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 1359
of Westinghouse Electric & Manufacturing Company, herein called
the Company, at the R. D. Nuttall Plant,2 Pittsburgh, Pennsylvania,
and requesting an investigation and certification of representatives,
pursuant to Section 9 (c) of the National Labor Relations Act, 49,
Stat. 449, herein called the Act. On September 24, 1940, the Na-
tional Labor Relations Board, herein called the Board, acting pur-
suant to Section 9 (c) of the Act and Article III, Section 3, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice. On September 30, 1940, the Regional Director
issued a notice of hearing, which was served upon the Company,
the United, and Association of Westinghouse Nuttall Employees,
herein called the Association, a labor organization claiming to rep-
resent employees of the Company at the Nuttall Plant.
Pursuant to the notice, a hearing was -held in Pittsburgh, Penn-
sylvania, on October 7, .1940, before Robert H. Kleeb, the Trial
Examiner duly designated by the Board. The Company and the
Association were represented by counsel, and the United by rep-
resentatives; all participated in the hearing. Full opportunity to
be heard, to,examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties. During
the course of the hearing, the Trial Examiner made various rulings
on motions and objections to the admission of evidence. ' The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
After the hearing the United filed a brief which the Board has
considered.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY 8
Westinghouse Electric & Manufacturing Company, a Pennsylvania
corporation, is a Nation-wide enterprise using raw materials from
a number of States of the United States and doing a volume of busi-
ness which in 1939 amounted to $151,380,145 and included shipments
of finished products to practically all the States-of the United States
and to a number of foreign countries. The Company directly employs
48,487 persons.
2 Incorrectly designated in the caption of the notice of hearing and other parts of the -
record as Nuttall Works.
!The findings in.this section are based on a written statement , entitled "Stipulation,"
which was signed by an officer of the Company and introduced in evidence. without
objection.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company operates a plant at Pittsburgh, Pennsylvania, known
as the R. D. Nuttall Plant, where it manufactures gears and other
mechanical equipment. Approximately 12 per cent of the raw mate-
rials used by the Company at the Nuttall Plant, valued at about
$109,636 monthly, are shipped from points located outside the Com-
monwealth of Pennsylvania, and approximately 80 per cent of the
finished products manufactured by the Company at the.Nuttall Plant,
valued at about $210,000 monthly, are shipped to points located outside
the Commonwealth of Pennsylvania. The Company employed 832
persons at the Nuttall Plant as of August 24, 1940.
II. THE ORGANIZATIONS INVOLVED
United Electrical , Radio and Machine Workers of America, West-
inghouse Local , 601, is a labor organization affiliated with the Congress
of Industrial Organizations , admitting to membership employees of
the Company at the Nuttall Plant.
Association of Westinghouse Nuttall Employees is ' an unaffiliated
labor organization , admitting to membership employees of the Com-
pany -at the Nuttall Plant.
III. THE QUESTION CON CFIlN IN G REPRESENT \TION
In its sworn petition, the United alleged that it had asked the
Company to recognize it as the sole and exclusive bargaining agent,
but that the Company refused to do so until it was certified by the
Board. At the hearing, the Company disagreed with the United re-
specting the inclusion of two groups of,employees in the bargaining
unit claimed by the United to be appropriate; 4 and, in addition, the
Company joined the United and the Association in requesting the
Board to conduct an election among the employees to determine the
question of majority representation. There was introduced in evi-
dence a report prepared by the Regional Director showing that the
United and the Association each represent a substantial number of
the Company's employees at the Nuttall Plants
We find that a question has arisen concerning the representation of
employees of file Company at the Nuttall Plant.
' The Company al.o disagreed ww cth the uncis clauned by the Association to be appropriate
The Regional llnector's report stated that the United had submitted 361 application
cards dated between February I, 1940, and August 24, 1940, and that all the signatures
on the cards appeared to be genuine oiigin,cl signatures and were names appearing on the
Compani's pay roll of August 24 1940 The report further stated that the Association
had submitted 208 application cards dated between April 24, 1940, and August 17, 1940;
that all the signatures on the cards appeared to be,genuine original signatures; and that
202 of the signatures were names appearing on the Compani's pay roll of August 24,
1940 According to the pay roll of August 24, 1940, there wceio about 680 employees in
the unit claimed by the United, and about 791 employees In the unit claimed by the
Association
WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 1361
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow' of commerce.
V. THE APPROPRIATE UNITS
The United and the Association stipulated at the hearing that the
production and maintenance employees at the Company's Nuttall
Plant, including shipping and receiving employees, testers, truck
drivers, and police (paid by the hour), but not including supervisory
employees, clerical workers, or engineers, should constitute an appro-
priate unit; and that the salaried employees at the plant, excluding
salaried inspectors and supervisory employees, should constitute a
separate appropriate unit. The United and the Association further
stipulated that a third group of employees, consisting of the salaried
inspectors, should be allowed to vote to determine whether or not
they desired to be represented for the purposes of collective bargain-
ing by the United or by the Association, and that they should be
included in the production and maintenance unit if the United
received a majority, but that they should be included in the salaried
unit if the Association obtained a majority.
The Company objected to these stipulations as to the appropriate
units only- in so far as the salaried inspectors and the police were
concerned, "contending that these two latter groups should be excluded
from any unit or units composed in part of other employees. 'In
support of this contention, the Company urged in substance that the
salaried inspectors and the police would perform their duties less
efficiently if they were included in any bargaining unit with other
employees, since they were at times required to act adversely to the
interests of such other employees.
As to salaried inspectors," it appears that their work is done in
the same part of the plant as the other employees in the production
and maintenance unit, and consists chiefly of determining whether
the articles manufactured are within the tolerance limits fixed by
the management. If not, the inspectors attach a "D. A." tag to the
defective article and set it aside for the foreman of the appropriate
production department to attend to. The inspectors also make the
" The inspectors were hourly paid prior to some time in 1940, and the nature of their
work was not affected when their pay was changed to a salary basis
323428-42-vol. 27-87
1362 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
initial factual determination of whether the fault is the result of
the management's failure to provide proper tools and specifications,
or whether the production employees (who are hourly paid) are
responsible for the defective work.' In the latter case, if the fore-
man and possibly the time-study man and the chief inspector concur,
the employees involved must do the work over again without pay.
If the employee contests such a decision, the foreman might then
consult with the foreman of inspectors in making a final determina-
tion; but Marthens admitted that this final determination was made
by the management, and not by the inspectors. In addition, if an
employee produces more than a certain number of satisfactory articles
per hour, his pay is increased. Thus, the inspectors in these two
respects make factual determinations on which production em-
ployee's pay depends. However, the inspectors have direct contact
with' the production' employees only to - counsel with them at the
start of manufacturing a large run of similar parts, the foremen
being responsible for reprimanding them. Lastly, the inspectors
are generally asked about the quality of an employee's work when
he is being considered for promotion or discharge ; but the Company
admitted that group leaders (as to the inclusion of whom in the pro-
duction' and maintenance unit there was no controversy) are likewise
consulted, and that the final decision is made in all cases by manage-
ment officials 8 ,
The United- introduced in evidence a grievance card which it had
submitted to the Company on behalf of an inspector, and the
Company admitted that it had discussed the matter with the United.
We find that the salaried inspectors may properly be included either
in a unit of production and maintenance employees or in a unit of
salaried employees.9
7 According to R S. Marthens , the plant manager , an inspector , by "just observing" a
defective article,, can tell in "999 cases out of 1000 " whether the responsibility for the
defect lies with ' the management or with the employees '
s In addition, Marthens testified that he "thinks" that the inspectors understood that
they had supervisory authority , although no such instructions had ever been issued to
them ; but in the face of testimony by James H . Seddon that he did not so understand,
although he had been an inspector for 18 years , we are unable to credit Marthens ' testi-
mony that the inspectors are supervisory employees Moreover ,, we have frequently in-
cluded working supervisors in a production and maintenance unit at the request of the
labor organizations involved ; see, for example , Matter of Lincoln Enginering Company
and Tool & Die Makers Lodge 688 of the International Association of Machinists , District
No. 9, etc, 25 N. L R B. 1083; Matter of Todd-Johnson Dry Docl, s, Inc . and Industrial
Union of Maiine and Shipbuilding Workers of America, Local No 29, 18 N L R B 973
9 See Matter of Singer Manufacturing Company and United Electrical , Radio and Ma-
chine Workers of America, Local No. 917, 8 N. L. R B. 434 . The Company did not
oppose the inclusion of inspectors in a unit with other employees in the following cases
Matter of Westinghouse Electric & Mfg Co and Association of Westinghouse Salaried
Employees, 22 N L It . B 956 , 19 N L. R B. 640 ( involving the plant at East Pittsburgh,
Pennsylvania ) ; Matter of Westinghouse Electric & Mfg . Co and its subsidiaries Westing-
house X-Ray Co, Ine, and the Bryant Electric Company and United Electrical Radio and
WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 1363
As to the police (paid by the hour), it appears that they are special
policemen appointed by the Bureau ,of Police, Department of Public
Safety, of the City of Pittsburgh, and that they wear uniforms and
badges and are subject to the rules and regulations of the Bureau of
Police and to all orders of their superior police officers. However,
they are paid exclusively by the Company and perform no duties out-
side of the Company's plant. At the plant they act principally as
watchmen or plant-protection employees , and also investigate reports
of pilferage and sabotage, and check the overtime of hourly paid
employees who leave the plant at irregular hours. The 'Company
contends that the nature of work of these police precludes their inclu-
sion in the same unit as other employees over whom they may be called
on to exercise adverse functions, and,advances arguments similar to
those made with respect to the inspectors. In addition,'the Company
argues"that the police are barred from, the unit by their commission
from the City of Pittsburgh'. As we stated in another case 10 with'
respect to special police officers acting as watchmen, whom the Com-
pany wished to exclude from the unit:
Without here deciding whether or not watchmen who are special
police officers may become members of the Union, we hold that
these watchmen, whether special police officers or not, may be
properly included in the bargaining unit and may, if they .desire,
designate the Union as their representative for collective
bargaining.
We find no merit in the contentions of the Company.
Inasmuch as both the United and the Association requested the
inclusion of the police in the production and maintenance unit,
we find, under the circumstances, that they should be included in
such unit."
Machine Workers of America and its locals Nos. 601 , 202,1207. 107 , 111, 130, 1105, 1412,
and 209, 22 N. L R. B. 147 (involving the plant at East Springfield, Massachusetts) ; and
Matter of Westinghouse Electric if Mfg Co, Sharon Plant and Sharon Westinghouse Em-
ployees Association , 19 N L. R B. 344 ( involving the plant at Sharon, Pennsylvania).
The United claimed that Ernest J. Lavish, Ralph M Lindsey, and Norman G. Johnston,
all salaried inspectors , were supervisory employees, but offered no evidence with respect
thereto Marthens testified without contradiction, and we find , that of these three
employees only Lavish was a supervisor.
10 Matter of Luckenbach Steamship Company, Inc., at al and Gatemen , Watchmen and
Miscellaneous Waterfront Workers' Union, Local 38-124, International Longshoremen's
Association, 2 N. L. R B 181, at 189
11 See Matter of Willys Overland Motors, Inc . and International Union, United Auto-
mobile Workers of America, Local No 12 , 9 N. L. R. B. 924, where the Board included in
the unit all plant protection employees, including some who were deputy sheriffs or
special policemen'
The Company did not oppose the inclusion of police in a unit containing other em-
ployees, in Matter of Westinghouse Electric it Manufacturing Co, Lighting Division and
Metal Polishers , Buffers, Platers, Spinners it Helpers International Local No. 3, A F of L
etc., 21 N. L R. B. 110 (involving a plant at Cleveland , Ohio). Over the Company's
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that all the production and maintenance em-
ployees at the Company's Nuttall Plant, including shipping and re-
ceiving employees, testers, truck drivers and police (paid by the hour),
but excluding supervisory employees, clerical workers, engineers, and
salaried employees other than inspectors, and including or excluding
the non-supervisory salaried inspectors depending upon the result of,
an election to be conducted among them, constitute a unit appropriate
for the purposes of collective bargaining; that all the salaried em-
ployees at the Plant, exclusive of salaried inspectors and supervisory
employees, and including or excluding the non-supervisory salaried
inspectors depending upon the result of 'an election to be conducted
among them, constitute a separate unit appropriate for the purposes
of collective bargaining; and that such units will insure to employees
of the Company the full benefit of their right to self-organization and
to collective bargaining, and will otherwise effectuate the policies of
the Act. As stated above, the determining factor with respect to the,
inclusion of the non-supervisory salaried inspectors in either of the
foregoing units shall be the desire of the non-supervisory salaried
inspectors themselves 12 Pursuant' to the agreement between the
United and the Association at the. hearing, we shall direct an election
among the non-supervisory salaried inspectors to determine whether
they wish to be represented for the purposes of collective bargaining
by the United, or by the Association, or by neither. As agreed by
the United and the Association, if the United obtains a majority at
such election, the non-supervisory salaried inspectors will be included
objection , the appropriate unit was held to Include watchmen whose functions were sub-
stantially similar to the police here in question , in Matter of Westinghouse Electric if
Manufacturing Co, and United Electrical, Radio if Machine Workers of America, Local 410,
23 N. L. R. B. 521 ( involving a plant at Belleville , New Jersey ). Cf. Matter of Westing-
house Electric if Manufacturing Co (Meter Division ) and United Electrical , Radio, if
Machine , Workers of America, Local # 426, affiliated with the Congress of Industrial Organ-
izations, 27 N L R B 605 (involving a plant at Newark , N. J ) ; Matter of Westing-
house Electric if Manufacturing Co. and United Electrical , Radio if Machine Workers of
America, Local 711 (C I . 0 ), 24 N L . R. B 601 ( involving a plant at Mansfield , Ohio) ;
Matter of Westinghouse Electric if Manufacturinq Coriipany and its subsidiaries, West-
inghouse X-Ray Company, Inc and The Bryant Electric Company and United Electrical.
Radio if Machine Workers of America and its Locals Nos. 601 , 202, 1207, 107, 111, 130,
1105, 1412 , and 209, 22 N. L. R B . 147 (involving a plant at East Springfield , Massa-
chusetts , and another at South Philadelphia , Pennsylvania ) ; and Matter of Westinghouse
Electric & Manufacturing Company and Westinghouse Employees Association , Inc (Inde-
pendent ), 18 N L R B 115 ( involving a plant at Mansfield , Ohio ), in which various locals
of United Electrical , Radio & Machine Workers of America requested the exclusion of police
from the unit
12 Cf . Matter of The Globe Machine and Stamping Co and Metal Polishers Union Local
No 3. International Association of Machinists , District No. 54, 3 N . L R. B. 294 ; Matter
of Baltimore Brick Company and Material Yard if Residential Construction Laborers ' Union,
Local 912 , of the Baltimore District Council, International Hod Carriers ', Building if Com-
mon Laborers ' Union of America , 25 N L R . B 759 ; Matter of Lincoln Engineering
Company and Tool if Die Makers Lodge 688 of the International Association of Machinists,
District No. 9, 25 N. L . R. B. 1083.
WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 1365
in the production and maintenance unit; and if the Association obtains
a majority they will be included in the salaried unit. Our final deter-
mination of the appropriate units herein will thus depend on the
outcome of such election.
VI. THE DETERMINATION OF REPRESENTATIVES
At the hearing all parties requested that an election be held among
the employees to resolve the question concerning representation in
whatever unit or units the Board finds appropriate. We find that
the question which has arisen concerning the representation of em-
ployees of the Company at the Nuttall Plant can best be resolved
by means of secret ballot elections.
The United and the Association stipulated, and we shall direct,
that separate elections be conducted among the, following three
groups of employees :
(1) Among all the production and maintenance employees at
the Company's Nuttall Plant who were on the pay roll of Oc-
tober 4, 1940, including shipping and receiving employees, testers,
truck drivers and police (paid by -the hour), and also employees
whose names do not appear on the said pay roll because they
were ill, on vacation, or temporarily laid off, but excluding super-
visory" employees, clerical workers, engineering employees, sal-
aried employees, and employees who have since quit or been
discharged for cause, to determine whether they desire to be
represented for the purposes of collective bargaining by the
United, or by the Association, or by neither.
(2) Among all the salaried employees at the Company's Nut-
tall Plant who were on the pay roll of October 4, 1940, including
employees whose names do not appear on the said pay roll be-
cause they were ill, on vacation, or temporarily laid off, but
excluding supervisory employees, salaried inspectors, and em-
ployees' who have since quit or been discharged for cause, to
determine whether or not they desire to be represented for the
purposes of collective bargaining by the Association.
(3) Among all the salaried inspectors at the Company's Nut-
tall Plant who were on the pay roll of October 4, 1940, including
employees whose names do not appear on the said pay roll be-
cause they were ill, on vacation, or temporarily laid off, but
excluding supervisory employees and employees who have. since
quit or been discharged for cause, to determine whether they
desire to be represented for the purposes of collective bargaining
by the United, or by the Association, or by neither.
1366 DECISIONS !OF NATIONAL LABOR RELATIONS BOARD
The Company agreed that the pay roll of October 4, 1940, should
be used for the purpose of determining eligibility to vote, and further
agreed to furnish a copy of it. ,
Upon the basis of the foregoing findings of fact and the entire
record in the case, the Board makes the following :
CONCLUSION OF LAW
A question affecting commerce has arisen concerning the represen-
tation of employees of Westinghouse Electric & Manufacturing Com-
pany at the R. D. Nuttall Plant, Pittsburgh, Pennsylvania, within the
meaning of Section 9 (c) and,Section 2 (6) and (7) of the Act.
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 Relations
Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 2, as amended;
it is hereby
DIRECTED that, as part of the, investigation authorized by the Board
to determine the appropriate units and to ascertain representatives for
collective bargaining with Westinghouse Electric & Manufacturing
Company at the R. D. Nuttall Plant, Pittsburgh, Pennsylvania, sepa-
rate elections by secret ballot shall be conducted as early as possible,
but not later than thirty (30) days from the date of this Direction of
Elections, under the direction aiid supervision of the Regional Director
for-the Sixth Region, acting in this matter as agent for the National
Labor Relations Board, and subject to Article III, Section 9, of said
Rules and Regulations, among the following groups of employees of
Westinghouse Electric & Manufacturing Company at the R. D. Nuttall
Plant, Pittsburgh, Pennsylvania, who were on the pay roll of October
4, 1940, including employees whose names do not appear on such pay
roll because they were ill, on, vacation, or temporarily laid off, but
excluding those employees who have since quit or been discharged
for cause :
(1) All the production and maintenance employees, including
shipping and receiving employees, testers, truck drivers and police
(paid by the hour), but excluding supervisory employees, clerical
workers, engineers and salaried employees, to determine whether they
desire to be represented for the purposes of collective bargaining by
United Electrical, Radio and Machine Workers of America, Westing-
house Local 601, or by Association of Westinghouse Nuttall Em-
ployees, or by,neither;
WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 1367
(2) All the salaried employees, excluding salaried inspectors and
supervisory employees, to determine whether or not they desire to be
represented for the purposes of collective bargaining by Association of
Westinghouse Nuttall Employees ;
(3) All the salaried inspectors, excluding supervisory employees, to
determine whether they desire to be represented for the purposes of
collective bargaining by United Electrical, Radio and Machine Work-
ers of America, Westinghouse Local 601, or by Association of Westing-
house Nuttall Employees, or by neither.
I