Westinghouse Electric & Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 4, 1943

53 N.L.R.B. 1073 (N.L.R.B. 1943)

In the Matter Of WESTINGHOUSE ELECTRIC & MANUFACTURING COM-
PANY, LIGHTING DIVISION and UNITED ELECTRICAL, RADIO & MA-
CHINE WORKERS OF AMERICA (CIO)
Case No..8-R-1°:63.Decided December 4, 1943
Mr. William E.. Miller, of Pittsburgh, Pa., for the Company.
Mr. David Scribner and Mr. Edward J. Matthews, both of New
York City, for the UE.
Mr. Harry A. Gillis, of Cleveland, Ohio, for the Federation.
Mr. David V. Easton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by United Electrical, Radio
& Machine Workers of America (CIO), herein called the UE, alleg-
ing that a question affecting commerce had arisen concerning the
representation of employees of Westinghouse Electric & Manufac-
turing Company, Lighting Division, Cleveland, Ohio, herein called
the Company, the National Labor, Relations Board provided for an
appropriate hearing upon due notice before William O. Murdock,
Trial Examiner. Said hearing was held at Cleveland, Ohio, on No-
vember 5, 1943. The Company, the UE, and Employees Federation
of .the Westinghouse Electric & Manufacturing Company, herein
called the Federation, appeared, participated, and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues. The Federation made a
motion at the hearing to dismiss the petition herein which the Trial
Examiner referred to the Board. For reasons hereinafter stated,
this motion is hereby denied. The Trial Examiner's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
All parties were afforded an opportunity to file briefs with the Board.
53 N. L. R. B, No. 201.
. 1073
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Westinghouse Electric & Manufacturing Company, a Pennsylvania
corporation, owns and operates a number of plants located through-
out the country. We are concerned here with that plant of the
Company known as the Lighting Division, which' is located in Cleve-
land, Ohio. The Lighting Division manufactures luminaries for
commercial, industrial, flood lighting, aviation, and other purposes.
During the year 1943, approximately 65 percent of the raw materials
used at the Lighting Division, valued at more than $1,700,000, has
or.will come from points outside the State of Ohio, and approxi-
mately 80 percent of its finished products, valued at more than
$3,500,000, has been or will be shipped to points outside the State of
Ohio. The Company admits that it is engaged in commerce within
the-meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Electrical, Radio & Machine Workers of America, is a
labor organization affiliated with the Congress of Industrial Organi-
zations, admitting to membership employees of the Company.
Employees Federation of the Westinghouse Electric & Manufactur-
ing Company is a labor organization affiliated with the Federation
of Westinghouse Independent Unions, admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about August 10, 1943, the UE requested recognition by .the
Company as the bargaining representative of certain of its employees.
The Company refused to grant such recognition unless and until the
UE receives certification by the Board. The Federation contends
that its present contract with the Company, dated September 10, 1943,
constitutes a bar to this proceeding. However, inasmuch as this con-
tract was executed subsequent to the date upon which the UE gave
notice of its claims of representation,' and inasmuch as it is subject
to termination at any time upon 30 days' notice, by either party, we
find that it does not constitute a bar to this proceeding.2
A statement of the Field Examiner, introduced into evidence at
the hearing, indicates that the UE and the Federation each represent
i Matter of Bucyrus-Erie Co., 41 N. L. R. B. 939.
2 Matter of American Radiator & Standard Sanitary Corp., 35 N. L R B. 172.
WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 1075
a substantial number of employees in the unit hereinafter found
appropriate.3
We find that a question affecting commerce has arisen concern-
ing 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
On March 27, 1940, the Board issued a Decision and Direction of
Election,' concerning the employees of the Company herein, in
which it directed separate elections among (a) all production, mainte-
nance, and service employees, (b) clerical employees, and (c) em-
ployees engaged as polishers, buffers, platers, spinners, and helpers.
In its decision the Board stated :
* * * the clerical employees should properly be excluded
from the plant-wide unit. Supporting this conclusion is the fact
that clerical employees have been excluded from the unit of
production and maintenance employees in plants of the Company
other than the Lighting Division * * *.
However, the Federation, claiming as members more than 50
percent of the clerical employees, wants them included in a
plant-wide unit * * *.
From the entire record, it appears that the clerical employees
at the Company's Lighting Division might properly be included
either with the plant-wide unit, * * * or they might prop-
erly be excluded. Under such circumstances, we apply the
principle that the determining factor is the desires of
the * * * employees themselves * * *.b
As a result of the elections thus directed, the Federation was certified
as the collective bargaining representative of a unit consisting of
both the clerical employees, and the production, maintenance, and
service employees,' and has conducted bargaining relations with the
S The Field Examiner reported that the UE submitted 275 designations, of which 260 bore
apparently genuine original signatures and the names of persons appealing upon the Com-
pany's pay roll of September 20, 1943 ; that said pay roll contained the names of 693
persons in the unit sought by the UE.
The Field Examiner further reported that the Federation relies upon the following for
the establishment of its interest herein : (a) prior certification by the Board, ( b) contracts
between itself and the Company, and (c ) membership lists totaling 178 employees, all of
whose names appeared upon the afore-mentioned pay roll.
He further noted that approximately 150 persons were claimed both by the UE and the
Federation.
4 Matter of Westinghouse Electric & Manufacturing Company, Lighting Division, 21
N. I. R. B. 1150. The UE did not appear on the ballot.
' See footnote 4 supra, at page 157.
Matter of Westinghouse Electric & Manufacturing Company, Lighting Division, 21
N. L. R. B . 701. Metal Polishers, Buffers, Platers, Spinners & Helpers International Union,
Local No. 3 , herein called the Metal Polishers , was designated at the same time as the col-
lective bargaining representative of those employees engaged as buffers, polishers , platers,
spinners , and helpers.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company on behalf of - the employees in this unit continuously
until the present date. This bargaining history is evidenced by a
contract between the Federation and the Company dated December
9, 1942, which was thereafter superseded by a subsequent contract
dated September 10, 1943.
The UE now seeks to represent all production and maintenance
employees, including powerhouse employees, salvage employees, stock-
room and shipping employees, toolroom employees, and pattern
makers, but excluding office and clerical employees, foremen,- assist-
ant foremen, and all other employees acting in a supervisory capacity,
guards, and those employees now represented by the Metal Polishers.
The Federation contends that the appropriate unit is the one pre-.
viously certified by the Board. The Company takes no position with
respect to the appropriateness of either unit.
As noted above, the unit including clerical employees for which
the Federation was certified was formed, not so much upon the basis of
functional interdependence, as upon the desires of the clerical em-
ployees themselves. This factor alone is not sufficient reason upon
which to link irrevocably the respective groups of production and
maintenance employees and clerical employees whom we customarily
find constitute separate units, and who in other plants of the Company
are constituted as such., Since we have previously found that each
group may properly constitute an appropriate unit separate from the
other, we are of the opinion that the production and maintenance em-
ployees may, at this time, constitute an appropriate unit. Accord-
ingly, we find that all production and maintenance employees of the
Company, including powerhouse employees, salvage employees, stock-
room employees, shipping employees, toolroom employees, and pattern
makers, excluding office and clerical employees, foremen, assistant
foremen, and all other supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, guards, polish-
ers, buffers, spinners, platers, and helpers, constitute a unit appropriate
for the purposes of collective bargaining, within the meaning of Sec-
tion 9 (b) of the Act.
V. THE 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-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction. -
WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 1077
DIRECTION OF ELECTION
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,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, it is hereby
DmECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Westinghouse
Electric & Manufacturing Company, Lighting Division, 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 direc-
tion 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 unit found appropriate in Section
IV, above, who were employed during the pay-roll period immediately
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 they desire to be represented by United
Electrical, Radio & Machine Workers of America, affiliated with the
Congress of Industrial Organizations, or by Employees Federation of
the Westinghouse Electric & Manufacturing Company, affiliated with
the Federation of Westinghouse Independent Unions, for the purposes
of collective bargaining, or by neither.