Worthington Corp.

National Labor Relations Board - Board Decisions

Oct 13, 1965

155 N.L.R.B. 222 (N.L.R.B. 1965)

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances surrounding the discharge are not entirely free of suspicion . Thus, it is not
without significance that Respondent made its decision to terminate Bolton without
first obtaining Bolton's version of the Smith incident and , indeed , withholding
Smith's identity as the one induced in the slowdown ; on the other hand, it may be
that Respondent 's conduct in this respect was motivated by a desire to shield Smith
against possible reprisal by Bolton. Furthermore , Respondent retained in its employ
other employees ( e.g., Allen and Peace ) whom it suspected of slowdowns , although
it is true ( as Respondent claims ) that none of them were also suspected of inducing
other employees to curtail production , as was Bolton . Moreover , it may be that
Respondent "simply wanted to make an `example' of [Bolton] in order to stop the
slowdown, and apparently felt that it was unnecessary to discharge [other employees]
to accomplish that purpose." California Cotton Cooperative, supra, 1496.
In any event , I have given weight to the countervailing factors supporting a finding
of discrimination and I find, on the basis of the whole record , that these are counter-
balanced by the factors supporting a contrary finding, including the circumstance
(already found ) that Respondent 's defense was not a concocted one. There is no
evidence of union animus on the part of Respondent at the plant here involved.
The record shows that until the recent incidents , Respondent had had long and
amicable relations with the Union extending over at least 10 years, during 6 of which
Bolton was union president . The parties have periodically signed collective agree-
ments, at least the last two with union shop and dues checkoff . There is no claim,
let alone evidence , that Respondent had at any time previously taken reprisal against
any employee for processing grievances or protesting wage rates-the protected activi-
ties of Bolton claimed by General Counsel to have motivated the discharge. From
all that appears , these activities were normal , everyday occurrences to which Respond-
ent willingly submitted in accordance with its contractual commitments . While it
may be (as Bolton testified Company officials had told him, supra, footnote 19),
that Respondent resented his filing of charges against two union members (Bacon
and Van Auken ), I am satisfied that such resentment , even if established , was not a
substantial factor in Respondent 's decision to terminate Bolton, particularly since
Respondent took no action against Bolton until after the Smith incident-long after
the charges were filed. Cf. Softexture Yarns, Inc., 128 NLRB 764, 766.
For all of the reasons stated and on the basis of the entire record, I find and con-
clude that General Counsel has failed to meet his burden of establishing by a prepon-
derance of the credible evidence that Respondent 's termination of Bolton on May 22
was discriminatorily motivated, in violation of Section 8(a)(1) and (3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and upon the entire record in this case,
it is recommended that the complaint be dismissed.
Worthington Corporation , Compressor and Engine Division 1 and
Office Employes International Union , Local No. 212, AFL-CIO,
Petitioner.' Case No. 3-UC-1. October 13,1965
DECISION AND ORDER
Upon a Petition for Clarification duly filed under Section 9(b) of
the National Labor Relations Act, as amended, a hearing was held
before Hearing Officer Jeremy jr. Cohen. All parties appeared and
were given full opportunity to participate at the hearing. Thereafter,
the Employer and the Petitioner filed briefs in support of their respec-
tive positions.
'The nnnie of the Employer appears as amended at the hearing.
Y The name of the Petitioner appears as amended at the hearing.
155 NLRB No. 18.
WORTHINGTON CORP., COMPRESSOR & ENGINE DIVISION 223
The National Labor Relations Board has considered the Hearing
Officer's rulings made at the hearing and finds that no prejudicial error
was committed . The rulings are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown , and Jenkins].
Upon the entire record in this case , the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain
employees of the Employer .3
3. In its petition for clarification the Petitioner seeks to include as
an accretion to its certified unit three systems and procedures analysts
(Chavanne , Blyth, and Wittig), and two assistants , electronic data
processing, and planning (Moretti and Turner ). The Employer, con-
trary to the Petitioner , contends that these employees are professional,
or at least technical employees who do not have a community of interest
with the employees in the bargaining unit; that Moretti and Turner
are supervisors within the meaning of the Act; and that, in any event,
a self-determination election is the proper procedure to be followed
in this case.
On January 16, 1951, in Case No. 3 -RC-556, pursuant to a consent
election agreement , the Petitioner was certified in the following unit :
All office clerical and technical employees , including inspectors,
checkers , stock checkers , or dispatchers , time study and department
employees , office custodial employees and switchboard operators;
excluding confidential secretaries , executives , managerial employees,
nurses, and all guards , professional employees , and supervisors as
defined in the Act.
On April 22,1953, in Case No. 3-RD-67, pursuant to a Decision and
Direction of Election by the Board , the Petitioner was decertified in a
unit composed of:
All engineering and technical employees , subdivision engineers,
electrical section leader , manager of emergency procurement , purchas-
ing assistants , research engineers , junior engineers , designers or design
draftsmen , detail draftsmen , drafting apprentices , test inspectors,
specification clerks, tracers , executive clerks, bulletin composition em-
ployees, and blueprint machine operators; but excluding the purchas-
ing department leader, lead specification typist , typist clerks , blueprint
clerks, stenographer clerks, file clerks, all other office clerical employ-
ees, inspectors , time study and standard department employees, pro-
duction and maintenance employees , guards, watchmen , and super-
visors as defined in the Act.
3 The Petitioner 's request for oral argument is hereby denied as, in our opinion, the
record, including the briefs , adequately presents the issues and positions of the parties.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The classifications included in the decertification unit, although not
included in the certified unit, were apparently placed in that unit by
mutual agreement of the parties, during the first contract negotiations
following certification. The result of the decertification procedure
was to remove such employees or classifications from the scope of the
certified unit.
Since the decertification proceeding, the recognition clauses in sub-
sequent contracts, including the agreement in effect at the time of the
hearing, describe the unit substantially as follows :
All office, clerical, and technical employees, including inspectors,
checkers, stock chasers or dispatchers, time study and standard depart-
ment employees, office custodial employees, and switchboard operators;
but excepting confidential employees, executives, managerial employ-
ees, nurses, guards, technical, engineering, professional employees, and
supervisors in accordance with certification Case No. 3-RC-556, dated
January 16, 1951 and Case No. 3-RD-67, dated April 22, 1953. Em-
ployees coming under the jurisdiction of United Steelworkers of
America [production and maintenance employees] and Patternmakers
League of North America [pattern department] are excluded from the
provisions of this agreement.
For many years, the Employer operated many "unit record
machines," such as tabulators, sorters, verifiers, calculators, reproduc-
ing machines, keypunch machines, and simple machines. These
machines were located in the tabulating department and the 10 or 11
tabulating department employees, excluding supervisor Guasteferro,
were included in the Petitioner's bargaining unit. In the tabulating
department, 85 percent of the work related to accounting, that is,
inventory, production, and purchases control operations, and to the
computation on incentive rates. The remaining 15 percent of the work
related to traffic control, shipping reports, and other matters.
About January 1963, the Employer decided to install an IBM 1440
computer. Thereafter, the Employer created the electronic data proc-
essing methods and planning department, herein referred to as the
EDP department. The tabulating department was completely
absorbed by the EDP department and Guasteferro continued as super-
visor of the new department. Turner, who had been tabroom group
leader in the tabulating department, was removed from the bargaining
unit and reclassified as an assistant, electronic data processing and
planning. Until the installation of the computer about June or July
1964, the EDP department functioned with the older record machines.
Upon the actual installation of the 1440 computer, some of the tabulat-
ing department equipment was immediately removed. It is contem-
plated that eventually all operations previously performed by the tab-
ulating department employees will be computerized.
WORTHINGTON CORP., COMPRESSOR & ENGINE DIVISION 225
There are approximately 13 employees in the EDP department in the
Petitioner's unit, including 1440 console operators and keypunch oper-
ators. The console operator classification was created in June or July
1964, following the installation of the 1440 computer and the employees
serving in this capacity have been included in the unit represented by
the Petitioner.
With respect to Turner and Moretti, classified as assistants, elec-
tronic data processing and planning, the record shows that both work
in the enclosed EDP office with Guasteferro.4
Turner, as previously noted, served as tabulating room group leader
until he was reclassified to his present classification and transferred to
the EDP department. Moretti, who was previously a specifications
clerk in the parts service department, a classification not in the bargain-
ing unit, was transferred into the EDP department in October 1964.
Turner and Moretti are high school graduates, and Turner has had 2
years of college, including 1 year of accounting plus a night school
course in computer statistics, while Moretti has taken courses at Erie
County Technical Institute, and both men have taken IBM computer
courses and have received on-the-job computer training.
The assistants, electronic data processing and planning, direct and
coordinate all phases of tabulating or data processing work required
to accomplish complex specific jobs on established systems, and they
assist in establishing new systems for application of tabulating or data
processing techniques; plan proper procedures such as writing of oper-
ating instructions, stored program coding, making flow charts, design-
ing forms, and preparing setup diagrams. They are responsible for
control panel wiring for nonstandard runs; check and review work for
accuracy and completions and make test runs. It appears that in pre-
paring and adopting new programs for computer application they
are required to use their own initiative and independent judgment.
The record shows that the electronic data processing and planning
assistants monthly salary ranges from $641.25 to $774.75. The highest
weekly salary grade in the bargaining unit, at labor grade 12, on a
monthly basis, begins at $598 and has a high of $671.67.
Chavanne, a systems and procedures analyst, who is supervised by
the comptroller, Mathes, performs work in the same area as Moretti,
Turner, and Guasteferro, in the EDP office. He has been temporarily
assigned to the 1440 computer program but is primarily engaged in
systems and procedures work unrelated to the 1440 computer. At the
present time his work involves devising new applications for the use of
the 1440 computer in all areas of the plant, whereas the others here in
'The record further shows that engineering data processing employees performing
somewhat similar work on the Employer's IBM 1620 computer also work in this office
with Moretti and Turner . However , the Petitioner makes no claim that these engineering
data processing employees should be included in the office clerical unit.
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issue are engaged in work adapting the computer to the Employer's
accounting procedures.
Chavanne started with the Employer as an office messenger and
progressed through various job classifications . During the transi-
tional period in 1963 and part of 1964 , and before he was given his pres-
ent job classification, Chavanne worked with Guasteferro preparing
for the installation of the 1440 . In March 1965, he received his present
title and began to work on a program to adapt the 1440 to inventory
control procedures . Chavanne is a high school graduate , attended the
University of Buffalo night school for 3 years, had on-the-job training
and IBM courses , and has taken a familiarization course with IBM
type equipment at Bryant & Stratton, a business school in Buffalo.
Chavanne spends about 50 percent of his time doing work related to
the 1440 , and the remaining 50 percent of his time is spent on forms
control, not an EDP departmental operation , and systems and proce-
dures development , unrelated to the 1440. This latter work was for-
merly performed by various supervisors in the plant and was never per-
formed by bargaining -unit personnel , and is the same work as he was
previously performing as the supervisor of systems control.
Blyth and Wittig, also systems and procedures analysts , are super-
vised by the manager of materials , Murnane, because the computer
work which they are doing is functionally related to the department
that Murnane supervises . Blyth and Wittig are primarily respon-
sible for converting a manual ledger system to a 1440 application. On
December 1, 1963 , Wittig was promoted to a systems and procedures
analyst. Blyth was hired on June 22 , 1964, as a systems and procedures
analyst. Both Wittig and Blyth are college graduates , have taken
IBM courses on the 1440 computer, and from December 1963, to June
1964, worked on systems and procedures to be utilized when the 1440
arrived . The duties of systems and procedures analysts involve the
development of systems and procedures . In this regard , the decisions
of Chavanne , Wittig, and Blyth are based on general knowledge of
company policies and procedures and application to areas not previ-
ously covered . They also modify old procedures to meet new condi-
tions, and administer all phases of the development , application , instal-
lation , and maintenance of systems in material control, purchasing,
production control, and related areas . The systems and procedures
analysts coordinate the work of operating personnel in all depart-
ments, through department heads, as required , when action is necessary
and related to the successful installation of a system ; make feasible
studies , including detailed cost analysis , machine recommendations,
and organization changes, as required , to maintain operations at a pro-
gressive and competitive level; develop long range plans for plantwide
systems and procedures network to integrate and,simplify methods
of accumulating data for management decisions.
ROHM & HAAS COMPANY 227
A systems and procedures analyst has a weekly salary of $119.10
to $134.85. Under the Petitioner's contract, labor grade 9 receives a
weekly salary in the range of $118.23 to $131.48.
The work described above was not performed by any employees of
the Employer prior to 1963, when the Employer began to prepare for
the installation of the 1440 computer. The five employees sought by
the Petitioner operate the 1440 computer only to test, clarify, or correct
programs which they have devised. Thereafter, the console operator
runs the program as a routine matter. If the console operator encoun-
ters any problems, he checks with the person who devised the program.
Since the systems and procedures analysts, and the assistant, elec-
tronic data processing and planning employees, are engaged in work
that is completely new to the plant, namely, devising procedures and
systems for the newly acquired 1440 computer, they are not engaged
in work which was previously performed at the time of the certification
in 1951; it appears that the Petitioner did not claim to represent or
attempt to bargain for these employees during the contract negotiations
in August 1964, sometime after the jobs involved in this proceeding
were established. Considering these factors, along with the differences
in their job function, responsibilities, and use of initiative and judg-
ment from that of employees in the clerical unit, we find, upon the
entire record, that the systems and procedures analysts and the assist-
ant, electronic data processing and planning employees, cannot be
regarded as an accretion to the existing clerical unit.5 We shall there-
fore deny the Petitioner's motion to amend the certification and shall
dismiss the instant proceeding. In view of our dismissal for the above
reasons, we find it unnecessary to decide whether Moretti and Turner
are supervisors within the meaning of the Act, or whether the systems
and procedures analysts, and assistant, electronic data processing and
planning employees, are professional or technical employees.
[The Board dismissed the petition for clarification of unit.]
c General Iron Works Co., 150 NLRB 190; Aluminum Company of America, 140
NLRB 929.
Rohm & Haas Company and United Industrial Workers of North
America of the Seafarers International Union of North Amer-
ica, Atlantic, Gulf, Lakes & Inland Waters District, AFL-CIO.
Case No. 4-CA-3598. October 14, 1965
DECISION AND ORDER
On July 26, 1965, Trial Examiner Sidney S. Asher, Jr., issued his
Decision in the above-entitled proceeding, finding that the Respondent
155 NLRB No. 25.
212-809-66-vol. 155-16