Lockheed Aircraft Corp.

In the Matter of LOCKHEED AIRCRAFT CORPORATION, EMPLOYER and INTERNATIONAL ASSOCIATION OF MACHINISTS, FOIL ITSELF AND ON BE- HALF OF LOCAL LODGE 1712, BURBANK3- CALIFORNIA, PETITIONER Case No. 21-R-2885.-Decided August 06, 19416 O'Melveny d Myers, by Mr. Homer I. Mitchell, of Los Angeles, Calif., and Mr. Emil Steck, Jr., of Burbank, Calif., for the Employer. Messrs. E. R. White and Dale 0. Reed, both of Los Angeles, Calif., and Mr. Carl Huhndroff, of Washington, D. C., for the Petitioner. Katz, Gallagher & Margolis, by Mr. Ben Margolis, of Los Angeles, Calif., for the EAA. Mr. Sydney S. Asher, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS Upon an amended petition duly filed, hearing in this case was held at Los Angeles, California, on April 22, •23, 24, 25, and 26, May 6, 13, 14, and 21, and June 3 and 4, 1946, before James A. Cobey, Trial Ex- aminer. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Employer moved to dismiss the petition. For reasons stated in Sections III and IV, below, the motion is denied. Oral argument was heard before the Board in Washington, D. C., on August 8, 1946.1 Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS ,or FACT 1. THE BUSINESS OF THE EMPLOYER The Employer is a California corporation engaged in the manu- facture and sale of aircraft and aircraft parts. Its principal office is located in Burbank, California, and it maintains numerous factories, warehouses, offices, and service bases in several States. From April 1 The Employer and the Petitioner appeared' and participated in the oral argument. Members Reilly and Houston heard the argument, and Chairman Herzog subsequently read the official transcript thereof. 70 N. L. It. B., No. 53. 696 LOCKHEED AIRCRAFT CORPORATION 697 1, 1945, to April 1, 1946, the Employer purchased raw materials for its California plants amounting to more than $50,000,000 in value of-which more than 50 percent was brought into the State of Cali- fornia from other States. During the same period, the Employer's sales of products manufactured within the State of California amounted to in excess of $100,000,000 in value, more than 50 percent of which was shipped from' its California plants to points outside the State of California. The Employer admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization claiming to represent em- ployees of the Employer. Engineers & Architects of Southern California, herein called the EAA, is an unaffiliated labor organization claiming to represent certain rank and file employees of the Employer.2 IH. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of certain supervisory employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. The Employer contends that the petition should be dismissed on the grounds that supervisory employees are not "employees" within the meaning of the Act, and that, therefore, no question with respect to the representation of employees exists. We have previously de- termined that supervisory employees are "employees" within the meaning of the Act.3 Therefore, the Employer's contention is without merit. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES The Petitioner originally sought a unit composed of all the Em- ployer's group supervisors and section supervisors except for those supervising employees in specific technical and engineering classi- 2 The EAA does not claim to represent supervisory employees of the Employer , but has intervened solely for the purpose of stating its position with respect to the appropriate unit. a Matter of Packard Motor Oar Company, 61 N. L. R. B. 4; Matter of Packard Motor Car Company, 64 N. L. R. B 1212, enf'd 157 F ( 2d) 80 (C. C. A. 6), 18 L R. R. 2268, decided August 12, 1946; Matter of L. A. Young Spring d Wire Corporation, 65 N. L. R. R. 298. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fications,4 and except for other supervisors who supervise certain "fringe" employees. During the hearing, however, the Petitioner filed an amended petition seeking a unit composed of group and section supervisors employed in the Employer's manufacturing branch except those "whose positions normally require an engineer- ing degree or its equivalent in engineering experience." The EAA agrees that such a unit would be appropriate and, in amplification of the exclusion proposed by the Petitioner, states that section and group supervisors in certain specific departments hold positions which normally require an engineering degree or its equivalent in engineer- ing experience. The departments named by the EAA are those whose primary functions are said to be technical or engineering. The Employer, without indicating what type of supervisory unit it considers appropriate, maintains that the unit suggested by the Petitioner and the EAA is not appropriate, and that, therefore, the petition should be dismissed. However, if the petition is not dis- missed, the Employer urges that the section supervisors should not be included in the same unit with group supervisors, but should con- stitute a separate unit. The Employer's operations The Employer's operations are divided into five branches, which are not physically separated within its buildings. These are the manufacturing branch, the sales and service branch, the engineering branch, the finance branch, and the administrative branch. In many instances identical functions are found in different branches. For example, tool designing is done in the manufacturing branch and also in the engineering branch. Moreover, the sales and service branch, in repairing parts of planes for purchasers, often performs similar work. Both the manufacturing branch and the engineering branch have groups engaged in final assembly. There are maintenance crews in both the manufacturing and the sales and service branches who perform similar functions. There are purchasing agents in both the sales and service branch and the engineering branch, whose functions are to purchase materials and parts. Likewise, both the manufactur- ing and the sales and service branches have dispatchers whose func- tions are similar. The employer employs approximately 24,200 supervisory and non- supervisory employees who are distributed among the five branches as follows : 75. 1 percent in the manufacturing branch. 8. 4 percent in the sales and service branch. I The, list of technical and engineering classifications contains all classifications for which the EAA is presently the certified bargaining representative LOCKHEED AIRCRAFT CORPORATION 699 9. 3 percent in the engineering branch. 3. 7 percent in the finance branch. 4.4 percent in the administrative branch. Within -each branch are offices and within each office are divisions. These divisions are subdivided into departments, which are further -di-6ded into sections. Within each section are several groups. The group supervisor is thus the lowest full-time supervisor in the Em- ployer's organization. On the average in the manufacturing branch he supervises approximately 20 rank and file employees. He assigns work within the group, gives whatever instructions are necessary, and is responsible for the proper performance of the work within the group. The group supervisor periodically rates the performance of each of the employees within his group and effectively recommends changes in the status of the employees under him, including pay in- creases, transfers, and disciplinary action. The group supervisor also handles informal complaints of the employees under him. He is normally directly responsible to a section ' supervisor. However, in some departments section supervisors may be omitted from the organizational structure, and under these circumstances the group supervisor would report directly to the department head. The group supervisors receive salaries ranging from $55 to $125 per week and average $90 weekly. - The section supervisor is on the next highest level of supervision above the group supervisor. In the manufacturing branch a section on the average consists of four groups. The section supervisor makes out periodical reviews of the rank and file employees in his section from information obtained from his group. supervisors' reports. He effectively recommends to his department head changes in status for all employees within his section, including pay increases, transfers, and disciplinary action. Upon minor matters such as permission to leave the department on business, attendance irregularities and the use of company property, he is the final authority for the employees within his section. In some sections the organizational structure may exclude group supervisors and thus the section supervisor may be directly supervising the work of rank and file employees. The section supervisors receive salaries ranging from $70 to $150 per week and average $105 weekly. Group supervisors and section supervisors thus are the two lowest levels of the Employer's full-time supervisory hierarchy. They lie between the highest non-supervisory position, known as the leadman, and the department head. As salaried employees they have the ad- vantages incident to such status but they are not in any sense form- ulators of Employer policy on personnel or production matters. Their role in such matters is merely to police enforcement of the Employer's 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD policies prepared by various staff organizations and established by higher management or prescribed by collective bargaining agreements. They have no connection with the collective bargaining process itself or with formal grievance procedure beyond supplying the appropriate Employer representatives with such facts as may be requested of them. Although, as previously indicated, they may effectively recom- mend changes in the status of employees under them, final authority for any personnel action always rests with higher supervisory em- ployees. Ea;istii g non-supervisory vntiits Since 1937 the Employer has recognized and bargained with Local Lodge 727 of the International Association of Machinists as the bar- gaining representative for all of its non-supervisory employees, with certain exceptions.5 In 1945 the Board, upon petition of the EAA, carved out of this unit of production and maintenance employees a unit consisting of hourly-paid and salaried non-supervisory employees whose functions were considered technical or engineering.6 Thus, at the present time the non-supervisory employees are split into two units. The unit of rank and file production and maintenance employ- ees (represented by Lodge 727 of the International Association of Machinists) consists of about 19;000 employees. The distribution of these employees of the rank and file production and maintenance unit roughly parallels the distribution of all the Employer's employees within all of its five branches. The unit of technical and engineering non-supervisory employees (represented by the EAA) consists of about 1,500 employees, 74 percent of whom are found in the engineer- ing branch and the balance in the manufacturing branch and sales and service branch. At the present time there is pending before the Board a petition filed by the EAA,' in which it seeks to enlarge the non-supervisory technical and engineering unit by adding thereto certain additional job classifications now contained in the non-supervisory production and maintenance unit." In many instances rank and file employees from the production and maintenance unit and non-supervisory employees from the technical and engineering unit work together under the same section as group supervisors. "The existing contract between the Employer and Local Lodge 727 excludes offices of the Employer, salaried executive administrative and professional employees , outside salesmen and representatives , guards, firemen employed in plants outside the State of California, and the employees in technical occupations listed according to job classifications. 9 Matter of Lockheed Aircraft Corporation, 58 N. L . R. B. 1188. 7 Case No 21-R-3192. The Petitioner stated that if the EAA should obtain certification on the basis of its petition in Case No . 21-R-3192, the Petitioner would not raise any certification resulting from the instant proceedings as constituting a bar to a further petition by the EAA for certification for supervisors of the rank and file employees it has petitioned for in Case No. 21-R-3192. LOCKHEED AIRCRAFT CORPORATION 701 In the Westinghouse case,' the Board stated that, in the absence of bargaining history and accepted unit patterns, the pattern of organi- zation for supervisory employees should generally follow the patterns sanctioned by the Board for rank and file employees. In the instant case, the main problem in establishing an appropriate unit of super- visory employees arises from the attempt of the Petitioner and the EAA to make the unit of supervisory employees sought herein conform to the production and maintenance unit of non-supervisory employees already established. However, the task is complicated by the fact that some supervisors supervise both non-supervisory production and maintenance employees and non-supervisory technical and engineering employees.'' The Petitioner contends that the unit of supervisory employees should be limited to the supervisors in the manufacturing branch ex- cluding those whose positions normally require an engineering degree or its equivalent in engineering experience. The record reveals that the Employer has no standard educational requirements for its super- visors and that educational requirements for any particular supervisory job would depend completely upon the momentary desires of the in- cumbent department head. In view of the facts, we are convinced that exclusions from the proposed unit should not be based upon edu- cational requirements, since such a test would be extremely difficult to apply and would be likely to result in confusion. The EAA maintains that certain named departments carry on func- tions which are primarily technical or engineering in nature. It argues that all group and section supervisors within these departments hold positions normally requiring an engineering degree or its equiva- lent in engineering experience, and therefore, that all such supervisors should be excluded from the unit. There are, however, obvious difficul- ties inherent in determining which departments perform primarily technical or engineering functions. Moreover, in the Employer's or- ganization, departments are not stable units, but fluctuate both as to functions and internal structure. The conclusion is inescapable that any exclusion based upon either the educational requirements for a job or the nature of the work performed within a department would be an indefinite and unworkable standard, which would open the door to future misunderstandings and would not be calculated to stabilize labor relations. The Employer further contends that the unit herein sought is inap- propriate because it is limited to supervisors within the manufacturing Matter of Westinghouse Electric Corporation (East Springfield Works), 66 N. L. it. B. 1297. 10 The problem is further complicated by the FAA 's pending petition in Case No. 21-8- 3192, which seeks to change the present line of demarcation between production and main- tenance rank and file employees on the one hand, and technical rank and file employees on the other. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD branch only. It points out that in many instances functions per- formed by supervisors in the manufacturing branch are identical with functions performed by supervisors in some of the other branches. It contends, therefore, that the petition should be-dismissed." We are prone to agree with the Employer's contention that the supervisory unit sought herein should not be limited to the supervisors in the manufacturing branch. However, we shall not dismiss the petition, but shall establish a unit or jnlits consisting of all of the appropriate rank or ranks of the Employer's supervisors, with the exception of those in the engineering branch, and with certain other exclusions discussed below. Such a unit or units would include supervisors who supervise the vast majority of the raiikand file production and main- tenance employees, but only a small portion of the employees within the rank and file technical and engineering unit. The exclusion of supervisors in the engineering branch would serve to exclude from such unit or units the great bulk of supervisors in charge of rank and file technical and engineering emplo}gees. Thus, the existing distinc- tion on the rank and file level between production and maintenance employees on one hand and technical and engineering employees on the other would be roughly paralleled on the supervisory level. In contrast, a unit or units composed of the supervisors within all of the Employer's branches would completely ignore the distinction among the non-supervisory employees. In order to make the supervisory production and maintenance unit or units correspond substantially to the non-supervisory production and maintenance unit, we shall exclude from any unit or units found to be appropriate all supervisors whose sole function is to supervise salaried executive administrative or professional employees, outside salesmen and representatives, guards, or firemen 12 The relation between group supervisors and section supervisors The Employer contends that if any supervisory unit is found to be appropriate, the section supervisors should constitute a separate unit from the group supervisors. 11 The Employer relies upon Matter of Lockheed Aircraft Corporation , 57 N L. R. B. 41, which concerned non-supervisory employees of the same Employer. In that case, the peti- tioning union sought a unit consisting of pattern makers within certain departments, ex- cluding pattern makers in other departments. At that time, as at present, all pattern makers were contained in the over-all non-supervisory production and maintenance unit. We dismissed the petition on the ground that the unit sought was inappropriate . It is our considered opinion that the doctrine promulgated in'that case is not applicable to the facts herein. There, a unit was sought which contained only a segment of a recognized craft, excluding the remainder of the employees in that craft . In the instant case, however, no craft unit has been petitioned for ; on the contrary , the unit petitioned for is an over-all unit of production and maintenance supervisors . We are therefore of the opinion that the case now before us is distinguishable on its facts from the previous Lockheed decision cited by the Employer. a As to guards and firemen , see Matter of Lockheed Aircraft Corporation and Vega Air- craft Corporation, 50 N. L. R B. 958, and Matter of Lockheed Aircraft Corporation, Lockheed Modification Center, 61 N. L. R. B. 1336. LOCKHEED AIRCRAFT CORPORATION 703 The record reveals that within the Employer's organization there are approximately 1,109 group supervisors as compared to approxi- mately 282 section supervisors. In the manufacturing branch, section supervisors supervise an average of 4 groups. The section super- visors oversee generally the group supervisors under them. They have the same relative position with respect to the group supervisors under them as the group supervisors have with respect to the rank and file employees under them. Section supervisors rate their group supervisors periodically. They make recommendations with respect to the promotion of rank and file employees to the rank of group supervisors, and also may recommend the discipline, transfer or dis- charge of group supervisors under them. Their recommendations with respect to changes in the status of group supervisors are accorded considerable weight. In view of all of the facts, there are some ad- vantages to the Board's establishing section supervisors in a separate unit. On the other hand, the common background, interests, and problems of group and section supervisors establish a community of interests which makes it inadvisable for the Board to exercise its own power to reach that result. A majority of the Board 13 believes, how- ever, that, before they are included in a unit consisting of both ranks of supervisors, the section supervisors, who are comparatively few in number, should be given the opportunity by separate voting to deter- mine whether or not they desire to be in the same unit with group supervisors. Accordingly, we shall make no final unit determination at this time but will be guided by the desires of the employees involved as expressed in the elections ordered hereinafter. In the event that the employees in the voting groups described hereinafter, voting separately, select the Petitioner, they shall together constitute a single appropriate unit.14 Conclusions We shall direct that separate elections be held among the employees in the voting groups described below who were employed during the pay-roll period iminediately preceding the date of the Direction of Elections herein, subject to the limitations and additions set forth in the Direction, to determine whether or not they desire to be represented by the Petitioner for the purposes of collective bargaining. As stated above, we will make no final determination of the appropriate unit or units, if any, pending the results of the elections. The respective voting groups shall be: 18 Chairman Herzog and Member Reilly. 14 Matter of Midland Steel Products Company, Parish & Bingham Division, 65 N. L. R. B. 997 ; Maur of Kelsey-Hayes Wheel Company, 66 N I, R . B 570 , Matter of Williams Oil-O-Matie Division of Eureka Williams Corporation, 67 N. L R B 1091 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Group 1-All group supervisors of the Employer, except those in the engineering branch, and those whose sole function is to supervise salaried executive administrative or professional employees, outside salesmen or representatives, guards, or firemen. Group 2-All section supervisors of the Employer, except those in the engineering branch, and those whose sole function is to supervise salaried executive administrative or professional employees, outside salesmen or representatives, guards, or' firemen. Apparently the EAA does not desire to appear on the ballots. We shall, therefore, direct that the name of the EAA shall be omitted from the ballots. The Employer contends that since the rank and file employees are currently represented by a local union affiliated with the Petitioner, the Petitioner is not eligible to represent the supervisory employees here involved. The record reveals that the Executive Council of the International Association of Machinists has prohibited member lodges from disciplining supervisory employees because of alleged misconduct in the discharge of their supervisory duties. The Em- ployer argues that the existence of this order indicates that such dis- ciplining of supervisors by local unions has occurred, and points out that the Executive Council conceivably may repeal the order or may be unable to secure its enforcement. We think that these fears are highly speculative and without adequate foundation. We see no impropriety in permitting one local union to represent supervisory employees while another local union affiliated with the same parent organization simultaneously represents rank and file employees of the same employer.15 , DIRECTION OF ELECTIONS As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with Lockhead Aircraft Corporation, Burbank, California, elections 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 Twenty-first Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of National Labor Relations Board Rules and Regulations-Series 3, as amended among the employees in the vot- ing groups described 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 "Matter of Jones cE Laughlin Steel Corporation, Vesta-ShannoQn Coal Division, 66 N. L. It. B. 386; Matter of Curtis Bay Towing Company of Pennsylvania , 66 N. L. It. B. 1152; Matter of Consolidated Steel Corporation, 69 N. L. R. B. 805. LOCKHEED AIRCRAFT CORPORATION 705 because they were ill or on vacation or temporarily laid off, and in- cluding employees in the armed forces of the United States who present themselves in person at the polls, but excluding those em- ployees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the elections, to de- termine within each voting group whether or not they desire to be represented by International Association of Machinists for itself and on behalf of Local Lodge 1712, Burbank, California, for the purposes of collective bargaining. MR. GERARD D. REILLY, concurring : Although I have disagreed with my colleagues on the matter of supervisors being included in bargaining units, I am of the opinion that since the majority of the Board take as their premise the doc- trine of the Jones cC Laughlin case,16 the units found appropriate by Chairman Herzog 17 come closer to effectuating the polices of the Act than the unit proposed either by the Petitioner or by my colleague, Mr. Houston. I might add that were it not for my disagreement with their major premise, I should concur with my colleagues in their joint disposition of the issue concerning the departmental structure of the unit. MR. J01-IN M. HousToN, concurring: I agree with Chairman Herzog on the matter of the inclusion of supervisors in bargaining units. Moreover, I concur with my col- leagues in their disposition of the issue concerning the departmental structure of the voting groups. I would, however, in accordance with the views expressed in my concurring opinion in the Midland Steel case '18 find appropriate a unit consisting of both group and section supervisors, and would not order separate elections. 26 Matter of Jones d Laughlin Steel Corporation, Vesta-Shannopin Coal Division, 66 N. L. R. B. 886, in which I dissented. 28 Matter of The Midland Steel Products Company, Parish & Bingham Division, 65 N. L. R. B. 997. 18 Matter of The Midland Steel Products Company, Parish & Bingham Division, 6TH N. L. R. B. 997.