Federal-Mogul Corp.

In the Matter Of FEDERAL-MOGUL CORPORATION , EMPLOYER and INTER- NATIONAL UNION, UNITED AUTOMOBILE , AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA , OFFICE WORKERS LOCAL UNION No. 889 (UAW-CIO), PETITIONER Case No. 7-R-2311.Decided April 144 1947 Messrs. Rogers I. Marquis and James H. Dingeman, of Detroit, Mich., for the Employer. Maurice Sugar and Jack N. Tucker, by M flr. Jack N. Tucker; and Mr. Forest C. Fair, of Detroit, Mich., for the Petitioner. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND ORDER Upon an amended petition duly filed, hearing in this case was held at Detroit, Michigan, on August 13, 14, and 19, and on September 6, 18, 19, 23, and 30, 1946, before Robert J. Weiner, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. On September 5, 1946, before the hearing was closed, an election was held among employees in the unit alleged to be appropriate. The Tally of Ballots discloses that of 99 ballots cast, 26 were for, and 39 against, the Petitioner, and that 34 ballots were challenged. On September 11, 1946, the Petitioner filed objections to the conduct of the election, alleging that the Employer had interfered with the con- duct of the election and asking that the National Labor Relations Board set aside the election and conduct a new election. Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS OF FACT 1. TIn7 BUSINESS OF THE EMPLOYER Federal-Mogul Corporation, with its general offices at Detroit, Mich- igan, is engaged in the manufacture of bearings, bushings, castings, and babbit material at several plants in various States of the United States. At the commencement of the hearing, the Employer operated 73 N.L.R B, No 69 359 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at Detroit, Michigan, three plants, Plant No. 1, the principal plant, known as the Shoemaker Plant, Plant No. 2 or the Marine Division,' and Plant No. 3, known as the Detroit Service Branch,2 the only plants involved in this proceeding. During the last calendar year, the Em- ployer purchased supplies, materials, and equipment for its Detroit plants, valued in excess of $2,000,000, approximately 75 percent of which originated in States other than Michigan. During the same period, the Employer sold products manufactured at its Detroit plants, valued in excess of $5,000,000, more than 85 percent of which repre- sented shipments made to points outside Michigan. We find that the Employer is engaged in commerce within the mean- ing of the National Labor Relations Act. H. THE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. III. THE APPROPRIATE UNIT The Employer and the Petitioner agree that office and clerical em- ployees at the Employer's Detroit plants constitute an appropriate bargaining unit. They are agreed that there should be excluded from the unit all employees in the Personnel Department; all employees in the Industrial Relations Department; all employees in the bargaining units for which Locals 202 and 114 of the UAW-CIO are recognized as bargaining agents,3 all employees in the Engineering, Credit, Research, and Tax Departments except steno-secretaries in these four depart- ments; all secretaries; print shop employees; part-time or temporary employees; the auditor; all employees in the supervisors' unit for which Foremen's Association of America is certified representative; and other supervisory employees within the Board's usual definition of that term. The Petitioner would include, and the Employer would ex- clude, the switchboard operator-receptionist, steno-secretaries, sales- men, and all non-supervisory employees in the Standards Department. Switchboard operator-receptionist: The duties of the switchboard operator-receptionist involve the usual duties performed by telephone operators. As receptionist, this employee receives and directs plant visitors, arranges interviews, and keeps a record of calls. The Em- ployer contends that inter-plant telephone conversations coming through the switchboard frequently concern matters of labor relations In September 1946, the Employer sold the Marine Division 2 The Detroit Service Branch is a warehousing and babbiting operation Local 202 represents production and maintenance employees at the Detioit plants. Local 114 represents plant-protection employees at these plants. FEDERAL-MOGUL CORPORATION 361 and that the opportunity afforded to the switchboard operator to "listen in" on such calls renders her a confidential employee and, as such, she should be excluded from the unit. Upon occasion the switch- board operator interrupts speakers during a long distance telephone conversation to inform them of some matter relative to the further use of the telephone line. Otherwise she has no occasion to interrupt the telephone conversation or to hear any telephone conversation in the regular course of her duties. We have considered the duties and op- portunities of telephone operators in other decisions.4 We have found that telephone operators are not confidential employees, inasmuch as, in the performance of their regular duties, they do not have to do with labor relation matters. We shall include the switchboard operator- receptionist in the unit of office and clerical employees. Steno-secretaries: The parties agree that employees classified as secretaries should be excluded from the bargaining unit. Steno- secretaries take and transcribe dictation and perform related clerical duties. They handle general office work and routine correspondence, relieving their supervisors of clerical and minor administrative duties. Unlike employees classified as secretaries, steno-secretaries do not handle the personal and important mail of executives, nor do they, in the regular course of their, duties, handle matters relating to the management of labor relations among supervised employees. Aside from steno-secretaries in the Personnel and Industrial Relations De- partments, whom the parties agree to exclude from the unit, employees in this category are not confidential employees. We shall include steno-secretaries in the office and clerical unit. Salesmen: Three employees classified as administrative assistants serve the Employer as salesmen.5 One covers the States of Indiana and Kentucky and -western Ohio, occasionally making a trip into Tennessee; a second, Michigan; and the third, eastern Ohio, western Pennsylvania, and western New York. Each of the three salesmen spends approximately 3 weeks of each month in and about the city of Detroit. The work of salesmen includes the quoting of prices, the composition of letters, the making of telephone calls, the entertain- ment of customers at company expense, the receiving of customers' complaints, and frequent consultation with engineering and inspection chiefs at the plant. They know the Employer's profit estimates on the jobs for which they make quotations, and have some limited dis- cretion in making quotations to customers in order to secure their orders. While the salesmen spend a considerable portion of their time in Detroit and, for convenience, work in, and from, the Detroit 4 flatter of Gould and Eberhardt Co , 66 N L R B 1326, and cases cited therein. 5 Employees classified as administrative assistants other than salesmen fall within the Boa, cis definition of superyisoiy employees and, as such , are excluded from the bargaining unit. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offices of the Employer, we believe that salesmen as a group have little in common with the clerical employees working in the Detroit offices who primarily comprise the bargaining unit sought by the Petitioner. We shall exclude salesmen from the bargaining unit.6 The Standards Department: The Standards Department, divided into two sections under one department head, the time-study division and the estimating division, administers the Employer's policy in regard to piece-work rates and price estimates and resolves many of the problems which arise in these related fields. At Plant No. 1, which is the principal manufacturing plant in Detroit, the Employer frequently furnishes to its customers small quantities of bearings so that, in spite of quantity production on some orders, the average number of separate parts made is less than 500 per order. Jobs are identified by part numbers, the numbers given to particular products by the customer purchasing the same from the Employer. There are several hundred different part numbers in the Employer's files . Approximately 62 percent of the Employer's production employees are piece-rate workers. The function of the time-study division is to establish such piece rates. The function of the estimating division is to determine, record, and report the lowest manufacturing cost on any article ordered if such order is placed in production within a reasonable time thereafter. The phases of esti- mating work include the preparation of original or revised quotations on which the Employer bids for new orders, and a review of an esti- mate after the job has actually been placed in production. Non-supervisory employees in the Standards Department include (1) time-study men, (2) estimators, and (3) clerical employees. (1) Time-study men: Time-study men, of whom there are eight,' or time-study engineers, as they are sometimes called, although they gen- erally lack the technical training of engineers, make time studies on the production floor to determine the base rate for an operation. This rate, modified by certain allowances, and checked by research in the Employer's files, essentially determines the base pay of the production piece-rate operator. Time-study men are classified as time-study men "A" and "B", depending upon their experience and ability. A time-study man is expected to refuse to time a job if it is not being run as routed or in prescribed sequence, and to refuse to time a job if, in his opinion, the operator is not giving a fair and satisfactory demon- stration. He makes suggestions to the foreman if he believes that the operation may be improved. The foreman, while available, is not always present during a demonstration. Written time-studies are spot-checked by the supervisor of the time-study department or his 6 Matter of Ardlee Service, Inc , 52 N L Ii B 1509 T Time-study men are employees from pioduction .departments, specifically trained at the plant for time-study work FEDERAL-MOGUL CORPORATION 363 assistant, but frequently prices are placed on the job before the price has been reviewed. After a price has been placed in operation, it may not be changed except in accordance with procedure set up by the con- tract between• the Employer and Local 202, providing for retiming after notice. Most grievances which arise among production employees concern the time-study work which primarily determines the piece rate of the operation. Time-study men may be called as witnesses during the dis- cussion of grievances for the purpose of developing the facts involved in setting up the piece rate or for the purpose of defending themselves if the grievance is against them as individuals. (2) Estimators: Estimators, of whom there are nine in the Stand- ards Department at the plant, make studies by which they estimate labor and material costs of products desired to be manufactured. They are classified according to their experience and ability as estimators "A" and "B". Methods, tooling, materials, direct labor, overhead, scrap losses and the like, and piece cost per hundred are included in the estimated study. Labor-cost estimators must have a complete working knowledge of plant operations and equipment. They work from time-study and routing records, suggesting changes in the sequence of proposed operations. When he has exhausted his sources of exact information, the labor-cost estimator uses his own discretion and judgment in estimating cost, based upon his experience and knowl- edge of methods, tools, equipment, materials, and manufacturing oper- ations. Material-cost estimators do more routine work because the sources upon which they base their estimates are more exact. Both labor-cost and material-cost estimators come into direct contact with production foremen and engineering employees. Routing is a function of the estimating division. When a job is brought into the plant, tools must be planned for it and operations set up in order that manufacturing may proceed in a predetermined manner. Routing schedules are set up by an employee classified as estimator "A", there being no separate job classification for routing work. This employee sets up the sequence of operations and routings that will be followed through the engineering and shop departments. Proposed routings are checked by engineering employees who may suggest changes in the proposed sequence of operations. Routing sheets for jobs are used by employees in various departments, including the time-study nlen, who must be guided by them in determining whether operations are being run in a proper sequence for a given time study. (3) Clerical employees in the Standards Department: In addition to the time-study men and estimators, there are four clerical employees in the Standards Department. These include a steno-secretary, a 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD typist clerk, and two other clerks. These clerical employees do gen- eral office work of the kind performed by office clerical employees in their respective categories. We have generally excluded time-study men from office and clerical, technical, and production units,, and we see no reason to depart from our custom in this instance. Estimators in the Standards Depart- ment appear to have little in common with the typists and office and filing clerks who principally comprise the proposed clerical unit. Their interests would appear to be rather with the technical employees with whom they are associated in their research work or with the time- study men, who make not dissimilar analyses regarding production work. We will exclude estimators from the unit.9 We see no reason to exclude the four clerical employees from the unit merely because they are assigned to the Standards Department. We shall include the clerical employees in the Standards Department in the bargaining unit. We find that all office and clerical employees employed in the Em- ployer's Detroit, Michigan,- plants, including the switchboard opera- tor-receptionist, steno-secretaries, and clerical employees in the Stand- ards Department, but excluding salesmen; time-study men and esti- mators; all employees in the Personnel Department; all employees in the Industrial Relations Department; all employees in the bargaining units for which Locals 202 and 114 of the UAW-CIO are recognized as bargaining agents; all employees in the Engineering, Credit, Re- search and Tax Departments except steno-secretaries in these four departments; all secretaries; print shop employees; part-time or tem- porary employees; the auditor; all employees in the unit for which Foremen's Association of America is certified representative, and all other supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. IV. THE DETERMINATION OF REPRESENTATIVES ; THE ALLEGED QUESTION CONCERNING REPRESENTATION On or about May 2, 1946, the Petitioner asked the Employer for recognition as bargaining representative of office and clerical em- ployees at the Employer's Detroit plants. On May 7, 1946, the Em- ployer refused the recognition. 8 Matter of Ford Motor Company, supra ; Matter of Bh own & Sharpe Mfq Co , 68 N. L R B 487, 70 N L R I3 709, Matter of The Adams & Westlake Go, 72 N L R B 720. Matter of A. S. Campbell Co , Inc., 69 N. L. R B. 1285. FEDERAL-MOGUL CORPORATION 365 On September 5, 1946, prior to the close of the hearing on the amended petition, the Regional Director, as noted above, conducted an election among employees in the unit alleged by the Petitioner to be appropriate. The Tally of Ballots discloses that of 99 votes cast, 26 were for, and 39 against, the Petitioner and that 34 votes were challenged. The challenged ballots The challenged ballots include those of D. Gillis, H. Cross, and J. Costello, administrative assistants serving as salesmen; I. Keeler, A. Zegarski, J. Scott, J. Sufner, R. Pence, W. Sable, V. Eadie, W. Costello, and A. Servo, estimators; C. Messine, B. Lenz, W. Begin, C. Emery, E.'Henning, G. Ricci, E. Symons, and M. Smith, time-study men; R. Tear and V. Asaro, secretaries ; D. Convertini in the Mail Clerk and Messenger Department; J. Arnott, H. Maellreath, E. Belensky, H. Piekutowski, E. Sahr, and M. McClain, steno-secretaries; H. Stahl, clerk in the Purchasing Department, and F. Gayman, P. Koster, D. Koster, and B. Grammatico, clerical workers in the Standards Depart- ment. Since we have excluded from the unit found appropriate in Section IV, above, salesmen, time-study men, estimators, and secretaries, we find that D. Gillis, H. Cross, J. Costello, salesmen; I. Keeler, A. Zegar- ski, J. Scott, J. Sufner, R. Pence, W. Sable, V. Eadie, W. Costello, and A. Servo, estimators ; C. Messini, B. Lenz, W. Begin, C. Emery, E. Henning, G. Ricci, E. Symons, and M. Smith, time-study men; and R. Tear and V. Asaro, secretaries, are ineligible voters and that their ballots are invalid. The parties disagree respecting the status of D. Convertini in the Mail Clerk and Messenger Department. Convertini is one of two employees in the department. He works without any close super- vision. His immediate supervisor is the assistant purchasing agent, whose office is a considerable distance from the mail room and who seldom visits the same. Convertini plans and directs the work of one clerk; than whom he receives an appreciably higher wage. The Em- ployer alleges that Convertini has power to recommend a change in employee status. However, it does not appear that he has ever exercised such power. While we believe that the status of Convertini is not entirely free from doubt, we find that Convertuii is not a supervisory employee within our definition of the term and he is included in the appropriate unit. For this reason, we find that Convertini is an eligible voter and that his ballot is valid. Since we have included in the unit steno-secretaries and general cleri- cal employees, and we have found that mere placement of clerical workers in the Standards Department does not require their exclusion 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the unit, we find that J. Arnott, H. Macllreath, E. Belensky, H. Piekutowski, E. Sahr, M. McClain, H. Stahl,10 F. Gayman, P. Koster, D. Koster, and B. Grammatico are eligible voters and that their ballots are valid. Since the counting of the 12 challenged ballots of eligible voters will not affect the results of the election, we shall not direct that their ballots be counted. Objections to the conduct of the election On September 11, 1946, the Petitioner filed objections to the conduct of the election, contending that the Employer had interfered with the conduct of the election and requesting that the election be set aside and a new election ordered. The Petitioner alleges as interference (1) that James H. Dingeman, assistant manager of the Industrial Relations Department, served as observer for the Employer in the election and that the presence of Dingeman at the election interfered with the free choice of employees therein; (2) that the Employer marked up and displayed to employees a copy of a union leaflet circulated by the Petitioner, making the same derogatory to the Petitioner's interests; (3) that the Employer circulated a document among its employees in- dicating that the Petitioner was communistic in character; (4) that the Employer issued to its employees a letter, implying that the Peti- tioner was controlled by employees of companies other than the Em- ployer and otherwise anti-union in character; and (5) that the Em- ployer challenged voters whom the Petitioner considered eligible to vote in the election. We have considered the objections of Petitioner and the evidence adduced in their support. Due to the widespread representation of employees at the Employer's Detroit plants by local unions affiliated with the parent body of the Petitioner and by Foremen's Association of America, there were few employees available who could serve as impartial observer for the Employer. The selection of Dingeman as observer for the Employer was specifically approved by the Peti- tioner's representatives. The union leaflet, the subject of the second objection, introduced into the record as Petitioner's Exhibit 7, was marked in a way derogatory to Petitioner, but there is no evidence that the Employer, or any one acting for the Employer, marked or caused the same to be shown to employees at the plant. A document purporting to be written by office workers, indicating that the Peti- tioner was communistic in character and inviting dissatisfied em- ployees to seek employment elsewhere, the subject of the third objec- tion, was circulated among eligible employees. The Employer denies that it wrote or circulated the document, and there is nothing in the 10 The recoil does not disclose the basis of the challenge of Stahl, and the challenge was apparently an error. FEDERAL-MOGUL CORPORATION 367 record to disclose that the Employer or any one acting on its behalf was concerned with the composition or distribution of the same. The Employer , on September 2, 1946, admittedly mailed a letter to each of its clerical employees, stating the Employer's general employ- ment policies, urging employees to vote, and before voting to weigh the considerations involved most carefully, and closing with the expression that, though the Employer felt that union membership or representation was unnecessary to its employees, it would not inter- fere or discriminate against its employees if the Petitioner were elected as representative by them. We believe that this expression of opinion on the part of the Employer is free of coercion and therefore permissible. Lastly, the Employer admittedly challenged voters in categories which the Employer contended should be excluded from the unit. When an election is held prior to a unit determination by the Board among employees in a unit proposed by the Petitioner, and the Employer and the Petitioner disagree respecting the unit placement of certain categories of employees, the challenge is certainly the proper method by which either party may protect its contentions regarding unit placement and prevent a commingling of ballots be- fore a decision upon the issues is made by the Board. We find that the objections of the Petitioner do not raise substantial and material issues respecting the conduct of the election, and the objections are hereby overruled. Since a majority of eligible employees voting have not selected the Petitioner as their bargaining representative, we shall dismiss the petition filed herein. ORDER IT IS HEREBY ORDERED that the petition, as amended , filed by Inter- national Union, United Automobile, Aircraft and Agricultural Im- plement Workers of America, Office Workers Local Union No. 889 (UAW-CIO), for investigation and certification of representatives of employees of Federal-Mogul Corporation , Detroit, Michigan, be and the same is hereby, dismissed. MR. JOHN M. HOUSTON took no part in the consideration of the above Decision and Order. 739926-47-vol 73-25