The Union Switch & Signal Co.

In the Matter of THE UNION SWITCH & SIGNAL COMPANY,1 EMPLOYER and SOCIETY OP ENGINEERS, UNION' SWITCH & SIGNAL COMPANY, PETITIONER In the Matter of THE UNION SWITCH & SIGNAL COMPANY, EMPLOYER and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, C.I. 0., PETITIONER Cases Nos. 6-R-1,751 and 6-R-1321, respectively.Decided February 13, 1948 Mr. Donald W. Ebbert, of Pittsburgh, Pa., for the Employer. Mr. Harvey F. Sloan, of Pittsburgh, Pa., for the Society. Mr. Seymour Lin/leld, of New York City, and Messrs. Charles Newell, Bernard C. Taylor, and Clyde L. Johnson, all of Pittsburgh, Pa., for the UE. DECISION AND CERTIFICATION OF REPRESENTATIVES Upon amended petitions duly filed and consolidated, the National Labor Relations Board on July 2, 1947, conducted two prehearing elections among employees of the Employer in the alleged appropriate units to determine, in Case No. 6-R-1751, whether or not they desired to be represented by Society of Engineers, Union Switch & Signal Company, herein referred to as the Society, and in Case No. 6-R-1821, whether or not they desired to be represented by United Electrical, Ra- ,dio & Machine Workers of America, C. I. 0., herein referred to as the UE, for the purposes of collective bargaining. At the close of the elections, Tallies of Ballots were furnished the parties. The Tally in Case No. 6-R-1751 shows that there were ap- proximately 140 eligible voters and that 128 ballots were cast, of which 121 were for the Society, 6 were against the Society, and 1 was chal- lenged. The Tally in Case No. 6-R-1821 shows that there were ap- proximately 711 eligible voters and that 638 ballots were cast, of which 305 were for the UE, 245 were against the UE, 87 were challenged, and 1 was void. 1 The Employer's name appears in the caption as amended at the hearing. 76 N. L. R. B., No. 30. 205 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, a consolidated hearing was held at Pittsburgh, Pennsyl- vania, between July 22 and 26, 1947, before Henry Shore, hearing offi- cer. At the hearing, the Employer objected to the consolidation of the petitions, to the holding of the prehearing elections, and to the entire proceedings. The hearing officer. treated these objections as a motion to dismiss the petitions and reserved ,ruling thereon for the Board. We find no merit in the Employer's motion. The consolidation of the two petitions was proper, and in accordance with the Board's Rules .and Regulations.' As for the holding of the prehearing elections, we find, for reasons stated in Section V, below, that no error was com- mitted. Finally, the Employer maintains "that all of the proceedings are improper and illegal" under the recent amendments to the Act.g Inasmuch as the procedural steps objected to by the Employer were taken before the amendments in question became effective, the Employ- er's position is unsound' Accordingly, we hereby deny the Employer's motion to dismiss the petitions. During the course of the hearing, the Employer requested the hear- ing officer to disqualify himself on the grounds of bias and prejudice. The Employer adduced no evidence to support this allegation other than the unsworn statement of its attorney on the record that the hearing officer had made certain prejudicial remarks to him in a tele- phone conversation prior to the hearing. The hearing officer denied on the record that he had made the statements attributed to him and refused to disqualify himself. Inasmuch as the record contains no probative evidence to support the Employer's accusation or to negative the hearing officer's denial and, moreover, since a representation hear- ing is not an adverse proceeding,5 we conclude that the hearing officer properly refused to disqualify himself. We find that the hearing officer's rulings made at the hearing are free from prejudicial error, and they are hereby affirmed 6 Following the hearing, the Employer filed a motion to set aside the prehearing elections and the consolidated hearing and to remand the cases to the Regional Director for a consolidated hearing de novo, and 2 National Labor Relations Board Rules and Regulations, Series 4, Section 203.58 (c) (2), now contained in National Labor Relations Board Rules and Regulations , Series 5, Section 203 64 (b). 2 Public Law 101, 80th Congress, Chapter 120, 1st Session. +N. L. R. B. v. Whsttenburg, et at., 165 F. ( 2d) 102 (C. C. A. 5) and N. L. R. B. v. 'National Garment Company and Wells -Wear Company, 166 F. ( 2d) 233, decided January 7, 1948 (C. C. A. 8). 5Inland Empire District Council, Lumber and Sawmill Workers Union v. Millis, 325 U. S. 697, 706. 6 The Employer maintains that the hearing officer erred in refusing to continue the hearing to enable its counsel to interview Daniel A Best and, if necessary , to call him as a witness . Inasmuch as counsel for the Employer stated that he did not know when he could contact Mr. Best, and was not certain that he desired to use him as a witness, we perceive no abuse of discretion in the hearing officer's ruling. THE UNION SWITCH & SIGNAL COMPANY 207 a request for oral argument. For reasons set forth in Section V, below, the Employer's motion to remand the cases to the Regional Director is denied. The Employer's request for oral argument is denied, inas- much as the record and briefs, in our opinion, adequately present the issues and positions of the parties. On September 24, 1947, the UE moved to withdraw its petition in Case No. 6-R-1821 without prejudice. The motion is hereby granted. Accordingly, we shall continue our investigation herein only with respect to Case No. 6-R-1751.1 Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Union Switch & Signal Company is a Pennsylvania corpora- tion, having its principal office and only plant at Swissvale, Pennsyl- vania. It is engaged in the manufacture and installation of railway signal and control apparatus, car retarders and locomotive brake rig- gings and castings. During the 12-month period immediately prior to the hearing, the Employer purchased raw materials valued in excess of $1,000,000, of which approximately 50 percent was shipped to its plants from points outside the Commonwealth of Pennsylvania. Dur- ing the same period, the Employer manufactured finished products valued in excess of $1,000,000, of which over 50 percent was shipped to points outside the Commonwealth. 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 Society of Engineers, Union Switch & Signal Company, is an un- affiliated labor organization claiming to represent employees of the Employer. United Electrical, Radio & Machine Workers of America is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer.8 7Inasmuch as we have allowed the withdrawal of the petition in Case No 6-R-1821, we deem it unnecessary to examine at this time the correctness of the rulings of the hearing officer at the hearing excluding certain testimony with respect to the names of the employees who voted in the election in that case. 8 The Employer's contention that the record fails to establish that the UE is a labor organization within the meaning of the Act is without merit and is hereby rejected. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Society as the exclusive bar- gaining representative of employees of the Employer until it has been certified by the Board in an appropriate unit. We find that a question affecting commerce exists concerning the representation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT A. The Contentions of the Parties The Society seeks a unit of all engineering employees, including de- sign engineers in the Engineering Brake Division, apprentice engi- neers, and laboratory technicians, but excluding transportation engi= neers in the Transportation and Research Department, sales engineers in the Sales Department, and engineers in the Inspection Department. The Employer raises no substantial objection to the unit sought by the Society or to its composition. B. Past Bargaining History In 1945, the Association of Union Switch and Signal Salaried Em- ployees, affiliated with the National Federation of Salaried Unions, herein called the Association, petitioned the Board for a unit of office, clerical, and technical employees, including engineering employees.9 After a hearing, the Board found this unit appropriate and directed an election.1° The Association was successful and was certified on October 30, 1945. On October 1, 1946, the Association entered into a bargaining contract with the Employer covering the employees in this unit.- The contract expired June 1, 1947, and was not renewed. Some months after the Board had issued its certification, a group of engineering employees petitioned the Board to reopen the record and- direct- a self-determination election among the engineers, alleging that they had had no notice of the hearing. The Board denied this request. Thereafter, the engineers formed the Society, and on October 1, 1946, the Society filed a petition seeking a separate unit of engineers.- This petition was later withdrawn. On April 30, 1947, the Society filed the instant petition 13 Y This unit included approximately the same employees included in the two present petitions. 10 Matter of Union Switch and Signal Company, 63 N. L. R. B. 974. 11 Subsequent to the execution of the contract, the Association became a constituent' of the UE. 12 Matter of Union Switch and Signal Company, Case No. 6-R-1617. The unit includedl, approximately the same employees included in the Society's present petition. 17 The Society's petition was amended on June 9, 1947, and again on Sune 19, 1947. 0 THE UNION SWITCH & SIGNAL COMPANY 209 C. The Employer's Operations The Employer employs approximately 3,400 employees, of whom approximately 700-were included in the, clerical and technical unit established in 1945. The 140 employees now sought to be represented by the Society are all salaried employees, 115 of whom are exempt un- der the provisions of the Fair Labor Standards Act,14 and 25 of whom are not so exempt. They consist of electrical engineers, mechanical engineers, chemists, chemical engineers, commercial engineers, assistant metallurgists, research engineers, apprentice engineers, and laboratory technicians. There is no interchange between these engineering em- ployees and other office, clerical, and technical employees. There is a certain amount of physical separation, difference in working con- ditions, and' difference in average eaznings betweeir the engineering employees and the other office, clerical, and technical employees. The engineering employees are under the vice president in charge of En- gineering. Under this vice president are the director of Research and Engineering, who is in charge of the Research Department and chemi- cal laboratory, the chief engineer, who is in charge of the Engineering Department, and the Chief of the Commercial Engineering Section_ There is also a separate division known as the Engineering Brake Division, which deals primarily with the engineering features of rail- road brakes. D. The Composition of the Unit The engineering employees comprise a homogeneous, readily iden- tifiable and cohesive group of employees, possessing technical skills and knowledge peculiar to their vocation. They have, as noted above, evidenced their dissatisfaction with their representation by the union which has also represented other employees of the Employer but, prior to the prehearing_ elections held herein, they had never been afforded an opportunity to vote for separate representation. We have, in the past, recognized that such employees have distinct interests that entitle them to separate representation, if they so desire 15 The results of the prehearing election in Case No. 6-R-1751 eloquently demonstrate their desire for separate representation. Accordingly, we conclude that the engineering employees constitute an appropriate bargaining unit, separate and apart from the previously established unit of office, clerical, and technical employees. 14 52 Stat. 1060, 29 U. S C. A, Sections 201-219. 15 Matter of Chrysler Corporation, 1 N. L R. B. 164; Matter of Shell Development Com- pany, Inc., 38 N. L. R. B. 192; Matter of Monsanto Chemical Company, 53 N. L. It. B. 1283; Matter of General Electric Company, 57 N. L. It. B. 81 ; Matter of Radio Corporation of America, RCA Victor Division, 57 N L. It. B. 1729; and Matter of Lockheed Aircraft Corporation, 58 N. L. It. B. 1188. See also Matter of International Minerals and Chemical Corporation (Potash Division ), 71 N. L. R. B. 878. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . As noted above, the Society desires to include in the unit the design engineers in the Engineering Brake Division, apprentice engineers, and laboratory technicians, and to exclude therefrom the transportation engineers in the Transportation and Research Department, sales engineers in the Sales Department, and engineers' in the Inspection Department. It takes no position with respect to the inclusion or exclusion of tool engineers in the Tool Design Department. We are of the opinion that the design engineers in the Engineering Brake Division who design locomotive brakes, the tool engineers in the Tool Design Department who design tools for productive use, the appren- tice engineers who work in the Engineering Brake Division and the Engineering Department and are taking engineering training, and the laboratory technicians who are employed in the experimental labora- tories and work with the engineers in making tests and studies, per- forming experiments, and doing design and development work, have sufficient interests in common with the other engineering employees in the unit to warrant their inclusion. Accordingly, we shall include them. On the other hand, we perceive no such community of interests between the employees in the unit and the two employees classed as engineers in the Inspection Department 16 whose duties and functions are similar to other inspectors not in the unit. Accordingly, we shall exclude them. We shall also exclude from the unit transportation engineers in the Transportation and Research Department and sales engineers in the Sales Department whose duties, as found in the earlier decision of the Board 17 are of a "managerial nature." E. Conclusions We find that all engineering employees of the Employer, including design engineers in the Engineering Brake Division, tool engineers in the Tool Design Department, apprentice engineers, and laboratory technicians, but excluding transportation engineers in the Transporta- tion and Research Department, sales engineers in the Sales Depart- ment, engineers in the Inspection Department, and supervisory em- ployees, constitute a'unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES The Employer maintains that, since the Board's Rules and Regula- tions in effect at the time of the hearing authorized prehearing elections only in the absence of any substantial issue,"' the Regional Director abused his discretion in ordering prehearing elections herein because 16 A. J. Zukas and H. Robertshaw, Sr. 1T Matter of Union Switch and Signal Company, 63 N L R. B. 974, 980. la National Labor Relations Board Rules and Regulations , Series 4, Section 203.49, footnote 3. THE UNION SWITCH & SIGNAL COMPANY 211 substantial issues were present . For reasons stated in Matter of Estee Bedding Company ,"' we find no merit in this contention. The Employer further contends that the Regional Director had no authority either to establish bargaining units or to determine eligi- bility to vote in the elections and, at the most, should have ordered only one election instead of two. Of course, a Regional Director lacks the power to do either of these things and the Regional Director did not attempt to do so in the instant case. The appropriate unit or units and questions of eligibility are matters for the Board to determine, and we have disposed of these questions herein. Accord- ingly, we find no merit in this contention. The Employer further objects to the conduct of the prehearing elec- tions on the grounds that the Employer was not permitted to have an impartial observer at the polls , that at least five employees were denied the opportunity to cast even challenged ballots, and that the Regional Director had no power to exclude any salaried employee from voting. As to the first of these objections , the record reveals that the attorney for the Employer requested permission to appear at the polls as the Employer 's observer and that this request was denied by the Regional Director. Thereupon the Employer declined to appoint any other observer . While a company is usually permitted to have ob- servers at elections, the granting of this privilege in a particular case lies within the discretion of the Regional Director . In view of the fact that the attorney for the Employer is not an employee of the Employer, but an independent professional person, we are unable to find that the Regional Director abused his discretion in refusing to permit the attorney to act as an observer for the Employer.20 Ac- cordingly, we find this objection to be without merit. As to the second objection , Charles Vogele, a clerk, testified that he attempted to vote and was told by a man standing behind the table that he could ifot vote. He also testified that he saw at least four other employees denied the right to vote. The witness could not state in which of the two elections he attempted to vote. Neither his name nor the name of any of the other four employees appears upon the challenged ballot list. Assuming, without deciding, that-the person who denied Vogele and the others the privilege of voting was an offi- cial of the Board, such conduct would have been improper unless there was some compelling reason for denying the ballot to Vogele and.the others. Unless the prospective voter's claim to a ballot is clearly friv- olous, agents of the Board should permit such persons to vote under 19 73 N L R B. 825. 10 Hatter of Harry ,lfanaster cC Bro , 61 N. L R . B 1373, and Hatted of R R . Donnelley Sons Company, Case No 13-R-2649, issued December 26, 1944 781902-48-vol. 76-15 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD challenge, reserving the question of their eligibility for the Board to determine. However, in view of Vogele's job classification, it is likely that he was attempting to vote in the election in Case No. 6-R- 1821, the petition in which has been withdrawn. Moreover, even if Vogele and the other four were wrongfully denied ballots, their votes would not have been sufficient in number to affect the results of the election. Accordingly, this objection to the conduct of the elections cannot be sustained.21 In its motion to remand the cases to the Regional Director, the Em- ployer further maintains that Section 9 (c) of the Act, as amended, precludes the Board from holding prehearing elections, and therefore no certification can issue in this proceeding. However, inasmuch as the prehearing elections were held before the amendments referred to by the Employer became effective, the elections were valid when held, and the Board has power to certify the victorious union.22 Accord- ingly, we reject this contention of the Employer. We find that the Employer's objections to the conduct of the elections do not raise substantial or material issues regarding the conduct of the election in Case No. 6-R-1751. Accordingly, the objections are hereby overruled insofar as they pertain to that case, and the motion to remand the cases to the Regional Director is denied. Since the Tally in Case No. 6-R-1751 shows that a majority of all the valid votes counted plus the challenged ballot have been cast for the Society, we shall certify the Society as the collective bargaining representative of the Employer's employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVES IT IS HEREBY CERTIFIED that Society of Engineers, Union Switch & Signal Company, has been designated and selected by a majority of the employees of The Union Switch & Signal Company, Swissvale, Pennsylvania, in the unit found to be appropriate in Section IV, above, as their representative for the purposes of collective bargaining, and that, pursuant to section 9 (a) of the Act, as amended, the said or- ganization is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. CHAIRMAN HERZOG and MEMBER GRAY took no part in the considera- tion of the above Decision and Certification of Representatives. 21 The remaining objections to the conduct of the elections clearly refer to the election in Case No G-R-1821. In view of the fact that we have permitted withdiawal of the petition in that case , we deem it unnecessary at this time to determine wh£ther or not these objections are valid. 22Matter of Lehigh River Mills Company, 75 N. L R B. 280, and Matter of Farriers Feed Company, Ct al, 75 N L R B 617.