Barker and Williamson, Inc.

562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD BARKER AND WILLIAMSON , INC. and LOOAL 165, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, CIO, PETI- TIONER. Case No. 4-RC-1220. December 14, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Julius Topol, hearing- officer. The hearing officer's rulings made at the hearing are free from prejudicial error. and 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-mem- ber panel [Chairman Herzog and Members Reynolds and Styles]. 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 organizations involved 1 claim to represent certain employees of the Employer. 3. The UE contends that a collective bargaining contract effec- tive from August 23, 1950, to August 23, 1952, bars the instant peti- tion. The Petitioner contends that this contract is not a bar because, inter alia, a schism in the membership of the Intervenor at the Em- ployer's shop creates a doubt as to the continued representation by the Intervenor of the employees involved herein. The Employer takes no position on the contract bar issue. The UE is an amalgamated local whose members are employed in several shops located in the vicinity of Camden, New Jersey, and Bristol, Pennsylvania. Each shop, however, enjoys a considerable amount of individual autonomy. Each has its own chief steward and five other stewards who are empowered by the local's constitution with the responsibility of conducting regular shop meetings, to ad- minister the contract and process grievances. The contract in question which covers only the Employer's employees, was executed and nego- tiated by the shop stewards who were merely assisted by the UE local's business agent. The record reveals that on June 15, 1951 (the Friday before the UE's regular shop meeting), an organization meeting was held of those employees of the Employer who wished to disaffiliate from the UE and to affiliate with the Petitioner. A chairman and secretary were elected by the 51 employees who attended the meeting. Another meeting of this group, attended by 42 employees, was held on June 28 further to explore the disaffiliation movement. On July 10, 1951, Local 134, United Electrical, Radio and Machine Workers of America ( hereinafter UE) was permitted to intervene on the basis of a current contract with the Employer. 97 NLRB No. 79. BARKER AND WILLIAMSON, INC.- 563 pursuant to a provision of the UE's constitution, a petition, signed by about 40 employees who were members of the UE (more than the percentage required by the UE's constitution) was presented to the chief steward, requesting that a special meeting be held on July 16, 1951, to take a vote on whether the shop should disaffiliate from the UE and affiliate with the Petitioner. The chief steward refused to call such a meeting, ignored the petition, and instead put out a notice -reminding the employees that a regular UE shop meeting would be held on July 19, 1951. Thereupon on July 13, the UE members who were adherents of the disaffiliation movement distributed notices to all the employees of the Employer stating that a special meeting would be held on July 16, 1951, for the express purpose of discussing and acting upon a resolution of disaffiliation from the UE and affiliation with the Petitioner. The meeting so advertised was held on July 16, and attended by approximately 46 employees of the Employer. The record establishes that although there were about 245 employees in the unit, 46 was at least equal to the average attendance at UE meetings in the past. At this meeting, after due discussion, a resolution was unanimously adopted to disaffiliate from the UE and affiliate with the Petitioner. The record reveals that the UE then held its regular monthly meet, ing, 3 days later, on July 19, 1951, attended by the usual complement of employees, none of whom were associated with the disaffiliation group. Neither at this meeting nor at any subsequent UE meetings has mention been made of the special meeting of July 16 and no resolutions concerniiig disaffiliation or retraction of the prior action taken has been made. However, the Petitioner, subsequent to a spe- cial disaffiliation meeting, has also continued to hold regular well- attended meetings, and on July 19, 1951, the Petitioner notified the Employer of the disaffiliation vote and later sent the Employer cards from 125 employees revoking their previously existing checkoffs. At the hearing the Intervenor introduced documents containing 214 signatures, allegedly obtained between July 22 and the hearing in September, requesting the Employer to resume the checkoff on behalf of the UE. Subsequently at the hearing, the Petitioner introduced sheets of paper containing the signatures of 185 employees allegedly obtained between September 11 and September 19, 1951, expressing employee support of the disaffiliation from Local 134, UE and their support of its affiliation with Local 165, IUE-CIO. The Employer has notified the parties that it would continue to recognize the UE, as contracted, until such time as it is directed to do otherwise by the proper tribunal, but would hold all monies obtained by the checkoff in escrow until the question of proper representation 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was settled. The Employer has however refused to bargain with the UE, pursuant to a wage reopening agreement in their current con- tract, giving as its reason its doubt as to the UE's majority repre- sentative status. These facts, in our opinion, warrant the application of the schism doctrine set forth in the Boston Machine 2 case. The employees of the of the Employer constitute an autonomous unit of the amalgamated local,' and the disaffiliation movement was as broad as the contract. unit.' This movement finally culminated in a formal meeting for the express and previously publicized purpose of voting on the question of disaffiliation at which time the motion to disaffiliate was carried. Both unions continue to exist and each claims it is the representative of the employees. Each union has presented documents- (the revoca- tions of the checkoff s, the subsequent reinstatements thereof, and the petitions expressing support of the disaffiliation) which purport to demonstrate allegiance to itself. Taken together these circumstances convince us that the normal bargaining relationship between the Employer and the UE has become a matter'of confusion and uncer- tainty. Under these circumstances, to find that the 1950 contract con- stitutes a bar to an immediate election would seriously impede, rather than encourage, the practices of collective bargaining at the plant. We find that the contract is not a bar to a present determination of representatives.' 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.' 4. The appropriate unit : At the hearing the parties agreed, in general, to the appropriateness of a production and maintenance unit. The only disagreement per- tains tQ certain so-called "research and engineering" employees. The Petitioner would include certain of these employees, but exclude others, while the Employer would exclude all of these employees.6 All of them have been excluded from the unit since 1947 when the Intervenor was certified following a consent election. The Employer, a manufacturer of electronic equipment, at its Bristol plant, herein involved, makes all the requisite parts of a complete communication system, and fits them into a truck or trailer according to specifications of the Army Signal Corps, the major customer of the Employer's products. All of the employees whose status is in dispute work in the research and engineering department which is headed by 2 89 NLRB 59, See also Fitzgerald Mills Corporation, 95 NLRB 948. 3 See J J. Tourek Manufacturing Co., 90 NLRB 5. 4 Cf. Harris Products Company, 96 NLRB 812. 5 In view of our finding above it becomes unnecessary to consider the Petitioner's further contention that the contract contains an illegal union-security clause. 6 The Intervenor took no position on this issue. BARKER AND WILLIAMSON, INC. 565 a chief engineer, whose shares equal responsibility with the plant man- ager responsible for all production and assembly operations. The de- partment is responsible for the interpretation of basic contracts and their specifications, the preparation of all manufacturing drawings necessary for the production units, the maintenance of quality control throughout production, trouble shooting, and testing and adjusting all the finished equipment, which is then subject to a final test by Army Signal Corps inspectors present at the plant. The work of the research and engineering department, which is ,now staffed by approximately 50 employees, is divided as follows: (a) Twenty-one employees perform "quality control" work throughout the plant. (b) Thirteen employees perform final electrical testing of individual units or parts of the receiving and transmitting sets. (c) Ten employees perform final tests of the entire set to determine whether it operates in accordance with specified standards. (d) Five employees are assigned, as needed, to the project engineers in order to make special investigations and tests. (e) One employee is permanently assigned to the laboratory for maintenance of electrical instruments. The employees in group (a) observe or inspect the workmanship and mechanical construction of the equipment as it is being produced. The employees in group (b), through the use of electrical testing equipment, observe or inspect the ability of the individual units to perform electrically, and two employees of group (a) work with group (b) to check the quality of construction and workmanship of the units being electrically tested. Group (c) employees test the completed communication equipment to insure that it transmits and receives mes- sages in the expected manner. The Petitioner seeks to include only the group (a) employees in the unit, alleging that these employees perform work similar to inspectors in production plants, and that the Board has always included this category of employee within the production and maintenance bargain- ing unit. It would, however, exclude the employees in groups (b) through (e). On the record as a whole, however, we conclude that while the em- ployees in groups (d) and (e) are highly technical employees' with interests diverse from those of the production and maintenance em- ployees, as well as those of the other employees in the research and en- gineering department, the same may not be said of the employees in groups (a), (b), and (c). The employees in these three groups per- form similar work, receive the same hourly pay as the production and maintenance employees, and share the same employee facilities and benefits. Even though they are under separate supervision, the record fails to indicate that any greater skill, educational training, or ex- 986209-52-vol. 97-37 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD perience is required of these three groups than that of the average production employee in this particular plant. Furthermore there is nothing in the record to show that their inspection duties involve any greater discretion or responsibility than that of the usual production inspector whom the Board normally includes in production and main- tenance bargaining units. We thus find no merit either in the Pe- titioner's contention that only group (a) employees should be included in the unit, nor in the Employer's contention that all of research and engineering employees should be excluded. We shall include em- ployees in groups (a), (b), and (c) in the unit.? We find that all production and maintenance employees employed at the Bristol plant of the Employer, including the employees of the engineering and research department who perform "quality control" duties, electrical testing and final testing of radio sets, but excluding all other employees of the research and engineering department, office and clerical employees, watchmen, foremen, assistant foremen, work- ing foremen, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act.' [Text of Direction of Election omitted from publication in this volume.] _ ' Although the unit as certified in 1947 excluded all research and engineering employees, that unit, as noted above , was based on a consent election and is not determinative. 8 At the hearing the Petitioner stated that they were desirous of representing any addi- tional employees of the research and engineering department found to be properly included within the unit. The Petitioner's showing is sufficient for the broader unit, herein found appropriate. COLUMBIA BROADCASTING SYSTEM, INC., AND COLUMBIA BROADCASTING SYSTEM, INC., OF CALIFORNIA 1 and NATIONAL ASSOCIATION OF BROAD- CAST ENGINEERS AND TECHNICIANS, CIO, PETITIONER 2 COLUMBIA BROADCASTING SYSTEM, INC. and MOTION PICTURE FILM EDITORS, LOCAL 776 OF THE INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE UNITED STATES AND CANADA, AFL, PETITIONER. Cases Nos. 13-RC-1888 and 21-RC-1983. December 17, -951 Decision and Direction of Elections Upon separate petitions duly filed, hearings were held in Case No. 13-RC-1888 before I. M. Lieberman, hearing officer, at Chicago, Illi- I The Columbia Broadcasting System, Inc., of California is a wholly owned subsidiary of The Columbia Broadcasting System, Inc For purposes of this decision , we shall treat the two corporations as one employer. 2 The name of the Petitioner in Case No . 13-RC-1888 appears as amended at the hearing. 97 NLRB No. 81.