Dayton Aviation Radio & Equipment Corp.

306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cept for the F. N. Burt Company where the overtime ban was in effect on October 5, 1953, until November 10, 1953, at which time the Union went on strike at F. N. Burt Company. 17. The ban on overtime ceased in 1956, 1954, and 1953, when an agreement was reached on all the terms of the collective-bargaining agreement. C. Conclusions General Counsel contends that determination of the issues here presented are governed by Insurance Agents' International Union AFL-CIO (Prudential Insur- ance), 119 NLRB 768. There is merit in this contention . Therefore, pursuant to the Board's decision in that case, the Trial Examiner concludes and finds that the Re- spondent, by engaging in the "harassing conduct," above-described, "during the course of the negotiations," failed to bargain in good faith within the meaning of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth above, which have been found to con- stitute unfair labor practices occurring in connection with the operations of the Charging Party, as described in section I, above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. The Buffalo Employers' Group is engaged in commerce within the meaning of the Act. 2. Amalgamated Lithographers of America, Local No. 2, is a labor organization within the meaning of Section 2(5) of the Act. 3. Amalgamated Lithographers of America, Local No. 2, is, and at all times material herein has been, the exclusive representative of the employees of Buffalo Employers' Group in an appropriate unit described in section III A, above, for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing to bargain collectively in good faith with the Buffalo Employers' Group, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (3) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Dayton Aviation Radio & Equipment Corporation , Dare, Inc.' and International Union, United Automobile, Aircraft and' Agricultural Implement Workers of America , Local 128, AFL- CIO, Petitioner. Case No. 8-RC-3427. August 3, 1959 DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed, a hearing was held before a hearing officer of the National Labor Relations Board. His rulings made at the hearing are free from prejudicial error and are affirmed. Pursuant to Section 3(b) of the National Labor Relations Act, the Board has delegated its powers herein to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. Upon the entire record, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 1 The Employer's name appears as amended at the hearing. 124 NLIIB No. 37. DAYTON AVIATION RADIO & EQUIPMENT CORP. 307 2. The labor organizations named below claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Employer is engaged in the manufacture of aircraft coin- munication and navigation equipment at its Troy, Ohio, plant, in- volved in this proceeding. The Petitioner seeks a unit of produc- tion and maintenance employees at the Troy plant. The Employer agrees generally with the unit request, but contends that certain em- ployees discussed below should be excluded from the unit. The Inter- venor, International Brotherhood of Electrical Workers, AFL-CIO, desires to be placed on the ballot in any election directed herein. The Troy plant has no bargaining history. The employees whom the Employer seeks to exclude are the following : The secretary to the chief supervisor of the quality control depart- ment types and files letters, reports, and other records dealing with her department, including "efficiency" reports. The latter reports con- cern the work performance of 11 department employees and are not available to the employees themselves. As this secretary does not assist or act in a confidential capacity to a person who formulates, de- termines, and effectuates management policies in the field of labor relations, we find, contrary to the Employer's contention, that she is not a confidential employee within the meaning of Board decisions.' We shall include her in the unit as a plant clerical employee. The truckdriver picks up and delivers material, making special trips when required. As truckdrivers are normally included in production and maintenance units in the absence of a desire by a labor organiza- tion to represent them separately,' we shall include the Employer's truckdriver in the unit. The watchmen-janitors are classified as guards. They perform some janitorial duties but are employed primarily to patrol the Employer's property in order to protect it against trespassers, theft, and fire. We find that the watchmen-janitors are guards, and we shall exclude them from the unit.4 The supervisor of shipping and receiving is in charge of the ship- ping and receiving area. He assigns work to the one to six employees who may work in his section, directs them in the performance of their duties, and has effectively recommended the discharge of employees. We find that he is a supervisor within the meaning of the Act, and we shall exclude him from the unit. 2 See Ethyl Corporation, 118 NLRB 1369; The B. F. Goodrich Company, 115 NLRB 722. 3 2feAllister's Dairy Farms, Inc., 118 NLRB 11.17,1119-1120. 4 The Illinois Canning Co., 120 NLRB 669, 670-671. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Engineering department employees are classified as senior engi- neers, project engineers, junior engineers, laboratory technicians, and drafting department employees are classified as draftsmen. The Em- ployer contends that the senior and project engineers are supervisors and that all the engineers are professional employees or, alternatively, that the engineers, together with the laboratory technicians and tech- nicians, are technical employees. It also contends that the draftsmen are technical employees. Senior or project engineers are assigned by the chief engineer, an admitted supervisor, to design and develop for production certain aircraft communication and navigation equipment. They work in close association with the chief engineer. Although they may work on a project alone in its early stages, one or two technicians and a draftsman are normally assigned to the project, and sometimes a junior engineer, whose design work is of a more limited scope than the project or senior engineer's, is also assigned to assist. The engi- neers and technicians follow the work into the production area to assist the production employees in its production. The engineers do not attend management's weekly organizational meetings, nor can they select personnel for the project, hire, discharge, or discipline em- ployees, adjust grievances, transfer employees to other projects, or effectively recommend any of the foregoing. The work of the senior and project engineers requires some originality of thought and a degree of initiative and discretion. Although the senior and project engineers direct the work of the others assigned to the project, their relationship to the others is, we believe, primarily that of the more skilled to the lesser skilled employee and not, as the Employer con- tends, that of supervisor to subordinate.' Evidence as to the educational and vocational background of the project engineers was given by a former laboratory technician who is now classified as a project manner. He attended two technicians' schools while in the Armed Forces, and has 13 years' practical ex- perience in the field of airborne electronics. He also testified that, of the other project engineers, some had less education and experience than he. He testified further that graduate engineers are much far- ther advanced in certain subjects, such as mathematics, but that he had greater technical training and practical experience. Job classifica- tions prepared by the Employer after the petition herein was filed, and not yet publicized, require that a senior engineer have a college education and/or technical training, or 10 years' practical experience in airborne electronics, and that a project engineer have a college education or 7 years' practical experience in airborne electronics, with technical training also being counted. The job descriptions also 5see Sonotone Corporation, 90 NLRB 1236, 1239; Hillman Manufacturing Company, 116 NLRB 585, 586. DAYTON AVIATION RADIO & EQUIPMENT CORP. 309 provide that a junior engineer "can have" a college education or tech- nical training or the equivalent of 4 years' practical experience in air- borne electronics. It does not appear that any of those in dispute has a college degree. In our opinion, the record does not establish that the senior or project engineers are supervisors as defined in the Act 6 or that they or the junior engineers are professional employees within the meaning of the Act.' However, we agree with the Employer's alternative posi- tion that the aforementioned employees are technical employees." The laboratory technicians and technicians in the engineering de- partment have only limited contact with the production and mainte- nance workers. It appears that technical training or experience is required for their work. We find that they, too, are technical em- ployees. With respect to the draftsmen in the drafting department, who work primarily with the engineers, it appears that they perform the usual duties of their classification. We find that they are also tech- nical employees 9 As the Employer objects to their inclusion, we shall exclude those found to be technical employees from the production and maintenance unit which is appropriate herein. However, as the Petitioner is will- ing to represent technical employees in a separate unit, and has an adequate showing of interest among these employees, and inasmuch as it does not appear from the record that there are technical employees at the Troy plant other than those found to be such herein, we shall establish a separate unit of technical employees and direct an election therein. While we shall place the Intervenor's name on the ballot in the election in the production and maintenance unit, we shall not place its name on the ballot in the election in the technical unit because it has not made any showing among these employees. Accordingly we find that the following employees at the Employ- er's Troy, Ohio, plant excluding front office clerical employees, time- study employees, watchmen-janitors, all other guards, the assistant supervisor and designer in the drafting department,10 and all other " See footnote 5. 7 See TVestinghou8e Air Brake Company (Air Brake Division ), 121 NLRB 636 ; Com- bustion Engineering, Inc., 117 NLRB 1589 , 1593; The Be Laval Separator Company, 97 NLRB 544, 546-547. Cf. Commercial Castings Company, 117 NLRB 1681. 8 See Waldorf Instrument Company, Division of F. C. Hayek & Sons, 122 NLRB 803. 9 The Firestone Tire and Rubber Company, Firestone Textiles Division, 112 NLRB 571, 572. 10 Beizel , the assistant supervisor and designer of the drafting department , assumes supervisory authority in the absence of the chief of-the department. Due to an illness, the department chief has been absent about 10 percent of the time during the past 3 months. There is no indication in the record as to how long Beizel will continue to exercise supervisory authority on a regular and 'substantial basis . So long as he does, we find , in the circumstances, that he is a supervisor , and he is excluded from the unit. Archer Mills, Inc., 115 NLRB 674. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisors as defined in the Act," constitute separate appropriate units for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : A. All technical employees, including senior engineers, project en- gineers, junior engineers, laboratory technicians, technicians, and draftsmen. B. All production and maintenance employees, including plant clerical employees, stock and file clerks, the secretary to the Super- visor of the Quality Control Department, group leaders, truckdrivers, janitors, and quality control employees.12 [Text of Direction of Elections omitted from publication.] 11 The parties stipulated that group leaders were not supervisors , but agreed to exclude the following as supervisors : Cox (drafting department ) ; Martin and Apple ( engineer- ing department ) ; Glasener, J . Swendell , and W. Swendell (machine shop ) ; Hullehan and Kilpatrick ( production ) Balgar ( purchasing ) ; Deihl ( quality control ), and Sweitzer (maintenance). 12 The inclusions and exclusions , as specified , include those 'agreed to by the parties, as well as those considered herein. Aircraft Peerless, Inc. and Lodge No. 113, International Associa- tion of Machinists, AFL-CIO. Case No. 13-CA-2733. August 4, 1959 DECISION AND ORDER On April 22, 1959, Trial Examiner John C. Fischer issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Interme- diate Report attached hereto. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report and a supporting brief. 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 [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report,' the exceptions and brief, and the entire record in this 1 We correct the following inadvertent inaccuracies in the Intermediate Report: (1) The Trial Examiner refers to a transfer of stock of the Peerless Tool and Engineering Com- pany , whereas no such transfer took place ; ( 2) the Trial Examiner refers to "Christ- mas 19 58" on several occasions , whereas the Christmas period involved herein was Christmas 1957 . ( 3) Two sentences relating to events occurring in September 1957, which are inadvertently repeated in the Trial Examiner 's detailing of events occurring on February 10, 1958, are stricken from the Intermediate Report. 124 NLRB No. 39.