Litton Industries of Maryland, Inc.

722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that any of these apprentices have been designated for work outside this craft, they shall not be eligible to vote On the basis of the foregoing, and the entire record, we believe that the tool and die moldmakers, tool and die leaders, and their appren- tices may, if they so desire, constitute a separate unit Accordingly,, we shall direct an election in a voting group of tool and die mold- makers, tool and die leadmen,18 and apprentices specializing in tool and die making at the Employer's Appliance Park, Louisville, Ken- tucky, plant, but excluding all other employees, guards, and super- visor s as defined in the Act If a majority vote for the Petitioner, they will be taken to have indicated their desire to constitute a separate appropriate unit, and the Regional Director conducting the election directed herein is instructed to issue a certification of representatives to the Petitioner for this: unit, which the Board, under such circumstances, finds to be appro- priate for purposes of collective bargaining In the event a majority do not vote for the Petitioner, these employees shall remain a part of the broader unit and the Regional Director will issue a certification of results of election to such effect [Text of Direction of Election omitted from publication ] 's The parties stipulate that the leadmen are not supervisors Litton Industries of Maryland, Incorporated 1 and International Association of Machinists, AFL-CIO, District Lodge No 67,. Petitioner. Case No 5-RC-2663 December 14, 1959 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 Thomas J. Walsh, hearing officer The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed 2 On July 20, 1959, the Board granted the request of the Employer for oral argument The Board also invited a number of organizations to file briefs Briefs were filed by Petitioner and by the Employer and briefs amwi curiae were filed by Technical Engineers Associa- tion, American Federation of Technical Engineers, AFL-CIO, and by Allis-Chalmers Manufacturing Company, General Electric Com- 1 The Employer's name appears as amended at the hearing 2 We hereby grant the motion by Intervenor International Union of Electrical, Radio and Machine Workers, AFL-CIO, to withdraw from this proceeding 125 NLRB No 90 LITTON INDUSTRIES OF MARYLAND, INCORPORATED 723, pany, and Minneapolis-Honeywell Regulator Company. On August 611959, the Board heard oral argument in the case. The Board has considered the entire record, the briefs of the parties and the other briefs, and the oral argument in this case, and finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved 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 develops and produces various aircraft communi- cation and navigation devices. Except for the employees discussed below, there is no dispute as to the composition of the production and maintenance unit which all parties agree is appropriate herein. The test technicians, environmental test technicians, and test equip- ment maintenance technicians work in the electrical testing section of the quality control department, under separate immediate super- vision. Their duties require, among other, things, a knowledge of electronics, electrical theory, and circuit testing.3 Applicants for these jobs are examined as to their ability to identify parts. The test technicians test assemblies, subassemblies, and the items which have gone through the production or engineering process. They do not repair equipment but note defects for the direction of repairmen. The Employer "basically requires" an applicant for the "C" classification to have graduated from a 9-month course in a recognized trade school, and provides some additional on-the-job training. Test technicians "C" are promoted to classification "B" after about 9 months, and to "A" after a further 9-month period. Although an assembler might be promoted into the "C" classification without trade school educa- tion after perhaps 18 months of on-the-job training, no such promo- tions have been made. Environmental test technicians must have skills and training similar to that of the test technicians, plus addi- tional experience, in testing under extreme conditions. They use cold and heat chambers, shock and vibration tables, dropstands, and similar equipment. The test equipment maintenance technicians are more skilled than the other quality control technicians. They test and maintain the testing equipment used by the others. The electronic technicians, electronic specialists, and electronic tech- nician trainee work in a "laboratory type of set-up" in the assembly operation, or in the model room. They work under the guidance of 8 Inspectors work in a different section of the quality control department , inspecting the external quality of parts and items ; electrical inspectors stand on the assembly line. The parties agreed on the inclusion of these employees. 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the engineering department, but are administratively supervised by the manager of the particular section in which they are located. These employees put together loose collections of wires, called "breadboard models," in the developmental phase of a project to see if "the thing" will work in its basic stage. They work from schematic drawings, sketches, and blueprints. They will sometimes act as group leaders with assemblers, handling the more difficult phases and guiding the lesser skilled in their tasks. These employees are required to have completed a trade school course lasting 9 months to 1 year, or its equivalent, before hire. The junior draftsmen, draftsmen, senior draftsmen, and checkers work with a data specialist and six plant clerical employees in the drafting section of the engineering department, but appear to be separately supervised. A junior draftsman must be a high school graduate, or the equivalent, with 6 to 9 months' drafting training in high school or a trade school. They are promoted to the higher classi- fications as they gain needed experience. All draftsmen do layout and other drafting work, which is checked by the checkers. The data technicians and data specialists work in the engineering department, including the publications section thereof, and in the various production departments. They compile lists of component parts, together with descriptions of the parts, so that the parts can be identified for production or ordering. These employees also com- pile other production information, such as shop and machine load- ings. They are required to have some knowledge of component parts, materials, and possibly machining or manufacturing operations, which information they may acquire through limited drafting jobs, as as- sembly workers or as clerk-typists working with data technicians, or "peripherally" at trade schools. All are supervised by the managers of the departments in which they are located. The disagreement between the parties over the unit placement of the above-discussed employees, all of whom the Petitioner would ex- clude as technical employees, prompted us to grant the request for oral argument bearing on the Board's policy with respect to technical employees. Since early days, the Board has excluded technical employees whose unit placement was in issue from bargaining units of other em- ployees. The basic reason for this policy is that technical employees, because of their distinctive training and experience and functions, are viewed as having different interests from other employees.4 Gener- ally, those held to be technical employees are employees who do not 4 See, e.g., Augusta Chemical Co ., 124 NLRB 1021; General Electric Company (River Works), 107 NLRB 70, 73; Boston Edison Company, 51 NLRB 118; Consolidated Aircraft Corporation, 2 NLRB 772; Chrysler- Co1poration,4_NIAIR 164. LITTON INDUSTRIES OF MARYLAND, INCORPORATED 725 meet the strict requirements of the term "professional employee" as defined in the Act but whose work is of a technical nature involving the use of independent judgment and requiring the exercise of specialized training usually acquired in colleges or technical schools or through special courses.5 We have carefully reexamined these past holdings, as we have been requested to do in this case. And'twe are still persuaded that there are inherent differences in the interests, background, and functions between technical workers and other employees. Consequently, we shall adhere to our past policy of not joining technical and non- technical employees in the same unit where the unit placement of the technicals is in issue. At the same time, it is our intention not to apply the term "technical employee" mechanistically but to limit its appli- cation so as to embrace only those employees whose work in fact satisfies its requirements. In each case where technical status is an issue, we shall require that the record affirmatively support the claim for such status. On the basis of the foregoing, and the entire record, we find that the employees named above, except for the data technicians and data specialists, are technical employees, and we shall therefore exclude them from the unit.' However, as the duties of the data technicians and data specialists do not justify a finding that they are technical employees, we shall include them in the unit. There remains for consideration the unit placement of the other employees in issue herein. Thus, Petitioner also requests the exclusion of clerk-typists, clerks, senior clerks, expediters, shop expediters, and receiving clerks. These hourly paid employees work in operating department areas. The clerk-typists type schedules for planners and lists for data technicians, and also type purchase records and requisi- tions. Some of them share enclosed areas with the operating depart- ment foremen who supervise them.' The clerks and senior clerks per- form duties similar to those of the clerk-typists, except that they spend less than half their time typing. The expediters, shop expediters, and receiving clerks appear to perform the usual duties of their classifica- 8 See, e .g., Augusta Chemical Co., supra ; Dayton Aviation Radio & Equipment Corpora- tion, Dare, Inc., 124 NLRB 306; Container Corporation of America , 121 NLRB 249, 251. ° Contrary to our dissenting colleague, neither in this case, nor in past cases , have we surrendered our statutory duty of determining the unit placement of technical employees. In all cases where the unit placement of an employee is placed In issue by the parties, a record is developed and a resolution of the unit issue is made thereon .. If the evidence establishes that the employee is, for example, an office clerical, or a plant clerical, or a technical employee, unit placement is determined according to the interests possessed by such an employee . This manner of disposition of a disputed issue is , we believe , in further- ance of the Board's statutory duty of making unit determinations and not a surrender thereof. ° Department secretaries , whom the parties agree to exclude , perform the clerical work in connection with personnel matters. 535828-60-vol. 125-4'7 0 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions. None of these employees is shown to assist or act in a con- fidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations; hence they are not confidential employees." We find that all these employees are essen- tially plant clerical employees and, in accordance with well-established policy,' shall include them in the unit. Petitioner also requests the exclusion of employees in the publica- tions section of the engineering department. In addition to clerk- typists, clerks, and the data technicians and specialists discussed above, the employees in this section are classified as photographers, lithog- raphers, illustrators, proofreaders, and varitypists. They prepare manuals and handbooks which accompany the Employer's product. Although publications section employees are under separate immedi- ate supervision, they are all hourly paid and have the same fringe benefits as other employees in the production and maintenance unit. No union seeks to represent any of these employees separately. Like the clerk-typists, clerks, data technicians, and specialists, these em- ployees appear to have sufficient interests in common with other em- ployees in the unit to be included therein. We shall also include them.'° Accordingly, we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within Section 9 (b) of the Act : All production and maintenance employees at the Employer's Col- lege Park, Maryland, plant, including data technicians, data special- ists, clerk-typists, clerks, senior clerks, expediters, shop expediters, re- ceiving clerks, and all other employees in the publications section of the engineering department, but excluding test technicians, environ- mental test technicians, test equipment maintenance specialists, elec- tronic technicians, electronic specialists, the electronic technician trainee, junior draftsmen, senior draftsmen and checkers, office cleri- cal employees, guards, professional employees, and supervisors as de- fined in the Act. [Text of Direction of Election omitted from publication.] MEMBER RODGERS, dissenting in part : As is indicated in my colleagues' opinion, the Board has "carefully reexamined" its past holdings affecting technical employees. Having done so my colleagues and, therefore, the Board, have elected to leave 8 The B , F. Goodrich Company, 115 NLRB 722. 6 Transformer Engineers, 114 NLRB 1325, 1328. 10 See Thiokol Chemical Corporation, (Longhorn Division ) 113 NLRB 547 ; Associated Cooperatives, Inc., 112 NLRB 1012, 1013. LITTON INDUSTRIES OF MARYLAND, INCORPORATED 727 unchanged a sphere of Board practice which, in my opinion, should be corrected. In the past, as my colleagues note, the Board has excluded technical employees from production and maintenance units if any party to a representation proceeding objected to their inclusion. It has re- peatedly been contended that this practice should be corrected for the following reasons : In the first place the Board, in allowing the parties themselves to determine the unit placement of technicals, has yielded up its statutory obligation of deciding "the unit appropriate for the purposes of collective bargaining." In the second place the Board, in applying a purely mechanistic rule of exclusion, has failed to recog- nize a basic community of interest that exists between certain produc- tion workers and certain kinds of "technicals"-particularly those "technicals" who in essence perform production work in the electronics and related industries. And in the third place the Board has never articulated a lucid or meaningful definition of the term "technical employee." Each of these contentions, it seems to me, thrust home. The Board has indeed, in the past, surrendered, and apparently now will continue to surrender, its statutory duty of determining the unit placement of technical employees.ii The Board has indeed in the past taken, and- despite its present avowal to the contrary-now apparently will con- tinue to take, a purely mechanical approach to the unit placement of technicals; that is, regardless of the kind or scope of the skills, duties, and functions involved, regardless of the industry or place of work,. and regardless of the existence or nonexistence of a community of interest with other workers, certain employees will have their unit placement determined only by the label "technical." And the Board has indeed in the past failed, and now apparently will continue to fail, to enunciate an adequate definition of the term "technical employee." According to my colleagues, "there are inherent differences in the interests, background, and functions between technical workers and other employees." If that is so-and I certainly do not concede this n My colleagues in the majority assert, in footnote 6 of their opinion, that they have not surrendered their statutory duty of determining the unit placement of technical em- ployees. They justify this assertion on the ground that, where there is a dispute as to the unit placement of a technical, the issue is resolved, on the basis of record testimony, "according to the interests possessed by such an employee." My colleagues' assertion, of course, begs the question. It begs the question because the "interests" of a technical employee in the bargaining unit remain constant; these "inter- ests," in fact, do not change as a union or an employer may, or may not, take a position with respect to his unit placement. What my colleagues are really saying is this : technical employees have an "interest" in being included in a production and maintenance unit if neither the employer nor the union objects to such inclusion ; where, however, either the employer or the union does object, technical employees have an "interest" in being ex- cluded from the union-i.e., a different interest. Thus to state the proposition is to make manifest the Board's surrender. 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sweeping generalization to be so in all cases-it is patently absurd to permit, as my colleagues would do, the joining together of these inherently different employees in the same unit merely upon the caprice of the parties to any particular case. Upon such a premise, logic certainly compels a different result. My colleagues also promise that they will in the future apply the term "technical employee" selectively, and that they will limit the application of the term "so as to embrace only those employees whose work in fact satisfies its requirements." Such a purpose would be laudable indeed were it possible to ascertain from this. or any other opinion of the Board who is and who is not a "technical" employee. Certainly something more is required by way of definition than the mere assertion set forth in my colleagues' opinion that a technical employee is one who does not meet the "strict requirements" of a professional employee, and "whose work is of a technical nature." In my opinion, this problem must be met on a case-to-case basis. The Board should, in each case that comes before it, determine wheth- er or not the so-called technical employees have, or do not have, a sufficient community of interest to be included, or excluded, from a unit embracing other employees. The Board has at its command the tools to do this job. Such concepts as similarity of skills and duties, the presence or absence of common supervision, and similarity of working conditions should be utilized in this field as it is in any other field where unit placement is in issue. Two additional factors-the kind of industry and the organization of the particular plant in- volved-must also be considered. This approach apart, if the Board must adhere to its traditional view that the interests of technicals are inherently different from those of other employees, it should at least be consistent, and should not permit the parties themselves to mutilate the concept by their stand in particular cases. As for the instant case, unlike my colleagues, I would include in the production and maintenance unit those employees whom my col- leagues have excluded as technical employees. It appears to me that the interests of these employees in the collective-bargaining process are. not sufficiently different from those of the admitted production employees as to warrant their exclusion. In addition, the record shows that these employees, whatever they are called, are directly involved in the Employer's production process, and, indeed, some of them are little more than production employees with specialized knowl- edge and training. Their exclusion, therefore, appears to me to be the result of little more than the mechanical approach which my col- leagues now disavow in general, but which they now embrace in particular.