General Electric Co.

724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter all the Respondent's six employees continued to work until Monday, June 9. On that day the Varneys had gotten to the jobsite and were preparing to go to work when lanni appeared , handed four employees, including the Varneys, checks in payment in full for work already performed and told the four men that they were "all through." At the same time he laid off the four employees, lanni put two new men to work, both of whom were union men from Detroit and ex- perienced in sewer construction and who had worked for lanni before. The Varneys have never been recalled. B. Conclusions lanni explained the layoffs of the four employees and the hiring of the two ex- perienced sewer men from Detroit on the ground that on Thursday, June 5, the sewer line ran into soft running sand and quicksand making it necessary for him to operate with a smaller and more experienced crew than the crew he had had, that over the weekend he had located the two union men in Detroit who had worked for him before and whom he knew to have the experience necessary for the type of ground through which the Respondent's project was to run. There was no contradiction, or attempted contradiction , of this testimony. The Trial Examiner has had difficulty in seeing any discrimination in hire or tenure of employment in order to encourage or discourage union membership or activities in this case in view of the peculiar "union" setup described by Bergeron. Here there were no union memberships or activities . At the very most any so- called union memberships were coerced jointly by the so-called Union and Respond- ent and any such activities were for the convenience of the same two parties. The alleged labor agreement was illegal as at the time of its execution the Union did not represent an employee on the job. However, irrespective of whatever motives Respondent may have had for entering into this "sweetheart" arrangement, its having done so certainly indicates no animus against the unionization of its employees. The General Counsel has, therefore, failed to sustain his burden of proof. Under the facts presented here the Trial Examiner cannot find that Respondent discharged William or Hi Varney on July 9, 1958 , because of any union membership or activity on their part or in order to encourage or discourage union membership or activity. Accordingly, the Trial Examiner will recommend that the complaint be dismissed in its entirety. Based upon the above findings of fact , and upon the entire record , the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Hodcarriers , Building and Common Laborers Union of America, AFL-CIO, Local 1098, is a labor organization within the meaning of Section 2(3) of the Act. 2. By discharging William and Hi Varney on June 9 , 1958 , the Respondent did not interfere with, restrain, or coerce its employees in the rights guaranteed them in Section 7 of the Act in violation of Section 8 (a) (1). 3. By discharging William and Hi Varney on June 9, 1958 , the Respondent did not discriminate in regard to their hire or tenure of employment in order to encourage or discourage union membership or activities in violation of Section 8(a)(3) of the Act. [Recommendations omitted from publication.] General Electric Company and International Union of Electri- cal, Radio & Machine Workers, AFL-CIO, Petitioner. Case No. 1-IBC-2343. May 11, 1960 SECOND SUPPLEMENTAL DECISION AND ORDER On November 16, 1951, after an election conducted pursuant to a Decision and Direction of Election,' the Board issued a Supplemental ''Unpublished. 127 NLRB No. 87. GENERAL ELECTRIC COMPANY 725 Decision in the above-entitled proceeding in which it determined that the Petitioner, herein called IUE, might bargain for all production followers at the Employer's Fitchburg, Massachusetts, plant, as part of the production and maintenance unit which it already represented. Thereafter, on July 22, 1959, IUE filed a request for clarification of certification asking that the Board specifically include all production clerks in the unit for which IUE was certified as bargaining repre- sentative. On September 25, 1959, the Employer filed an answer and statement in opposition to the request for clarification. On October 22, 1959, the Board remanded the matter to the Regional Director for the First Region, for the purpose of receiving evidence on the issues raised by the request for clarification and the Employer's opposition thereto. A hearing was held on December 16, 1959, and January 20 and 21, 1960, before Joseph C. Barry, hearing officer. The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed z 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 [Members Rodgers, Jenkins, and Fanning]. Upon the entire record in the case, the Board finds : In 1951, there were approximately 10 production followers em- ployed at the Employer's small steam turbine plant in Fitchburg, Massachusetts. These employees spent most of their time in the pro- duction area checking on the progress being made in the processing of parts for products on order with a view to expediting production. They also maintained both records of orders and records showing the production stage of parts on order. In 1949, the Employer had begun the introduction of a post-index system of dispatching at the Fitchburg plant which showed the loca- tion of parts as they went through the manufacturing process. In view of the post-index system, the Employer planned, even at the time of the 1951 hearing, to eliminate production followers altogether.' As this new system became operative and fully efficient, the Employer gradually reduced the number of production followers until the pres- ent time when only one employee holds that classification. IUE contends that the work performed by production followers in 1951 is now being performed by five production clerks, three special- ists, and seven dispatchers. The Employer takes the position that the 2 At the opening of the hearing , IUE moved to amend its request for clarification to include dispatchers The Employer claimed surprise as this was the first mention of dispatchers, and the hearing was adjourned until January 20, 1900. On January 8, 1960, IUE filed a bill of particulars , listing 18 individuals whom the Union was seeking as part of its certified unit At the close of the hearing , IUE struck from the list the names of Oliver Clow, Warren Wheaton, and Nicholas DiConza 3 The Employer 's intention to eliminate the classification of production follower as such I. clear not only from testimony adduced at the reopened hearing, but also from the transcript of the 1951 hearing which was offered in evidence and incorporated as part of the record. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD individuals involved are not performing production follower duties, but, on the contrary, production follower work is now done by a pre- dated paper work system. The five production clerks are supervised by the manager of requi- sition, progress, and schedule and spend most of their time in an office building about 500 feet from the production area. They are salaried and work from 8 to 5 as do the other office employees. The produc- tion clerks perform such duties as processing of requisitions, originat- ing the schedule for the start and finish of both procured and ma- chined parts, and taking care of all change notices. They also keep customers informed of work through progress reports, conduct cus- tomers through the shop to show them their equipment, and keep track of millions of dollars worth of outside vendor parts. Except for in- creased complexity, the work of the production clerks in 1960 is essen- tially the same as their work in 1951 when they were not included in the bargaining unit. Only to the limited extent that the production clerks chase lagging parts on the production floor would they appear to be doing work that was formerly performed by production fol- lowers. The three specialists are leadmen of separate teams of production clerks. They are under the same supervision , work in the same office, and have similar hours as the production clerks. The specialists are salaried, their work is similar in nature to that of the production clerks, and, like the production clerks, they spend about 25 percent of their time on the production floor, a part of which may be devoted to work formerly done by production followers. The seven dispatchers work in the production area where they spend the great majority of their time in dispatch cages, alt] iough at present, as in 1951, the dispatchers spend some time on the production floor. Even though the dispatchers work the same hours as the production employees, they are supervised by a foreman of dispatch and not a production foreman. The dispatcher's duties are to dispatch work according to schedule, keep the post-index system, and direct the movement on the moving of parts. The work of the dispatchers in 1960 is not markedly different from their work in 1951 when they were not included in the bargaining unit.' The production clerks, specialists, and dispatchers all perform work that was done in 1951 by employees in similar or related classifica- tions. There is no evidence whatsoever to support IUE's contention that the Employer effected a gradual erosion of the production fol- 4IUE vigorously contends that at least one dispatcher, Fred Saunders, is doing produc- tion' follower work Although Saunders' work in the assembly area requires him to spend more time out of his cage than the ordinary dispatcher in the main bay area, we see no reason for special treatment of Saunders as he has been classified as a dispatcher for approximately 7 years and receives a dispatcher's salary. BETHLEHEM STEEL COMPANY, SHIPBUILDING DIV., ETC . 727 lowers' duties because the Employer did not wish these employees to be in the production and maintenance unit. Rather, the indication- is that the Employer has been moving over a long period toward the evolution of a dispatch system that will eliminate the job of production follower. Any work formerly performed by production followers which may now be performed by production clerks, specialists, or dis- patchers is at best only a minimal part of the duties of these employees who have always been excluded from the bargaining unit. Accord- ingly, a request for clarification of the certification is not the proper method for adding the excluded classifications to the existing unit. IUE should rather have filed a representation petition seeking an election among the production clerks, specialists, and dispatchers to determine whether they desire to be added to the present unit of pro- duction and maintenance employees .5 Whether such a petition would lie, we do not here decide. We shall, however, deny IUE's request for clarification of the certification. [The Board denied the request of International Union of Electrical, Radio & Machine Workers, AFL-CIO, for clarification of certifica- tion.] 5 United Aircraft Corporation, Pratt c€ Whitney Aircraft Division, 124 NLRB 392; General Electric Company, 119 NLRB 1233. Bethlehem Steel Company, Shipbuilding Division , San Fran- cisco Yard 1 and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local 6, AFL-CIO and Shipyard, Marine Shop Laborers' Union Local 886, International Hod Carriers, Builders and Common La- borers of America, AFL-CIO, Petitioners. Cases Nos. 20-RC- 3817 and 20-RC-3837. May 11, 1960 DECISION AND ORDER Upon separate petitions duly filed under Section 9(c) of the National Labor Relations Act, a consolidated hearing was held on various dates between May 11 and October 21, 1959, before Shirley N. Bingham and M. C. Dempster, hearing officers. 'Thereafter, on Febru- ary 15, 1960, the Board issued an order remanding proceeding to Re- gional Director for further hearing, for the purpose of receiving cer- tain additional evidence. The reopened hearing was held on March 8, 1960, before Hearing Officer M. C. Dempster. The hearing officers' 1 The name of the Employer appears as amended at the hearing. 127 NLRB No. 89.