Radio Corporation of America

1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the revenues thus combined exceed $500,000, and as legal jurisdic- tion is clearly present, we further find that it will effectuate the policies of the Act to assert jurisdiction. 2. The labor organization involved claims to represent certain em- ployees of the Employers. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employers within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The parties stipulated to the appropriateness of the unit set forth below, and further stipulated that any employee who worked at least 1 regular shift for 1 day or more per week for any 10 weeks in a 21- week period is a, regular part-time employee. We adopt these stipula- tions and shall, for eligibility purposes, utilize the 21-week period immediately preceding the date of the direction of election herein. Accordingly, we find that the following employees constitute a unit appropriate for the purpose of collective bargaining within the mean- ing of Section 9(b) of the Act: All full-time and regular part-time drivers of cabs owned by persons, partnerships, corporations, and associations who are members (senior, associate, or otherwise) of City Cab Company, Detroit, Michigan, ex- cluding office clerical employees, member-drivers, roadmen, garage employees, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBERS RODGERS and LEEDOM, dissenting : For the reasons stated by us in Checker Cab Company, and its Mem- bers, 141 NLRB 583, we would find that the record herein supports neither the assertion of jurisdiction nor the appropriateness of the unit sought. Radio Corporation of America and Local 241, American Federa- tion of Technical Engineers , AFL-CIO, Petitioner. Case No. 4-P ,C-5070. April 8, 1963 DECISION, ORDER, AND CLARIFICATION OF CERTIFICATION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Harold Bernard, Jr., hear- ing 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-member panel [Members Rodgers, Fanning, and Brown]. 141 NLRB No. 102. RADIO CORPORATION OF AMERICA 1135 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 claim to represent certain em- ployees of Employer.' 3. No question effecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. However, as the Board will consider and decide requests for clarification of certified units, we shall, as requested by Petitioner, treat its petition as a motion to clarify its existing certification as representative of certain employees of the Employer and the following decision is accordingly issued even though no question concerning representation exists.2 The Employer, at its plants in New Jersey, is engaged in the re- search, development, manufacture, and sale of electronic products and equipment. The Petitioner is the current contractual representa- tive of a unit of all technical employees in the engineering and produc- tive departments of the Employer's Moorestown, New Jersey, plant,' including such employees as manufacturing methods engineers, cost estimators, laboratory aides and technicians, quality control techni- cians, and test methods engineers. This unit was certified on Decem- ber 29, 1953, subsequent to a Board-conducted consent election 4 Some- time in May 1958, the Employer established a new job classification of "engineering data processor." The Petitioner contends that such individuals are technical employees and as noted above, requests clari- fication of its existing unit to include them, or, in the alternative, seeks an election among such employees whom it would represent separately or as part of the existing unit. There are some 21 engineering data processors (hereinafter referred to as EDP's) in the Employer's Defense Electronic Products operat- ing unit, 10 of whom are located at the Moorestown plant under the supervision of Engineer Yates. The remaining 11 are supervised by Engineer Hatcher at the Riverton plant.' The record shows that five of the EDP's at Riverton function as so-called "legmen" for the engineers, transmitting information in the form of "work requests" to the machine operators. These "legmen" expedite work orders much in the same manner as would a production control clerk and their work requires them to maintain extensive cleri- cal records. This "five group" is composed of individuals who were 1 The Association of Scientists and Professional Engineering Personnel, which inter- vened herein for the purpose of protecting its contractual interests, disclaimed any inter- est in the employees sought by the Petitioner and withdrew from the proceeding 3 Alpha Corporation, Transportable Systems Division, 128 NLRB 309 3 The parties agreed, by way of stipulation , that the unit also covers technical employees assigned to the Employer's Riverton , New Jersey, plant ' Case No. 4-RC-2228. Three of the eleven at Riverton are located with Yates' group at 'Moorestown 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD former machine operators, tabulator operators, project clerks, etc. They, like the other EDP's, are required to have a high school diploma and, in fact, some have majored in business administration courses. However, they are not required to possess special talents in mathe- matics. Although this group has taken the training course given by IBM for the 7090 computer, it is clear that these "legmen" could not efficiently perform the work of the other six EDP's It Riverton with- out a substantial period of training on the job. The small portion of their time (10 to 20 percent) which is spent in the performance of data work similar to the other EDP's is routine and repetitive, and such work requires little, if any, exercise of independent judgment. Ac- cordingly, we find that the "legmen" are not technical employees and are not includible in the existing unit. The remaining 16 EDP's work closely with, and assist, the engi- neers by transforming their specific problems into computer machine digestible form. They are required to have a high school education with at least 1 year of college-level mathematics or its equivalent gained through special training or experience 6 The EDP's receive the same benefits as the unit employees and their wages compare with those of the laboratory aids and technicians who also assist engineers and who are included in the existing unit. The EDP's job is to test the engineer's formula or problem by means of an electronic computer, such as the IBM 1620, 1410, or the 7090.' This involves programing the problem and/or setting up a format, sometimes in the form of a flow chart, and coding the information into machine language for the machine operators. The EDP is often called upon to plot and graph the result thus achieved. As he is familiar with the capabilities of the computers, the EDP's recommendation with respect to the most efficient approach to be taken is often followed by the engineer. More difficult problems handled by the EDP require a familiarization with numerical analysis and a basic understanding of the mathe- matical equations involved. On the basis of the entire record, including the showing therein of the special training and skills possessed by the above-mentioned EDP's in the field of data processing and the independent judgment exercised by those employees in the process of choosing between al- ternative approaches in setting up their formats, we find that such U The record shows that all applicants for the position of EDP are given the normal "intelligence" test and those in Yates' group are given an "EDP Aptitude" test formu- lated by IBM. In addition, an applicant is given a problem involving college-level calculus and is expected to demonstrate some "special talent" in mathematics beyond the high school level All EDP' s, in fact, possess college credits ranging from 1/., to 3,? years Three college graduates (EDP's) have become engineers 7 The IBM 7090, utilized by the more advanced EDP, rents for $66,000 per month EDP Cox attended a special IBM class for the 7090 and later instructed the other EDP's in its use. EDP's Smith and Clark took a similar course with respect to the operation of the 1410 The record shows that it takes from 1 to 5 days to learn to operate the vai ions computers. RADIO CORPORATION OF AMERICA 1137 employees are technical employees who fall within the scope of the existing certified unit.' Also, it is evident that by reason of their technical functions and conditions of employment, these employees have a close community of interest with the other technical employees of the Employer, all of whom are in the existing unit of technical employees and, had their classification been in existence at the time of the original proceeding and certification, it is clear that they would have been included as part of such unit of technical employees. Since it appears that they came into existence after the certified unit was established, we find, upon all the facts in this case, that they constitute an accretion to the existing unit.' Accordingly, we shall clarify the existing certification by including the EDP's, but not the "legmen," in the existing unit.'° [The Board dismissed the petition in Case No. 4-RC-5070 and further ordered the certification issued in Case No. 4-RC-2228 be clarified to include in the described unit, the classification of engineer- ing data processing employees, excluding the "legmen."] MEMBER RODGERS, dissenting in part : I agree with my colleagues' finding that the engineering data proc- essors (excluding the "legmen") are technical employees. However, I do not agree that these individuals should be lumped into the unit without giving them an opportunity to voice their preference con- cerning representation by the Petitioner. The record shows that the EDP classification was established in 1958 and that since then this group of employees has gone unrepre- sented. Under the Zia principle," which I maintain is the valid rule in such cases,12 such employees are entitled to determine, in a separate election, whether they desire to be represented as part of the historical unit or continue to be unrepresented. Accordingly, I would grant the Petitioner's alternative request and direct a separate election among the EDP's. 8 Cf. The Dayton Power and Light Company, 137 NLRB 337 8 A contrary finding is not called for because the engineering data processor classifica- tion is a new one or because the nature of the technical skills of the employees in this classification may differ from those exercised by other technical employees in the unit The record does not show any differences which distinguish the interests of the two groups The Great Atlantic and Pacific Tea Company (Family Savings Center ), 140 NLRB 1011 1O As the classification of engineering data processing employees was not in existence prior to the certification herein and as such employees are found to be an accretion to the existing unit, there is no warrant for a self-determination election such as our dissenting colleague would direct. See the holding of the Board in Borg-Warner Corporation, 113 NLRB 152, expressly approved by the court in 231 F . 2d 237 , 243 (C.A 7), cert denied 352 U S 908 , that "As an accretion to existing unit, these employees could not, under established Board policy , have been accorded a self-determination election " 11 The Zia Company, 108 NLRB 1154 . The Borg-Warner and the A . & P. cases, cited by the majority, are factually distinguishable from the instant case . In those cases the accreted groups were comprised of individuals who, unlike those in the instant case, had substantially the same job classifications and skills as the unit employees In addition, in the Borg-Warner case the new department was staffed with a substantial number of individuals transferred from the company 's other operations 1= See my dissent in D. V. Displays Corp, 134 NLRB 568.