The Bendix Corp.

718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Simmons Company is engaged in commerce within the meaning of the Act. 2. Respondent Union, Local 185, Mattress, Spring & Bedding Workers' Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Mary Bernard, thereby encouraging membership in Respondent Union, the Respondent Company, Simmons Company, has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(3) of the Act, and thereby has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Sec- tion 7 of the Act, in violation of Section 8 (a) (1) of the Act. 4. By causing the Respondent Company to discriminate against the above-named employee in violation of Section 8(a)(3) of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act, thereby restraining and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, in violation of Section 8(b) (1) (A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication.] The Bendix Corporation, Kansas City Division and International Brotherhood of Electrical Workers, Local Union No. 124, AFL- CIO, Petitioner. Case No. 17-RC-4444. December 29, 1964 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Hearing Officer H. L. Hudson. 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, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 1 The Intervenor urges that the Hearing Officer displayed bias and prejudgment in his handling of this case by discussing the Issues with counsel for the Employer in two meet- ings held prior to the hearing, and by calling a witness on his own behalf to clarify the appropriateness of the unit requested by the Petitioner . We find that neither of these claims has merit. The meetings referred to took place as part of the Hearing Officer's attempts to gather relevant information from the Employer concerning the makeup of the proposed unit, and there is no evidence that the discussions which took place were other than investigatory in nature . The hearing in this matter, unlike unfair labor practice proceedings, for example, are nonadversary in nature and not within the Ad- ministrative Procedure Act. The Hearing Officer in this type of case is responsible for obtaining a full and complete record and , unlike other types of proceedings , he does not make any recommendations respecting the matters before him . ( Section 9 ( c) (1) of the Act.) The calling of a witness by a Hearing Officer clearly comes within the powers vested in him by Section 102.64 of the Board's Rules and Regulations. 150 NLRB No. 63. THE BENDIX CORPORATION, KANSAS CITY DIVISION 719 3. No question affecting commerce exists concerning the represen- tation of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act, for the fol- lowing reasons:- The Bendix Corporation, Kansas City Division, is engaged at its Kansas City, Missouri, plant as a contractor for the Atomic Energy Commission's weapons program in producing classified electronic components, parts, subassemblies, and assemblies. District Lodge 71, International Association of Machinists, the Intervenor here, was certified in 1950 as the bargaining representative of the production and maintenance employees. The unit at that time comprised about 500 employees, including no more than 15 employees classified as electronic test equipment specialists and helpers. These 15 em- ployees were then engaged in fabricating, proving-in, calibrating, and maintaining electronic test equipment which was both used in the Employer's production processes and sold to customers. In 1952 the Employer and Intervenor orally agreed to exclude these em- ployees from the bargaining unit, and they were thereupon re- classified as experimental technicians, a classification which also included technical employees in fields other than electronics. By 1957 the number of experimental technicians engaged in test equipment work had grown to about 40, and disputes were arising frequently over the Intervenor's claim that they were performing bargaining unit work. Consequently, the parties entered into a status quo arrangement by which the Intervenor agreed to abide by the 1952 oral understanding that the test equipment work being done by experimental technicians remained outside the coverage of the contract, while the Employer agreed not to assign them any work then being performed by classifications within the unit. By 1963, when negotiations for a new contract were undertaken, the bargaining unit consisted of more than 4,000 employees, while the number of experimental technicians engaged in some aspect of elec- tronic work had risen to about 200. There were, in addition, an- other 80 or so employees in that classification engaged in nonelec- tronic work. The Intervenor was adamant in insisting that its 1952 oral agreement be terminated and that those technicians engaged in electronic test equipment work be returned to the bargaining unit. A new agreement was executed in November 1963 on the understand- ing that the parties would meet shortly thereafter in order to settle the status of those electronic technicians who were engaged in fabri- cating, proving-in, maintaining, and calibrating test equipment. In January 1964 the parties finally agreed that the disputed work would be returned to the bargaining unit. The written agreement to that effect was prepared as two separate documents, entitled 775-692-65-vol. 150-47 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Clarification of Bargaining Unit-Status Quo" and "Bargaining Unit' Clarification-Detailed Analysis." Both were signed on March 19, 1964, but the latter 'document was made effective' April 1, 1964, in order to provide for an orderly transfer into the unit of the salaried technicians-who were now to be hourly paid. - - On the same day the agreement was signed, the petition herein' was filed, requesting an election for a unit of electronic technicians. The Employer and Intervenor contend that the petition is barred by- the' supplemental agreement of March 19, which extends the coverage of the' basic 'contract to most of the, electronic-technicians sought by the petition. The Petitioner, on the other haiid,'contends that its petition is not barred since it was filed before what it regards as the effective date of the agreement, and because the newly added employees are not an accretion to the unit ' whom the Intervenor may represent without affording them a self-determination election. We find it unnecessary to decide whether the supplemental' agree- ment became operative- on March 19, and therefore, bars the petition, or whether it became operative when its deferred provisions finally be- came effective on April 1, in which latter-event the petition would not be barred. We believe the petition must be dismissed on another ground, namely that the unit requested is not justified on any of the 'bases which the Board relies on in determining` appropriateness. , The Petitioner's unit request, as amended late in the hearing, dare- fully delineates by reference to their place of employment the exact classifications it- seeks to represent. It reads as follows : "All elec- tronic technicians engaged in engineering, testing, research, develop- ment and quality control, in the test equipment department, in the test laboratory department in the 'engineering shops, and in the engineering laboratories of the employer, excluding; all engineers, production and maintenance employees....'-'. -Although the Employer apparently disputes it, we are satisfied that the'Petitioner has included in its unit'request all electronic `techni- cians employed at the Kansas City plant,- amounting to approx- imately 200 in number. They are assigned to the following depart- ments : 125T6 test equipment (department 151) ;,25 to engineering shops (department 851) ; 40 'to test laboratory (department 213) ; and 8 to •9 to engineering laboratories (departments 831; 832, 941- But it is not enough for the Petitioner to show that it'is will- ing to represent all the electronic technicians at the plant; it must also establish affirmatively why they should be represented separately. The Petitioner does not contend that they are' craftsmen 2 or that they constitute a, single departmental group entitled to'separate repre- sentation. It does' not deny that 'the electronic' technicians are a segment ' of all the 'technical -'employees' at, the plant or 'that: the 2 See The Boeing Company, 144 NLRB 1110. LOUISVILLE MAILERS UNION NO. 99, ETC. 721 technicians who are not included in the unit request will remain unrepresented. The thrust of the evidence Petitioner presented and the argument in its brief is that the electronic technicans are tech- nical employees who are required to show training and skill in their speciality, to exercise independent judgment and to work with pro- fessional engineers. The same considerations are equally applicable, however, to the 80 or so experimental technicians who are engaged in other work of a technical nature not involving electronics. The Board has held that a unit of technical employees is inappropriate where it does not include all in that category .3 Finding as we do that the Unit requested by the Petitioner is inap- propriate, we shall dismiss the petition.4 [The Board dismissed the petition.] 3 Westinghouse Electric Corporation ( Naval Reactors Facility ), 137 NLRB 332. 4 We are not passing on the question whether a unit of technical employees may, in any event, be separately represented at this plant under the criteria of Sheffield Corporation, 134 NLRB 1101 . We note, however , that the work of most of the electronic technicians , involving fabrication , proving-in, maintenance , or calibration of electronic test equipment and prototypes , is an essential element in the inspection process, which, as in The Boeing Company, 144 NLRB 1110 , is intimately connected with production. There are, for example, classifications of inspectors in the bargaining unit who use the same instruments as the electronic technicians and whose work also requires similar training, skills, and the use of judgment in their work . In addition, some of the test equipment fabricated by the electronic technicians is produced for sale rather than for internal plant use and, to that extent, some of the technicians are directly engaged in production. Louisville Mailers Union No. 99, affiliated with International Mailers Union and Standard Gravure Corporation . Case No. 9-CD-74. December ^09, 196 , DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the Act following a charge filed by Standard Gravure Corporation, herein called the Employer, alleging that Louisville Mailers Union No. 99, Inter- national Mailers Union, herein called the Mailers, had violated Sec- tion 8(b) (4) (D), by threatening, coercing, or restraining the Em- ployer for purposes of compelling it to assign certain work to em- ployees represented by the Mailers, rather than to employees repre- sented by General Drivers, Warehousemen and Helpers Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Paper Handlers. Pursuant to notice, a hearing was held before Hearing Officer Alan D. Greene, on July 23 and 24, 1964, at which all parties were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to adduce evidence bearing upon 150 NLRB No. 58.