Factory Mutual Engineering Corp.

224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Factory Mutual Engineering Corporation and American Federation of Technical Engineers, AFL-CIO, Petitioner. Case 13-RC-1 1068 June 29, 1967 DECISION AND DIRECTION OF ELEC- TION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Charles F. Ortique. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Briefs have been filed by the Em- ployer and the Petitioner. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. Upon the entire record in this case, the National Labor Relations Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the pur- poses of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists con- cerning the representation of employees of the Em- ployer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of all boiler and machinery inspectors and "combined men" employed in the Employer's midwest region. There is no dispute as to the geographic scope of the unit. However, as to the composition of the unit, the Employer contends that the requested unit is not appropriate because it fails to include fire en- gineers and adjusters, and it moved to dismiss the petition on this ground.' There is no bargaining his- tory. The Employer is owned by seven insurance com- panies and their affiliates which together constitute the Factory Mutual System. The Employer is en- gaged, for its insurance company owners, in the in- spection of, and gathering and evaluating informa- tion relative to, the construction, remodeling, and occupancy of industrial property, as well as the manufacturing processes and equipment utilized in connection therewith, and the operations of safeguards on such property. Information so gathered is used by the insurance companies in the writing of policies and also in the prevention and ad- justment of losses. Prior to 1963 the Employer's operations were limited to the performance of such services for fire insurance companies, but in that year it expanded operations to include boiler and machinery in- surance services; and as a result of a merger in March 1966 it became the Employer of many of the boiler and machinery inspectors here involved, who had previously been employed by Mutual Boiler In- surance Company. The Employer's midwest region, one of six throughout the United States, encompasses, under its Chicago regional office, three district offices located at Chicago, St. Louis, and Milwaukee, and two branch offices located at Minneapolis and Houston.' The Employer employs in its midwest region approximately 50 boiler and machinery in- spectors, 75 fire engineers, and 5 adjusters. A re- gional manager is in charge of the midwest region. Each of the three district offices is supervised by a district manager. Under the district manager in each of the three districts are three assistant managers, one of whom supervises the boiler and machinery inspectors, another the fire engineers, and a third the adjusters. The key functions of the boiler and machinery in- spectors are to inspect insured and potentially in- surable plants, power equipment, and mechanical and electrical equipment in accordance with Amer- ican Society of Mechanical Engineers standard practices, and State and local regulations. They determine maximum foreseeable direct loss from property damage, as well as indirect damage from contamination and business interruptions; they evaluate possible production losses and percentage of total plant or departmental operations that could be affected in event of equipment failure; they gather and evaluate data for special reports on in- surance coverage applicants and for surveys and studies; and they work with the adjusters to deter- mine necessary repairs and to assist in expediting such repairs. All information thus gathered is set forth and evaluated by inspectors in written reports which are transmitted to their district offices. The inspectors use such tools as nonspark copper berylium hammers for testing metals, filler gauges, gauges for measuring pressure, hand pumps for test- ing gauges, 500-volt hand-operated meggers, amme- ters for checking loads on electrical cables, and stethescopes. Most of the inspectors' work is per- formed on the premises, and in and around the equipment, of the industrial property insured by the Factory Mutual System. Although the Employer has no specific educa- tional requirements for inspectors, two of them are I In view of our determination here, the motion to dismiss is denied 2 Other than the fact that each of the branch offices is supervised by a branch manager, whom the parties stipulated to be supervisors within the meaning of the Act, the record contains no evidence as to the branch of- fices The parties also stipulated that the regional manager and the district managers and assistant managers are supervisors within the meaning of the Act. 166 NLRB No. 49 FACTORY MUTUAL ENGINEERING CORP. 225 college graduates, eight have high school educa- tions, and the rest have received trade or technical school training. When hired, they receive training in the district offices and on the job, for several months or years, depending on individual capabili- ty. Some, but not all, States and cities have licensing requirements for boiler and machinery in- spectors. Such requirements vary considerably, particularly as to the type of equipment for which the inspector is required to be licensed. The main functions of the fire engineers are similar to those of the boiler and machinery inspec- tors outlined above, except that they are chiefly concerned with losses from fire and are prohibited from performing work for which a boiler and machinery inspector license is required. Areas in which the- work assignments of these two groups overlap include the inspection of pressure vessels; black liquor recovery boilers, which are used in the pulp and paper industry in recovering the residue from processes so that the chemicals may be used over again; electrical equipment; nuclear energy facilities; and dow therm boilers, which consume a special organic material giving high temperatures at low pressures and which are used in food processing or chemical plants. Fire engineers also use many of the same tools and, like boiler and machinery inspectors, work chiefly on the premises of insured plants and equipment. Although educa- tion at the college level is not a prerequisite to em- ployment as a fire engineer, all but four are college graduates. Most of them have degrees in a technical or engineering field, and the others in such fields as psychology, geology, mining, and education. Fire engineers receive a 5-week training course when hired and, in addition, training on the job of in- definite duration. There are four "combined men," who are boiler and machinery inspectors who have taken the 5- week fire engineers' training course and the addi- tional training in the district offices given to the fire engineers. These employees now perform all the functions of both classifications. Two other boiler and machinery inspectors are about to undergo such fire engineer training, and three fire engineers have started training on boiler and machinery in- spection work. The adjusters are concerned chiefly with adjust- ing losses. In determining the extent of repairs necessary and expediting them, they frequently work with boiler and machinery inspectors, as stated above, and also with fire engineers. Em- ployees become adjusters through normal job progression from positions as boiler and machinery inspectors. The facts set forth above establish that the work of the boiler and machinery inspectors is of a technical nature, involves the use of independent judgment, and requires the exercise of specialized training acquired in college or technical school. We therefore find, in agreement with the parties, that they are technical employees.3 The Employer has no specific advanced degree requirements for fire engineers and adjusters, the degrees possessed by the fire engineers cover a variety of unrelated fields, and the work of these two classifications involves the physical inspection of premises and equipment and the evaluation of such data in accordance with established standards. We find, therefore, contrary to the Petitioner's contention, that fire engineers and adjusters are not professional employees within the meaning of Section 2(12) of the Act.4 As the work of the fire engineers, combined men, and ad- justers, like that of boiler and machinery inspectors, is technical in nature, involves use of independent judgment, and requires the exercise of skills acquired from specialized training, we find that they are also technical employees. The boiler and machinery inspectors are under separate immediate supervision as to technical mat- ters and job assignments by the assistant district managers. However, the district managers super- vise all these classifications of technical employees in administrative and other matters. Moreover, all assignments to loss investigations are made in con- ferences attended by the three assistant district managers, often to boiler and machinery inspectors, fire engineers, and/or adjusters on the basis of availability. Employees of all these technical clas- sifications work a 36-1/4 hour week and have the same vacation, pension, hospitalization insurance, and advanced education assistance plan. They are all salaried employees with closely comparable pay scales. In all the circumstances, including the fact that boiler and machinery inspectors, fire engineers, combined men, and adjusters are all technical em- ployees, the similarity of their functions, skills, and training, the overlap of their duties, the integration of loss-investigation assignments, and-the common overall supervision, we find that a unit limited to the boiler and machinery inspectors is inappropriate. However, we find that a unit of boiler and machin- ery inspectors, fire engineers, combined men, and adjusters is appropriate, and we shall direct an elec- tion in such unit. The Employer also contends that four in- dividuals, Brooker. Brown, Tittle, and Allen, should be included in the unit. The Petitioner would exclude them on the ground that they are superviso- ry or professional employees. Brooker, Brown, and Tittle are classified as re- gional engineers and work most of their time in the regional office reviewing reports of inspectors and i Litton Industries of Maryland , Incorporated, 125 NLRB 722; The Sheffield Corporation , 134 N LRB 1 101 The Budd Company, 154 NLRB 421, Western Electric Company, 126 NLRB 1346 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engineers. They prepare these reports for issuance to the insurance companies of the Factory Mutual System. In addition, they also lend technical advice to the inspectors and engineers in the field, particu- larly those of less experience, on problems of unusual difficulty. Occasionally they go into the field themselves to assist with such problems. If they find errors in the reports, they may return them for correction and request a new inspection if necessary. Allen is employed as a combined boiler and machinery inspector and adjuster and works in the Milwaukee district office. His duties are similar to those of the regional engineers. He also works at times in the field making loss-adjustment analyses, as well as regular and special loss investigations. The education and training of these four individuals is comparable to that of the employees in the unit. and they occupy their positions because of their greater experience. They share the same employ- ment benefits as other employees in the unit and work the same hours, and their pay is in the upper range of the pay scale for inspectors and adjusters. The only function they perform of a supervisory na- ture is the scheduling of work assignments for em- ployees in-the field when assistant managers are on vacations. In view of the sporadic nature of this function, we find that they are not supervisors. Furthermore, in view of their educational background and the nature of their duties which is similar to those of others found above to be techni- cal employees, as well as the close functional rela- tionship to, and common interests with, unit em- ployees, we find that they are not professional em- ployees. We shall therefore include them in the unit. Accordingly, we find that the following em- ployees in the Employer's midwest region con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: All boiler and machinery inspectors, fire en- gineers, "combined men," adjusters, and regional engineers , excluding office clerical employees, professional employees , guards, regional manager, district managers, and assistant managers, branch managers , and all other supervisors as defined in the Act.5 [Text of Direction of Election6 omitted from publication.] The Regional Director is instructed not to proceed with the election in the unit found appropriate until he shall have first determined that the Petitioner has made an adequate showing of interest among the employees in this unit. As the unit is substantially different from that petitioned for, the Petitioner, American Federation of'rechnical Engineers, AFL-CIO, is permitted, should it so desire, to withdraw its petition without prejudice upon written notice to the Regional Director within 10 days from the date of this Decision and Direction of Election 6 An election eligibility list, containing the names and addresses of all the eligible voters , must be filed by the Employer with the Regional Director for Region 13 within 7 days after the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed Excelsior Underwear Inc_, 156 NLRB 1236