United Shoe Machinery Corp.

200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Shoe Machinery Corporation Beverly Manu- facturing Division and Local 271, United Electri- cal, Radio and Machine Workers of America (UE). Case 1-CA-6352 August 27,-1970 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND JENKINS On November 15, 1968, the National Labor Rela- tions Board issued its Decision and Order in the above-entitled proceeding' finding that Respondent had violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Charging Union as collective-bargaining representative of employees at Respondent's Beverly 'Manufacturing Division, Beverly, Massachussetts. Thereafter, the Board filed -a petition with the United States Court of Appeals for the First Circuit for enforcement of its Order. The court in a per curiam opinion' remanded to the Board stating: Respondent is within its rights in asserting that the Regional Director neither affirmatively evi- denced an awareness of the community of interest questions -in the terms to which it should have been considered consistent, with previous Board 'decisions, 'nor articulately applied it. While we might think that, sub silentio, he may have 'gone through both of these .processes, we cannot be certain. The fact finder has a positive duty, both towards the respondent, and towards us as the reviewing court, to make plain what he-is doing. The case must be remanded for. further,proceed- ings. At the same time we observe that a conten- tion that as a matter of law the Director should be required to find that a - single unit composed of all of respondent's technical and clerical employees is the only appropriate unit cannot be supported. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor -Relations Board has delegated its powers in connection with this case-to a three-member panel. The Board has reexamined the entire record includ- ing the underlying representation case, the court's opinion, and the briefs of the parties, and hereby reaffirms its Decision and Order for the reasons indi- cated below: 173 NLRB No 122 NL R B. v United Shoe Machinery Corporation, Beverly Manufactur- ing Division, 445 F 2d 633 (C A 1) In his Decision and Direction of Election, the Acting Regional Director found that all of the techni- cal employees at Respondent's plant constituted an appropriate unit . Respondent does not argue that the employees in the unit found appropriate are not technical employees , nor does it contend that the unit does not include all its technical employees. It maintains the position that only an all -inclusive unit of technicals, plant clericals, and office clericals can be found appropriate. The court noted that 'Respondent's contention, as a matter of law, could not be supported. The Board has long held that a unit of all technical employees is appropriate.' Since the earliest days the Board has recognized the different interests of technical employees from other employees because of their 'distinctive training and experience and functions,' even to the point of excluding them from any other unit when one party objected to their inclusion .' This automatic exclusion ended with The Sheffield Corporation,' where we stated that We are not persuaded that the practice thereunder of automatically excluding all technical employees from production and maintenance units whenever their unit placement is in issue is a salutary way of achieving the purposes of the Act. To do so is to give primacy in unit placement to the parties' disagreement rather than to the over- riding consideration of the community of interests of such employees with ;the production and main- tenance employees. In order, therefore, to give effective weight to such community of interest, we shall no longer utilize an automatic placement formula, but shall instead, make a pragmatic judgment in each case, based upon. an analysis of the following factors, among others: desires of the parties, history of bargaining, similarity of working conditions, type of industry, organiza- tion of plant, whether the technical employees work in separately situated and separately con- trolled areas, and whether any union seeks to represent technical employees separately . . . . [emphasis supplied. Fns. omitted]' In light of that Board precedent as --stated, above, the requested unit of all the technical employees was one that the Board customarily finds appropriate. ' Bulldog Electric Products Company, 96 NLRB 642, 643, Vickers, Incorporated; 124 NLRB 1051, 1053 4 Chrysler Corporation, I NLRB 164;Concolidated Aircraft Corporation, 2 NLRB 772 See Litton Industries of Maryland, Incorporated, 125 NLRB 722 134 NLRB 1101 ' Id at 1103, 1104 185 NLRB No. 36 UNITED SHOE CORPORATION In view of the language of the court's opinion we have reexamined the record in this case to deter- mine whether the clericals in this particular plant have a sufficient community of interest to require their inclusion with the technical employees. The Employer urges that the clericals have a suffi- cient community of interest with the technical employ- ees to warrant their inclusion in the unit because they are all salaried, receive fringe benefits of uniform application, are located in the same building, and share the same restaurant, cafeteria, and restrooms; and because improvements in salaries and fringe bene- fits are normally given to all in the salaried group at the same time. The record reveals that the Employer employs vari- ous clericals in each of its nine departments. Generally clerical employees have a high school education and can be employed immediately upon graduation. Typ- ists and stenographers come directly out of school and start in the mailing department. No formal train- ing is required of the cataloguer, although he is among the highest paid of all clerical employees. The work performed by clerical employees is sub- stantially less complex than that performed by the technicals.The department clerk keeps records of incoming and outgoing jobs. The tool obsolescence clerk keeps track of tools to determine if they are still in use. The reproduction department clericals reproduce records for the various departments. The catalogue department clericals prepare catalogs listing the parts of a particular machine and are responsible for preparing machine name plates. The stenographic and clerical employees type operation sheets and notices for distribution to various departments. The photographic laboratory assistant does the clerical work for the photographic department. The inventory clerks keep a record of the movement of stock. The expediter locates parts that are needed by other depart- ments. The tool order clerk writes orders and main- tains the tool inventory. On the other hand, the more highly skilled technical employees are required to have substantial technical 20 1 training. Many are required to have an Associate Degree or its equivalent. Seventy-seven of the Employ- er's eighty-eight technicals work in the engineering department where they are responsible for designing the tools and developing the methods by which specific machines can be manufactured. They include tool designers, draftsmen, operations writers and checkers, methods writers and checkers, manufacturing engi- neers, specialty and investigatory engineers, design engineers, the photographer, and assistant photogra- phers. The result of their effort is a detailed plan for the production of specific machine parts. In addition there are technical employees in other departments. They include: the toolroom engineer, whose job requires a broad practical knowledge of tool and guage application and whose duties include the carrying out of tests on cutting tool performance; the inspection planner, who formulates plant proce- dure; and the program analyst, programmers, and associate programmers in the systems and procedure department, who are responsible for programming the Company's computers. The technical employees receive substantially higher salaries than the clericals. On the basis of the entire record before us, we conclude that the technicals of the Employer differ from the clericals in that they receive substantially higher pay, are generally required to have additional education above the high school diploma required for clericals, and have a technical background resulting from specialized training or plant experience. None of the technical employees interchanges with the cleri- cals. Most technical employees have little contact with plant clericals and only routine contact with the office clericals. Thus we find that the technical employees share an identifiable community of interest in employment conditions with one another, distinct from the interests of the plant and office clericals.' Accordingly, we reaffirm the findings, conclusions, and remedy provided in our original Decision and Order. The Armstrong Rubber Co, Pacific Coast Division, 144 NLRB 1115