Bendix Corp.

140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Automation and Measurement Division of the Bendix Corporation and International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC and its Local 759, Petitioner. Case 9-RC-7935 October 14, 1969 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA Upon a petition filed under Section 9(c) of the National Labor Relations Act, as amended, hearings were held before Hearing Officers Edward C. Verst and Cassius B. Gravitt, Jr , on various dates between December 4, 1968, and April 2, 1969. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, and by direction of the Regional Director for Region 9, this case was transferred to the National Labor Relations Board for decision. Briefs and motions were timely filed by the Employer and the Petitioner.' 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 reviewed the Hearing Officers' rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed 2 Upon the entire record in this case including the briefs filed herein the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organizations ' involved claim to represent certain employees of the Employer.' 'As the record, including the briefs , adequately set forth the issues and positions of the parties , the Employer's request for oral argument is denied On the record before us, we find that the Petitioner was in no way prejudiced by the Employer's alleged change of position as to the scope or composition of the unit as set forth in its brief We therefore deny Petitioner's motion to strike the Employer 's brief 'The Employer's motion to dismiss this proceeding , based on its contention that directing an election at this time would violate Sec 9(c) of the Act is found without merit and denied for reasons stated herein below 'Craftsman's Independent Union of A & M Division of the Bendix Corporation, hereinafter also called Independent, was permitted to intervene at the hearing on a showing of interest in the form of authorization cards We find without merit Petitioner's contention that independent is not a labor organization and in any event should be denied the right to intervene on the ground that its Articles of Incorporation permit no representation of a unit as broad as the one sought by the Petitioner The record reveals that Independent is an organization in which employees participate and which for the purpose in whole or part of representing employees herein for the purpose of collective bargaining for wages, hours , and other conditions of employment and it intends to do so if certified The record further reveals that Independent has members who have paid dues, and who have participated in union affairs Accordingly, 3 The instant petition seeks essentially a production and maintenance unit which was the subject of an election conducted heretofore by the Board The record shows that pursuant to a petition and hearing the Regional Director for Region 9 on July 8, 1964, issued his Decision and Direction of Election. On July 15, 1964, in an election among the employees of Sheffield Corporation, predecessor of the Employer, in which the appropriate unit was essentially similar to that sought herein, the International Union of Electrical Workers, Local 759, the present Petitioner, hereinafter also called IUE, lost the election and thereafter filed objections which were sustained. A second election was held on February 17, 1965 The IUE won and was certified by the Board In subsequent proceedings, the Board's Order finding that the Employer had violated Section 8(a)(5) and (1) of the Act was denied enforcement by the Court of Appeals (Automation and Measurement Division of The Bendix Corp v. N L R B , 400 F. 2d 141, reversing 163 NLRB 180), the court finding that the Board's first election on July 15, 1964, which IUE had lost, was a valid election and should not have been set aside. In view of the court's decision, the Employer at the present hearing moved to dismiss the petition on the ground that any election held would violate Section 9(c)(3) of the Act, which prohibits an election within 1 year of a valid election The Hearing Officer referred the motion to the Board. The Employer contends that the period of 12 months must be computed from a date at least no earlier than August 30, 1968, the date the court ruled the first election had been a valid election. We find this contention without merit It is settled Board practice in construing this part of Section 9(c)(3) to hold that in circumstances where a union loses an election, the Act allows the 12-month period to be measured from the date of the holding of the election.' Furthermore, we find no merit in the Employer's contention that it is entitled to a "year of quiet," from the date the representation issue is finally resolved in the courts, irrespective of the length of time it has taken to resolve such issue We can find no basis for such view in the language of Section 9(c)(3) or in Congressional intent expressed in its enactment. Moreover, as it happens, we find that the Independent is a labor organization within the meaning of Sec 2(5) of the Act and we shall permit it to intervene and appear on the ballot Butler Mfg Co, 167 NLRB No 39 'After the close of the hearing, International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, hereinafter also called UAW, filed a motion to intervene in this proceeding The Petitioner opposes this intervention UAW does not seek to raise new issues, it merely seeks to be placed on the ballot in any election that may be directed herein We are administratively satisfied that at the time of the hearing , UAW had a representative interest among the employees in the form of authorization cards , and has thus made an appropriate showing of interest that permits its intervention in this proceeding Accordingly, the UAW' s motion for intervention is granted and its name will be placed on the ballot See Carey Transportation Inc 119 NLRB 332, Stahl Manufacturing Co, 119 NLRB 1260, 1261 'Palmer Manufacturing Company , 103 NLRB 336 179 NLRB No. 18 AUTOMATION & MEASUREMENT DIV. 141 more than a year has elapsed since the August 30, 1968 date referred to by the Employer. The Employer's motion to dismiss the instant petition is therefore denied. Accordingly, we find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The Employer is engaged in the design, manufacture and marketing of capital equipment in the areas of dimensional control, machine tools, machine controls, environmental controlled enclosures, automation and contract services. This subject Division of the Employer's operations is divided into various departments namely. selling, patent, administrative, engineering and manufacturing The only department involved in the instant proceeding is manufacturing in the Dayton, Ohio, plant. Petitioner seeks in general a production and maintenance unit, similar to the unit heretofore found appropriate by the Board' except for the exclusion of "leaders " The Employer concedes that the hourly paid employees constitute an appropriate production and maintenance unit, although in general it leaves the unit determination to the Board. Issues, however, pertaining to the inclusion and exclusion of certain employees are discussed below Leaders Leaders are hourly paid employees working in various manufacturing departments A leader generally is the most experienced and skilled individual in his classification, and the one assigned to lead jobs. He receives 10 cents per hour above the top rate of the classification in which he is designated as a leader. Otherwise he shares the identical schedule of benefits and is subject to identical policies and procedures as all other hourly rated employees. The Employer's position is that 'The Petitioner would include these Departments in manufacturing 250 through 294 (apprentices) and 901 through 980 but would exclude these manufacturing departments 201, 260-1 and 260-2, 284, 285, 291, 292, 294 (co-ops), 990 (service representatives ) and 999 There appears to be no dispute concerning these departments with the exception of certain nonexempt salaried clerical employees in the manufacturing departments The Employer explained that nonexempt salaried employees are those who, although salaried , are paid overtime Except for the nonexempt salaried clericals, discussed below, the requested employees in these departments, are all hourly paid employees, who share common facilities, and enjoy the same fringe benefits, work in the same general location , have frequent contact with each other, and generally perform work in a certain sequence necessary to the manufacture of the Employer's products or perform services necessary for accomplishing such end We find, in view of the foregoing and the record as a whole, that they constitute an appropriate production and maintenance unit We are further satisfied that the functions, duties, and interests of the employees in selling, patent, administrative and engineering groups, referred to as part of the "planning stage" of the Employer's operations , are neither plant clericals nor technical employees and have no community of interest with production leaders are not supervisors and that as hourly rated employees they are an appropriate part of the production and maintenance unit. The Petitioner, in general takes the same position that leaders are not supervisors, but maintains that leaders Louis Requarth and Victor Sears exercise supervisory authority. The record supports the Petitioner's contentions that Requarth and Sears possess certain indicia of supervisory authority. We find, on the evidence in the record now before us that leaders, except for Requarth and Sears, are not supervisors within the meaning of the Act, and accordingly we shall include them in the unit herein found appropriate. Louis Requarth is classified as a precision grinder specialist leader in Department 910-Grinding Department. Unlike other leaders he devotes the majority of his time to instructing other employees in his department rather than performing manual labor; he reprimands employees for violating plant rules, requisitions materials; uses independent judgment in making job assignments of more than a routine character and in assigning overtime in his own department; and discusses grievances with employees. In the absence of Supervisor James Osborne, Requarth assumes full responsibility for Departments 910-2 and 911, and on such occasions he may transfer employees from one department to another; attend foremen's meetings; approve other employees' timecards and exercise general responsibility for the flow of the work through these departments. Employees have been informed by Osborne that they are to follow Requarth's instructions without question and they regard him as "boss " Accordingly, in view of the foregoing and the record as a whole, as Requarth uses independent judgment in making job assignments, and assigns overtime, is responsible for the flow of work through the departments, enforces plant rules and discusses grievances, we find that he is a supervisor and shall exclude him from the unit. Victor Sears is classified as a tool and die leadman in Department 967-Cavitron, where he exercises the same general control over the employees and operations in his department as Requarth does in Department 910 In addition, he recommends employees for promotion based on his evaluation of their job performance; regularly attends foremen's meetings; is assigned a special parking space, and like other supervisors has a desk in an enclosed office in the shop area. On at least one occasion, he also recommended that an employee be hired which recommendation was followed. Like foremen, who are admitted supervisors, he distributes paychecks to employees. In view of the foregoing and on the record as a whole, we find that Sears is a supervisor and accordingly shall exclude him from the unit. and maintenance employees Hence, we do not include them in the unit found appropriate herein 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Acting Foreman Thomas A Search is employed in Department 946-Machine and Tool Assembly with approximately 30 employees Search is classified as Acting Foreman but is hourly rated He spends the majority of his time arranging work for employees, exercising his judgment as to the employee best able to perform a particular job. He also instructs employees in the performance of their assignments and maintains a close check on the work performed. Search has a desk in the same enclosed office with Foreman Robert Hauck and Superintendent Sheets. He also participates with Hauck in interviewing applicants for employment; attends supervisors' meetings, independently assigns overtime; transfers employees within the department, has authority to approve corrections on timecards; discusses employees' work performance with the foreman and makes recommendations; discusses grievances with employees, and grants time off. The Employer concedes that Search has the authority to recommend rate increases for employees and that such recommendations would ordinarily be followed, and that he exercises independent judgment in assigning work Accordingly, we find Search is a supervisor and shall exclude him from the unit found appropriate herein. Co-ops Department 294 --- Apprentices Although termed "co-op" employees, these individuals are not employed pursuant to any established plan with local school authorities The co-ops are college students in electrical engineering and work in product engineering, research and development or marketing. Because of the brevity of their employment, they do not have the same fringe benefits, as regular employees, such as vacations, health and life insurance. They are not eligible for pensions; do not have the same progression schedule; and few of them become regular employees. They move from position to position, and, as noted, they are outside the manufacturing area In view of the brevity of their employment, nature of their duties, location, and dissimilar working conditions, we find that co-ops do not share a community of interest with production and maintenance employees and therefore exclude them from the unit herein found appropriate Plant Clericals The Petitioner would include, as plant clericals, certain employees whose duties and classifications appear below. The Employer contends that as these clerical employees are salaried, and perform functions within the "planning stage" of the 'Crest Wine and Spirits Lid, 168 NLRB No 99, Sandy's Store, 163 NLRB 728, Colecraft Mfg Co, 162 NLRB 680, 688-689 operations, they do not share a community of interest with hourly rated production and maintenance employees, and should not be included in a unit of production and maintenance employees who are considered a part of the "work accomplishment stage" of its operations. The Petitioner nevertheless contends that the following employees are plant clerical employees and are therefore appropriately part of a production and maintenance unit Expediter, Department 272 - Production Control The expediter's primary responsibility is to keep all jobs moving through the various departments and to exert special efforts on "critical" jobs. His principal function is to see that certain jobs are expedited and completed within the alloted time and in a priority sequence. In the performance of this duty, the expediter orders delivery of parts and other material to the job and on occasion obtains and deliver them himself. His work is performed in the production area, and he is in constant contact with production and maintenance employees. He also checks on the progress of jobs. Expediters voted in the prior Board-conducted election as a part of the production and maintenance unit. Schedulers, Department 270 Material Control The scheduler's principal function is to maintain stock records of material, order material for store supply and schedule purchased material to arrive in time for its use in the production process His work brings him in contact with production and maintenance employees. Schedulers voted as a part of this unit in the prior Board-conducted election. Although expediters and schedulers may for the Employer's administrative purposes be considered a part of its "planning stage" operations, it is obvious that their work is concerned with the production process and that they are in constant contact with production and maintenance employees.' In view thereof, we find that expediters and schedulers are essentially plant clerical employees and have a closer community of interest with production and maintenance employees than they have with office clerical employees. Accordingly, we shall include them in the unit. 'Litton Industries of Maryland, 125 NLRB 722, Weyerhauser Company, 132 NLRB 84, 85 Although the Employer believes that expediters, and schedulers have common interests , with processors who, the Petitioner contends and we find, should be excluded , it is clear that the tatters' work is mainly, if not entirely , concerned with process engineering and has no direct apparent relation to manufacturing operations AUTOMATION & MEASUREMENT DIV. 143 Clerk-typist, Department 270 - Material Control Caroline Treadwell is the clerical in that department Her principal duties are to type manufacturing orders and file status sheets. A number of copies of the manufacturing orders are made at one time and distributed to the various departments so as to begin and complete the order as requested. She has her desk in the same office as the schedulers and has the same supervisor as they have. The status sheets that she files are used by the schedulers in their work. Keypunch operator, Department 272 -- Production Control Dianna Jelick works in an office located in the shop area where the expediters work; has the same supervisor they have; does departmental filing and answers the phone calls for expediters employees working in the "work accomplishment stage," nevertheless work in the same area as production employees, have constant or frequent contact with them, or other clericals included in the unit, and share certain common supervision with them It is evident that their work is essentially in furtherance of the production process The fact that the clerical employees are salaried is in itself insufficient to exclude them from a unit of predominantly hourly paid employees.9 Accordingly, we find that the clerk typist in Department 270,10 the key-punch operator in Department 272, the stenographers in Departments 286 and 962," and the senior manufacturing clerk Department 962,11 have a close community of interest with production and maintenance employees and perform duties which are essentially those of plant clerical or production employees." Therefore, we shall include them in the unit found appropriate herein. Secretary-Stenographer, Department 990 - Customer Service Stenographer, Department 286 - Housekeeping & Maintenance Ada Grev Hall works in the maintenance office where she posts the time reported on cards by the employees of the department; receives repair orders called in by employees and supervisors, handles maintenance mail which she picks up from the mailbox located in the factory area; has constant contact with maintenance employees; has essentially the same hours and lunch period as maintenance employees and voted in the last election. Stenographer, Department 962 - Multiple Air Gage Assembly Ruby Gavlor is employed in a shop office in the middle of the production area; does all the typing required by the general foreman and other foremen, types and maintains some shipping department records and shop records, and on occasion assists the service department clerical in any overload work arising in that department; she has frequent contact with production employees. Senior Manufacturing Clerk (same department) Cecil R Jette maintains a record of all shop jobs and a daily record of items in process of manufacture for certain manufacturing departments. In addition, he checks and fills shop orders and maintains time records on indirect labor. He works in the same department as Ruby Gaylor, and has frequent contact with expediters. In view of the foregoing and the record as a whole, we find that the clerical employee noted above, although nonexempt salaried and referred to by the Employer as working in the "planning stage," as distinguished from the hourly paid Marjorie J. Fitz is attached to and on the payroll of the customer service department. Most of her work is performed in the shop area. She types orders for service calls, service records, servicemen's time and expense accounts, initiates travel arrangements for servicemen, writes requisitions and physically secures requisitioned parts from the storeroom and sees that these parts are packed for shipment; she also computes charges for service calls and handles customers' service calls. Her duties are principally concerned with and in aid of the field service employees who are excluded from the production and maintenance unit. As we find that her interests are more in common with field service employees than production and maintenance employees, we shall exclude Marjorie J. Fitz from the unit of production and maintenance employees. Accordingly, we find the following employees constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All production and maintenance employees of the Employer at its Dayton, Ohio, plant, including plant clerical employees, truckdrivers, expediters, and schedulers, but excluding office clerical employees, technical employees with diverse interests, co-op students, field service employees, the secretary-stenographer in the service department, managerial employees, and professional employees, guards, and supervisors as defined in the Act. 'Sperry Piedmont Company. 162 NLRB 857, 860 "Challenge-Cook Brothers . Inc. 129 NLRB 1235, 1239 "Barber-Colman Company. 130 NLRB 478, 480 (Superintendent's clerk), Ben Pearson's Inc . 133 NLRB 636, 638 1lbld "Litton Industries of Maryland, Incorporated , 125 NLRB 722, 725-726 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [Direction of Election14 omitted from publication ] in order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company, 394 U S 759 Accordingly , it is hereby directed that 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 9 within 7 days of 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