Textron, Inc.

BELL AEROSPACE COMPANY Bell Aerospace Company, Division of Textron, Inc. and International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, Amalgamated Local 1286 , Petitioner. Case 3-RC-4987 May 20, 1971 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer James J. Palermo. Fol- lowing the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regula- tions and Statements of Procedure, Series 8, as amended, by direction of the Regional Director for Region 3, this case was transferred to the National Labor Relations Board for decision. Briefs have been filed by the Employer and the Petitioner. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case, including the briefs filed by the parties, 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 organization involved claims to repre- sent certain employees of the Employer. 3. The Petitioner seeks to represent in a single unit all employees in the purchasing and procurement de- partment of the Employer's Wheatfield, New York, plant classified as buyers. However, near the close of the hearing, the Petitioner proposed that if the buyers alone did not constitute a separate appropriate unit, Petitioner was willing to expand the unit and include certain other employees from the purchasing and pro- curement department. The Employer maintains that neither unit is appropriate. Its principal opposition to the petition is that the buyers are managerial employees and do not constitute an appropriate unit for purposes of collective bargaining under the Act. With the issu- ance of the Board's decision in North Arkansas Electric Cooperative, Inc.,' the Employer has supplemented its position and now maintains that the buyers, whether managerial or not, may not be given representation rights. In North Arkansas Electric, we found that, with the limitations there noted, "managerial" employees are employees within the meaning of the Act and entitled to its protection. In our opinion their prima facie status as employees under the Act ordinarily entitles them not only to the protection of the Act, but to the full benefits ' 185 NLRB No 83 431 of the Act and the right to be represented for the pur- poses of collective bargaining. Therefore, even though, as the Employer argues, the buyers may be "managerial" employees, we are of the view that as employees they are entitled to be represented under the Act, unless there is some cogent reason for denying such representation.' The Employer contends that there is such a reason. It argues that buyers, whether considered managerial or not, are to be denied representation because there would exist a potential conflict of interest between the buyers as union members and the Employer. Essen- tially the Employer maintains that the potential con- flict is in the fact that the "buyers have authority to commit the Employer's credit in enormous aggregate amounts, select vendors, cancel contracts and substi- tute other vendors, and negotiate purchase prices." In this connection, the Employer argues that if union con- siderations were to influence the buyers' decisions re- garding vendor selection and prices, buyers could be more receptive to bids from union contractors as op- posed to nonunion contractors and adversely affect the Employer's business. The Employer further contends that the buyers could influence decisions as to "make or buy" items in favor of "make," thus creating addi- tional work for sister unions in the plant and that with the restrictions on hiring and discharging of employees, which might come with certification, it would be at a hardship in dealing with its employees should the above-mentioned events occur. On the record, we find no merit in the Employer's position. While it is true that the buyers are in a posi- tion to commit the Employer's credit, the record re- veals that the discretion and latitude for independent action must take place within the confines of the gen- eral directions which the Employer has established. Thus policy guides for "make or buy" decisions can clearly be established and enforced, so that any possible temptation to allow sympathy for sister unions to influ- ence such decisions could effectively be controlled by the Employer. Additionally, the record reveals that the buyers cannot commit the Employer's credit for amounts above $5,000 without the concurrence of higher authority. Procurement Director Seitz testified regarding the procedure likely to be followed when a buyer recommends a purchase order in excess of $5,000, that "of course as it [the cost] goes up the level of review more people get to look at it. More people get to question it. They question the buyer's discretion, his ' Member Jenkins sees nothing in the record to support the Employer's contention that these employees exercise managerial functions , and consid- ers them "employees" within the meaning of the Act to the same extent as production and maintenance employees Member Kennedy is of the view that the Board must find, in this case, that the buyers are managerial em- ployees, to support its conclusion that the buyers constitute an identifiable, homogeneous, and, hence, separately appropriate unit He would so find in this case 190 NLRB No. 66 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD judgment, how did you arrive at the conclusion this is a good package which he is offering for approval." Nor can they cancel an order and select an alternate vendor without the concurrence of other officials if the amount involved exceeds $5,000. Testimony also tends to show that in many instances the type of item to be procured will limit the buyer to a particular vendor. Thus the record fails to convince us that the purchas- ing discretion of the buyers is either presently so unbri- dled or potentially so uncontrollable as to create the possible problems of which the Employer complains. The problems raised seem to be more in the nature of unsupported conjecture. Nor do we find any merit in the Employer's conten- tion that any hiring and discharge restrictions likely to follow certification will affect its ability to deal with the employees. The Employer would still retain the power to discipline or discharge employees for improper per- formance of duty, subject only to such limitations as he might agree to during negotiations. Experience under the Act indicates no reason to believe that employers generally lightly bargain away their disciplinary con- trol over employees, and we see no reason why any different situation should be contemplated here. Accordingly, as the evidence before us fails to dem- onstrate that representation of the buyers would neces- sarily create a conflict of interest in the circumstances here present,' and as we have otherwise found that they ' We are of the view that this is a factual issue, to be determined on the are entitled to the protection of the Act, we find the Employer's apprehensions insufficient to deprive the buyers of representation. We therefore find that a ques- tion affecting commerce exists concerning the represen- tation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. We find on the basis of the foregoing that the following employees of the Employer constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All Buyers in Department 121, the Purchasing and Procurement Department, at the Employer's Wheatfield, New York plant, excluding all pro- duction and maintenance employees, all office clerical employees, professional employees, guards and supervisors as defined in the Act. [Direction of Election' omitted from publication.] record of each case, in which any particular segment of managerial em- ployees may seek to be represented by a labor organization 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 ad- dresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, NLRB v Wyman-Gordon Co, 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 3 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 extraordi- nary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed