Lockheed Aircraft Corp.

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lockheed-California Company, a Division of Lock- heed Aircraft Corporation' and International Association of Machinists & Aerospace Workers, AFL-CIO, Petitioner. Case 31-RC-2394 December 1, 1973 DECISION AND DIRECTION OF ELECTION BY CiIA MAN MILLER AND MEMBERS JENKINS AND KENNEDY Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Norman H. Greer. 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 31, this case was transferred to the National Labor Relations Board for decision. Thereafter, the Employer and Petitioner filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon the entire record in this case, including the briefs of the parties, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the policies of the Act to assert jurisdiction herein. 2. The Petitioner and the Intervenor 2 claim to represent certain employees of the Employer. 3. We find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. Petitioner seeks to represent a unit of all aircraft pilots and flight engineers, excluding supervi- sors. The Employer contends that pilots, except engineering test pilots employed on the U-2 project, are either supervisors or managerial employees and should be excluded from any unit. The parties agree that if the pilots whom Petitioner seeks to represent are excluded, a unit limited to flight engineers and U-2 pilots is appropriate. The Employer is engaged in the manufacture of L-1011 commercial aircraft, and P-3 and S-3A military aircraft in Burbank, California. It employs, inter alia, 26 pilots, classified as engineering test pilots, pilots, and transport pilots. The engineering test pilots are engaged in flight tests during the experimental and developmental stage in new types of aircraft of modified aircraft already in production. Their primary function is: to fly "the various tests that are laid down by the Federal Aviation Administration (FAA), to prove the aircraft airworthy and to satisfy the requirements" of the Employer and the customer. Typically the engineering test pilot, after the plane is airborne,3 conducts some preliminary tests on the basic systems of the aircraft and then proceeds to test the plane's subsystems pursuant to the predeter- mined flight plan.4 If any tests are not completed to his satisfaction, he has the authority to retest, to proceed to test other systems, to initiate, other tests not on the flight plan, or to abort the flight at that point. After the test flight is completed a flight test report is written, and signed by the pilot, giving details about what tests were made, and indicating whether subsystems functioned according to specifi- cations. Employees classified as pilots fly each plane produced for sale to customers. On production flight tests, they check out the aircraft and its systems to ensure that it conforms to the specifications of the customer, and, in the case of commercial aircraft, to FAA Certification requirements. When the plane is deemed to have met customer and FAA require- ments, the pilot delivers the plane to the customer. When making L-1011 deliveries, pilots may be required to remain away from the home plant in order to train customer pilots. The basic duties of transport pilots are similar to those of engineering test pilots and pilots, but they do not test aircraft. They fly Employer-owned planes to transport personnel and cargo to and from Burbank. The pilot is responsible for ' necessary maintenance, refueling, and other care of the plane while it is away from its home airport. They see to it that other crew members, i.e., copilot and flight engineer, are on "standby" to conduct the return flight. On engineering and production test flights, the crew in the L-1011 consists of two pilots, one of whom is in command, with the other designated as copilot, one or two flight engineers, and between 1 The Employer's name appears as amended at the hearing. starting the engines, taxiing, and working with the control tower under 2 Engineers and Scientists Guild , Lockheed Section, was allowed to instrument flight rules .intervene and participate in the proceeding on a sufficient showing of 4 The test flight plan is made up in advance by various engineers and interest. pilots pursuant to FAA and customer requirements- 3 There is also a preflight procedure for all pilots; i.e, prestart checks, 207 NLRB No. 92 LOCKHEED-CALIFORNIA COMPANY 687 20-25 test personnel. The P-3 on an engineering flight test carries a normal crew of two pilots, two flight engineers, and four or five electronic instru- ment operators. The crew of the S-3A on engineering tests consists of two pilots and two electronic specialists. The Employer also delivers L-l011 aircraft to customers away from Burbank. On these deliveries the flight crew consists of two pilots and a flight engineer. A pilot has the responsibility of taking care of any problems that come up on the trip and to "get the crew back home." At the time of the hearing, some pilots were in England training customer pilots to fly the L-10I1 aircraft. The pilot in charges of this training detail has the responsibility to oversee the whole operation; i.e., coordinate schedules and assign Lockheed crews to train the customers' crews. Section 2(11) of the Act defines "supervisor" as follows: The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recom- mend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. The several authorities listed in Section 2(11) are stated in the disjunctive, and, accordingly, the Board and the courts have held that the possession of any one of the enumerated functions is sufficient to classify an individual as a supervisors All pilots in issue are assigned alternatively as pilot or copilot on a regular basis. The Employer requires that all pilots have a commercial license, and that all flights comply with Federal Aviation Administration (FAA) regulations. Part 91.3 of the Federal Aviation Regulations specifically provides that the pilot in command of an aircraft "is directly responsible for and is the final authority as to the operation of that aircraft." As part of this responsibility, the pilot is in control of all other personnel aboard the plane while it is in flight. In the case of the L-1011 experimental flight tests and production flight tests, the number of persons aboard the plane consist of the 4-man crew, and up to 25 other persons who are engaged in the performance of various test or inspection activities. 5 The individual in charge of this group was the chief pilot of flight crew training, a supervisor. In the future, however, Lockheed plans to designate other pilots to supervise similar groups. The individuals so designated will have authority to make assignments to various revenue flights, coordinate flight schedules, oversee the Employer's operation, and order the return to home base of any Lockheed employee for discipline. 6 NLRB. v. Edward G. Budd Manufacturing Co., 169 F.2d 571, 576 (C.A. 6), cert. denied 335 U.S. 908; Ohio Power Company v. N.LR.B., 176 In the case of the P-3, the crew consists of three persons, with usually six inspectors and test person- nel. In the case of the S LM, there are always four persons aboard the aircraft. In preflight the pilot in charge gives directions to the crew relating to the entire flight plan. His postflight duties relate to debriefing sessions on the results of various tests during the flight with the crew and engineering personnel. During any flight he is responsible for the safety of the crew, for the safe and efficient operation of the plane, and for the completion of all tests. He has authority to make deviations from predetermined tests either by (a) aborting a flight or a particular test, or (b) conduct- ing other tests, or (c) retesting a subsystem. While on assignments away from the plant, a pilot, designated as chief pilot, instructs crew members as to where and when to report for work and grants time off. The direction which the pilot exercises over crewmen and other personnel aboard the plane is not merely routine or clerical in nature but involves independent judgment and great responsibility. Whether a test program or a flight will be successful- ly completed depends on the judgment of the pilot. A miscalculation on his part can result in injury or death to the personnel aboard the plane and to the damage or destruction of the plane. The pilot's authority and responsibility is therefore anything but routine. The direction which a plane pilot exercises with respect to crewmen and other personnel aboard a plane is at least comparable to the authority which a ship's captain or pilot exercises as to ship's crew personnel. In a number of cases, the Board has found that ships' captains and pilots responsibly direct ships' crews and on this ground alone has found the captains and pilots to be supervisors.? We find, therefore, that the pilots, except the U-2 pilots, are supervisors within the meaning of the Act. Accord- ingly, we shall exclude them from the unit-8 As previously stated the parties agree that a unit of flight engineers and U-2 pilots may be appropriate. Accordingly, we find the following unit of employees to be appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All U-2 pilots, flight engineers-flight operations, and flight engineers-engineering test, employed at the Employer's Burbank, California, operation, F.2d 385 (C.A. 6); Mardri4 Inc., 119 NLRB 1174, 1181. ' Bernhardt Bros. Tugboat Service, Inc., 142 NLRB 851, 854, enfd. 328 F.2d 757 (C.A. 7); Local 2a international Organization of Masters, Mates and Pilots, AFL-CIO, etc., 136 NLRB 1175, 1203-04; Mardnd Inc., 119 NLRB 1174,1181-82. 8 In view of our finding that pilots are supervisors, we find it unnecessary to pass on the Employer's alternative contention that pilots are managerial employees. 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excluding all other employees, pilots, engineering watchmen, guards, and supervisors as defined in test pilots, transport pilots, technical employees, the Act. office clerical employees, professional employees , [Direction of Election and Excelsior footnote omitted from publication.]