Dynalectron Corp.

DYNALECTRON CORPORATION Dynalectron Corporation and International Brother- hood of Teamsters, Chauffeurs, W'arehousemen and Helpers of America, Local Union 146, Peti- tioner. Case 27-RC-5400 August 31, 1977 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 by Hearing Officer Hobart Corning on December 14, 1976, at Pueblo, Colorado. Thereaf- ter, a reopened hearing was held before Hearing Officer Robert L. McCabe at the same location on January 14, 1977. Pursuant to Section 102.67 of the National Labor Relations Board Rules and Regula- tions, Series 8, as amended, this case was transferred by direction of the Regional Director for Region 27 to the National Labor Relations Board for decision. Thereafter, the Employer and the Petitioner each filed a brief. The Board has reviewed the Hearing Officers' rulings made at the respective hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon the entire record in this proceeding the Board finds: 1. The parties stipulated and we find that 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 represent certain employees of the Employer. 3. A question affecting commerce exists within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The Employer is a diversified engineering, contracting, and technical services company head- quartered in McLean, Virginia. It has operating divisions and subsidiaries in several States and some Canadian provinces. In 1976, the transportation service division of the technical services group was awarded the contract for operation and maintenance of the United States Government Test Center at Pueblo, Colorado. The Petitioner seeks a unit limited to the production and maintenance employees at the Employer's Pueblo, Colorado, transportation test center. The Employer takes the position that the unit must include all employees engaged in technical and logistical support services for programs at the transportation test center in Pueblo, Colorado. Thus, as we read the record and the briefs of the parties, it 231 NLRB No. 185 appears that they agree that a plantwide unit is appropriate. They disagree, however, with regard to the technical employees whom the Petitioner would exclude, and whom the Employer would include, in a plantwide unit. The record reveals that this is a unique facility for the testing of railroad and mass transit rail vehicles. Thus, it is not a production facility in the traditional sense because no product is produced. Rather, the operation consists of conducting tests and the end products are the test results which are provided to the Government. The Employer has a group of employees grouped under the general management heading of technical services. The Petitioner contends that all these employees, with the exception of the driver/courier, should be excluded from the unit. In its brief, the Employer concedes that these employees are techni- cal employees within the meaning of the Act. Nevertheless, however, it contends that because of the nature of its operation and the interrelationship between these and other groups of employees they must be included in the unit. As noted, the principal function of the transporta- tion test center is to test various types of equipment, and the functions carried on at the center are so complex as to make comparison with ordinary manufacturing plants and processes misleading. The test activities which are among the major duties of all employees are not separate steps in the production process, as in other types of manufacture, but constitute the production process itself.' Thus, the Employer's "total site support" contract in this case includes technical engineering services of a broad nature-from the operation, maintenance, and logistical support of the basic site facilities to the actual maintenance and operation of rail vehicles. The evidence shows that many job functions interre- late and involve several different job skills, depend- ing on the particular type of test being conducted at a given time. The record further reflects that all employees, including the technicals, share the same work hours, benefits, similarity of skills, and jobs, and, in many instances, common supervision, wage and salary program, standards of employment, and work location. Regarding the technicals whom the Union wants excluded, the record reveals that the statement above is also true of them. Thus, Earl Thompson, manager of technical services at the transportation test center, testified that the electronic technicians from the rail dynamics laboratory do cabling in concert with, and sometimes in place of, electronic technicians in the facilities services department. As an example of See. e.g.. The Boeing Company. 144 NLRB 1110 (1963), citing Airesearch Manufacturing Company of Arizona. a Division of the Garret Corporation, 137 NLRB 632. 635 (1962). 1147 DECISIONS OF NATIONAL LABOR RELATIONS BOARD overlap of functions, Thompson further testified that with regard to placer cars "which the people in Technical Services operate and also act as a pilot for those cars . . . that function is also performed by the people in the Track and Guideway section of Facilities Services as well as the Rail Operations people in Vehicle Services." Giving a further example of how the technical employees have contact with other employees, Thompson testified at the reopened hearing that the computer operator, for example, operates the compu- ters, some of which are located in the rail dynamics laboratory, and associates with electronic techni- cians. When they operate computers for the rail vehicles, they are working with rail operations people who operate the vehicles or transit cars and with the electrical technicians. The Employer produced evi- dence of other instances in which the technicians worked closely with employees of other departments where special power and testing were needed to move some computer operations from the rail dynamics laboratory to the operations building. In such instances, electronic technicians have worked along with people from the facilities services department toward that end. In another test situation designed to record the impact of two trains to determine what causes a train to puncture, the photographers will come out and set up the cameras in conjunction with the electrical people and actually help lay cable and control and record the activity, as they are part of the test team and responsible to the support engineer. In some instances, there may be as many as 14 or 15 different skills involved in a particular test. In view of the foregoing, and in view of the unique nature of the work performed by the Employer, we are of the view that the technical employees, on the facts of this case, must be included in the overall plantwide unit.2 Inasmuch as the Petitioner expressed interest in participating in an election in any unit found appropriate, we shall direct an election in that unit. The Petitioner contends that persons designated as foremen in the various service departments set forth in the Employer's proposed unit description are supervisors and should be excluded from the unit. It also contends that two other individuals, listed as 2 Our dissenting colleagues acknowledge that in The Sheffield Corpora- lion, 134 NLRB 1101 (1961), the Board reversed its previous practice of automatically excluding technical employees from production and mainte- nance units whenever their unit placement was in issue. They then proceed to ignore its teachings by stating in effect that technicals must automatically be excluded because their exclusion has been requested by the Union in this case. We see no reason for stating that the technical employees here have no interests in common with the production and maintenance employees. In this connection, while our dissenting colleagues contend the record is "sketchy" regarding factors supportive of finding the existence of a community of interest. we note that they have set forth no factors which yardmaster and motor pool dispatcher, should also be excluded as supervisors. Gustave A. Peyer, manager of facilities services, testified that the persons classed as foremen are hourly paid and are at the next level below the salaried personnel who are admitted supervisors. A foreman was further described as being both "a work and assigner" of tasks. Thus, when a task is handed to him by a supervisor, he will delegate work to persons in his shop. Peyer testified further, "[H ]e also performs the work and in fact he is probably, and by virtue of being foreman, the senior journeyman ... the most skilled journeyman in the shop." These foremen receive the same benefits and have the same hours and work conditions as do the other employees. They do not have the authority to hire and fire or to effectively recommend such action. If the work to be done on a particular day is not completed, overtime must be approved by a supervi- sor. On the basis of the foregoing, we are of the view that these individuals designated as foremen are leadmen rather than supervisors within the meaning of the Act. Thus, we note that their work conditions and benefits are the same as those of other employees. Their role in making work assignments is routine and dictated by the task assigned by a supervisor and does not require independent judg- ment. Accordingly, we shall include them in the unit. Regarding the yardmaster, the record reveals that his is the responsibility of locating railcars in the yards. Upon receiving a request from someone who wants a car moved, he will make out a switch list and assign various operators to perform the task. Most of the requirements for the location of cars, however, are established by the Government, the test support department, or someone else. Inasmuch as the yardmaster does not otherwise possess supervisory indicia, we find that he too is an employee and entitled to vote.3 The Petitioner contends that the employees classi- fied as records, property, and reproduction clerks should be excluded from the unit. The record reveals that the property clerks are assigned to the property group. They conduct property surveys and are responsible for all Government property which comes to the site. The record clerk is assigned to require a result different from that reached herein. They ignore the fact that, absent evidence to the contrary, a production and maintenance unit, including technicals, is appropriate under Sheffield Their position thus is consistent with the line of cases preceding Sheffielda which give primacy in unit placement to the parties' disagreement rather than the community of interest that the technicals in this case have with the production and maintenance employees. 3 The parties agreed that the switchboard operator and the emergency service personnel should be excluded from the unit. Since the record fails to establish exactly the situation regarding the motor pool dispatcher and the draftsman, we shall permit them to vote subject to challenge. 1148 DYNALECTRON CORPORATION several of the Employer's sections and keeps track of materials and supply records. The reproduction clerk runs the reproduction room which primarily involves the operation of Xerox machines. The above-described jobs are performed primarily in the warehouse. Accordingly, we find that these are plant clerical positions and the persons performing such tasks are entitled to vote. At the hearing, the Petitioner took the position that the two buyers and the expediter should be excluded from the unit on grounds that they are managerial employees. While the record shows that the buyers are responsible for placing all procurement for services and supplies, it also shows that they have no purchasing power inasmuch as all material requisi- tions must be approved by management before they get to the buyers. The position of expediter is a new classification to help in the paper process of getting information back on the status of a particular procurement to a person who has requested an item. As the record does not otherwise show that the expediter and the buyers exercise any kind of discreticn which makes them a part of management, we conclude that they are rank-and-file employees within the meaning of the Act and may be included in the unit. Based upon the foregoing, the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All technical, maintenance and plant employees, and clerks of the Employer engaged in technical and logistical support services for programs at the Transportation Test Center, Pueblo, Colorado and assigned to the following Departments of the Employer: Facilities Services, Vehicle Services, Technical Services, Management Services and Project Management, excluding office clerical employees, guards, firemen, salaried, administra- tive, executive and professional employees and supervisors as defined by the Act. [Direction of Election and Excelsior footnote omitted from publication.] CHAIRMAN FANNING and MEMBER JENKINS, dissent- ing: Although the Petitioner sought a unit limited to production and maintenance employees at the Employer's Pueblo, Colorado, transportation test center, the majority concludes that an appropriate ; It appears certain from the record that some classifications of technical employees swork exclusively in the rail dynamics laboratory, have little or no contact with service and maintenance employees. and spend a large part of their workday in contact only with other technicals and with professional engineers. unit herein must include technical employees. Be- cause this result represents a departure from the approach traditionally taken by the Board in similar cases involving unit determinations, and because of the absence of special facts or circumstances in the instant case which might justify such a departure, we must dissent. The Employer's test center employees are assigned to one of five operating departments-facilities services, vehicle services, emergency services, man- agement services, and technical services-each of which is under the general supervision of a depart- ment manager. All of the approximately 94 employ- ees in technical classifications are assigned to the technical services department. According to the Employer's industrial relations supervisor, all or nearly all of the employees in technical classifications in the technical services department are physically located in the rail dynamics laboratory which is separate from other buildings at the center. In requiring the inclusion of technical employees in the unit found appropriate, our colleagues rely on what they characterize as the "unique nature" of this Employer's work. They suggest also that the record convincingly demonstrates an interrelationship of job functions and skills, as well as a commonality of terms and conditions among all groups of test center employees, which warrants the result they reach. In this regard they note testimony offered by the Employer's witnesses concerning two or three in- stances in which technical employees have come in close contact with other test center employees in connection with particular tests being conducted at the facility. In fact, the record evidence relied on by my colleagues is at best sketchy and unpersuasive. Although on occasion, for a specific test procedure, some classifications of technical employees may work closely with other groups of employees, there is no clear evidence in the record either of the frequency with which this occurs or of the number of technical classifications that may be involved.5 Moreover, even when technical employees are temporarily assigned to work on a special test project of the type described in the majority opinion, the record testimony indicates that as often as not technical employees and other groups of employees are not working concurrently on the project and are not working under common supervisions It is well settled, of course, that a petitioned-for unit need only be an appropriate unit, rather than the 6 Thus, for example, the testimony of the manager of the facilities services department indicates that, although maintenance employees from his department may be assigned temporarily to a test project, much of their work may he done in advance of the actual testing procedures and under the immediate supervision of foremen from the facilities services department. 1149 DECISIONS OF NATIONAL LABOR RELATIONS BOARD most appropriate unit. Morand Brothers Beverage Co., et al., 91 NLRB 409 (1950), enfd. 190 F.2d 576 (C.A. 7, 1951). And the Board has noted that "the Act does not compel labor organizations to seek representation in the most comprehensive grouping of employees unless such grouping constitutes the only appropriate unit." Federal Electric Corporation, Western Test Range, 157 NLRB 1130, 1132 (1966). In The Sheffield Corporation, 134 NLRB 1101 (1961), the Board reconsidered and reversed its previous practice of automatically excluding technical employ- ees from production and maintenance units whenev- er their unit placement was in issue. The Board announced that henceforth it would make a pragmat- ic judgment in each case, considering, inter alia, the desires of the parties, common supervision, similarity of skills and job functions, contact and/or inter- change, whether technical employees work in sepa- rate areas, and whether any union seeks to represent technical employees separately. 7 Cf. Electronic Research Company, 214 NLRB 587 (1974). What is critical in the instant case is that the Union, in petitioning for a production and mainte- nance unit excluding technical employees, is seeking a unit that is clearly an appropriate unit for collective bargaining. The fact that in other circumstances the Board, applying the Sheffield criteria, might find a broader unit including technical employees also to be an appropriate unit is irrelevant.7 Certainly the vague and incomplete testimony about the alleged similari- ty of job skills of employees in one or two technical classifications and employees in other departments, and the equally vague and incomplete references to occasions on which some technical employees may come in close contact with other center employees in connection with a particular test do not warrant a different conclusion or justify the majority in the decision they reach herein. Accordingly, we would direct an election in the production and maintenance unit described in the petition. 1150