Westinghouse Electric & Mfg. Co.

In the Matter of WESTINGHOUSE ELECTRIC & MFG. Co. and ASSOCIA- TION OF WESTINGHOUSE SALARIED EMPLOYEES Case No. R-103-Decided January 19, 19./0 Electrical Apparatus Manufacturing Industry-Investigation of Representa- tives : controversy concerning representation of employees : employer's refusal to bargain with labor organization without certification by Board-Unit Appro- priate for Collective Bargaining : salaried ( as distinguished from hourly paid) employees excluding "salaried production" ( i. e., plant clerical ) employees, in- spectors , inspectors' stenographers , powerhouse employees, and supervisory em- ployees ; ( Madden ) excluded groups, being fringe groups which might logically be included with either hourly paid or other salaried employees, should be ex- eluded in absence of any showing as to preferences of substantial number. of employees in groups ; ( Smith, concurring ) exclusions should be based on nature of work and history of collective bargaining ; ( Leiserson , concurring in part, dissenting in part ) excluded groups, being classifiable with either hourly paid or other salaried employees, should be excluded in absence of showing as to wishes of employees in groups , but their wishes should immediately be ascertained through separate election-Election Ordered Mr. Robert H. Kleeb, for the Board. Mr. William E. Miller, of Pittsburgh, Pa., for the Company. Mr. Robert W. Allison, of Pittsburgh, Pa., for the Association. Mr. Charles Newell, of East Pittsburgh, Pa., for the United and for Local No. 301 of the Federation. Mr. Julius M. Emspak, of New York City, for the United. Mr. Joseph Forer, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 22, 1939, Association of Westinghouse Salaried Em- ployees, herein called the Association, filed with the Regional Director for the Sixth Region (Pittsburgh, Pennsylvania) a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Westinghouse Electric & Mfg. Co., East Pittsburgh, Pennsylvania, herein called the Company, and requesting an investigation and certification of representatives pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein 19 N. L. R. B., No. 70. 640 WESTINGHOUSE ELECTRIC .& MANUFACTURING COMPANY 641 called the Act. On October 20, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation and author- ized the Regional Director to conduct it and to provide for an appro- priate hearing upon due notice. On October 31, 1939, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the Asso- ciation, Local No. 601, United Electrical, Radio and Machine Workers of America, herein called the United, and Federation of Architects, Engineers, Chemists and Technicians, herein called the Federation. The United and the Federation are labor organizations claiming to represent employees directly affected by the investigation. Pursuant to the notices, a hearing was held on November 13, 14, and 15, 1939, at Pittsburgh, Peimsylvania, before Berdon M. Bell, the Trial Examiner duly designated by the Board. The Board, the Company, and the Association were represented by counsel, and the United and the Fed- eration by their representatives; all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of ;the Trial Examiner,, and finds that no prejudicial errors were committed. The rulings are 'hereby affirmed. After the close of the hearing, the Association and the United filed briefs which the Board has considered. Pursuant to notice duly served upon all the parties, a hearing for the purpose of oral argument was had before the Board at Washington, P. C., on December 7,1939. The Company and the Association were represented by counsel, and the United by its representative; all participated in the argument. The Federation did not appear. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Westinghouse Electric & Mfg. Co. is a Pennsylvania corporation owning and operating a number of plants distributed throughout the country and having sales activities extending throughout the country. At its East Pittsburgh Unit, comprising the East Pitts- burgh Works, Linhart Foundry, Copper Mill, Trafford Foundry, Trafford Micarta, and the Homewood Works, it manufactures elec- trical apparatus, including motors, switchgear, generators, circuit breakers, lightning arresters, control apparatus, and renewal parts. 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fifty per cent of the raw materials used at the East Pittsburgh Unit are shipped thereto from points outside of Pennsylvania, and 90 per cent of the Unit's products are shipped to points outside of Penn- sylvania, including points in all the other States and in most foreign countries. The volume of monthly purchases made in connection with the operation of the East Pittsburgh Unit is at present approx- imately $1,300,000, while the average monthly production of the Unit is approximately $3,450,000. As of October 15, 1939, 12,605 persons were employed at the East Pittsburgh Unit. H. THE ORGANIZATIONS INVOLVED Association of Westinghouse Salaried Employees is a labor organi- zation admitting to its membership all salaried employees of the Company in the Pittsburgh administrative district, with the excep- tion of supervisory employees or those who represent the Company in its relations with its employees. Local No. 601, United Electrical, Radio and Machine Workers of America, is a labor organization affiliated with the Congress of In- dustrial Organizations, admitting to its membership employees of the Company's East Pittsburgh Unit, with the exception of super- visory employees. III. THE QUESTION CONCERNING REPRESENTATION In November 1938 the Association requested the Company to bar- gain with it, but the Company refused to do so unless the Association was certified by the Board as representative of the employees in an appropriate unit. We find that a question has arisen concerning representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the. Company described in Section I above, has a. close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT The Association requests a unit of approximately 3,048 persons, consisting of all salaried, as distinguished from hourly paid, em- ployees of the Company in its East Pittsburgh Unit, with the excep- WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 643 tion of supervisory employees. The 'United contends that three groups of salaried employees should be excluded from the unit. Of these, one group includes approximately 335 employees known as "salaried production workers," who are salaried clerical workers em- ployed in shop offices adjacent to the manufacturing floor. The function of this group is to expedite the manufacturing process and to route and schedule the work. It receives manufacturing informa- tion from the Service Division, breaks down the information into its component parts, and writes supplemental orders to the various production units. It routes the work, schedules deliveries, and sees that schedules are observed. The group largely consists of employees designated as "production clerks" but also includes various other clerical employees, including file, ledger and record clerks, stenogra- phers, and typists. The salaried production workers are immedi- ately responsible to production supervisors, whereas hourly paid employees are immediately responsible to foremen within their re- spective divisions. Approximately. half of the salaried production positions have been filled by transfers of hourly paid employees. The salaried production workers are not the only plant-clerical workers. There are approximately 407 hourly paid clerical em- ployees who work on the manufacturing floor and are responsible to their respective foremen. These employees check in and keep records of the material supplied to their various units and include stockmen, storeroom attendants, and material checkers. In general, they are regarded as having less responsible tasks than the production clerks. Genevieve C. Cole, a secretary-stenographer who does work some- times confidential in nature for a production supervisor and the superintendent, is not in dispute as the United does not contend that she should be excluded from a unit of salaried employees. The second group of employees in dispute consists of approximately 135 salaried inspectors and 2 inspectors' stenographers. The salaried inspectors inspect finished products, assemblies, and parts to insure conformity to the engineering specifications. They are responsible to their respective chief inspectors, and their desks are located on the manufacturing floor. A number of hourly paid employees are also listed as "inspectors" on the Company's pay roll. In general, the salaried inspectors do work requiring a higher degree of skill and responsibility than the hourly paid inspectors, whose inspection is often only visual. However, there are border-line cases, so that in some cases a salaried inspector may be doing work no more skilled or responsible than that done by an hourly paid inspector. The sal- aried inspectors tend to be in positions requiring inspection of fin- ished products or large assemblies, because of the greater degree of responsibility normally attached to such positions. As a whole they 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are paid more than the hourly paid inspectors. In some cases hourly paid inspectors have been put on salary without a change of duties. Almost all of the salaried inspectors are drawn from the hourly paid employees. The third group in dispute consists of approximately 23 persons employed in the powerhouse, which supplies the necessary power for the various plants. On July 9, 1937, the United obtained certification as representative of all the hourly paid employees of the Company's East Pittsburgh Unit.' The United expresses its willingness to represent the eri- ployees in dispute, but does not ask for a recertification to include them in the unit previously certified. For approximately 20 years the groups in dispute elected repre- sentatives who joined with representatives chosen by the hourly paid employees in bargaining with the Company under the terns of an employee-representation plan. Few, if any, of other salaried em- ployees were represented under this plan. Despite the fact that the United has been certified as the representative of the hourly paid employees only, it has until recently bargained with the Company on behalf of a number of employees in the disputed groups. All salaried employees are given 2 weeks' vacation with pay after they have been employed by the Company for 1 year, whereas hourly paid employees are given a 1-week vacation with pay after they have been employed for 5 years and a 2-week vacation with pay after 10 years' employment. Salaried employees who are absent from work on account of illness are paid their salary during the first month of their absence and during an additional month for each 5-year period of their employment. Hourly paid employees are not paid during their absence on account of illness, although they receive sick benefits if they are members of a Relief Association which exists in the Com- pany's plants. Salaried employees are paid for holidays; hourly paid employees are not. Both salaried and hourly paid employees partici- pate in the Company's adjusted-compensation plan, in that they re- ceive additional compensation if the Company's profits exceed $600,000. However, salaried-paid employees earning more than $125 a month are subjected to deductions from their base pay if the Company's profits fall below the stated amount, while other employees are not so affected. The United contends that it is not appropriate for the unit to be determined by a criterion based on the method of wage payments. It points out that such a determination would put into the hands of the employer the power to remove an employee from the unit merely 1 Matter of Westinghouse Electric & Manufacturing Company and United Electrical and Radio Workers of America, Local No. 601, 3 N. L. R B. 1. WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 645 by changing the manner of his payment, and that in fact transfers from hourly rate to salary and vice versa are not uncommon in the East Pittsburgh Unit. It attributes to inexperience its claim in 1937 to a unit determined by method of payment . It alleges that a correct classification would be one including in a single unit all employees directly engaged in production or maintenance work and other em- ployees whose functions are closely associated with production or maintenance . It asserts that the employees in dispute should, on this .basis, be grouped with the hourly paid employees , who constitute production and` maintenance workers generally. It points to the history of collective bargaining already referred to and to the cir- cumstance that certain plant-clerical employees and inspectors are paid by the hour. It claims that the employees in dispute have more in common with the hourly paid employees than with the other sal- aried employees, who consist largely of engineers, draftsmen , salesmen, and office-clerical employees. The Association , on the other hand, points out that the United is certified as representative of the hourly paid employees only, and that to eliminate the disputed groups from a salaried unit might re- sult in depriving these groups of representation . It asserts that the disputed groups do not belong in a unit including hourly paid em- ployees-,both because of the nature of the work done by the-groups and because the privileges associated with salary payment lend homo- geneity to a unit of all salaried employees. It is apparent from the foregoing that the employees in dispute constitute fringe groups sharing interests with both the hourly paid employees and the other salaried employees . The employees in the disputed groups might with reason be assigned either to the unit now consisting of hourly paid employees or to a unit of salaried em- ployees. Since the record does not indicate that any substantial number of the employees in the disputed groups have any preference for either union, we feel , under these circumstances , that they should not now be included in the unit of salaried employees requested by the Association, and shall exclude them from the unit. We find that the salaried employees of the Company at its East Pittsburgh Unit, including Genevieve C. Cole, but excluding all other salaried production employees and all supervisory employees, inspec- tors, inspectors' stenographers , and the employees in the powerhouse, constitute a unit appropriate for the purposes of collective bargaining and that such unit will insure to employees of the Company the full benefit of their right to self-organization and otherwise effectuate the policies of the Act. 2$3030-41-vol. 19--42 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD VI. THE DETERMINATION OF REPRESENTATIVES Neither the Association nor the United introduced evidence at the hearing which would permit a certification of representatives on the basis thereof. An election by secret ballot will therefore be necessary to resolve the question which has arisen concerning repre- sentation. It does not appear that the United or the Federation de- sire to be on the ballot, and we shall therefore make no provision for putting their names thereon. In accordance with our usual practice, we shall direct that eligibility to vote shall be determined with refer- ence to the pay-roll period last preceding the date of our Direction of Election. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Westinghouse Electric & Mfg. Co., East Pittsburgh, Pennsylvania, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. The salaried employees of the Company at its East Pittsburgh Unit, including Genevieve C. Cole, but excluding all other salaried production employees, and all supervisory employees, inspectors, in- spectors' stenographers, and the employees in the powerhouse, con- stitute a unit appropriate for the purposes of collecting bargaining, within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board, by Section 9 (c) of the National Labor Re- lations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Westinghouse Electric & Mfg. Co., East Pittsburgh, Pennsyl- vania, an election by secret ballot shall be conducted as early as pos- sible, but not later than thirty (30) days from the date of this Direc- tion of Election, under the direction and supervision of the Regional Director for the Sixth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among the salaried employees of Westinghouse Electric & Mfg. Co. at its East Pittsburgh Unit who were employed by the Company during the pay-roll period last pre- WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 647 ceding the date of this Direction, including Genevieve C. Cole and all employees who did not work during such pay-roll period because they were ill or on vacation or who were then or have since been tem- porarily laid off, but excluding supervisory employees, salaried produc- tion employees other than Genevieve C. Cole, inspectors, inspectors' stenographers, the employees in the powerhouse, and any employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Association of Westinghouse Salaried Employees for the purposes of collective bargaining. MR. EDWIN S. SMITH, concurring : I agree with the exclusion from the claimed unit of the employees in dispute but not with the reasons assigned therefor in the principal opinion. In my opinion, the disputed groups should be excluded on the basis that the nature of their work and the history of collective bargaining with the. Company indicate that they are not properly classifiable with the other salaried employees. MR. WILLIAM M. LEISERSON, concurring in part and dissenting in part: I agree that the salaried employees here in dispute might appro- priately be included either with the hourly paid production employees or with the remaining salaried employees. No well-established bar- gaining custom- exists among them as a group and the record fails to show their preference. I concur in the majority decision to the extent that I would not, in the absence of a showing as to their wishes, include these employees in the salaried unit. I see no reason, however, why the wishes of these employees should not immediately be ascertained through a separate election. The petition filed by the Association raises a question concerning the representation of all the salaried employees, including those in dis- pute. These employees have as -much right to a prompt determina- tion of their bargaining representatives as do the other salaried employees. No greater showing was made at the hearingas to the affiliation of employees whose unit status is agreed upon than was made as to that of the employees in dispute, and no basis exists for excluding the latter from an expression of their choice. In addition to the election herein directed, I would hold an election among the disputed employees to determine whether they desire to be repre- sented by the Association, by the United, or by neither.