Westinghouse Electric and Manufacturing Co.

In the Matter Of WESTINGHOUSE ELECTRIC AND MANUFACTIIRING COM- PANY and LOCAL UNION B-1161, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS Case No. R-2547.-Decided July 1, 1941 Jurisdiction : electrical appliance manufacturing industry. Investigation and Certification of Representatives : existence of question: con- flicting claims of rival organizations and refusal to accord petitioning union recognition until it is certified by the Board ; election necessary. . Unit Appropriate for Collective Bargaining : to determine whether hourly em- ployees in the switchboard plant, excluding office employees, should constitute a unit apart from the two-plant unit found appropriate in the Board's previous Order, election necessary. Mr. C. A. Reinwald, of New York City, for the Company. Mr. Lawson Wimberly, of Washington, D. C., and Mr. S. J. Cris- tiano, of Wyckoff, N. J., for the I. B. E. W. Mr. M. H. Goldstein, of Philadelphia, Pa., for the United. - Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On January 20, 1941, Local Union B-1161, International Brother- hood of Electrical Workers, herein called the I. B. E. W., filed with the Regional Director for the Fourth Region (Philadelphia, Penn- sylvania) a petition, and on March 5, 1941, an' amended petition, alleging that a question affecting commerce had arisen concerning the representation of employees of Westinghouse Electric and Manu- facturing Company, Philadelphia, Pennsylvania, herein called the Company, and requesting an investigation and certification. of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On April 2, 1941, the Na- tional Labor Relations Board, herein called the Board, acting pur- suant to Section '9 (c) of the Act and Article III, Section 3,, of .National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional 33 N. L. R. B., No. 21. 97 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director to conduct it and to provide for an appropriate hearing upon due notice. On April 9, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the I. B. E. W., and United Electrical , Radio & Machine Workers of America,. Local No. 111,. affiliated with the Congress of Industrial Organizations, herein called the United, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on May 12, 1941, at Philadelphia , Pennsylvania, before Jerome I. Macht, the Trial Examiner duly designated by the Chief Trial Examiner. The Company and the United were repre- sented by counsel and the I . B. E. W. by its representatives. All participated in the hearing. The United moved that the petition be dismissed on the ground that no question had arisen concerning the representation ' of the employees named in the petition . The Trial Examiner did not rule on this motion. For reasons which appear in Section III below, the motion is denied. Full opportunity to be beard, to examine and cross -examine witnesses , and to introduce evi- dence bearing upon the issues was afforded all parties. During; the course of the hearing the Trial Examiner made several rulings on other 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. - On May, 16, 1941 , the I. B. E. W. and the United filed requests for oral argument before the Board at Washington , D. G. On May 21, 1941, - the Board denied these requests and, in lieu . thereof, granted permission to all parties - to file briefs with the Board in support of their respective contentions. On June 3, 1941, the I . B. E. W. filed a brief which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Westinghouse Electric and Manufacturing Company is a Penn- sylvania corporation, owning and operating a number of factories, plants, and service shops throughout the United States. The sales activities of the Company extend into every State. During the year 1.940 to the date of the hearing the total volume of its business amounted to more than $151,000,000, and comprised shipments of its products to all' States of the United States and to a number of foreign countries. The raw materials used by the Company in the manu- facture of its products were secured from a. number of States in the ,United States. WESTINGHOUSE ELECTRIC AND MANUFACTURING COMPANY 99 The Company's plant at 4901 Grays Avenue, Philadelphia, Penn- sylvania, herein called the 49th Street plant, is the only plant directly involved in this proceeding. In respect to the activities conducted .at this plant, the Company admits that it is subject to the jurisdiction of the.Board. II. THE ORGANIZATIONS INVOLVED Local Union B-1161, International Brotherhood of Electrical Workers, is a labor organization affiliated with the American Federa- tion of Labor. United Electrical, Radio & Machine Workers of America, Local No. 111, is a labor organization affiliated with the Congress of Indus- trial Organizations. These organizations admit to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On November 29, 1940, the I. B. E. W. asked the Company to bar- gain with its for employees working at the Company's 49th Street plant. The Company refused to bargain with the I. B. E. W. until it was certified by the Board. The I. B. E. W. accordingly filed the petition in this proceeding. The United contends that. no question has arisen concerning the representation of such employees. In March 1939 the United filed If petition for investigation and certification respecting employees of the Company at its Philadelphia Service Shop, which was located at 3001 Walnut Street, Philadelphia, Pennsylvania. The Company's plant at this location is herein called the 30th Street plant. At this time the Company's activities at the 30th Street plant were distributed among the following divisions: (1) repair, (2) switchboard, (3) refrigerator, (4) Micarta, (5) build- ing, and (6) engineering and service. There were at the plant about 131 production employees, of whom 17, were working in the switch- board division. On April 18, 1939, at a conference in the Regional Director's office, an officer of the Company,, upon evidence submitted to him, orally recognized the United as sole bargaining agent for such employees. At this conference the Company declared its intention to develop its switchboard division and move it to a new location. In July.-1939 the Company moved the switchboard division.from the fourth floor of the 30th Street plant to the 49th Street plant. The Company thereafter retained the name Philadelphia Service Shop to designate both plants jointly.:' The Company continued to bargain with the United for employees at both plants. 1In April 1941 the Company discontinued the use of this name. The two plants are Jointly designated The Philadelphia Division of the Middle Atlantic District Manufacturing and Repair Department. 450122-42-vol. 33-8 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 29, 1939, upon a charge filed by the United, the Board issued its complaint against the Company in Case No. C-1241. Among other things, the complaint alleged in substance- that the Company refused to commit to writing its several oral agreements. with the United concerning employees at the Philadelphia Service .Shop. In September 1939 employees at the 30th and 49th Street plants who were members of the United voted to shift their affiliation to the A. F. of L. The United was dissolved. Local B-1161, International Brotherhood of Electrical Workers,. the, petitioner in this proceeding, was duly organized. It included in its membership employees at both' plants of the Company. In October 1939 employees at the 30th Street plant withdrew from the I. B. E. W. and in November 1939 reorganized the United. Em- ployees at the 49th Street plant remained members of the I. B. E. W. The I. B: E. W. thereafter requested the Company to bargain with the I. B. E. W. for employees at the,49th Street plant. The Company refused to recognize the I. B. E. W., contending that it had recog- nized the United as bargaining agent for such employees.- _ In No- vember 1939 the I. B. E. W.. filed a petition under Section 9 (c) of the 'Act -requesting an investigation and certification of representatives. . On March 29, 1940, the Board, pursuant to a stipulation, issued its Decision and Order in Case .No.• C-1241 against the Company.2 On the following day the Board filed a petition requesting enforce- ment of its Order in the United States Circuit Court of Appeals foi the Second Circuit. In April 1940 the Board dismissed the petition of the I. B. E. W. without hearing. After, removing the switchboard .division from the 30th Street plant to the 49th Street plant, the Company greatly expanded its switch- board manufacturing activities. At the 30th Street plant the division was located on the fourth floor with a head room of 12 feet. Space and transportation facilities were limited. The division did little, manufacturing and its assembly work was confined to small pieces.. At the 49th Street plant larger machines, power machines in place of hand machines, and a head room of 25 to 35 feet enabled the Company to manufacture and assemble switchboards, panel boards, and control 'equipment to meet all the needs of the trade. Some of the original 1.7 employees were trained to do the more complicated work as the Company enlarged this division. The number of employees in the 2 Matter of .Westinghouse Electric and Manufacturing Company and its Subsidiaries, The Westinghouse X-Ray Co., Inc., and The Bryant Electric Company and United Electrical, Radio & Machine Workers of America, and its Locals Nos. 601, 202, 1207, 107, 111, 130. 1105, 1412, and 209, 22 N. L. R. B. 147. . WESTINGHOUSE ELECTRIC -AND MANUFACTURING COMPANY .101 division, increased from. 17 in July 1939 to 126 in January 1941. The 49th Street plant was occupied entirely by the switchboard division. In the meantime the Company made other changes at its 30th Street plant; It discontinued entirely in Philadelphia its Micarta and re- frigerator divisions.3 The repair division, the building division, and the offices of the engineering and service division '' were retained at the same location. In January 1941 a turbine division was installed at the plant. After the Company in 1939 refused to recognize the I. B. E. W. as bargaining agent for employees at the 49th Street plant, it continued to deal with the United for employees at both plants. Grievances of employees at the 49th Street plant, all of whom appear, to be members of the I. B. E. W., have been presented to the Company through letters by the I. B. E. W., carbons of which have been sent to the United as the recognized .bargaining agent.5 The Company has considered such grievances with the bargaining committee of the United, which relayed the results of such conferences to the I. B. E. W.. by letter'.e The I. B. E. W. has then conferred with its own members. On January 20, 1941, the I. B. E. W. filed its petition in this pro- ceeding. On, February 3, 1941,. the Circuit Court entered a consent decree affirming the Board's Order.7 On April 8, 1941, the Company and the United entered into a written agreement. This agreement, citing the Board's Order, pur- ports to include "all hourly paid employees and the shop clerk of the Company at the Philadelphia Service Shop," the unit found appro- priate in Case No. C-1241, noted above. A supplementary agreement, signed the same day, recites that the bargaining unit includes employees in the several divisions at both plants. The' agreement is subject to termination on 30 days' notice by either party. The petition of the I. B. E. W. was known to the Company at the time this agreement was made. The United contends. that the Board's Order of March 29, 1940, was designed to remove and avoid the effects of the Company's unfair labor practices, that its recent contract with the Company constitutes the fruit of such Order, which was affirmed on February 3, 1941; and s The Micarta or plastic division was consolidated with .a similar division at Newark, New Jersey . Perfection - of the Company's refrigeration mechanism reduced the work of refrigerator rehabilitation and the refrigerator division at Philadelphia was consolidated with a division at Springfield , Massachusetts . No employees were involved in these changes. 4 The repair and engineering and service divisions are service activities of the Company's business . The building division is a maintenance unit for the care of the 30th Street plant, a building owned by the Company. 5 The Company also transmitted copies of such letters to the United. The record discloses that at one conferenct members of the I. B. E. W. gave testimony before a bargaining committee of the Company and the United. 7 N. L. R. B. v. Westinghouse Electric and Manufacturing Company and, its subsidiaries The Westinghouse %-Ray Co., Inc . and. The Bryant Electric Company, decided February ft- 1941 ( C. C. A. 2j. See footnote 2, supra. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that an investigation and certification of representatives at this time is therefore barred., The I. B. E. W. contends that the contract should not operate as such a bar. Under all the circumstances, we find that the contract between the United and the Company, entered into with full knowledge of the pendency of this proceeding, does not constitute .a bar to a determination of representatives at this time. A statement prepared by the Regional Director and introduced in evidence at the hearing discloses that the I. B. E. W. represents a substantial number of employees in the alleged appropriate unit.8. We. find that a question has arisen concerning the 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 foreign countries and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The I. B. E. W. contends that all hourly paid employees at the 49th Street plant constitute an appropriate bargaining unit. The United contends that all hourly paid employees and shop clerks at the 30th and 49th Street plants constitute, an appropriate unit. The Company takes no position in respect to the unit. The 30th Street plant includes five divisions: (1) repair (2) tur- bine, (3) building, (4) warehouse, (5) engineering and service. The 49th Street plant includes only the switchboard division. The repair, turbine, engineering and. service, and switchboard divisions are independent units. The repair, turbine, and switchboard divisions 8In support of its claim to represent a majority of the employees in the alleged appro- priate unit, the I. B. E. W. submitted to the Regional Director 139 authorization cards, of which 66 are dated in 1939, 50 in 1940, 20 in 1941, and 3 are undated. One hundred thirty-five of these cards appear .to bear genuine signatures of employees at the 49th Street plant, whose names appear on the Company 's pay roll, of March 26, 1941. ' At the hearing the I. B. E. W. submitted to the Trial Examiner 128 authorization cards, all of which are dated May 9, 1941 . The parties stipulated that a substantial number of those who signed these cards were employees at the 49th Street plant whose names appear on the March 26, 1041, pay roll. The I. B. E. W. claims no members at the 30th Street plant. In support of its claim to represent employees of the Company, the United submitted no cards to the Regional Director or to the Trial Examiner. Its secretary testified that the United had approximately 137 members at the time of the hearing. 'Such members are not employees at the 49th Street plant. The record does not. disclose the number of employees at the 30th Street plant at the time of the hearing. On the March 26, 1941, pay roll of the 49th Street plant are listed 146 employees, of whom 20 are designated as office workers. WESTINGHOUSEELECTRIC AND.. MANUFACTURING1 COMPANY 103 are under the general supervision of the Company's manufacturing and service department, the engineering and service division under its engineering department, and the building and warehouse divisions tinder its sales department. Hiring and discharging in each division is under the local head of such division. The 49th Street plant is 3 to 4 miles distant from the 30th Street plant. It has its own plant manager who hires and discharges em- ployees. It, is esseiltially an assembling and manufacturing plant. Its employees do no service or repair work. Basic wages are the same in both plants, but employees at the 49th Street plant make more money because of manufacturing bonuses and overtime. There is no exchange of employees between the two plants. Although a single unit comprising employees at both plants would not be inappropriate for bargaining, as we-found in our previous Order noted above, in view, of the changes and extensions of the .Com- pany's activities in Philadelphia, it appears that the employees at the 49th Street plant might at this time constitute a separate unit." Ac= cordingly, we shall direct that an election be held among employees at the 49th Street plant to determine whether they desire to be repre-, sented by the I. B. E. W. or by the United or by neither. Upon the result of the election will depend, in part, our determination of a separate unit for employees at the 49th Street plant. If a majority of the employees voting designate the I. B. E. W. as their collective bargaining representative, then employees at the 49th Street plant shall constitute a single appropriate unit,10 and we will. certify the I. B. E. W. as bargaining representative thereof. If a majority of such employees designate the United, we shall certify the United as bargaining agent for employees at the 30th Street and 49th Street plants."- If a majority of employees voting, designate neither labor organization, we will dismiss the petition. . The I. B. E. W. did not specifically define at the hearing its posi- tion respecting those employees classed as office employees, -on the^ pay' roll of the 49th Street plant. Following our usual practice, we will exclude office employees from the proposed production unit. e The previous decision of the Board in Case No. C-1241, noted above, in regard to the appropriate bargaining unit, is not decisive . Cf. Matter of Pacific Greyhound Lines and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, 9 N. L. it. B. 557; Matter of Libbey-Owens-Ford Glass Company and Federation of Glass, Ceramic and Silica Sand Workers of America; Matter of Libbey-Owens-Ford Glass Co. and National Flat Glass Workers of the American Federation of Labor, 31 N. L. it. B. 243." to Cf. Matter of Lewis Lumber Company and International -Woodworkers of America, Local Union No. 257, affiliated with the C. I. 0., 31 N. L. R. B. 688. 11 We found in our Decision and Order' of March 29, 1940, cited in footnote 2 supra, that such employees constituted an appropriate bargaining unit. Although employees at the 30th Street plant will not participate in the election, neither the Company' nor the .I. B. 12. W. contest the claim of the United to represent them. 104 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD VI. THE DETERMINATION OF REPRESENTATIVES We have .found that the question concerning the representation of employees of the Company canbest be resolved by, and we shall ac- cordingly direct, an election by secret ballot . The United contends that some employees at the 49th Street plant , not members of its local union, are nevertheless members of its international union . We shall direct, therefore, that the I . B. E. W. and the United shall appear upon the ballot. If, however , within 5 days after the receipt of this Direc- tion of Election, the United does not desire to appear upon the ballot and notifies the Regional Director to that effect , its name shall be omitted from the, ballot. Those eligible to vote in the election shall be the hourly paid employees of the Company at its 49th Street plant, excluding office employees, who were employed during the pay-roll period immediately preceding the date of our Direction of Election, subject to, such limitations and additions as are set forth in the 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 : CONCLUSION OF LAW A question affecting commerce has arisen concerning the repre- sentation of employees of Westinghouse Electric and Manufacturing Company, Philadelphia , Pennsylvania, at its 49th Street plant, within the meaning of Section 9 (c) and Section 2 (6) and (7) 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 Relations Acts' and pursuant to Article III, Section 8, of National Labor Rela- tions Board Rules and Regulations-Series 2, as amended, 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 and Manufacturing Company, Philadel- phia, Pennsylvania , an election by secret ballot shall be conducted as early as possible,but not later than thirty (30) days from-the date of this Direction of Election , under the direction and supervision of the Regional Director for the'Fouth 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 all hourly paid em- ployees of the Company at its 49th Street plant , who were employed during the pay-roll period immediately preceding the date of'. this Direction, including employees who did not work during that pay-roll WESTINGHOUSE ELECTRIC AND MANUFACTURING COMPANY 105 period because they were ill or, on vacation or in the active. military service or training of the United States, or temporarily laid off, but excluding office employees and employees who have since quit or been -discharged for.cause, to determine whether said employees desire to be represented by Local Union B-1161, International' Brotherhood of Electrical Workers, or by United Electrical, Radio & Machine Workers of America, Local No. 111, affiliated with 'the Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither. MR. EDWIN S. SMITH, dissenting : On January 20, 1941, the I. B. E. W. filed the original petition in this proceeding, contending that employees at the 30th Street and 49th Street plants constituted a single bargaining unit. On February 3, 1941, the. Circuit Court, entered a consent decree, affirming the Board's Order of March 29, 1940, which found a unit consisting of employees at the 30th Street and the 49th Street plants to be appro- priate. On April 8, 1941, pursuant to the Board's Order, the United and the Company entered into a written contract, which covered em- ployees at both plants of the Company. In view of the recognition by the I. B. E. W. of the propriety of a single bargaining unit and the recent written contract between the United and the Company covering such employees and in view of the greater bargaining effectiveness of this larger unit,12 I would dismiss the petition. 12 Compare my dissenting , opinions in Matter of Libbey-Owens-Ford Glass Company and Federation of Glass, Ceramic and Silica Sand Workers of America ; Matter of Libbey. Owens-Ford Glass Co. and National Flat Glass Workers of the American Federation of Labor, 31 N. L. R. B. 243 , and cases cited therein ; Matter. of Allis-Chalmers Manu-' facturing Company and International Union, United Automobile Workers of America, Local 248, 4 N. L. R. B. 159. '