Bell Aircraft Corp.

National Labor Relations Board - Board Decisions

Apr 24, 1952

98 N.L.R.B. 1277 (N.L.R.B. 1952)

BELL AIRCRAFT CORPORATION 1277
a preferential hiring clause which also goes beyond the union security
permitted by Section 8 (a) (3) of the Act and is therefore illegal.4
Accordingly, the original contract cannot operate as a bar in this
proceeding.
With respect to the amendment of the contract executed January 12,
1952, we find that as the present petition was filed on January 2, 1952,
during a period when the unlawful provisions were in effect, the
amendment cannot bar it.5 We also find no merit in the contention
that the provisions were not invalid because in actual practice they
were never enforced by the contracting parties. The Board has held
that the mere existence of an unlawful union-security provision acts as
a restraint upon any employees entitled to refrain from union activity
during the 30-day grace period provided by Section 8 (a) (3) of the
Act .6
In accordance with the agreement of the parties, we find that all pro-
duction and maintenance employees of the three Employers, C. Hilte-
brant Dry Dock Company, Inc. ; Island Dock, Inc., and Reliance
Marine Transportation & Construction Corp., at their plants in King-
ston, New York, excluding all office and clerical employees, watchmen,
guards, truck drivers, timekeepers, and all supervisors as defined in
the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act 7
[Text of Direction of Election omitted from publication in this
volume.]
+ Slater C Sons, 96 NLRB 1026 ; Browne f Rurup , d/b/a McCoy Truck Tire Recap Co.,
93 NLRB 667.
P National Lead Company, 97 NLRB 651.
e National Lead Company , supra.
Although at the time of the hearing in this case , the Kingston Metal Trades Council
was in compliance , several of the unions who were members of the Council were not in
compliance we shall nevertheless accord the Trades Council a place on the ballot, as it
appears that all constituent members of the Council having an interest in the employees
in the unit in which the election is directed have achieved compliance. Mathieson
Chemical Corporation, 81 NLRB 1355, 1360; Cities Service Refining Corporation, 83
NLRB 890.
BELL AIRCRAFT CORPORATION and LOCAL 501, INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORK-
ERS OF AMERICA, UAW-CIO, PETITIONER. Cffse No. 3-RC-836.
April 24, 1952
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before William Naimark,
hearing officer. The hearing officer's rulings made at the hearing are
98 NLRB No. 206.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
free from prejudicial error and are hereby affirmed. The Employer's
request for oral argument is denied; as the record and briefs, in our
opinion, adequately present the issues and positions of the parties.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Herzog and Members Houston and
Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.'
3. The Petitioner and the Employer are parties to a current con-
tract covering all production and maintenance employees at the Em-
ployer's places of business in Erie and Niagara Counties, New York,
the only plants affected by this proceeding. This contract, executed
on November 10, 1950, will not expire until January 15, 1954. The
Petitioner asserts that all the employees among whom it requests the
Board to hold a present election are included in the bargaining unit
set forth in that contract, and that the purpose of this proceeding is
to obtain the benefits of a Board certification. The Employer, on
the other hand, contends that a substantial number of the employees
involved are not now covered by the existing contract, and that the
Petitioner ought not be permitted to alter the existing bargaining
unit.
To the extent that this proceeding involves an election in the
bargaining unit now represented by the Petitioner and covered by
the existing contract, this contract cannot bar a present election, be-
cause, under established Board principles, the Petitioner is entitled
to the benefits of Board certification notwithstanding the Employer's
recognition of the Petitioner's majority status .2 As to those em-
ployees who, as set forth below, are not now represented by the Peti-
tioner, but whom the Petitioner nevertheless seeks to represent, the
contract cannot bar an election because they are not covered thereby.
We find, accordingly, that a question affecting commerce exists
concerning the representation of employees of the Employer within
i Production Engineering Technical Association, CUA, and Local 516, International
Union, United Automobile , Aircraft & Agricultural Implement Workers of America,
UAW-CIO, Intervened for the purpose of protecting contractual interests with the
Employer covering groups of employees not here involved .' Shortly after the bearing
officer granted their motions to intervene on the basis of their contractual interests, they
withdrew from the hearing.
2 See General Box Company , 82 NLRB 678 ; Natona Mills, Inc., 97 NLRB 11 ; Acme-Evans
Company, Inc., 90 NLRB 2107.
BELL AIRCRAFT CORPORATION 1279
the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of:the
Act.
4. The principal disagreement between the parties concerns 600
laboratory employees, who the Petitioner contends either have been
a part of, or should be added to, the production and maintenance unit.
The Petitioner's assertion that these employees have been included, 'as
well as its contention that they should be included, rests on the al-
legedly similar interests of these employees and the production and
maintenance employees generally. The Employer disputes both these
contentions, and asserts further that the 600 disputed employees are
both technical and professional employees who can in no event be
part of the production and maintenance unit.
The parties disagree also with respect to certain clerical employees ;
the Petitioner would add to the unit a group of material and supply
clerks, and the Employer would exclude other clerical employees
previously covered by the contract.
Before 1946, those plants of the Employer here involved were
devoted mainly to design and construction of ordinary aircraft.
Since that time, the Employer's work in the field of guided missiles
has steadily increased, and its operations are now devoted almost
entirely to the development and production of guided missiles and
helicopters. As a result of this change in its work, the various de-
partments have been both altered and enlarged. The production
and maintenance department, with about 5,000 employees, is approxi-
mately 4 times larger than in 1946, and the laboratory employees here
disputed, numbering 25 in 1946, have increased to about 600 at the
time of the hearing.
These laboratory employees, all called "technicians," are classi-
fied 1st, 2d, and 3rd grade technicians. They work principally in
five main laboratories : electronics, servo, missile test, rocket, and
general engineering. Their duties are to assist engineers, drafts-
men, physicists, and mathematicians on programs of research and
development in the new fields necessary for the production of guided
missiles. This research and development program requires continual
testing of plans and ideas, drawing board work, and testing work
in the laboratories to implement the work on the drawing board.
With some differences in the precise tasks assigned to them, the tech-
nicians all work in close association with the engineers in order
to translate theoretical design ideas into practical form. Those
in the electronics section, for example, assemble models from pencil
sketches and from rough wiring diagrams prepared by the engineers.
They also help in the development and installation of the instru-
ments that show what the missiles actually do in practice. Tech-
nicians in the engineering laboratory conduct tests on equipment in
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
altitude chambers that can assimilate high altitudes and low temper-
atures; they also prepare specimens for metallurgical examination,
calibrate test instruments, and work on materials and processes.
The work of the remaining laboratory employees is comparable to
that of the employees in electronics and general engineering. Class
3 "technicians," the most skilled and highest paid, may actually
initiate the development of a particular project, and make recom-
mendations to the engineers for further improvement in it.
The laboratory technicians are not only separately supervised,
but they work in areas physically segregated from the production
departments. Unlike the production and maintenance employees
generally, who are hourly paid, the technicians are salaried workers.
There is little or no interchange between the production groups and
the laboratory departments, although many of the laboratory em-
ployees have come from various production departments of the plant.
On rare occasions, personnel from the experimental department, which
the Employer considers part of its production operations, are called
upon to work in the laboratories with the technicians and engineers.
The laboratory technicians are hired without regard to any formal
education, but a high school diploma is generally considered essen-
tial, and schooling in technical subjects adds to the desirability of
an employee. Although an employee in the production area might
be hired into the laboratory, he could not be put to work immedi-
ately but would require special training, consisting, in the electronics
section for example, of a series of lectures, pictures, demonstrations,
and illustrations on the work of the section, and of an assignment
to work with experienced engineers and technicians. New college
graduates often start as laboratory employees "to get their feet wet
so to speak," and are then promoted to engineering jobs. The record
as a whole amply shows that laboratory technicians are required
to possess a great degree of initiative, judgment, and creative imagi-
nation, because their work involves a new and relatively uncharted
field rather than a repetitive assembly line procedure.
When the laboratories and the other sections of the engineering
department have completed their work, a guided missile project
goes to its final stage of preparation in the experimental department.
Here the information developed by the engineering and the labora-
tory employees is applied so as to ready the project for actual pro-
duction. The employees of the experimental department assemble
the ultimate product, test it, and make the final manufacturing draw-
ings. Some of the work they do is comparable to that of certain
technicians in the laboratories, but requires less originality and no
research or development technique because their purposes are merely
to carry out instructions from the engineering department.
BELL AIRCRAFT CORPORATION 1281
As to the great bulk of the production and maintenance employees
in the manufacturing division, the record contains no detailed evi-
dence respecting their skill or duties, but it is undisputed that they
perform the usual work of producing the completed missiles and other
products manufactured by the Employer.
Starting with a members-only contract in 1937, the Petitioner has
represented the production and maintenance employees under suc-
cessive contracts containing virtually the same provisions. In the
current agreement the Employer recognizes the Petitioner as repre-
sentative of all its production and maintenance employees, including
certain clerical workers, as well as "all employees working on the fac-
tory floor, who are . . . performing work similar to clerical, produc-
tion, and maintenance employees covered under the terms of the agree-
ment." Among the employees specifically excluded from the coverage
of this contract are office clericals, engineering department employees,
and laboratory department employees. It is clear, therefore, and we
find, that the 600 disputed employees, as laboratory employees, are
now, and in the past have been, excluded from the production and
maintenance unit covered by the contracts.
The Employer's contention that the laboratory employees are pro-
fessional workers as defined in the Act is unsupported in the record.
The evidence shows that they are neither college trained nor work on
jobs requiring knowledge customarily obtained in an institution of
higher learning. Accordingly, we find that they are not professional
employees within the meaning of Section 2 (12) of the Act.3
The facts as outlined above do show, however, that the laboratory
department employees in question are technical employees. They are
classified as technicians , and the clear testimony of the supervisory
engineers in charge of the laboratories is direct proof of the skilled
and the technical character of the work performed by them. To offset
this evidence, the Petitioner adduced testimony intended to prove that
some of the work of the laboratory employees is repetitive, that they
use the same types of machines used by production and maintenance
employees, and that during part of their time they do no testing or
technical work. This testimony, however, was largely in the form of
observations by union stewards and other employees who are not regu-
larly stationed in the laboratories. These specific instances during
which employees may have observed laboratory department workers
performing nontechnical tasks are insufficient to overcome the direct
3 Boeing Airplane Company, 86 NLRB 368.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony of the various employer officials and supervisors . Accord-
ingly, on the basis of the affirmative evidence in the entire record, we
find that the laboratory employees are technical workers .4
It is now well-established Board policy that technical employees
may not be joined with production and maintenance workers when
any party objects to their inclusion .5 The Petitioner would never-
theless justify inclusion of these technicians in this instance, on the
ground that their interests are similar to those of certain production
employees. It points to the fact that some of the employees in the
experimental department, called experimental assemblers, also per-
form tests and do other work comparable to that of the laboratory
employees. The record shows a considerable difference between the
work of these two groups. Experimental assemblers, if transferred
to the laboratory departments, must be trained on the job; the lab-
oratory technicians exercise a greater degree of initiative and origi-
nality; and the production or assembly aspect is only a minor part
of laboratory work, whose main function is development and research.
Apart, however, from these differences between the 2 groups, and even
assuming, as the evidence does indicate, that there may be some tech-
nical employees in the experimental department, both the Petitioner
and the Employer have for some time considered the latter as prop-
erly falling within the production group. They have consistently in-
cluded them in their contracts and no question is now raised as to the
appropriateness of their continued inclusion. The laboratory em-
ployees, on the other hand, have clearly been excluded by agreement."
In these circumstances, inclusion of some few technical employees in
the very large production and maintenance unit is no persuasive reason
4 In support of its assertion that the laboratory employees are neither technical nor
professional employees, the Petitioner subpenaed the job applications and employment
histories of these employees from among the Employer ' s records . On the motion of the
Employer, the hearing officer revoked the subpenas on the ground that any facts which
might be shown by such records are irrelevant to the issues raised. We agree with the
Petitioner 's argument that the hearing officer ' s ruling respecting the subpenas was
erroneous. As to the alleged professional status of the laboratory employees, the hearing
officer's ruling was not prejudicial, because we have found in favor of the Petitioner on
this issue . As to the technical character of their work , the affirmative evidence contained
in the record not only supports , but requires , our finding that the laboratory employees
are technicians , regardless of any negative evidence either now present or which might be
added to the record . Assuming , therefore , as the Petitioner offered to prove by means of
the subpenaed evidence , that a great number of the employees now classified as technicians
have no more than a high school education and no prior experience in technical work either
with this Employer or in earlier employment , we would nevertheless have to conclude, on
the basis of their present skill and duties , that they are technical employees . Accordingly,
the hearing officer's ruling was not prejudicial in any event. The Petitioner ' s motion for
reversal of his ruling and to remand the proceeding for the purpose of receiving the
proffered evidence , is therefore denied.
5 The Detroit Edison Company, 84 NLRB 477; Edward G . Budd Manufacturing Company,
68 NLRB 153 , 157; Librascope, Incorporated , 91 NLRB 178.
1 The record shows that on November 10, 1350, when the last contract was executed, there
were approximately 400 employees in the category so excluded.
BELL AIRCRAFT CORPORATION 1283
for deviating from the Board's fixed policy respecting technical em-
ployees as a class. Consistent with that policy, therefore, we shall,
contrary to the Petitioner's request, exclude the disputed 600 labora-
tory technicians from the unit hereinafter found appropriate.
It appears from the record that the Petitioner desires to represent
the laboratory technicians in any event. However, as it has not pre-
sented any evidence of representation in this group, we shall not direct
an election among them.7
There remains for consideration the question of whether or not
various clerical employees should be included in the production and
maintenance unit. The Employer contends that factory clericals in
the following classifications-shipping clerk, junior and senior dis-
patcher, dispatcher and scheduler, junior and senior factory clerk,
gardener and head gardener, pull clerk "A" and "B", receiving write-
up man and follow-up, junior and senior clerk stenographer, junior
and senior tool crib clerk, A. A. tool crib clerk, and junior and senior
typist-clerk-should be excluded from the unit, and that 38 employees
classified as "material and supply clerks" in the engineering depart-
ment should also be excluded. The Petitioner would include these
categories in the unit.
The factory clericals work in the production areas, and are super-
vised by production supervisors. The record shows only that they
perform the usual functions of factory clerical employees in a large
plant. The Employer concedes that they have been included in the
unit represented by the Petitioner in previous contracts and in the
current contract. Because these employees have a community of
interest with production and maintenance employees generally, and
because of their inclusion in the contract unit represented by the
Petitioner, we shall include them in the unit .8
The 38 material and supply clerks in the engineering department
have not been included in the previous contract units, nor are they
included in the current contract unit. The contract does include their
counterparts-now called "factory clerks"-in the production depart-
inents. These clerks were classified material and supply clerks until
1945, when, with no change in their duties, they were renamed and
added to the contract unit. The record shows that the engineering
department material and supply clerks perform virtually identical
functions with the factory clericals previously classified as material
and supply clerks. Both groups receive, store, and dispense materials.
As the nature of the work of the employees in dispute allies them
closely with production and maintenance employees, and because their
7 Gardner-Denver Company, 82 NLRB 201; Sigmund Cohn Mfg. Co ., Inc., 75 NLRB 177.
8 Westinghouse Electric Corporation , 89 NLRB 8, 16; Sultan Athletic Company, Itte,
86 NLRB 908; The Clark Thread Company , 79 NLRB 542
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work is similar to that of other clericals included in the production
and maintenance unit, we shall include the material and supply clerks
of the engineering department in the unit .9
We find, accordingly that all production and maintenance em-
ployees of the Employer at its places of business in the counties
of Erie and Niagara, State of New York, including all factory cler-
icals and material and supply clerks, but excluding laboratory
employees, professional employees, and all supervisors as defined in
the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act 10
[Text of Direction of Election omitted from publication in this
volume.]
9 Schwarz Laboratories , Incorporated , 89 NLRB 930 ; E. R. Squibb & Sons, 83 NLRB
792. The propriety of including these employees in the production and maintenance unit
is not offset by the fact that they work in a department whose other employees are
excluded. See Westinghouse Electric Corporation , supra ; Kearney & Trecker Corporation,
60 NLRB 148 . The material and supply clerks are supervised by production control
supervisors , as are other clerical employees included in the unit.
10 With the exception of the material and supply clerks, now included in the unit, the
unit is that currently represented by the Petitioner.
THE WEBB CORPORATION and INTERNATIONAL ASSOCIATION OF
MACHINISTS , LOCAL LODGE 232, AFL, PETITIONER . Case No.
17-R'C-11961 April 04, 1952
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before William J. Scott,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commei,e within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the repre-
sentation of employees of the Employer within the meaning of Sec-
tion 9 (c) (1) and Section 2 (6) and (7) of the Act.
The Intervenor herein, International Molders and Foundry Workers Union of North
America, Local No. 204 , AFL, filed a petition in Case No. 17-RC-1222 involving employees
in the foundry department at the Employer's plant with which we are concerned here.
At the consolidated hearing, the Intervenor moved to withdraw its petition in that case
and the motion was granted by the hearing officer . The caption of this case has been
amended accordingly by eliminating therefrom Case No. 17-RC-1222.
98 NLRB No. 197.