The Firestone Tire & Rubber Co.

National Labor Relations Board - Board Decisions

Mar 26, 1970

181 N.L.R.B. 830 (N.L.R.B. 1970)

830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Firestone Tire & Rubber Company and Local
Union 367 , Office & Professional Employees
International Union , AFL-CIO, Petitioner. Case
26-RC-3633
March 26, 1970
DECISION AND DIRECTION OF
ELECTIONS
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a petition filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Willie L. Clark, Jr.,
Hearing Officer. Following the hearing and pursuant
to Section 102.67 of the National Labor Relations
Board Rules and Regulations and Statement of
Procedure, Series 8, as amended, and by direction of
the Regional Director for Region 26, the case was
transferred to the National Labor Relations Board
for decision Thereafter, the Employer and the
Intervenor' filed briefs which have been duly
considered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby
affirmed.
Upon the entire record in this case, the Board
finds:
1. 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 organizations involved claim to
represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The Employer is engaged in the manufacture of
tires at a plant in Memphis, Tennessee. The
Petitioner seeks a unit at this plant consisting of the
two technical service departments, 039 and 764, and
the two statistical quality controls departments, 762
and 765, "excluding office managers, supervisors,
guards and other employees as defined by the Act."
The Employer contends that the unit as petitioned
for is inappropriate and that an appropriate unit
would include only the statistical quality control
departments, 762 and 765. As an alternative, it
maintains that, if the Board should find a unit
'Local 186, United Rubber, Cork, Linoleum & Plastic Workers of
America, AFL-CIO, CLC was permitted to intervene On December 4,
1969, Intervenor filed a motion with the Regional Director to change its
name to strike the words "Local 186" In the absence of objections we
grant that motion
encompassing the four departments, the unit should
also include the remaining two departments in the.
quality control division, 761 and 763. The
Intervenor maintains that the unit as petitioned for
is appropriate. Both Petitioner and, Intervenor have
indicated a willingness to participate in an election if
the Board should find any of the alternative units,
appropriate. The Employer also contends that 14-
employees in 764 and all the employees in 763 are
professional employees within the meaning of
Section 2(12) of the Act and as such are entitled to
a self-determination election under Section 9(b)(1).
The six departments involved herein, constitute
Employer's quality control division. This division is
responsible for the quality of the finished product at
the Memphis plant.
Department 764 (technical service): Department
764 is responsible for issuing all specifications in the
factory, both as to materials and the manner in
which jobs are performed. In doing so, it must
insure that these specifications fit local equipment
and procedures and make changes, as necessary, to
control the quality of the product.
Department 762 (statistical quality control):
Department 762 checks the materials in the plant to
determine whether or not they meet the tolerances
specified by Departments 763 and 764. It reports
any deviations it finds to the proper parties for any
necessary corrective action.
Department 765 (product evaluation): Department
765 is responsible for measuring and testing the
finished product (as opposed to measuring and
testing components). It also,' like Department 762,
reports any deviations from specifications for
corrective action.
Department 039 (nylon unit): Department 039 is
responsible for testing the fabric treated at the nylon
treating facility. This department also monitors
testing equipment for component specifications.
Department 763 (chemical unit): Department 763
is responsible for the product from a chemical
standpoint from the point of receipt of the raw
materials to the finished product. This department
does the chemical testing of all raw materials and
all in progress products. If any chemical problem
develops, it is the chemical department's
responsibility to diagnose the problem and reach a
decision as to what changes might be recommended
or made to correct the problem Z
Department 761 (pellet tire): Department 761
checks the specific gravity of what is called the
pellet (a patch of rubber) on each of the pellet tires
to determine whether the tires are satisfactory.
Although there are six departments in the quality
control division, there are only three department
heads, with each department head being in charge of
two departments.' The employees in these
This department can make temporary changes in specifications to
correct difficulties , but cannot make permanent changes without
authorization from the parent plant in Akron, Ohio
'L E Whitley , Jr , heads Departments 764 and 039 , Raymond Free
181 NLRB No. 132
FIRESTONE TIRE & RUBBER CO. 831
departments are frequently required to work
together on the problems of quality control.
Departments 764 and 763 receive reports completed
by departments 762 and 765 and, thereafter, take
whatever action is required to correct any difficulties
which may be apparent from these test results.
Departments 763 and 764, because of the close
relationship between the physical and chemical
aspects of the product, are required to closely
coordinate their solutions to the problems.
Department 764 frequently consults with
departments 762 and 765 as does department 763.1
The employees in Department 763 also have
frequent work-related contacts with the employees in
Department 761. Employees working in
Departments 762 and 765 receive experience which
assists them in transferring to jobs in Department
764, and some of these employees are brought into
Department 764 to see if they can qualify for the
jobs in 764 All holidays, vacation, insurance,
retirement, stock purchase and retirement benefits
are identical for employees in the quality control
division.,
After careful consideration of all the relevant
factors we conclude that an appropriate unit may
consist of all six of the departments in the quality
control division. The unit as petitioned for would
include only four of the six departments. However,
it is apparent that all of the departments have an
interlocking responsibility6 for the quality control of
the product and this responsibility requires the
employees in each of these departments to work
very closely with the personnel in each of the other
departments. Under these circumstances, we
conclude that it would be inappropriate to exclude
two of the six departments from a unit of the
quality control employees. Similarly, we conclude
that it would be inappropriate to limit the unit to
only two of the six departments. Therefore, we shall
direct an election in a unit consisting of all six
departments in the quality control division.
There remains for consideration the question of
whether the employees in Department 763 and
fourteen of the employees in Department 764 are
professionals within the meaning of Section 2(12)
and therefore entitled to a self-determination
election' under Section 9(b)(1).
heads Departments 762 and 765 , and Jeff M Hart heads Departments 763
and 761
'These consultations not only include discussions between the heads of
the departments, but include personal contact between the employees of
those departments
'The only exception is that the employees in Department 763 and some
of those in 764 (namely the employees which Employer asserts are
professionals ) are paid overtime on a slightly different basis
'Department 039 may be something of an exception to this The only
direct relationship it has with the other departments is that it is headed by
the same man who heads Department 764 However , none of the parties
suggest this Department should be separated from Department 764 and, in
any case, their common department head would indicate that Department
764 and 039 should not be separated
'Both Petitioner and Intervenor have indicated their willingness to
The Employer contends that all the employees in
Department 7638 and the junior engineers and above
in Department 764 are professionals and entitled to
a self-determination election. The Petitioner agrees
with the Employer that the employees in
Department 763 are professional employees, but
contends that none of the employees in Department
764 are professional. The Intervenor also contends
that none of the employees in Department 764 are
professional. It has not taken a position with regard
to the professional status of the employees in
Department 763.'
There are three classifications of employees in
Department 763. Chemical Engineer- Compounding,
Chemists-Analytical, and Junior Chemical Engineer
The Chemical Engineer-Compounding analyzes each
problem from a chemical viewpoint and then
reaches a decision as to what changes are to be
recommended or made to correct the problem i8 As
part of his job he must evaluate formulas and
specifications, modify present formulas and
specifications as required, issue instructions for
off-standard materials, make certain that
specifications are being maintained in production
areas, correct defective practices, and evaluate the
product at all stages from raw material to finished
product. The Chemists-Analytical is responsible for
testing all incoming raw materials before they are
released to production, all pretesting, as well as
testing of the final product. As part of these tests
the Chemists-Analytical must exercise their
judgment in operating the elaborate test equipment
as well as in the interpretation of the results. The
Junior Chemical Engineers have essentially the same
job as the Chemical Engineers-Compounding, except
that the problems they handle on their own are of a
lesser magnitude and vary with their own
experience. Each of the employees in this
department must exercise discretion and judgment
on a daily basis in solving the varying problems
which they face. These employees, at their own
discretion, frequently work during hours outside the
normal duty hours and frequently are contacted at
their homes when problems arise outside their
normal work hours. Presently, Chemical
Engineers-Compounding and Chemists-Analytical
are required to have college degrees, preferably with
a major in chemistry. Employer prefers that Junior
Chemical Engineers have as much college work as
possible and prefers that they have at least two
years of college chemistry."
participate in such an election
'Except the confidential secretary which the parties agree should be
excluded from the unit
'As an alternative , Employer contends that, if the Board finds the junior
engineers and above in Department 764 are not professional , it should also
find that the employees in Department 763 are not professionals
"Each of the seven incumbents in this classification specialize in one or
more items of manufacturing , such as rubber preparation , truck-bus tires,
cements, curing, rubber inspection and classification , and reclaim
production and inspection
"Employer ' s job description states that Junior Chemical Engineers must
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There are three classifications of employees in
Department 764 which the Employer contends are
professional employees.' Z Senior Engineers,
Engineer-Tire Specs & Molds," and ' Junior
Engineer The Senior Engineer" directs the analysis
of any defects and determines the corrective action
to be taken, coordinates with the plant engineer
when dealing with any malfunctions, breakdowns
and/or changes in operations, inspects tire molds
before their use and issues instructions for revision
of tire molds, and works with the other departments
in developing changes in materials, equipment,
cures, and procedures designed to improve quality
and/or reduce cost, waste, seconds, or scrap. The
Engineer Tire-Specs. & Molds is responsible for a
section of the product from the issuing of the
specifications assuring that the finished tire meets
these specifications. As part of his job he prepares a
substantial proportion of the specification for tires
and threads as well as emergency specifications, and
makes certain that the tires are being produced in
compliance with those specifications. The Junior
Engineer is in training to become an Engineer
Tire-Specs. & Molds. As part of his job he observes
production operations in all departments to insure
adherence to specifications; follows up to make sure
that deviations from specifications have been
corrected; analyzes and checks tires and the results
of tests; assists in writing specifications; and inspects
molds and issues releases or rejections of molds. The
employees in each of these classifications are faced
with a wide variety of problems and are required to
exercise judgment and discretion in solving these
problems, the Junior Engineers to a lesser extent
than the others because of their relative lack of
experience. All new employees in these
classifications, including the Junior Engineers, are
required to have college degrees. All of these
employees are required to work until they finish
solving any problems they are dealing with- even
though it may require them to work outside their
normal duty hours.
We agree with the Employer and Petitioner that
the employees in Department 763 are professionals
within the meaning of 2(12) of the Act. A
comparison of the functions and responsibilities of
the engineers in Department 764 with those of the
chemists and chemical engineers in Department 763
indicates that the engineers in Department 764
perform essentially the same functions and have
essentially the same responsibilities with respect to
the physical aspects of Employer's product as the
chemists and chemical engineers in Department 763
have with respect to the chemical aspects of
Employer's product. We can find no reason for
have a college degree However, Jeff M Hart , Employer's Chief Chemist,
testified that the requirements are as stated above
'A total of 14 of the 27 employees in this department
"Frequently referred to in the testimony as "Engine Factory Control
"Some Senior Engmeets are supervisors and are excluded from the unit
on that basis
reaching a different result with respect to the
engineers in Department 764 and conclude that the
nature of the work they perform establishes that
they are professional employees. Accordingly, we
find that the chemists and chemical-engineers in
Department 763 and the engineers in Department
764 may constitute a unit appropriate for the
purposes of collective bargaining, and we,shall direct
separate elections in the following voting groups:
(a) All of the employees in Employer's
Departments 762, 765, 764, 039, and 761, but
excluding the employees in Department 763, the
Senior Engineers, Engineers-Tire Specs. & Molds,
and Junior Engineers in Department 764, office
managers, clerical employees, guards, and
supervisors as defined in the Act.
(b) All Chemical Engineers-,Compounding,
Chemists-Analytical and' ' Junior Chemical
Engineers in Department 763 and all Senior
Engineers, Engineers-Tire Specs. & Molds, and
Junior Engineers in Department 764, but
excluding all other employees and supervisors as
defined in the Act
The employees in the professional voting group
(b) will be asked two questions on their ballot:
(1) Do you desire to be included in the same unit
as other employees in Departments 762, 765, 764,
039 and 761 for the purposes of collective
bargaining?
(2) Do you desire to be represented for the
purposes of collective bargaining by Local Union
367, Office and Professional Employees
International Union, AFL-CIO; or by United
Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO; or by neither9
If a majority of the employees in the voting group
(b) vote "Yes" to the first question, indicating they
wish to be included in a unit with the
nonprofessional employees, they will be so included.
Their votes on the second question will then be
counted together with the votes of the
nonprofessional voting group (a) to decide their
representative for the whole unit. If, on the other
hand, a majority of the professional employees in
voting group (b) do not vote for the inclusion, they
will not be included with the nonprofessional
employees, and their votes on the second question
will then be separately counted to decide whether
they want any of the Unions on the ballot to
represent them in a separate professional unit. The
record indicates that each of the labor organizations
would be willing to represent the professional
employees separately, if those employees vote for
separate representation. However, if any Union does
not desire to represent the professional employees in
a separate unit even if these employees vote for such
representation, that Union may notify the Regional
Director to that effect within 10 days of the date of
this Decision and Direction of Elections.15
"New England Telephone and Telegraph Company. 179 NLRB No 93
FIRESTONE TIRE & RUBBER CO 833
Our unit determination is based in part, then,
upon the results of the elections. However, we now
make the following findings in regard to the
appropriate unit:
(1) If a majority of the professional employees
vote for inclusion in a unit with nonprofessional
employees, we find that the following employees will
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All employees in Departments 762, 765, 764, 039,
763 and 761, but excluding all office managers,
clerical employees, guards, and supervisors as
defined in the Act.
(2) If a majority of the professional employees do
not vote for inclusion in the unit with
nonprofessional employees, we find that the
following two groups of employees will constitute
separate units appropriate for collective bargaining
within the meaning of 9(b) of the Act:16
(a) All of the employees in Employer's
Department 762, 765, 764, 039, and 761 but
excluding the employees in Department 763, the
"AII the employees in Department 763 are excluded from voting group
(a) as the record indicates that they are all either professionals or office
clericals
Senior Engineers, Engineers-Tire Specs. & Molds,
and Junior Engineers in Department 764, office
managers, clerical employees, guards, and
supervisors as defined in the Act.
(b) All Chemical Engineers-Compounding,
Chemists-Analytical and Junior Chemical
Engineers in Department 763 and all Senior
Engineers, Engineers-Tire Specs. & Molds, and
Junior Engineers in Department 764, but
excluding all other employees and supervisors as
defined in the Act
[Direction of Elections' omitted from
publication.]
"In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the elections shall have access to lists of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman -Gordon Company,
394 U S 759 Accordingly, it is hereby directed that election eligibility lists
containing the names and addresses of all eligible voters must be filed by
the Employer with the Regional Director for Region 26 within 7 days of
the date of this Decision and Direction of Elections The Regional Director
shall make the lists available to all parties to the elections No extensions
of time to file these lists shall be granted by the Regional Director except
in extraordinary circumstances Failure to comply with this requirement
shall be grounds for setting aside the elections whenever proper objections
are filed