Westinghouse Electric Corp. v. National Labor Rel. Bd.

• Decision Date: 25 September 1956
• Docket Number: No. 11856.,11856.
• Court: U.S. Court of Appeals — Third Circuit
• Parties: WESTINGHOUSE ELECTRIC CORPORATION (ELEVATOR DIVISION), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

236 F.2d 939 (1956)

WESTINGHOUSE ELECTRIC CORPORATION (ELEVATOR DIVISION), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 11856.

United States Court of Appeals Third Circuit.

Argued June 21, 1956.

Decided September 25, 1956.

COPYRIGHT MATERIAL OMITTED

John G. Wayman, Pittsburgh, Pa. (Leonard L. Scheinholtz, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., on the brief), for petitioner.

Edward Friedman, Atty., N. L. R. B., Washington, D. C. (Theophil C. Kammholz, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Frederick U. Reel, Atty., N. L. R. B., Washington, D. C., on the brief), for respondent.

Before BIGGS, Chief Judge, GOODRICH, Circuit Judge, and VAN DUSEN, District Judge.

BIGGS, Chief Judge.

Westinghouse Electric Corporation, Elevator Division, has petitioned this court, pursuant to Section 10(f) of the National Labor Relations Act, 1935, 49 Stat. 449, as amended and entitled the Labor Management Relations Act, 1947, 61 Stat. 136, 29 U.S.C.A. § 151 et seq., to set aside a cease and desist order issued against it on January 20, 1956 by the National Labor Relations Board. 1956, 115 N.L.R.B. ___.

Westinghouse employs at its Jersey City plant production and maintenance workers, paid by the hour; office, clerical and technical employees, all salaried workers; and professional employees as defined by the Act. Section 2(12), 29 U.S.C.A. § 152(12). The group of professionals includes one nurse and approximately 60 engineers. Since 1945, 25 of these engineers, known as methods engineers (time and motion study) and junior engineers (junior professionals), have been included, by their own determination, in the salaried unit for purposes of collective bargaining. The salaried unit, formerly represented by the United Electrical, Radio and Machine Workers of America (UE), is now represented by the International Union of Electrical, Radio and Machine Workers (IUE). See Westinghouse Electric Corp., 89 N.L.R.B. 8, 9, 33 (1950). The remaining engineers, the nurse, and a traffic analyst were never included in any unit for bargaining.

On January 11, 1955, the Association of Westinghouse Engineers, Elevator Division (AWE), filed a representation petition requesting a unit consisting of all the professional engineers in the Jersey City plant, except the methods engineers and junior engineers who, as we have indicated, for 10 years past had been included in the certified salaried unit and who were at that time covered by an IUE contract. AWE also petitioned for an alternative unit of such other professional and technical employees as the Board might direct to be included. Westinghouse objected to the unit sought by AWE on the ground that it failed to include all the professionals at the plant, viz., the methods engineers, the junior engineers, application engineers in the order service department, the nurse, and the traffic analyst.

The Board found that a unit consisting of all the professional engineers at the plant, except the methods engineers and the junior engineers, constituted an appropriate unit for bargaining. The Board excluded the methods engineers and junior engineers on the ground that they were "* * * represented in a certified unit by a union IUE whose contract would bar a representation proceeding with respect to those categories." The Board excluded the nurse on the ground that her interests were unlike those of the professional engineers. The application engineers in the order service department and the traffic analyst were excluded because the Board concluded that employees in these categories were not shown to be professional employees within the meaning of Section 2(12) of the Act. The Board's determination is reported in 112 N.L.R.B. 590 (1955).

An election was held in the unit the Board had defined and AWE won it, 32 to 7. The AWE unit was certified but Westinghouse, contending that the unit was inappropriate, refused to bargain with it. In a subsequent proceeding, 1956, 115 N.L.R.B. ___, the Board reaffirmed its certification and found that Westinghouse was guilty of an unfair labor practice in refusing to bargain. See Section 8(a) (5) and (1) of the Act, 29 U.S.C.A. § 158(a) (5) and (1). The Board then issued the cease and desist order against Westinghouse now under review by this court.

The sole question in this case is the validity of the unit determination. Under Section 9(b) of the Act, 29 U.S. C.A. § 159(b), the Board has wide discretion in determining the unit appropriate for the purposes of collective bargaining. Where such determination is reasonable and not arbitrary it is binding on the reviewing court. N. L. R. B. v. Jones & Laughlin Steel Corp., 1947, 331 U.S. 416, 422, 67 S.Ct. 1274, 91 L. Ed. 1575; Pittsburgh Plate Glass Co. v. N. L. R. B., 1941, 313 U.S. 146, 152, 61 S.Ct. 908, 85 L.Ed. 1251.

Westinghouse contends that the Board exceeded its authority in the unit determination in that: (a) the unit is a residual unit allegedly improper under the Act, and based as a prime factor on the extent to which the engineers had organized; and (b) a unit of professional employees, as here, cannot be appropriate unless it includes all the professionals in the plant. We will consider these points in the order stated.

When the Board made the unit determination it referred to the unit as "* * * the residue of all unrepresented similar professional employees of the Employer at its Jersey City plant." Westinghouse Elec. Corp., 1955, 112 N.L.R.B. 590, 591. A residual unit consists of all employees in a plant not otherwise represented for the purposes of collective bargaining. Wilson H. Lee Co., 1952, 97 N.L.R.B. 1023, 1025. Westinghouse contends that a residual unit is contrary to Section 9 (c) (5) of the Act, 29 U.S.C.A. § 159 (c) (5) which provides: "In determining whether a unit is appropriate for the purposes specified in subsection (b) of this section the extent to which the employees have organized shall not be controlling." The Board denies that the Act invalidates residual units, but we need not decide that question here for the facts make it plain that the unit was not a...