General Instrument Corporation v. NLRB

• Decision Date: 03 June 1963
• Docket Number: No. 8869.,8869.
• Parties: GENERAL INSTRUMENT CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

319 F.2d 420 (1963)

GENERAL INSTRUMENT CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 8869.

United States Court of Appeals Fourth Circuit.

Argued April 4, 1963.

Decided June 3, 1963.

Jesse Freidin, New York City (Herbert Prashker, Eric Rosenfeld, and Poletti, Freidin, Prashker & Harnett, New York City, on brief), for petitioner.

Warren M. Davison, Atty., National Labor Relations Board (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and William J. Avrutis, Atty., National Labor Relations Board, on brief), for respondent.

Donald Grody, New York City (Abramson & Lewis, New York City, on brief), for International Union of Electrical, Radio and Machine Workers, AFL-CIO, amicus curiae.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and J. SPENCER BELL, Circuit Judges.

J. SPENCER BELL, Circuit Judge.

Pursuant to National Labor Relations Act § 10(f), 29 U.S.C.A. § 160(f), General Instrument Corporation, the employer, brings action in this Court seeking to set aside a decision and order of the National Labor Relations Board. The Board cross-petitions pursuant to National Labor Relations Act § 10(e), 29 U.S.C.A. § 160(e), for enforcement of the order. The union involved is the International Union of Electrical, Radio and Machine Workers, AFL-CIO. The order involved requires the employer to bargain collectively with the union as certified representative of the employees, to cease and desist from violating National Labor Relations Act § 8(a) (1) and (5), 29 U.S.C.A. § 158(a) (1) and (5), and to post appropriate notices.

General Instrument Corporation has several plants, including four within the area encompassed by this Circuit. Involved in this petition is the employer's Thermo-Electric Division at its Newark, New Jersey, plant. The Thermo-Electric Division is devoted to research and development and at the time of the Regional Director's hearing, contained 32 employees, 17 of whom were classified as engineers and 15 of whom were in laboratory classifications. The evidence indicates that the laboratory and the engineering employees work very closely with each other, frequently performing overlapping functions. However, the evidence also indicates that there are several areas in which the groups do not share common interests. The engineers are professionals, whereas the laboratory workers are not; the engineers are generally paid on a salary basis ranging up to $300.00 per week, whereas the laboratory technicians are paid on an hourly basis with rates running up to $3.10 per hour; in general, the engineers are not paid for overtime hours, whereas the laboratory technicians are so paid; most of the engineers have college degrees or the equivalent, or are in the process of obtaining one, whereas none of the laboratory workers have this qualification.

After a hearing, the Regional Director found that a unit of all professional and technical employees would be appropriate, but if the professional employees were to vote under National Labor Relations Act § 9(b) (1), 29 U.S.C.A. § 159 (b) (1), against inclusion, a unit of laboratory technicians would be appropriate. The Board, reversing the Regional Director, found a unit of laboratory technicians to be appropriate and, therefore, limited the voting count to the ballots cast by these employees. On this basis, a majority of the employees in the unit voted for unionization.

In its analysis of the issues, the Board stated that:

"it is clear that the Petitioner the union seeks to represent only the technical employees and does not desire to represent the professionals. Moreover, where as here, the petitioner has no showing of interest among the professional employees, the Board will not direct an election among them to ascertain whether they wish to be joined in the same unit with the nonprofessionals citing cases in a footnote. In these circumstances, we find that the requested unit limited to the technical employees is appropriate. * * *"

The employer filed a motion before the Board for reconsideration of the decision, asserting that the Board had allowed the union, by its showing of interests, to determine the appropriateness of the unit. In denying this motion, the Board stated that it

"is of the opinion that the Employer\'s motion to reconsider should be denied as lacking in merit because the unit of technical employees in the Employer\'s Thermo-Electric Division, excluding the professional employees, is appropriate for the purposes of collective bargaining."

The employer contends that the decision of the Board should be set aside, since 1) the Board violated N.L.R.A. § 9(c) (5), 29 U.S.C.A. § 159(c) (5), in that it gave controlling effect to the extent of organization of the employees, 2) the Board failed to perform its duty as imposed by N.L.R.A. § 9(b), 29 U.S. C.A. § 159(b), to "decide in each case" what the appropriate unit should be, and 3) the Board's unit determination is arbitrary, capricious and an abuse of discretion in violation of Administrative Procedure Act § 10(e) (B) (1), 5 U.S. C.A. § 1009(e) (B) (1).

Primary responsibility for deciding whether a unit is appropriate for purposes of collective bargaining has been granted to the National Labor Relations Board. N.L.R.A. § 9(b), 29 U.S. C.A. § 159(b). Our scope of review of this decision is very limited. N.L.R.B. v. Quaker City Life Insurance Co., 319 F.2d 690 (4 Cir. 1963). Misapplication of law, failure of substantial evidence, abuse of discretion — these are the elements upon which a court may rely in reviewing the Board's decision. National Labor Relations Act § 10(e) & (f), 29 U.S.C.A. § 160(e) & (f); Administrative Procedures Act § 10(e), 5 U.S.C.A. § 1009(e); N. L. R. B. v. Jones & Laughlin Steel Corp., 331 U.S. 416, 67 S.Ct. 1274, 91 L.Ed. 1575 (1947); Packard Motor Car Co. v. N. L. R. B., 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947); Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251 (1941); N. L. R. B. v. Quaker City Life Insurance Co., supra. Absent these, the administrative determination must be supported.

A sufficient basis in substantial evidence on the record as a whole exists to sustain the order presently under attack. The technicals are sufficiently cohesive as a unit and at the same time sufficiently distinct from the professional engineers to permit separate bargaining units. Working conditions, hourly wage scales, job...