Westinghouse Electric Corporation v. NLRB
| Decision Date | 28 April 1970 |
| Docket Number | No. 17004.,17004. |
| Parties | WESTINGHOUSE ELECTRIC CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
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Owen Fairweather, R. Theodore Clark, Jr., Chicago, Ill., for petitioner; David L. Trezise, Pittsburgh, Pa., of counsel.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Solomon I. Hirsh, Gary Green, David C. Nevins, Attys., National Labor Relations Bd., Washington, D. C., for respondent.
Before FAIRCHILD and CUMMINGS, Circuit Judges, and CAMPBELL,1 Senior District Judge.
These cross petitions for review and enforcement of an NLRB bargaining order test the board's designation of a bargaining unit and resulting certification. The principal issue is whether employees included in the unit are statutory supervisors. Refusal to bargain with the certified representative is undisputed, but a secondary issue is whether the employer made a sufficient showing of changed circumstances with respect to supervisory duties so that it was improper for the board to enter summary judgment on the unfair labor practice charge of refusal to bargain.
The employer, Westinghouse, manufactures and services turbine generators and related equipment. The company's steam service department is responsible for installation and subsequent servicing. In this case we are concerned with the steam service engineers attached to two district offices with headquarters in Chicago. The districts are two out of five in the central area, one of the company's five areas in the United States.
There were at the time of the representation hearings approximately twenty field engineers attached to the Chicago offices. Clearly outside the unit, but attached to these offices, are two clerical employees and five supervisory employees. The latter five are the Central Area Steam Service Manager, the Midwest and Chicago District Steam Service Managers, and two senior service assistants.
The field engineers here involved are salaried (receiving extra pay for overtime) and skilled in mechanical engineering, most having a mechanical engineering bachelor's degree and the rest having become skilled through on-the-job experience. They are ranked "A," "B," or "C" depending on their ability. About 95% of their time is spent outside the office installing or servicing steam turbine equipment at customer locations. The jobs they work on vary in size from large installation projects taking over a year to complete and requiring 5 or 6 engineers and an additional work force of as many as 35 craftsmen, down to servicing jobs consuming a few hours and requiring only one or two engineers. Any of the field engineers may be selected as the "lead engineer" who will have overall responsibility for a given project. An "assistant engineer" is responsible for only a certain phase of the work, or for only one shift on large projects where work is done on more than one shift. Assignments to such positions depend on the complexity of the job and the ability and availability of the particular engineers. Six out of the total number of field engineers are more often selected as lead engineers for larger projects. Occasionally engineers from outside the Chicago area are called in as lead engineers on particularly complicated projects.
Westinghouse uses two basic approaches in both installation and servicing work: (1) the "technical supervision" method and (2) the "labor contract" method. Under a "technical supervision" arrangement, Westinghouse supplies material and equipment at specified prices and the services of one or more engineers at an hourly rate, while the customer supplies the "casual labor" and any foremen or, on large projects, superintendents. On a labor contract project Westinghouse agrees, for a total fee, to perform a complete installation or service, supplying the materials, engineering service, and additional labor necessary to fulfil its contract. The craftsmen, sometimes referred to as casual labor, are hired by Westinghouse from local unions or through a labor broker. The evidence indicates that a labor contract project is ordinarily longer and more complicated than a technical supervision job.
The original petition for an election was filed December 7, 1964. On February 12, 1965, after a hearing, the regional director ordered an election in a unit found appropriate and defined as follows:
"All professional Steam Service field engineers employed at the Employer\'s Chicago, Illinois district offices; excluding all service assistants, office clerical employees, guards, supervisors as defined in the Act, and all other employees."
Westinghouse sought review, and the board remanded for further hearing on the question whether the field engineers are supervisors. Hearings were held in April, 1965. On March 31, 1967, the board issued its decision on review, reported at 163 NLRB 96.
The gist of the board's decision was that except for special responsibilities imposed only on lead engineers assigned to labor contract projects, the field engineers are professional employees and the guidance or direction they give to the workmen on the project is not supervision in the statutory sense. The board found that the lead engineer on a labor contract project has special duties vis-a-vis the draftsmen employed by Westinghouse and by reason of these duties a field engineer, while engaged as a lead engineer, has supervisory status in the statutory sense. The board rejected the Westinghouse claim that every field engineer who performed such supervisory work for some part of the year should be excluded from the unit. Relying upon its own Great Western Sugar Company2 decision the board decided to include in the unit and qualify as a voter each engineer who, during the preceding year, spent 50% or more of his working time (excluding leave or waiting time) performing nonsupervisory duties. The board specified, however, that any bargaining representative may not represent any engineer with respect to his supervisory duties.
The election was held May 26, 1967, with 17 eligible employees voting. On a vote of 9-8, the regional director certified the Federation of Westinghouse Independent Salaried Unions as the bargaining representative of the unit.
In the unfair labor practice proceeding which followed refusal to bargain, Westinghouse opposed summary judgment and submitted an affidavit allegedly showing changed circumstances. The board granted summary judgment3 and issued a bargaining order.
Westinghouse contends that the following relationships are supervisory in the statutory sense: (1) the lead engineer's relationship with so-called casual labor on contract projects; (2) the lead and every other field engineer's relationship with the customer's employees on technical supervision projects; (3) the lead engineer's relationship with other field engineers on either type of project; (4) the other field engineers' relationship with casual labor on contract projects; and (5) the field engineers' relationship with bladers and generator mechanics, both Westinghouse employees, assigned to contract and technical supervision projects. Westinghouse further (6) challenges the board's concept that at any particular time a field engineer who is or has been assigned to a supervisory job is not deemed a supervisor for purposes of membership and eligibility to vote in a unit if 50% or more of his time during the preceding year has been spent on assignments where he was not a supervisor. Westinghouse also contends (7) that all the field engineers are managerial employees, whether or not they are supervisors.
The board agreed as to Westinghouse contention (1). (Relationship of lead engineers with casual labor on contract projects.) It found that lead engineers on contract projects perform special administrative duties, such as purchasing certain supplies, arranging through unions or labor brokers for employment of craftsmen and foremen, establishing payroll and accounting systems, paying project bills, and arranging in some instances to subcontract portions of the work. Although the board considered the duties of lead engineers on these projects primarily professional, as it considered the duties of all other field engineers, the board noted that the foremen directly supervising the craftsmen would seek approval of certain decisions by the lead engineers before making their own decisions final, and that union stewards have presented grievances to lead engineers and accepted their decisions. The board considered the relationship to be supervisory in character.
The Westinghouse contentions other than (1) present the issues now before us.
(2) Relationship of every field engineer with the customer's employees.
We have no difficulty sustaining the board's decision on this issue. The board concluded that the field engineers, lead or otherwise, on technical supervision projects, give technical advice and instructions to the customer's foreman, who is the real supervisor of the customer's other employees. Beyond that, however, the fact that the people allegedly supervised are not Westinghouse employees prevent the field engineers from being their supervisors within the meaning of section 2(11) of the act, 29 U.S.C. § 152(11).4
Westinghouse argues that the customer "shares" these employees with Westinghouse. We think, however, that the board properly viewed the arrangement as one by which Westinghouse provides technical direction and guidance to the customer's employees in order that the customer may achieve its own objective through the effort of its employees, supervised, in the statutory sense, by the customer.
(3) Relationship of the lead engineer to other field engineers assigned to the same project.
There is ample support for the board's view. The engineers are professional employees. Any...
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