# Westinghouse Electric Corp. v. National Labor Relations Board

> Court of Appeals for the Second Circuit · March 30, 1971 · 440 F.2d 7

URL: https://www.frixlaw.com/law-library/cases/8885030

## Case

- **Full name:** WESTINGHOUSE ELECTRIC CORPORATION v. NATIONAL LABOR RELATIONS BOARD, and International Union of Electrical, Radio and Machine Workers, AFL-CIO, Local 456, Intervenor
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** March 30, 1971
- **Citations:** 440 F.2d 7
- **Precedential status:** Published
- **Opinion:** Concurrence by Moore
- **Judges:** Lumbard, Moore
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8885030

## Opinion text

MOORE, Circuit Judge
(concurring):
I concur in the opinion of the Court.
The National Labor Relations Act, § 9(b) (1), 29 U.S.C. § 159 (b) (1) prohibits the adding of professional employees to a nonprofessional unit without an election. The relevant inquiry therefore involves an examination of whether the definition of the term “professional” is met. A “professional” is defined in § 2 (12) of the National Labor Relations Act, 29 U.S.C. § 152 as:
“any employee engaged in work (i) predominately intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work; (ii) involving the consistent exercise of discretion and judgment in its performance; (iii) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; (iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from general academic education or from an apprenticeship or from training in the performance of routine mental, manual, or physical processes * *
I agree fully with the following statement of the Court relating to the accretion doctrine:
“As a general rule, the accretion doctrine should be applied restrictively since it deprives the new employees of the opportunity to express their desires regarding membership in the existing unit [citations omitted]. And when the relevant considerations are not free from doubt it would seem, more satisfactory to resolve such close question through the election process rather than seeking an addition of new employees by a finding of accretion.”
Applying the standard of § 2(12), I am not “free from doubt” that the Systems and Procedures Analysts A and B (Analysts) meet that part of the definition of “professional” which requires that the work involved must be such *13 that it requires “knowledge of an advanced type * * * customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning.” On the facts of this particular case, only two of the seven persons currently employed as Analysts have college degrees and four of the Analysts were promoted to Analyst positions directly from existing bargaining units. Thus, in this case there was a substantial basis for the Board’s finding of accretion.
However, in the future, persons employed in jobs of this type may well meet the requirements of the statutory definition of “professional.” The decision of the Acting Regional Director in this case recognized the “predominately intellectual and varied * * * character” of the Systems Analysts’ work. As systems become more complex, so does the job of the Analyst. The devising and revising of systems begin to involve more and more management type decisions in that the nature of a system may determine not only what utilization is to be made of computer and data processing equipment but also what utilization is to be made of a wide variety of employees throughout the plant, the nature of whose job is sufficiently related to the system in question. Accordingly, it is to be expected that Analysts of the future will require greater educational attainment than that possessed by the Analysts here involved. As educational patterns change and scientific and technical courses are available in two-year colleges or similar educational institutions giving intensive and concentrated training in this field, such Analysts, in my opinion, would clearly not be precluded from being treated as professionals merely because they had not elected to follow the more stereotyped four-year course.
Therefore, although I wholly subscribe to the Court’s opinion on the facts here presented, I would construe the word “professional” with the greatest liberality in deciding this status and would give to such an employee the broadest rights to decide whether or not he might wish to be a union member or remain outside the fold.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8885030. Public record. Not legal advice.