Lumbard, Chief Judge, and Moore and Smith, Circuit Judges. Moore, C.j. (concurring).
Westinghouse asks the Court to review and set aside an order of the Board requiring Westinghouse to bargain with the IUE as the collective bargaining representative of the Systems and Procedures Analysts at Westinghouse's Jersey City Works, and the NLRB cross appeals for enforcement of its bargaining order. 177 NLRB No. 49 (1969); 182 NLRB No. 85 (1970).
In 1950 the union was certified, and in 1956 it was recertified as the collective bargaining agent for "all office, clerical, and technical employees" at Westinghouse's Works at Jersey City and since 1950 the company and the union have entered into collective bargaining agreements covering these employees.
In 1956, shortly after the recertification of the bargaining unit, Westinghouse began an effort to convert its then-existing clerical procedures to systems which utilize IBM machines to perform clerical functions. During the late 1950's, the company expanded the mechanization process, acquired more equipment, and began hiring programmers to run the equipment. Computer equipment was first acquired in 1961; and in the same year the company issued a new job description for "Systems and Procedures Analysts A and B." There are presently seven Systems Analysts employed by the company in Jersey City, and their primary responsibility is to formulate procedures which will result in the satisfactory transfer of work to the new mechanized system.
The union first showed an interest in the Systems and Procedures analysts in 1965. On June 4 of that year Anton Handel, president of the union, in a letter to the company's industrial relations manager, Leonard Casner, requested information concerning a number of the company's employees who, for some reason, were outside of the scope of the bargaining unit. The company's answer on December 2, 1965 listed the names of the systems and procedures analysts and asserted that the reason they had not been included in the bargaining unit was that professional employees had been excluded from the certified unit by the specific language of the certification.
In 1967 the union filed a unit clarification petition with the Board in an attempt to include in the unit the company's Systems and Procedures Analysts "A" and "B." The Acting Regional Director conducted a hearing and on October 18, 1967 he issued his decision in which he ordered that the Systems and Procedures Analysts "A" and "B" be included in the unit. He found that they were not professional or confidential employees; that they were technical employees who had a community of interests with employees already in the unit; and that the unit clarification procedure was a permissible means to include them within the existing unit. The company requested review of the Regional Director's findings and the Board on review found that the analysts were "an accretion" to the certified unit, and rejected all of the company's other contentions. 173 NLRB No. 43 (1968).
When the union shortly thereafter requested recognition and bargaining, the company refused. An unfair labor practice charge was filed with the Board, and in defense the company challenged the Regional Director's conclusion that the Systems and Procedures Analysts should be included in the bargaining unit. It maintained that the Analysts are professional employees within section 2(12) of the National Labor Relations Act, 29 U.S.C. § 152, and that they are confidential employees. The company further took the position that it had no duty to bargain with the union because the unit clarification procedure which was followed was inappropriate and an election should have been held. Without de novo consideration of the unit clarification record, the Board found that the company had failed to bargain with the union in contravention of 8(a)(1) and 8 (a)(5) of the Act, and it entered a bargaining order.
When the company filed a petition for review in this Court, the Board was allowed to withdraw the certified list so that it could review the decision of the Regional Director in the underlying unit clarification proceeding in conformity with Pepsi-Cola Bottling Co. v. NLRB, 409 F.2d 676 (2d Cir. 1969), cert. denied, 396 U.S. 904, 90 S. Ct. 219, 24 L. Ed. 2d 181 (1969). The Board itself upheld the findings of the Regional Director. 182 NLRB No. 85 (1970).
Petitioner argues that the Regional Director and the Board erred in finding that the Analysts are technical employees. Petitioner contends that they are professional employees within section 2(12) of the Act and, as a result, the NLRB could not add them to the existing unit without holding an election. According to the company, the present Analyst positions are an outgrowth of the 1956 staff assistant position (a professional position outside of the certified bargaining unit) and like the staff assistant, the Analysts are professionals because they use independent judgment to determine the adaptability of the electronic data processing and computer equipment to new and changed systems. Petitioner also makes much of the fact that the 1965 job description listed a college degree as a prerequisite for the Analyst positions.
Section 2(12) of the Act precludes adding professional employees to a unit of non-professionals without affording them the opportunity to express their desires through the electoral process. It defines the professional employee as one whose work is "predominantly intellectual in character" and whose training is normally a result of "specialized intellectual instruction." The Board considers such factors as the possession of a certain measure of skill, knowledge, and independent exercise of judgment in determining whether workers are technical or professional employees. Radio Corporation of America, 141 NLRB 1134-1137 (1963); Westinghouse Electric Corporation, 163 NLRB 914, 916 (1967).
In support of the Regional Director's finding that the Analysts are technical rather than professional employees, the Board points out that although the Analysts do exercise some independence of judgment, their function is much narrower than that of professional employees such as the staff assistant and their range of discretion is not so broad. It was the staff assistant who considered all of the alternative systems for performing the clerical work and made the affirmative recommendation to adopt the mechanization process. The Analyst merely applies that process to particular assigned projects and formulates systems and procedures in order to solve efficiency problems which are posed to him by others. His concern is with the methods of mechanization rather than the desirability of the process and although his position would never have come into being without the recommendation of the staff assistant, his responsibilities are much more clearly defined than those of the staff assistant.
Furthermore, it is apparent that in Westinghouse's operations, the Systems and Procedures Analysts do not need the kind of knowledge of an advanced type that is normally acquired as a result of prolonged study in an institution of higher learning. Thus, despite the fact that the company's 1965 job descriptions for Analyst positions listed a college degree as a prerequisite, only two out of the seven Analysts have college degrees. In the Western Electric Company case, 126 NLRB 1346, 1349 (1960), the Board, in analyzing the criteria for professional employees, stated that the educational requirements for particular jobs are very important but "if few in the group possess the appropriate degree, it logically follows that the educational characteristics of the work are not those requiring the utilization of advance knowledge."
Four of the seven employees now serving as Systems and Procedures Analysts were promoted to the Analyst positions directly from jobs in the existing bargaining unit. While an employee can change his work status as a result of additional training and experience, there would seem to be no basis for finding that these four formerly technical employees had become professionals overnight merely by moving into jobs outside of the existing unit of non-professional employees. The work of the Analysts is not predominately intellectual in character and, as has been indicated, their responsibilities are clearly and narrowly defined. Moreover, the Board has held in other cases that employees who have responsibilities which are substantially similar to those of the Analysts are technical rather than professional employees.*fn1 We therefore agree with the Board that ...