Brown & Sharpe Mfg. Co

In the Matter of BROWN & SHARPE MFG. Co and INTERNATIONAL, FEDERATION OF TECHNICAL ENGINEERS, ARCHITECTS AND DRAFTSMEN'S- UNIoN, LoCAL No. 119, A. F. of L. Case No. 1-C-10953 SUPPLEMENTAL DECISION AND ORDER AND RECOMMENDATION December 16, 1949 On June 28, 1949, Trial Examiner Arthur Leff issued his Supple- mental Intermediate Report in the above-entitled proceeding, finding. that the Respondent's time-study men are not "supervisors" within the meaning of Section 2 (11) of the Act, as amended, and that they are "employees" within the meaning of Section 2 (3) of the Act, as amended, and recommending that the Board reinstate in all respects. its Order herein which, pending proceedings on remand, was set aside by the decree of the United States Court of Appeals for the First. Circuit, as set forth in the copy of the Supplemental Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Supplemental Intermediate Report and a supporting brief. The Respondent's request for oral argument is denied because we believe the entire record herein and the Respondent's brief adequately present the issues and the positions of the parties.. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirlned. The Board has considered the Supplemental Intermediate Report, the Respondent's exceptions and brief, and the entire record' in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner as hereinafter supplemented.' 1 We find it unnecessary , however, to adopt or pass upon the Trial Examiner 's finding that the time-study men are "professional " employees. Although such employees would no doubt usually meet the requirements of the definition of "professional ," whether they are or are not is not an issue in this case and it is therefore unnecessary to make such a determination. 87 NLRB No. 121. 1031 0 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In its Decision and Order,2 issued on July 31, 1947,3 the Board found that the Respondent unlawfully refused to bargain collectively with the Union as the certified bargaining representative for an appropriate unit of time-study men.' The United States Court of Appeals for the First Circuit, upon petition by the Board for enforcement of its Order, remanded. the case to the Board for a determination, "with direct reference to the present statutory situation," as to whether the Respondent's time-study men fall within the definition of "supervisor" contained in Section 2 (11) of the amended statute, which had become effective after the issuance of the Board's Decision and Order. Under the amended statute, "supervisors" are specifically excluded from the definition of "employee" and are therefore not entitled to the organiza- tional guarantees of the Act.' The Court, in considering the effect of the amendatory legislation upon the case as it was presented before it for enforcement, examined the legislative history. It found a clear indication that Congress did not intend to include time-study men "as a class" in the "super- visory" category. Thus, the issue before the Court was reduced to whether this Respondent's time-study men performed such "particu- lar" duties, in addition to and beyond those performed by time-study men "as a class," as would independently bring them within the super- visory definition in the amended Act. However, the Court took ,cognizance of the fact that the Board, when it entered its Order, was not called upon to consider this question and consequently made no findings of fact thereon. Thereupon, the Court undertook no more than to conclude that "on the facts so far found [by the Board] the time-study men involved do not as a matter of llaw^ fall in the class .of `supervisors' as that term is at present defined," and remanded the case to the Board (emphasis added).s Section 2 (11) of the Labor Management Relations Act, 1947, con- tains the following definition of the term "supervisor": The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, 2 74 NLRB 801. 3 The Labor Management Relations Act, 1947, was enacted on June 23, 1947, and became effective on August 22, 1947. 4 As fully described in the Supplemental Intermediate Report, the Board had originally found in its Decision and Direction of Election (68 NLRB 407) that time-study men were "employees" under the Act and that they constitute a separate appropriate unit. This finding was affirmed after a further hearing and oral argument before the Board (70 NLRB 709) and reaffirmed in the Decision and Order, supra. 2 Section 2 (3) of the amended Act provides, in part The term "employee" . . , shall not include . . . any individual employed as a super- visor.... s The Board is the exclusive trier of the facts and its findings if supported by substantial evidence on the record considered as a whole are conclusive. Waterman Steamship Corp. v. N. L. it. B., 309 U. S. 206, 208; Eastern Coal Corp. v. N. L. R. B., (C. A. 4), 176 F. 2d 131. 0 BROWN & SHARPE MFG. CO. 1033 recall, promote, discharge, assign, reward, or discipline other employees or responsibly to direct their, or to adjust their griev- ances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. The Respondent's argument before the Court, and now before the Board in the remand proceeding, is confined to the contention that its time-study men possess the "authority" to "reward" other employees and "to adjust their grievances," or "effectively to recommend such action," within the meaning of the above-quoted definition. Thus, the Respondent concedes that the time-study men in question possess none of the remaining authorities enumerated in the definition. The pre- cise issues in the case, therefore, as drawn by the Court and care- fully analyzed and considered by the Trial Examiner, are further reduced to (1) whether the Respondent's time-study men perform any "particular" duties, substantially different from those performed by the time-study men contemplated by Congress when it enacted Section 2 (11) ; and (2), if so, do those "particular" duties establish their "authority" under the amended statute. to "reward" other em- ployees or "to adjust their grievances," or "effectively to recommend such action." SUPPLEMENTAL FINDINGS 1. We find, as did the Trial Examiner, upon a close examination and comparison of Board cases, that the Respondent's time-study men perform functions which are not substantially different from those performed by the time-study men involved in a number of cases de- cided by the Board since the effective date of the amended Act. In the cases cited by the Trial Examiner, and in similar cases decided since the issuance of his Supplemental Intermediate Report,' the Board uniformly held that the time-study men involved were not "supervisors." On the basis of these cases, we are convinced that the Respondent's time-study men are not distinguishable in their func- tions and responsibilities from time-study men in industry generally. Further support for this conclusion is readily found in an exam- ination of leading authorities in the field of management and indus- trial relations respecting the functions normally performed by time- study men." The general time-study work described by these authori- ' E. g., Chicago Pneumatic Tool Company, 81 NLRB 584 ; Minneapolis-Moline Company, 85 NLRB 597. 6 See, e. g., Cornell, Organization and Management ( 1936 ) ; Barnes, Motion and Time Study (3rd Ed. 1949) ; 5priegal and Lansburgh, Industrial Management (1947) ; Gomberg, A Trade Union Analysis of Time Study (1948) ; Balderston, Karabasz, and Brecht, Man- agement of an Enterprise (1935) ; Mogensen, Motion and Time Study (1932) ; Olsen, The :1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ties 9 clearly encompasses all the duties and responsibilities of the -Respondent's time-study men, including those particular duties and responsibilities which the Respondent relies upon to distinguish them -Standard Movement Time Approach to Incentives, Factory Maintenance and Management -CIV (March 1946) 126-130 ; Barth, Time Studies for Rate Setting, as Originated by Dr. F. W. Taylor, The American Machinist, XLVI, No. 4 (1917), 177; 178; Merrick, Time Studies as a Basis for Rate Setting (as Developed in the Taylor System of Management (1919)) : The Taylor Technique for Time Study, Bulletin of the Taylor Society, -III, No. 3 (1928) 106, 112; U. S. Department of Labor, Bureau of Labor Statistics, Bulletin No. 686, Union Agreement Provisions (1942), Ch. 6, and Bulletin No. 908-3, Time Studies and Standards of Production (1948), pp. 49-52. 9 For example the chart below compares the "particular" duties of these time-study men, .as urged by the Respondent before the Court and the Board, with the duties of time-study men in general, as discussed in Cornell, Organization and Management, ibid, at the pages indicated. Respondent's Time-Study Men 1. Require correct methods (includes insist- 1. once that time-study be taken while correct feeds and speeds are being used). :2. Effort rating. Time-Study Men in General "Although in many concerns time study is introduced primarily for the purpose of setting rates for piecework or some other form of incentive wages, its true purpose is threefold : (1) to determine the one best way of doing a task and the proper elapsed time for doing the task in the one best way ;'(2) to secure better and more accurate control in planning; (3) to serve as a basis for the setting of fair and adequate wage rates . . . " (Pages 686, 687.) "Standard times should always be set using as a basis the average skilled oper- ator. Therefore, in determining stand- ard time, the degree of skill of the operator studied and the amount of effort expended in comparison with that of an average. skilled operator must be taken into consideration as well as the working conditions under which the operation is performed. For this rea- son, the average time as it appears on each study sheet must be tempered ac- cordingly-decreased, increased, or re- main the same depending upon the case in question . . . There is no question that judgment does play an important part, but in every case this judgment should be guided if satisfactory results are to be obtained." (Pages 707, 708.) "By adding the standard time of all ele- ments of an operation, the total time of the task is obtained. This, however, is a flat basic time and does not allow for a worker to stop to rest for a few moments now and then, nor for per- sonal needs or other delays. To the standard basic time should be added a definite allowance to cover fatigue, per- sonal needs, and special requirements peculiar to the task such as set-up time, sharpening, and changing tools, gauging, etc., and' for delays beyond the control of the worker, if there are any. The allowance for fatigue varies with 2. 3. Allowances (personal needs, fatigue, delay, 3. tool maintenance, chip removal). BROWN & SHARPE MFG. CO. 1035 from tine-study men "as a class," and specifically to establish their alleged supervisory authority to "reward" other employees. More- over, the record shows that, before the enactment of the amended Act, the Respondent itself did not consider- that its time-study men performed duties different from those performed by time-study men ,generaily.10 On the basis of the whole record in the case, we believe, and find, that the Respondent's time-study men fall entirely within 4. Select portions of operations for which 4. incentive rate will be computed (in- cludes distinguishment by time-study man of time values to be considered and those to be ignored). S. Allowance slips (temporary job rates for 5. non-standard conditions). 6. Route sheet (or time setting slip in which the time-study man sets forth the proper elements in the operation time-studied and the order, in which they are to be performed). 7. Miscellaneous (e. g., personal relations between the time-study men and the operating force ; explanation of methods and technique.) the kind or nature of work and with the particular operation. For c e r t a i n classes of work, formulas and curves have been worked out for determining the amount of time to allow under vary- ing conditions." (Pages 708, 709.) See item 1, above. "Non-standard conditions. The foreman in such cases, by means of a request for- time-study- notifies the proper person in the time-study section. The latter investigates the situation and if he agrees with the request issues an 'Al- lowance Slip' to cover the emergency. In every case, insofar as it is possible, the new temporary rate as granted by the allowance slip should be set on an incentive basis." (Page 713.) "The Route Sheet . . . piece-work prices purposely have been set so that the oper- ator must do the combination of opera- tions as stated [in the route sheet pre- pared by the time-study man], other- wise it would be impossible for him to earn day wages for his day's work." (Page 712, see also page 633.) "There is nothing mysterious about time- study work nor anything that should be kept secret." (Page 690.) "The fore- men and operators may be shown in detail how the stop watch works •and how the complete time-study is taken, how the allowances for fatigue, personal needs, grinding tools, set-up time, etc., are determined, how the standards time and rate of production are com- puted and so on." (Page 691.) "The time-study men should refrain from criticizing an operator's work or the methods he uses. His suggestions should always be constructive and given only to the extent of the worker's receptiveness to them." (Page 691.) 6. 7. 10 John J. Hall, head of the Respondent's personnel department, in response to a ques- tion by Trial Examinee Greene at the original representation hearing, testified as follows : Q. For the time-study men, Mr. Hall, their duties are just what their names ap- plies. They are the same duties that practically all time-study men have? A. Time-study men ; that's what they are. 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the type and class of time-study men specifically intended by Congress not to be considered as "supervisors" under the Act, as amended. 2. Respecting the alleged "authority" on the part of the time-study men to "reward" other employees, "to adjust their grievances," or "effectively recommend such action," we are in full accord with the Trial Examiner's detailed findings and conclusions which reject those allegations. In the Supplemental Intermediate Report, as in the Opinion of the Court, the legislative history of Section 2 (11) is found to reveal the Congressional intent to limit the supervisory definition to "bona fide supervisors," 11 or "individuals generally regarded as foremen and persons of like or higher rank." Such bona fide supervision, as: intended in Section 2 (11), manifestly contemplates "authority" la over "other employees." We fail to perceive such "authority" in the, Respondent's time-study men. All the duties and responsibilities of the time-study men, as disclosed in the record, are concerned with the: technical aspect of the operations performed by "other employees," rather than with these employees as such, over whom, it is clear; the time-study men possess no power, direct or recommendatoly.'3- While their functions as technicians, like those of the Respondent''s mechani- cal engineers and planners,14 may have an effect upon the earnings and employment conditions of "other employees," such effect is entirely incidental, and clearly does not stem from the exercise by them of a bona fide supervisory power to "reward" within the intendment of the amended Act. We believe, like the Trial Examiner, that to "adjust" the "griev- ances" of other employees within the meaning of Section 2 (11), the Respondent's time-study men must have the authority. to make con- cessions in derogation of the factual findings in the particular time- study giving rise to the grievance. The limited function of the time- study men, before and after the institution of a formal grievance, of: explaining and justifying, but not altering, the findings in the time study, which constitutes the very subject of the production worker's: complaint, serves at best merely to persuade the complaining party 11 See footnote 6 of the Supplemental Intermediate Report. 12 The dictionary definition of "authority ," as the term is used in Section 2 ( 11), connotes: "Legal or rightful power ; a right to command or to act" ( emphasis added ). Webster's International Dictionary , Second Edition, Unabridged. 13 For example , the Respondent's personnel head , on cross-examination at the original 1i346 representation hearing , testified that the time-study men have no authority to hire or discharge employees , increase their wages , or change their position , and that in fact, the Respondent did not contend that they were supervisors , as that term was then defined by the Board. 12 See Decision and Direction of Election in this case, supra. It is noted, for example, that Personnel Head John J. Hall testified at the original representation hearing that in many instances the planners set the hourly pay to be given workers and in that capacity determine the workers ' earnings on particular operations, BROWN & SHARPE MFG. CO. 1037 that no basis for a grievance exists. The Respondent argues that the latter function of the time-study is more important than the adjust- ment or settlement of grievances, in that it prevents a dispute from arising and instills in the production worker a confidence in the fair- ness of the time standard. Indeed, it appears that the Respondent's basic position in this case from its inception has been that the "im- portance" of the time-study man's functions in the Respondent's pro- duction scheme, and the independent judgment he must exercise in -certain phases of his time-study, deprives the time-study man of his :status of an "employee" under the Act. However, as pointed out by the Court and by the Trial Examiner, these attributes of the time- :study men relied upon by the Respondent fall short of rendering them "supervisors," under the amended Act. Patently, in this position, the Respondent misconstrues the plain language of Section 2 (11) which .specifies "authority" to "adjust," not otherwise shown in the record as inhering in the functions of its time-study men. The undisputed fact, as set forth in the Opinion of the Court, is that the time-study man in the employ of the Respondent "does not -participate in [grievance] negotiations leading to settlement of the dispute." 15 This fact remains unaltered in the remand proceeding. That the Respondent's time-study men have no power to make adjust- Juents of grievances is now fully demonstrated in the record.16 In its Opinion, the Court construed the "authority" in Section •2 (11) to "adjust" the "grievances" of employees as entailing "the use of independent judgment in collecting, analyzing, evaluating, and considering pertinent data for the purpose of determining the validity .of a grievance . . ." The Court decided, however, on the record before it, that the Board had "found that representatives of higher management, not time-study men, have authority to do this." With direct reference to the present statutory situation, we are of the opinion that any data which the Respondent's time-study men collect, analyze, evaluate, and consider are solely for the purpose of establishing time standards and rates pursuant to the Respondent's wage incentive pro- 15 Emphasis added. 19 It is significant that in the hearing on remand, which was confined to the issues clearly outlined by the Court, the following testimony was elicited from witnesses on behalf of the Respondent: (By John J. Hall, the Respondent's personnel head.) ... the time-study man knows that they [the prices established as a result of the time-study] are right. The entire record of the grievance procedure and all hearings is a part of all the company's representatives to sell the idea to the union and the employees that that is right, and that is all we are doing, not to try to change these and adjust these because in a great majority of cases we know they are right . . . go that's the job they [the time-study men] do. It isn't trying to make adjustments or make changes; it is in selling the price, the fairness of it. [Emphasis added.] ,(By J. Albert Newton, Jr., head of the Respondent's Wage Incentive Department.) He [the time-study man] will frequently participate in the [grievance discussion] but will not make the adjustment. 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gram and not for the purpose of determining the validity of a. grievance. ORDER AND RECOMMENDATION 17 Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor- Relations Board hereby orders that its Order in this proceeding, dated July 31, 1947, be, and it hereby is, reinstated in all respects, and respectfully recommends to the United States Court of Appeals for- the First Circuit that the said Order be enforced. SUPPLEMENTAL INTERMEDIATE REPORT HISTORY AND STATEMENT OF THE CASE A. The representation proceeding Pursuant to a petition for investigation and certification of representatives filed by International Federation of Technical Engineers, Architects and Drafts- men's Union, Local 119, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, conducted a hearing on February 8, 1946, and, on June 6, 1946, issued a Decision and Direction of Election in Case No. 1-R-2794 (68 NLRB 487). The Board found, inter alia, that all time-study men employed by Brown & Sharpe Mfg. Co., herein called the Respondent, excluding supervisors, constituted a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act, 49 Stat. 449, and that a question affecting commerce existed concerning the representation of these employees. Thereafter, on June 18, 1946, the Respondent petitioned the Board for an order reopening Case No. 1-R-2798 and for a rehearing therein insofar as that case affected time-study men. The Board granted the Respondent's petition, ordered a further hearing to, .take evidence respecting the functions and status of the Respondent's time-study men, and further ordered that the election theretofore directed be held on June 28, 1946, as scheduled, and that the ballots in the time-study men group be im- pounded pending the Board's final determination as to their status. Following the further hearing held on July 5, 1946, the Board, on August 26, 1946, issued a Supplemental Decision and Direction (70 NLRB 709), in which it found that the time-study men were employees within the meaning of Section 2 (3) of said Act, and affirmed its prior finding that the time-study men constituted an appro- priate unit for purposes of collective bargaining. The Board also directed the opening and counting of the impounded ballots which had been cast in the elec- tion by secret ballot held on June 28, 1946. The tally of such ballots showed that a majority of the employees in the time-study unit had voted in favor of rep- resentation by the Union. On September 27, 1946, the Board certified the Union as the collective bargaining representative of the employees in that unit. li Although Members Reynolds and Gray concur with the finding that the time-study employees herein are not "supervisors" within the meaning of the Act, as amended, they desire to reiterate their views set forth in the concurring and dissenting opinions in Worthington Purolp and Machinery/ Corporation, 75 NLRB 67S, and Detroit Harve.eter Company. 79 NLRB 1816, that time-study employees should be represented only by a labor organization which is independent and has no affiliation with any organization representing: rank-and-file employees. BROWN & SHARPE MFG. CO. 1039- B. - The unfair labor practice proceeding before the Board On November 15, 1946, the Respondent, challenging the validity of the certifica- tion, rejected the Union's request to bargain collectively with it as representative of the time-study men. Thereafter, upon charges filed by the Union, the Board. issued its complaint in the instant proceeding (Case No. 1-0-2953), alleging that the Respondent's refusal to bargain constituted an unfair labor practice. In its answer to the Board's complaint, the Respondent admitted its refusal to bargain but reiterated its challenge to the Board's findings that the time-study men were employees within the meaning of the Act, and that they constituted an appro- priate bargaining unit. At the hearing before the Trial Examiner in the com- plaint proceeding, held on January 13, 1947, no further evidence was adduced concerning the functions and duties of the time-study men; the parties rested in. that regard upon the record made in the representation proceeding. In support of its position that the time-study men were not "employees" and that the unit was inappropriate, the Respondent contended, as it did in the representation pro- ceeding, that the time-study men performed essentially "managerial" and "con- fidential" functions. In its decision, issued July 31, 1947, and reported in 74- NLR13 801, the Board adhered to its rulings made in the representation pro- ceeding. The Board found that the Respondent violated Section 8 (1) and 8 (5)• of the National Labor Relations Act by refusing to bargain with the Union as the exclusive bargaining agent of its employees in the time-study unit, and ordered the Respondent to cease and desist from the unfair labor practices found, to bar- gain collectively with the Union on request, and to post appropriate notices. C. The petition for enforcement and the remand by the Court On or about February 26, 1948, the Board petitioned the United States Circuit Court of Appeals for the First Circuit for enforcement of its order against the Respondent, pursuant to Section 10 (c) of the Act. The National Labor Rela- tions Act had in the meantime been amended by the Labor Management Relations Act, 1947 (61 Stat. 136). The Respondent resisted the Board's petition for en- forcement principally on the ground that the Board's Order was not enforceable under the amended Act because its time-study men were no longer "employees" but rather "supervisors" within the definition of that term as contained in Sec- tion 2 (11) of the Act, as amended. On July 30, 1948, the Court set aside the Board's Order and remanded the case to the Board for further appropriate pro- ceedings consistent with its Opinion (169 F. 2d 331). In its Opinion, the Court stated that were it to decide the case, as the Board did, under the Act as it stood before it was amended, it "would not hesitate for long in granting the Board's petition." The determinative question to be decided, however, according to the Opinion of the Court, was whether the order was still enforceable in the light of the changes made by the amendatory legisla- tion contained in Section 2 (3) and 2 (11) of the amended Act. The Conrt stated that it could not "agree with the Respondent that on the findings thus far made by the Board it must be held as a matter Cf: law that the time-study men involved are `supervisors' within the present statutory definition of that term and hence are not employees entitled to the organizational privileges of the Act." While conceding, as had the Board, that the findings established that the authority exercised by the Respondent's time-study men in some of its aspects at least "is not of a merely routine or clerical nature, but requires the use of 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Independent judgment," the Court held that that standing alone "does not as a platter of law require that they be put in the supervisory class." To be classified as supervisors within the meaning of Section 2 (11), the Court held, it was neces- sary also to find that the time-study men possessed "authority to use their inde- pendent judgment with respect to the exercise by them of some one or more of the specific authorities" listed in that section. The Board's findings theretofore made did not, in the view of the Court, determine that the Respondent's time- study men possessed "authority" to "reward" or to "adjust the grievances" of other employees, or effectively to recommend such action within the statutory intendment. The Court, moreover, expressly recognized that "the legislative history of the Labor Management Relations Act, 1947, clearly indicates that Congress did not intend to place time-study men as a class in the supervisory category." Yet, in the Opinion of the Court, the question remained unresolved, whether the Respondent's time-study men had such particular duties, "in addition to their primary function of determining time standards for production operations" as to place them in the category of "supervisors" as that term is defined in the amended Act. That, concluded the Court, is a question which of course the Board was not called upon to consider and pa$S upon when it entered the order it here seeks to have enforced, because it entered that order before the passage of the Labor Management Relations Act, 1947. We think it ought to have an opportunity to do so now. We think that in the orderly administration of the present Act the Board ought to be given an opportunity to review the facts and to make findings and reach conclusions with direct reference to the present statutory situation before we undertake to go further than to say that on the facts so far found the time-study men do not as a matter of law fall in the class of "supervisors" as that term is at present defined. D. The proceedings on remand On October 25, 1948, the Board issued an order remanding the above-entitled proceeding to the Regional Director for the First Region for the purpose of con- ducting a bearing in accordance with the aforesaid Opinion and decree of the Circuit Court. Thereafter, pursuant to the remand, and upon due notice, a LLearing was held before the undersigned, Arthur Leff, the Trial Examiner duly designated by the Chief Trial Examiner, between February 23 and 26, 1949, at Providence, Rhode Island. The General Counsel of the Board, the Respondent, and the Union were represented at and participated in the hearing. All parties were afforded opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence hearing on the issues. Opportunity was afforded all parties for oral argument upon the record and for the tiling of briefs and proposed findings of fact and conclusions of law. Briefs were thereafter filed by the General Counsel and by the Respondent. Upon the etltzre record in the case, and from my observation of the witnesses, I wake the following: SUPPLFIXTENTAL FINDINGS OF FACT A. The functions, duties, and authority of time-study mesa It should be noted, to begin with, that all parties stipulated at the remand hearing that the Board's findings contained in its supplemental decision in the aepresentg,tioii proceeding (70 NLRB 709), and also recited at length in the Opin- BROWN & SHARPE MFG. CO. 1041 ion of the Court of July 30, 1948, correctly state in substance the functions per- formed by the Respondent's time-study men. It was also conceded by the Re- spondent during the course of the hearing that there had been no changes in the duties, authority, and responsibility of its time-study men since the date of the hearing in the representation proceeding. The stipulation adverted to above .was made, however, without prejudice to the right of the parties to introduce further evidence as to the functions of the time-study men. At the hearing on the remand, the Respondent adduced considerable evidence on this subject. While much of this evidence is merely repetitious of evidence received in the representa- tion case, and reflected in the Board's'findings in that case, some of it is new. Rather than cull out merely what is new, it is deemed more appropriate to set .out in one place all findings that may be pertinent to the issue now before the .Board on remand. The findings set out below are based on the records made at the various hearings held on the matter, including the two hearings in the repre- sentation case on February 8, 1946, and on July 5, 1940, and the hearing on the remand in the complaint proceeding on February 23 to 26, 1949. The Respondent's production employees are represented for the purposes of collective bargaining by the International Association of Machinists, an unaffili- ated union, unconnected directly or indirectly with the charging union in this proceeding. The Respondent's contract with the Machinists' union prescribes hourly rates of pay for the production employees. Such rates for the various classes of work are fixed through collective bargaining between the Respondent and the Machinists. The contract also provides, however, for a %vage incentive plan. About 70 percent of the production workers who perform about 90 percent of the work receive pay in accordance with than plan. The plan enables a sub- stantial proportion of the production workers to earn more than their hourly rates. The wage incentive plan contemplates establishment of a time schedule for .each unit of work in the production process. The unit times are then related to the hourly base rates established by contract for the class of work involved. Thus, if after a time-study, the standard time for a particular operation is fixed at one-half hour, for example, the employee receives one-half of his hourly rate for each unit of work performed. As a result, the operator is enabled, by expend- ing greater effort, to earn more than his hourly base rate prescribed in the con- tract. However, if the worker consumes more than the standard time allotted for an hour's operation, he is paid at the regular hourly rate. The plan con- templates that an experienced operator, working at an average piece-work rate of speed will produce one and two-tenths (1.2) unit hours of work per hour and thus earn 120 percent of his hourly base rate. Stated more technically, the basic standard upon which the time schedule rests is the equivalence of the hourly rate with the amount of good work that an experienced operator, working at an average piece-work rate of speed, will produce in eighty-three hundredths (.83) of an hour, including the time necessary for personal needs, fatigue allowance, delays inherent in work, and tool maintenance. In connection with the administration of its wage incentive plan, the Respond- ent employs some 20 time-study men who work under the general direction of the head of the wage incentive department and 2 time-study supervisors below him. The time-study men are hourly paid. Time-study data is available for inspection by the Machinists Union and is not regarded as confidential. And time-study men do not otherwise have access to confidential information relating to labor relations in the Respondent's plant. Time-study men are not formally classified by the Respondent as supervisors, nor do they regard themselves as such. They have no authority to issue orders to production workers or to direct 877359-50-vol. 87-67 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such workers in the performance of their work, although they may, and at times do, in connection with a time-study and in order to provide proper conditions for the study, request a production supervisor to give appropriate directions to a production worker whose work is being time-studied. They have no authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign or discipline other employees or effectively to recommend such action. The Respondent does not claim that its time-study men possess any of these attributes of supervisory authority. It does claim, however, that its time-study men's duties and functions include within their sweep "authority," within the meaning of Section 2 (11) of the Act as amended, to "reward" and "adjust" the "grievances" of production workers. Whether' the time-study men in fact possess such authority is the only issue with which we are here met. To resolve that issue, it is necessary to con- sider in some detail the precise scope-and limits-of the time- study men's duties, functions, and authority. The principal duty of the time-study man is to gather the factual data upon which the operation of the wage incentive system rests. This involves, primarily, determining the amount of time necessary to perform-each unit in the productive operation in conformity with the basic standard described above. It is the func- tion of the time-study man to break down each operation (i. e. unit of work) into its component elements, to time by means of a stop watch each such element, to make corrective adjustments and allowances. required by the time-study for- mula, and, after preparing the necessary computations, to make a factual finding of the standard unit time under study. When the time-study is approved and put into effect, the time-study man also issues the production foreman an instruc- tion card that sets forth a description of the operation, including the sequence of its elements, the machine feeds and speeds, and other information necessary to enable the operator to complete the work in the minimum time. The instruc- tion card is made available to the production employees working on the machine operation therein described. In determining in accordance with the predetermined formula the amount of acceptable work that should be performed by an average operator within a given period of time, the time-study man is called upon to exercise his judgment in certain respects. Thus, for example, he must be satisfied that the work under study is being performed under suitable conditions and by the proper methods. If conditions for a study are unsatisfactory, the time-study man may refuse to make his study until they are corrected or he is overruled by higher authority. Similarly, if, in his opinion, improper methods, such as speeds and feeds, are being used on the operation being studied, the time-study man may suggest changes to the foreman-although not to the production workers-and if the foreman does not agree with his suggestion, he is free to carry his suggestion to higher manage- n:.ent. How many pieces are to be studied before a time-study is arrived at is left largely to the judgment of the time-study man. The determination of the various allowances and adjustments required by the time-study formula also calls for the exercise of judgment in varying degrees. Certain allowances, such as those for personal needs, fatigue, delays inherent in work, and tool maintenance, are either fixed or are determinable within estab- lished limits by objective criteria for which more or less standardized guides .,re available. The important effort-rating adjustment, however, is based largely upon the time-study man's own appraisal of how the productive effort of the particular worker under observation compares to the hypothetical average effort of an experienced operator as contemplated by the efficiency standard. In making his effort determination, the time-study man normally uses what is BROWN & SHARPE MFG. CO. 1043 known as an effort-rating sheet. This contains five elements,' each of which he must mark as "very poor ," "poor," "fair," "average," "very good," or "excep- tional" in accordance with his appraisal formed on the basis of his specialized technical training and practical experience . Time-study men, however , may, and at times do , go outside the fixed range of the effort-rating sheet, and also occa- sionally assign an effort rating without using the standard form. The effort rating is an important factual element in the computation of the standard unit time, and may vary that time substantially upwards or downwards , with an ulti- mate effect on the piece rate. The findings as to effort are not, however, matters of discretion ; rather , they are matters of judgment. Like all other determina- tions in the time-study, they represent findings of fact. The time-study man is (expected to form an honest judgment , and, once he has done so, he. has no choice other than to record his finding exactly as he sees it. As indicated above, the time-study man has nothing to do with the fixing of the basic hourly wage of the operator . He is concerned only with determining fac- tually, and in accordance with a predetermined standard , the time it should take to perform a given job. He, himself, does not compute the piece rate for a unit of work. That rate is determined mathematically by others , by relating the standard time to the basic hourly rate established by the collective bargain- ing contract. The time-study man when he makes his study does not know, or, if he does, pays no attention to, the basic hourly rate, nor does he normally know the particular operators to whom the incentive rate in the process of de- termination is to apply. In making his study, the time-study man does not have in mind how much the operators should be paid for the job studied, and the study is made without any thought of compensating operators more or less for the work performed. The time-study man is concerned with time, not pieces ; the only question before him is how long it should take an average compe- tent operator to perform the job. Nor is the matter of costs in a particular department the concern of the time-study man ; that is, the problem of the depart- mental foreman. Before the time schedule fixed by the time-study man is put into effect, and before it may be changed, the results must normally be approved by both the time- study supervisor and by the foreman or subforeman of the production depart- ment involved. All time studies are subject to review by the time-study super- visor as to method and results, although the amount of actual review varies with the experience of the subordinate and the degree of confidence the supervisor lodges in him. In some cases the review will amount to little more than a check into the accuracy of the mathematical computations. Certain items on the time-study report, such as the effort rating given the operator who has been observed, are findings resting largely on the observation and judgment of the man who actually makes the study, and the ability of the supervisor to review such items is thus necessarily limited. But even as to such items, particularly where abnormalities are indicated, the time-study man may be questioned in detail as to how lie took his tests or arrived at his figures. The time-study supervisor's signature on the study, which is required, indicates that he is satisfied that the time study appears to be correct. The signature of the departmental fore- man (or subforeman) indicates that he, too, is satisfied with the result and is prepared to have it put into effect. The foreman's signature is necessary because he is the person responsible for the costs of operating his department. Although the foreman may at least temporarily prevent a new time schedule ' The elements are (1 ) technique employed . ( 2) effort applied , ( 3) cooperation dis- played, (4) rhythm developed, and (5) physically suited. 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from going into effect by refusing to sign it, he has no authority to direct the time-study man. to make any changes in his study. Where differences arise be- tween the time-study man and the departmental foreman, the time-study man will refer the matter to his supervisor, and if the differences still cannot be re- solved after consultation, it is necessary to refer the matter to higher manage- ment since neither has authority to overrule the other. In addition to making time studies, time-study men at times perform certain additional functions. Thus, they may be called upon to do prepricing work. This involves assisting the planning department to estimate, usually from blue- prints and without making actual time studies, the probable labor costs of manufacturing new products. On occasions, time-study men also offer sugges- tions to management with regard to changing lines of operation, making im- provements in tools or jigs, or otherwise improving productive efficiency. An- other function they perform is in connection with allowance cards. These cards are records of allowances made to operators for additional time required to perform an operation because of the existence of nonstandard conditions in the work. In some instances temporary job rates are assigned, which means that the operator, instead of being paid at the established rate for a particular job, is compensated on the basis of his average rate for the past 13 weeks. Uhese allowances are actually initiated and granted by the foreman in charge of the department. The time-study man's signature operates merely as a further certification of the fact that the unusual conditions prompting the allowances were not covered by any previously prepared and filed time schedule and were not included in the standard rate for the job. Since the time-study man usually receives these cards after completion of the job for which the additional allow- ance is sought, he rarely investigates such matters, and his approval of the foreman's recommendation is generally pro forma. Finally to be considered is the part played by time-study men in grievances arising from employee dissatisfaction with a schedule established as a result of a time study. Such grievances are handled in accordance with the grievance procedure established by the Respondent's contract with the Machinists' Union. This calls for four grievance steps, short of arbitration. As appears from the contract, the Respondent's representative at the first step is the section fore- man or supervisor ; at the second, the department foreman ; at the third, the company adjustor; and at the fourth, the personnel administrator. There is nothing in the contract to indicate that the time-study man is authorized at any level to adjust grievances on behalf of the Respondent. In actual practice, where a grievance arises as a result of a time study, it is normal to make a second time study in the presence of a Machinists' union official. Although the -department foreman or section supervisor is not always present throughout the check study, he is always on the floor nearby and is available. At this stage, the time-study man, by explaining the basis of his findings or by showing the employee how he might have improved the efficiency of his operation, is often able to persuade the employee and the union representative that there is no just cause for complaint. That would end the grievance at its inception. But even at this stage the time-study man is not authorized to do more than to supply factual justification and accompanying arguments in support of the study. He must report the study as he finds it, and is not authorized to depart from the basic formula or to make concessions in order to compromise the -dispute. The time-study man is also present at the joint Machinists' Union-management -conferences held at the higher procedural steps to which the grievance may BROWN & SHARPE MFG. CO. 1045 be carried, He may be called upon, at least at the higher levels, to participate in preliminary conferences with company officials at which the company strategy at the grievance meeting is discussed and planned. But his role at the grievance- meetings continues to remain solely that of defender of the study under attack. He is expected to explain and justify his findings and the methods used by him in reaching them, and to attempt, if possible, to convince the parties to the dispute of the accuracy of his result. In that respect, the time-study man's function is no different than, for example, that of a plant guard who appears at a grievance meeting to defend some protested action taken with regard to one of the production workers. Both are expected factually to defend their actions and to endeavor to "sell" their point of view to the Union. But the time-study man has no authority to decide on behalf of the Re- spondent how the grievance shall be disposed of. Such authority is lodged only in tho company representative who, at the particular level of the grievance procedure involved, is described in the contract as acting for the Company. The time-study man does not, except to the extent that he is called upon to' justify his findings, participate in negotiations looking toward a settlement of the dis- puted time study. Adjustments which vary from the findings of the time-study men are negotiated between Machinists' union officials and representatives of management who handle labor relations matters. Unlike such representatives of management , the time-study man may not allow such grievances or grant concessions to adjust or settle the dispute. Nor does it appear that it is his duty in the grievance procedure to make recommendations in that regard! His duty, rather, is confined to determining the application of the time-study stand- ards, and to explaining and justifying his own factual findings with respect thereto.' In short, he serves in the grievance procedure not as the Company's adjustor but as its technical expert. B. Analysis of contentions and concluding findings It has already been observed that the Circuit Court in its Opinion in this case found that "the legislative history of the Labor Management Relations Act, 2 John Hall , head of the Respondent 's personnel department , testified at one point that "the time-study man's recommendation would go a long way toward determining the settlement of the case ." His entire testimony reveals , however, that what he had in mind was not the time-study man's recommendation with regard to the settlement of the grievance as such, but rather the weight that is given to the time-study man 's asser- tions with regard to the factual situation. Hall conceded that he knew of no instance where a time-study man had ever recommended in a grievance case an adjustment at variance with the time-study man's own factual findings. Hall did refer to situations where it time-study man had suggested that temporary job rates be assigned on particular job lots, thereby possibly avoiding the prosecution of grievances. But, as noted above, the approval of a temporary job rate by a time -study man is merely a factual certification by him that job conditions on the particular job lot are not such as to fall within an established schedule. Thus, in the example principally relied upon by the Respondent, the time-study man , James Headon , had found as a fact , after investigating the job which had given rise to the complaint, that improper methods were being used , on the job lot, and consequently had suggested to the production supervisor that he experiment with a new method and assign a temporary job rate during the experimental period, a suggestion which was adopted after receiving the required approval of the production supervisor. 3 Thus, Albert Newton, Jr., head of the Respondent's time study department, testified in the representation proceeding that the time-study man is purely a "fact finding man" and his function in grievance proceedings "doesn't go beyond application of his stand- ards." Newton further testified that when findings of a time-study man become the subject of it grievance the time-study man "will frequently participate in the discussion, but he will not make the adjustment." 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1947, clearly indicates that Congress did not intend to place time-study men as a class in the supervisory category." But, because the Board's order had been entered before the passage of that Act, the Board had not had occasion to consider specifically the Respondent's contention that its time-study men were "supervisors" as defined in the Act. For that reason the Court considered that the orderly administration of the present Act called for the Board "to review the facts and to make findings and reach conclusions" on the question of whether, under the present statutory situation, "the particular duties of the Respondent's time-study men, in addition to their primary function of deter- mining time standards for production operations, are such as to put them in a category of employees not entitled to the organizational privileges of the Act as it now stands." Both the Respondent and the General Counsel agree in their briefs that the precise issue now before the Board is to determine whether the Respondent's time-study men have "authority" to "reward" or to "adjust" the ."grievances" of their fellow employees, or effectively to recommend snch ac- tion, within the intendment of the supervisory definition contained in Section 2 (11) of the Act as amended. The issue presented does not in its broad aspects come to the Board as a matter of first impression. Since the effective date of Labor Management Re- lations Act, 1947, a number of cases involving the same general issue has reached the Board. In these cases the Board has uniformly found that time- study men, rather than being supervisory employees as defined in Section 2 (11) of the Act as amended, are professional employees as defined by Section 2 (12), and, as such, are "employee:" within the meaning of Section 2 (3) who may properly constitute an appropriate unit for the purposes of collective bargaining. See, e. g., I'. W. Sickles, 81 NLRB 390; Timken Detroit Axle Com paivy, 80 NLRB 1075; Detroit Harvester Co., 79 NLRB 131.6; Worthington Piomp & Machinery Corp., 75 NLRB 678. Close comparison between each of the cited cases, considered separately, and the instant case reveals, to be sure, cer- tain defferences in the functions, duties, and authority of the, time-study men involved in the compared gases. But when the cited cases are considered as a group, it is evident that such differences as do appear are neither substantial nor controlling. Contrary to the assertion of the Respondent, the instant case cannot, I am persuaded, be distinguished on principle from those cited. To support its contention that its time-study men have "authority" to "reward," the Respondent in its brief emphasizes that these employees may require an operation under time study to be performed by the correct methods ; that they establish an effort rating on the time study, that they establish suitable allow- ances for such conditions as personal needs, fatigue, delays, and tool mainte- nance ; and that they select the portions of an operation recorded in a time-study for which an incentive rate will be computed. These, however, are merely part of the time-study men's primary function of determining time standards ; and they are not uncommon to the work of time-study men as a class." The per- formance of these functions is essential to the fact-finding process under which time-study men determine, pursuant to a formula supplied by the Respondent, the amount of time which it should take an experienced operator working at an average rate of speed to perform a given operation. It is true, as the Respondent argues, that the manner in which the time-study man gathers and analyzes his factual information determines the incentive rate 4 The work of the time -study men in the Timken Detroit Axle Company, the Detroit Harvester Co., and the Worthington Pump & Machinery Corp. cases, supra, encompassed substantially similar functions. BROWN & SHARPE MFG. CO. 1047 finally arrived at, and in a sense may thereby affect the compensation of the production workers. But in making his determination of the standard time, the time-study man is merely engaged in a fact-finding process, he is neither authorized to, nor does he, make that determination with a view to providing production workers with a "reward" in the commonly accepted sense of that term t The reward that enures to a production employee flows from the nego- tiated base rate, the operation of the established wage incentive plan itself, and such extra effort as the production employee may apply in the performance of his own work. It is not, as contended by the Respondent, a benefit provided by the time-study man. For the time-study man is uninterested in the amount of compensation the production employee may receive. He is concerned, rather, solely with fixing an average or standard time in accordance with an established formula-a formula which he must apply in accordance with his honest appraisal of the facts as they are, and which he is not permitted to vary. The Respondent's argument assumes that the term "reward" contained in Section 2 (11) may properly be read in vacuo, and, so read, should be deemed to encompass any function that may in any way affect the compensation of production employees. Such a construction is at variance with the intent of Congress. It is clear from, the legislative history that Congress not only intended to exclude time-study men as a class from the definition of "supervisor," but that it meant that term to be confined to "bona fide supervisors," that is to say, to "individuals generally regarded as foremen and employees of like or higher rank."' The word "reward" in Section 2 (11) must be read in pan materia with the. accompanying words, "hire, transfer, suspend, promote, assign, discipline" and "adjust grievance." In that context it can be construed to refer, as the sponsors of the legislation expressly stated, only to powers normally exercised by foremen or persons of like or related rank, such as the power to grant or recommend merit wage increases, which the Respondent's time-study men, unlike some foremen, do not possess. Considerable stress is placed by the Respondent in its brief upon the fact that its time-study men, in the performance of their work, are required to use their independent judgment, and that their work is not merely of a routine and clerical nature. The record supports a finding to that effect. And it is also clear from the record that the work of a time-study man in a plant such as the Respondent's, where a large percentage of the production employees are compensated on an incentive basis, is a highly important and responsible function. But it does not follow therefrom that the time-study men are supervisory employees with the power to "reward" other employees within the meaning of the Act. As the Circuit Court properly noted, in its Opinion in this case, "It is not of consequence that the Respondent's time-study men have been found to possess authority to 5 Funk and Wagnalls , New Standard Dictionary of the English language ( 1937 ), p. 2105, defines "reward" as "something given or obtained in acknowledgment of merit, service or achievement, recompense for good , a prize." 6 Senator Taft, explaining the resolution in conference between the House and Senate .bills, stated in part (93 Cong. Rec. 6422) Both the House bill and the Senate amendment excluded supervisors from the individuals deemed to be employees for the purposes of the Act. There was a sharp divergence between the House and the Senate , however, with respect to the occupa- tional groups which fell within this definition . The Senate amendment, which the -conference ultimately adopted, is limited to bona fide supervisors . The House had included numerous other classes . . . who fix the amount of wages earned by other em- ployees such as . . . time-study personnel . The Senate amendment confined the defini- tion of supervisors to individuals generally regarded as foremen and employees of like or higher rank. ( Emphasis supplied.) 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD use their independent judgment. with respect to some aspects of their work, the decisive question is whether they have been found to possess authority to use their independent judgment with respect to the exercise by them of some one or more of the specific authorities listed in Section 2 (11) of the Act as amended." For reasons already indicated, it is found that time-study men do not "reward" or recommend such action within the meaning of Section 2 (11), and, hence, exercise no independent authority in that connection. The same is true with regard to the alleged power of the Respondent's time- study men to "adjust" grievances. To support its contention that its time-study men do exercise such powers, the Respondent points not only to the time-study men's participation in the grievance procedure in cases involving incentive rates. It stresses also certain additional considerations, such as the importance to personnel relationships in having time-study men inspire confidence in produc- tion employees with regard to the fairness of their work, the constant pressure applied upon them by the Machinists' Union to increase incentive rates, and the importance of their position in preventing disputes and grievances from arising and growing into major personnel problems. These additional considerations merely support the finding made by the Board in the representation proceeding, that these employees are highly important technical employees, in whom the Respondent must impose trust and confidence. They do not, however, establish that the time-study men are responsibly authorized to "adjust" grievances within the cleaning of Section 2 (11). As for their participation in grievances, the functions of the Respondent's time, study men do not appear to be substantially different from those engaged in by the time-study men in the F. W. Sickles Co., and the Timken-Detroit Axle Co. cases, supra. Essentially, the role of the time-study man in the Respondent's grievance procedure is that of an expert fact finder who is expected, additionally, to explain and justify his technical findings and, if possible, to convince the grieving party of their accuracy. It is true that, by satisfactorily explaining his findings and thereby convincing the grieving party of the futility of pressing the grievance further, the time-study man may, and at the early stages of the grievance procedure often does, succeed in having grievances disposed of. But that does not establish that the time-study man is authorized to "adjust" grievance within the meaning of that term as used in the statute. Authority to "adjust" encompasses more than the power to explain and justify one side of a grievance; it embraces, also the power to allow the grievance, to decide authoritatively not to allow it, Qr to negotiate a compromise of the difference. Under the Respondent's contract with the Machinists' Union, as well as in.practice, the time-study man is not the authorized company representative who ultimately determines whether a grievance is to be allowed or disallowed. Nor is he authorized to compromise or to negotiate for the settlement of the grievance on a basis at variance with his own factual report. The primary function of the time-study man is to state and defend his own findings, not to form a judgment and reach a determination on behalf of the Company on how the grievance shall be disposed of. Such judgment and determination must be, and is, based, not alone on the time-study man's report, but on an analysis and evaluation of the conflicting positions in the grievance, including all evidence presented by both sides as well as any other considerations that may be pertinent, even though they may not be directly related to the time-study facts themselves. Under the circumstances, it cannot be concluded that the time-study man, with his limited fact-finding role, adjusts grievances. And while it appears that in the time-study grievances, the Respondent relies upon and gives substantial BROWN & SHARPE MFG. CO. 1049 weight to the reported findings and arguments of its time-study man, just as, for example, it would give weight to the report of a plant guard called in to justify his position on a grievance growing out of some action on his part, it does not follow that the time-study man effectively recommends the adjustment of the grievances. Confined as he is to a factual presentation and justification of his own observations, calculations, and methods, and possessing no authority to make recommendations at variance therewith, the time-study man cannot be said to recommend adjustments. As already indicated, authority effectively to recommend adjustments, just as authority to "adjust," involves more than merely the power to suggest, or even urge, that the time-study man's own findings be approved. For the reasons stated, and also because, as hereinbefore noted, the legislative history discloses that it was Congress' intent to confine the supervisory definition, contained in Section 2 (11), to bona fide supervisors who, unlike the time-study men here, are generally regarded as foremen, or employees of like or higher rank, it is found that the Respondent's time-study men do not possess "authority" within the purview of that section to "adjust grievances" 6r "effectively recommend such action," or, for that matter, any other supervisory authority. Aside from its argument that its time-study men are supervisors within the statutory definition, the Respondent makes the contention in its brief that these employees occupy confidential and managerial positions, and, therefore, should not be regarded as "employees" covered by the Act. Although this contention appears to be outside the issue remanded to the Board, and is one, moreover, that was specifically considered and decided by the Board in its Supplemental, Decision in the representation proceeding, the question raised has been recon- sidered here in the light of the additional record made on the hearing on remand. In its prior decision the Board found: "Although the time-study men are highly important technical employees in whom the Company places considerable trust and confidence and upon whose judgment it relies , we are of the opinion, and we find, that they are not `managerial' or `confidential' employees . ..' After consideration of the additional evidence adduced, that finding is adhered to. On the basis of the entire record, it is concluded and found that the Respond- ent's time-study men are not supervisors within the meaning of Section 2 (11) of the Act as amended, although, by reason of their training and responsibilities, they are professional employees within the meaning of the amended Act. It is further concluded and found that the individuals here in question are "employees" within the meaning of Section 2 (3) of the Act, as amended, and, as such, are entitled to the organization privileges of the Act as it now stands. RECOMMENDATIONS It is recommended that the Board adopt the findings, conclusions, and recom- mendations contained in the undersigned's Intermediate Report, dated February 7, 1947, as supplemented by the findings and conclusions contained in this Sup- plemental Intermediate Report, and that the Board reinstate in all respects its Order herein, dated June 31, 1.947, which, pending proceedings on remand, was set aside by the decree of the United States Circuit Court of Appeals for the First Circuit. As provided in Section 203.46 of the Rules and Regulations. of the National Labor Relations Board, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C., an original and six copies of a statement in writing setting forth such 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exceptions to the Supplemental Intermediate Report or to any part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in suppol•t thereof ; and any party may, within the same period, file an original and six copies of a brief in sup- port of the Supplemental Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and, if mimeographed, shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.55. As further pro- vided in said Section 203.46, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 28th day of June 1949. A1THUx LEFF, Trial Examiner. I