Packard Motor Car Co.

In the Matter of PACKARD MOTOR CAR COMPANY and FOREMAN'S Asso- CIATION OF AMERIOA Case No. 7-R-1884.-Decided March 26, 1945 Mr. David Karasick, for the Board. Bodman, Longley, Bogle, Middleton, and Armstrong, by M. Louis F. Dahling, of Detroit, Mich., and Beaumont, Smith, and Harris, by Mr. Percy Donovan, of Detroit, Mich., for the Company. Mr. Walter M. Nelson, of Detroit, Mich., for the Association. Mr. Seymour J. Spelmaw, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Foreman's Association of America, herein called the Association, alleging that a question affecting com- merce had arisen concerning the representation of employees of Packard Motor Car Company, Detroit, Michigan, herein called the Company, the National Labor Relations Board provided for an ap- priate hearing upon due notice before Samuel H. Jaffee, Trial Ex- aminer, Said hearing' was held at Detroit, Michigan, on December 18 through 22 and December 26 through 29, 1944, and on January 3 and 4, 1945. The Company and the Association appeared and participated, and were afforded full opportunity to be heard, to ex- amineand cross-examine witnesses, and to introduce evidence bear- ing on the issues. The Trial Examiner referred to the Board for ruling a motion of the Company to dismiss the petition. For reasons stated hereinafter, the motion is hereby denied. The Trial Ex- aminer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. In view of the importance of the question raised in the case, the Board permitted the parties and numerous other employer and union groups to appear and participate in an oral argument before the Board in Washington, D. C., on February 27,'1945, and to file briefs which have been given careful consider- ation. 61 N. L. R. B., No. 3. 4 PACKARD MOTOR CAR COMPANY rj Upon the entire' record in the case, the Board makes the follow- ing : FINDINGS OF FAUr 1. THE BUSINESS OF THE COMPANY Packard Motor Car Company is a Michigan corporation with its principal office and place of business in Detroit, Michigan. Prior to 1941, the Company was engaged at its Detroit plants in the manufac- ture and sale of automobiles. Since 1941 the Company's manufac- turing facilities have been converted to the manufacture of munitions for Army and Navy Ordnance and the Company is at the present time engaged almost entirely in war production. The Com- pany annually purchases raw materials valued in excess of $5,000,000 of which 50 percent is obtained from sources outside the State of Michigan and is shipped to the Company's plants located in the State of Michigan. The Company's annual sales of finished products ex- ceed $5,000,000, of which 90 percent represents sales of such products shipped from the Detroit, Michigan, plants of the Company to points outside the State of Michigan. Upon the basis of these facts, we find that the Company is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED Foreman's Association of America is an unaffiliated labor organiza- tion admitting to membership supervisory employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION In a letter dated November 25, 1944, the Association advised the Company that its Chapter 5 represented a majority of the Company's foremen and requested a conference for the purpose of initiating nego- tiations for a signed agreement. The Company stipulated at the hearing that it received the letter in due course of mail and that it has made no reply. The Company stated further that it never intended to recognize and bargain with the Association. The Company moved to dismiss the petition on the, ground that the foremen sought to be represented by the Association are not "em- ployees" within the meaning of the National Labor Relations Act. In support of its motion, the Company contends that (1) foremen are "employers" within the meaning of the Act, since that term is defined in Section 2 (2) as including "any person acting in the interest of an employer directly or indirectly"; (2) the language of the Act, as well as its legislative history, indicates that Congress intended that the term "employee" refers to "workers," as distinguished from supervisors; (3) if Congress had intended to include supervisors within the defini- 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of the term "employee," it would have used appropriate specific language- as "it did in the Railway Labor Act; and (4) in passing the National Labor Relations Act, Congress did not intend to remedy the kind of situation that is presented in the instant case. It is unneces- sary in this decision to discuss at length the first three arguments which the Company has raised in support of its motion, for we have consid- 'ered and rejected the same arguments in earlier cases involving super- visory employees.' In our recent decision in the Soss case,2 we reexam- ined the entire question, and unanimously reaffirmed our.consistent and now well settled position that supervisors are "employees" within the meaning of Section 2 (3) of the Act .3 That decision contains a full statement of our reasons for rejecting the arguments which the Com- pany has raised herein. However, in its brief, the Company makes one novel contention in support of its position. It argues that, inas- much as foremen, at the time the Act was passed, were not engaging in strikes and other forms of industrial strife in order to win collective bargaining rights, Congress did not intend the Act to cover this class of employees. We are not referred to any authority for the statement that foremen were not organizing or engaging in strikes at the time the Act was passed. The fact is that the organization of foremen ante- dates considerably the National Labor Relations Act 4 But even if it be assumed that the Company is correct in that statement, it is plain that it assigns too narrow a purpose to Congress in enacting this legis- lation. If we were to accept the Company's construction, then in every case we would be required to determine whether the employees involved were organizing and engaging in strikes at the time the statute was enacted. That static touchstone of jurisdiction would leave unpro- tected vast sections of employees in many vital industries, and the Act would fall far short of accomplishing its declared purpose. In stating the purpose of the statute in Section 1 and in defining the term "em- ployee" in Section 2, Congress used broad. language and there is noth- ing in that language or in the legislative history of the Act which in our opinion would justify our construing it in the narrow and restric- I see, for example, Matter of Union Collieries Coal Company , 41 N L. R. B 961; Matter of Godchaux Sugars, Inc., 44 N. L. R. B. 874; Matter of Harmony Short Line, 42 N. L. R. B. 757. 2 Matter of Soss Manufacturing Company, 56 N L R. B. 348. 3In this position the Board has invariably received judicial support. See , for example, N. L. R. B. v. Skinner and Kennedy Stationery Co., 113 F. (2d) 667 (C. C A. 8) ; N. L. it. B. v. Fruehauf Trailer Company, 301,U. S. 49, rev'g 85 F. (2d) 391 (C. C. A. 6) ; N. L. it. B v. American Potash and Chemical Corp , 98 F (2d) 448 (C C. A 9), enf'g 3 N. L. R. B. 140; Eagle-Picher Mining and Smelting Company v. N . L. R. B, 119 F. ( 2d) 903 (C. C. A. 8)'; N. L. R B. v. Star Publishing Company, 97 F. (2d) 465 •(C. C A. 9) enf'g 4 N. L. R. B. 498. 4 At the time the Act was passed the practice of organizing foremen was thoroughly established in such industries as railroad and maritime and in such trades as printing, building, and metal ; and there were three organizations of supervisory personnel in the Postal and Railway Mail service. There is absolutely no warrant for the assumption of the dissenting opinion that the Congress intended this legislation to benefit only such employees as comprised that segment of our population characterized as "one-third of the Nation." I , PACKARD MOTOR CAR COMPANY 7- tive manner which the Company is urging. On the contrary, in the Hearst case the Supreme Court supported this Board in rejecting a restrictive construction of the scope of the Act.5 The Court declared that, in,passing the Act, Congress sought to find a broad solution, one that would bring industrial peace by substituting, so far as its power could reach, the rights of-workers to self-organization and collective bargaining for the industrial strife which prevails when these rights are not effec- tively established. [Emphasis supplied.] The Court further declared that Congress employed broad language advisedly, with the intention of leaving to the expert discretion of this Board the task of determining who are "employees" within the mean- ing of the Act; that this question is to be determined by the "underly- ing economic facts," and that "where all the conditions of the relation require protection, protection ought to be given." Thus, the narrow test of jurisdiction for which the Company is contending is manifestly inconsistent with the broad purposes of the Act and for that reason we must reject it. Accordingly, we find that the persons sought to be represented by the Association are "employees" within the meaning of Section 2 (3) of the Act and we hereby deny the Company's motion for dismissal of the petition. A statement of a Field Examiner, introduced into evidence at the hearing, indicates that the Association represents a substantial num- ber of employees in the unit hereinafter found appropriate s • We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Association requests the establishment of a unit consisting of all general foremen, foremen, assistant foremen and so-called special assignment men employed by the Company at its plants in Detroit, Michigan.7 The Association is an organization established for the s N L. R. B. v. Hearst Publications, Inc, 322 U. S . 111. In this case the court supported the judgment of the Board that the term "employee" covered newsboys. 9 The Field ` Examiner reported that the Association submitted 868 dues receipts. Of these, 1 showed dues paid through July 1944; 72 showed dues paid through August 1944; 278 showed dues paid through September 1944; 75 showed dues paid through October 1944; 45 showed dues paid through November 1944; 394 showed dues paid through December 1944, and 3 showed dues paid through January 1945. Of the 868 dues receipts submitted, 39 bore the names of persons appearing on the Company 's pay roll dated December 2, 1944'; 84 showed dues paid by general foremen, 444 by foremen , 184 by assistant foremen, and 27 by special assignment employees . The same pay roll lists 125 general foremen, 643 foremen , 273 assistant foremen, and 65 special assignment employees. The petition covers the main plant and two other buildings in Detroit, recently acquired by the Company and -referred to in the record as the Hupp and Bundy plants. The petition does not include the Company's Toledo plant, or its sales and service subsidiaries wherever located. $ DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD exclusive purpose of representing supervisory employees,8 and all of the employees in the proposed unit admittedly exercise supervisory functions over subordinate employees. The question thus presented at the outset is whether or not, under the circumstances of this case, a unit consisting of supervisors is appropriate for the purposes of col- lective bargaining. Relying upon the authority of the Maryland Drydock case 9 and related decisions of this Board, and upon certain arguments discussed below, the Company contends that such a unit is inappropriate. While the facts in the Maryland Drydock case were different from these, it is true that in several cases which followed that decision, the majority of the Board dismissed petitions for the establishment of bargaining units comprising supervisory employees in circumstances substantially similar to those presented by this record 10 Those peti- tions were not dismissed, however, on the ground that foremen are outside the ambit of the National Labor Relations Act. On the con- trary, as we have pointed out in the preceding section, we have con- sistently said that supervisors are "employees" within the meaning of the statute, and after Maryland Drydock was decided, we held in a unanimous decision that the National Labor Relations Act protects supervisors, as well as rank and file employees, in their right to self- organization and to engage in concerted activities for their mutual aid and protection11 In the Maryland Drydock case, which was decided nearly 2 years ago, the majority merely held that, on the basis of the record then before us and in the "state of industrial administration and employee self-organization" then existing, the policies of the Act would not be effectuated by the establishment of bargaining units composed of supervisory employees. Nevertheless, we made plain at that time our unanimous view that nothing in the Act prohibits the Board as a matter of law from establishing supervisory units; rather, the majority expressly stated in that decision that the "determination of this type of question is a function reserved to the administrative discretion of the Board." Otherwise, we would have been unable to recognize, as we did in that decision, the wisdom of making exceptions to the principles enunciated in that case. Two of these exceptions have since found their way into decisions of this Board in which bargaining units were established for supervisory employees in both 8 Article VI, Section 2 , of the Association 's Constitution provides that : Any employee of good moral character, whose duties require the supervision of other employees, or who directs work, who may or may not supervise other employees , and who is not a member of any other organization recognized , by his employer as representing him in collective bargaining, may become a member of the Association. . 9 Matter of Maryland Drydock Company, 49 N. L R. B 733. 10 Matter of Boeing Aircraft Company, 51 N. L. R. B. 67, Matter of Murray Corporation of America, 51 N. L. R. B 94 ; Matter of General Motors Corporation, 51 N. L. R. B. 457 11 Matter of So8s Manufacturing Company, 56 N. L. R. B. 348. PACKARD MOTOR CAR COMPANY 9 the printing and maritime trades .2 The power of the Board to estab- lish such units was challenged before the Circuit Court of Appeals for the Fifth Circuit in a case involving supervisory employees in the maritime trade. The court agreed that the determination of this question was a function reserved to the administrative discretion of the Board and supported our finding that a unit consisting of masters, mates- and pilots-all supervisory employees-was appropriate for the purposes of collective bargaining.13 In the present case, we are again confronted with a petition seeking the establishment of a unit of supervisory employees in a mass produc- tion industry. Again we are being called upon to determine whether, in our judgment, such a unit would, on the basis of the facts presented in this case, be appropriate for the purposes of collective bargaining. Since the decision in the Maryland Drydock case, we have observed with concern the important developments in the field of foremen organization which are fully set out in the record before us, and which, we believe, require a reconsideration of the entire problem. At`the outset it is necessary to describe the nature of the employee- group involved here, for no proper understanding of the problems of these foremen can be had unless their role in modern mass production industry is understood. As to this, there is widespread misconcep- tion. We do not have today in mass production industry, such as Packard, the kind of supervisors with which we were familiar in the early 1900's. In those days the foremen were often independent con- tractors, operating under the loosest kind of production schedule and having plenary authority with respect to such matters as hire, rates of pay, promotion, demotion, transfer, discipline and discharge of em- ployees under their supervision. This was true even in those plants where the foremen were not independent contractors. In their deal- ing with individual subordinate employees, foremen had the power to make decisions and take action without the necessity of securing the approval of their superiors. In sum, within his own sphere, the fore- man was master of his department. Today the picture is fundamen- tally different. Vast aggregates of capital, the presence of thousands of employees under one roof, the introduction of special purpose ma- chinery and tools, extreme specialization and integration of depart- ments, and the development of "scientific management" in general- all have combined to reduce the skilled to the semi-skilled and the semi-skilled to the unskilled; and all this in turn has made the super- 12 See, for example , Matter of W. F. Hall Printing Company, 51 N. L R. B 640 ; Matter of Jones & Laughlin Steel Corp., 54 N L R B 67 !) , Matter of Ohio Barge Ltne, Inc., 59 N. L. R B 154; Matter of A. S Abell Co, 54 N. L . R. B. 62, Matter of Cincinnati Daily Newspaper Publishers Association., 55 N L R B 571 , Matter of Service Printers , Inc, 54 N. L. R. B. 1082. 13 Jones & Laughlin Steel Corp. v. N. L. R. B, 146 F. ( 2d) 833 ( C. C. A. 5). 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visor more the "traffic cop" of industry than the independent foreman of the 1900's. As the Production Engineer of the Company conceded at the hearing, the very nature of modern mass production industry requires that the supervisors be constantly subjected to rigid controls and checks from above, for it is essential that there be extremely close coordination of production among hundreds of departments (approxi- mately 300 in this case) in order to meet increasingly exacting stand- ards. This means that the supervisor not only must follow policy which higher management has established, but that in the very carry- ing out of that policy, he is required to adhere to fixed patterns and procedures also set by higher management. Thus, he is given ready- made policies to execute and he is also given standard practice to observe in executing them. Nor have these been the only changes in the foreman's status. The expansion of mass production industry has created a variety of service departments, all of which have worked fundamental changes in the authority and duties of foremen. , Thus, at Packard-a typical mass production plant-the employment de- partment does the hiring; the lay-out department lays out the,ma- chinery, tools, and equipment; the scheduling department schedules the work; the routing department routes the work; the.stock or traffic department moves it; the time'-study department sets the rates; the inspection department checks the quality; if anything goes wrong, the master mechanic comes in and corrects it; the personnel department handles the grievances of subordinate employees beyond the first stage and retains ultimate control in any event, and other departments handle numerous other employee services. In addition to this, the presence of strong unions of the rank and file has also operated to affect substantially the authority and prestige of supervisors. Transfers are made only after consultation with the stewards of these unions. Rates are set as a result' of time studies reached after conferences between the employer's time-study depart- ment and union representatives. Grievances are handled in accord- ance with procedures established in the contract between the employer and the rank and file union, with the stewards representing the ag- grieved employee. And many of the stewards take it upon themselves (improperly) to by-pass the supervisors and go direct to a higher authority in connection with the handling of grievances. The facts pertaining to the foremen at Packard specifically are illustrative of this development. With respect to the discipline and grievances of the rank and file workers under his supervision, the scope of the foreman's authority at Packard is established and circumscribed both by written rules and regulations laid down by the Company and by the contract between the PACKARD MOTOR CAR COMPANY 11 Company and the union of the rank and file employees 14 in the negoti- ation of which the foremen, of course, play no part. Thus, for infrac- tions of Company rules relating to stealing, drunkenness, gambling, fighting, sleeping during working hours, smoking in restricted areas, and the like, there are set penalties, such as a 3-day lay-off for a first offense, a 6-day lay-off for the second, and so on. If an employee is found gambling, the foreman prepares a written report (called a "query") stating the infraction and indicating the recommended pen- alty. This report is presented to the union steward for his signa- ture of approval. If the steward assents, the penalty is imposed and the report is sent through channels to the Labor Relations Department. If the steward refuses to approve, the offending employee is given a hearing in which a union representative and a representative of the Labor Relations Department participate. Sometimes, the judgment of the reporting foreman is upheld, sometimes not. In some instances, as where the foreman has actually observed the violation, he is called as a witness at this hearing. On matters which are not provided for in the Company's rules and regulations, such as grievances, the grievance procedure established in the rank and file union contract is followed. Under that contract, the union appoints a chief steward in each depart- ment or group of departments, a district steward for each of the six or more districts in the plants, and a Plant Committee consisting of not more than three employees. The contract provides that all grievances, except those concerning company policy, will be referred by the chief steward directly to the department foreman. If the grievance is not settled by the chief steward and the foreman, it is referred by the chief steward to the district steward of the union who meets with the Com- pany representative in the Industrial Relations Department. If the grievance cannot be settled by these parties, the district steward then refers it in writing to the Plant Committee which meets and discusses the grievance with a high management representative. The vast major- ity of the day-to-day grievances are trivial and are worked out between the chief steward and the foreman. But questions involving company policy are never determined at the first level of the grievance procedure. The contract provides that "Grievances concerning Company policy shall be referred by the chief steward directly to the district stew- ard who will take them up with the person in the Industrial Relations Department designated for him to contact." The foreman has no au- thority to make decisions or take action, on such matters, as the dis- charge, transfer, lay-off, or reclassification of the employees under his supervision. On these questions, his power is limited to the'making of recommendations. The contract with the rank and file union pro- "United Automobile, Aircraft & Agricultural Implement Workers of America , affiliated with the Congress of Industrial Organizations. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vides that "The ' chief steward will be notified in writing before an employee is discharged, reclassified or transferred from his depart- ment. The chief steward will have twenty-four (24) hours in which to file a protest and the employee will receive a hearing within the same length of time, if requested." The participants in such a hear- ing are a representative of the union and a representative from the Company's Labor Relations Department. This is not to say that the foreman's job is becoming less exacting or that it can be filled by less competent people. On the contrary, "... the need for able men in the posts of foremen seems to be grow- ing. The foreman may be given more and more ready-made policies to execute, more and more standard practices to observe in executing them, and more and more help from a variety of service departments, but he is also held to higher and higher standards in meeting pro- duction schedules, in maintaining standards of quality, and in dealing with personnel. Furthermore, higher management cannot escape dependence upon the foreman's knowledge of men and conditions and upon the wisdom and fairness of the foreman's judgment." 15 But the over-all, long-term trend in mass production industry has materially reduced the independence and authority of the foreman and his responsibility for making policies. As the Foremen's Panel of the National War Labor Board has aptly described the situation, "Whereas he was formerly an executive with considerable freedom of action, he is now an executor carrying out orders, plans and policies determined above;" he is "more managed than managing, more and more an executor of other men's decisions and less and less a maker of decisions himself." 16 With this picture of the foreman in modern mass industry in mind, his asserted need for collective bargaining becomes more meaningful and the incredibly rapid growth of his organizations wholly under- standable. - The facts which are presented to us reveal an unswerving deter- mination on the part of foremen to combine together in their own organizations for the purpose of obtaining the legitimate fruits of collective action. Spurred by the realization that developments in mass production techniques have materially reduced their authority and independence and by feelings of insecurity and resentment aris- ing out of the inevitable comparison with employees who are inferior, in rank but superior in bargaining strength by virtue of the labor organizations behind them and the protection of the Act, this group 15 Report and Findings of the Special Panel of the National War Labor Board appointed in certain disputes involving foremen. Among the numerous employers involved in these disputes was the Company in the instant proceeding. The Panel, hereinafter called the Foremen's Panel , issued its Report and Findings on January 31, 1945. 16 Report and Findings of the Foremen 's Panel, ibid., at pages 39 and 41. PACKARD MOTOR CAR COMPANY 13 of employees has started a movement toward self-organization which continues to gain in strength and momentum, with remarkable spontaneity, despite an almost universal unwillingness on the part of employers to accept such organizations and deal with them. In the fall of 1941, a group of foremen at the River Rouge plants of the Ford Motor Company began to discuss the possibility of forming a fore- man's organization and in January 1942, the first chapter of the Fore- man's Association of America was established at the Ford plants. By the end of 1942, there were 7 chapters containing a total of 10,392 members. At the end of 1943, there were 67 chapters; and by the end of 1944, there were 148 chapters, with a total of 32,142 members. At first the organization was largely confined to the automotive industry in the Detroit area, but it has now expanded to embrace a host of major industries in 17 States and Canada 17 It is significant that dur- ing this period the Association found it unnecessary to employ paid organizers. However, notwithstanding this growing strength and the fact that we have made it clear that nothing in our decisions should be taken to prohibit employers from voluntarily dealing with foremen's organizations, it cannot be denied that most employers have nevertheless refused to accord them recognition and have been strengthened in this position by the belief that this Board would not require them to do so.'8 The result has been that supervisory employees have resorted to the only remaining weapon at their disposal to secure recognition-a test of economic strength through strikes and threats of strikes. Thus, after the decision in the Maryland Drydock case and from July 1, 1943 through November 1944, there were 20 strikes of supervisory employees; 131,000 employees were involved and 669,156 man-days of work were lost as a result. Over 96 percent of the man-days lost occurred in strikes for recognition.19 The basic industries of the na- tion were affected : shipbuilding, steel, aluminum, brass, automobile, coal mining, airplane products, railroad cars, and public utilities. The effect of these strikes for recognition on the production of vital war material has been serious. General Arnold, Commanding Gen- eral of the Army Air Forces, testifying before the National War Labor Board in May 1944 declared : "These strikes in Detroit cover Packard, where we are producing the Merlin Engines; they are affecting Briggs, "The industries in which the Association is now organized or organizing include the following: automotive, plumbing, heating and refrigeration instruments, rubber, radio, pub- lic utilities, steel fabrication, shipbuilding, machine parts, aluminum, petroleum products, stoves, bedding, chemical products, electrical appliances, grinding parts, smelting, paper products, railway cars, aviation, elevators, medical supplies, and meat products. Is Thus far the Association has been able to secure only two contracts, one with the Ford Motor Company and the other with the United Stove Company, of Ypsilanti, Michigan. 79 Statistics prepared by the Bureau of Labor Statistics, Department of Labor, and certi- fied by the Secretary of Labor ; Introduced in evidence at the hearing in the present proceeding. 639678-45-vol. 61-3 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where A-20, B-29, B-17 and B-24 parts are being produced; they are affecting Murray, where we are producing P-47 wings and B-17 parts; they are affecting Hudson, where we are producing B-29 parts and P-38 parts; they are affecting Gar Wood, where we are producing cranes for heavy trucks, parts for our amphibious ducks, winches and parts for wrecking trucks ,used in the battlefield and other places .. . In my opinion this is one of the most serious set backs that the Army Air Force program has had since its inception. And to show you that I am not exaggerating, this strike so far has cost the United States Army Air Force 250 P-51 airplanes, tivhich is not a small num- ber." 20 The strike which closed the Packard plant in 1944 was also, as admitted by the Company, a strike for recognition. We cannot shut out eyes to these developments since the decision in the Maryland Drydock case. The Act which it is our responsibility to administer was enacted by the Congress for the purpose of remedy- ing this very kind of evil. The Congress found in Section 1 of the Act that the refusal by employers to recognize and deal with their em- ployees in collective bargaining leads to strikes and other forms of industrial strife, to the detriment of the public interest in the unin- terrupted production and flow of material in interstate commerce. It therefore enacted the statute to ensure that employers should recog- nize the right of employees to organize and bargain collectively, and that employees should be able to gain such recognition without resort to economic warfare. The experience of the past 9 years under the Act has vindicated the judgment of the Congress. During that period 10,058,872 employees have resorted to the orderly procedures of the Act in 32,615 separate representation cases in order to establish their right to recognition. These employees represent every major indus- try in the Nation and are employed in the 48 States and in the Terri- tories. The vast majority of these cases have been and are now being settled through informal procedures.21 And while representation cases have increased each year, unfair labor practice cases have de- clined, indicating again that the Act has fulfilled its purpose of mak- ing it unnecessary for employees to resort to strikes in order to gain recognition, as well as the extent to which the purposes of the Act, have been accepted in the industrial practices of employers.22 Now, the history of rank and file organization is being duplicated in the organizational efforts of supervisory employees. Just as rank 2i Public hearing before the National War Labor Board in the case of the Foreman's Association of America, May 17, 1944, at the Department of Labor building in Washington, D C 21 In the first 9 years of the Board's operations, 70.2 percent of all representation cases were closed in the informal stages 9th Annual Report, p. 11. 22 In 1936, 81 percent of our cases involved unfair labor practices, such as refusal to recognize , 19 percent were representation cases. In 1944, only 28 percent of our cases' arose out of unfair labor practices, while 72 percent were representation cases 9th Annual Report, p. 16. PACKARD MOTOR CAR COMPANY 15 and file employees before the passage of the Act were forced to resort to tests of economic strength in order to gain recognition, so it is today with supervisory employees. These are the plain and inescapable eco- nomic facts, and we think it therefore manifest that the time has come when, in the interest of effectuating the policies of the Act,, we must accord greater recognition to the militantly expressed need of super- visory employees for collective bargaining through their own organ- izations. The Company argues, however, that a unit of supervisory em- ployees would not effectuate the policies of the Act and therefore would be inappropriate; it urges us to continue to adhere to the princi- ples enunciated in the majority decision in the Maryland Drydoek case. The Company's contention appears to be predicated on two theses : (1) the union here seeking to represent the foremen is not, the Company asserts, independent of the union of rank and file em- ployees at Packard; and (2) regardless of their representative's, independence of the rank and file union, foremen cannot constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. Since, in the Maryland Dryydoek case, all members of the Board considered relevant the question of the independence of the foremen's organization, we shall turn first to a consideration of that issue. The Company's position seems to be that the Association is not now independent of rank and file unions; and if it is now independent, it cannot long remain so. It may be assumed that the Company is concerned solely with the relationship between the CIO and the As- sociation, since it refers to no other labor organization. In support of its argument that the Association is not now independent of the CIO, the Company points out that (1) on June 29, 1943, the Michigan CIO Council passed and published a resolution expressing its moral support for the "fight of the Foremen to establish collective bargain- ing rights and other rights guaranteed by the Wagner Act"; (2) on May 24, 1944, an article appeared in "Victory News", an official pub- lication of the UAW-CIO at the Dodge Chicago plant of the Chrysler Corporation, in which a CIO local expressed its moral support for the efforts of the Association in organizing and seeking to gain collective bargaining rights at that plant; (3) in a strike involving the Associa- tion at the plants of the Republic Steel Corporation, about 1,000 CIO steelworkers refused to cross the picket line; and (4) in the foremen's strike at Briggs in 1944, the rank and file created such a pandemonium inside the plant that the operations had to cease.23 On the basis of 23 The Company also read into the record several paragraphs of material which it alleges appeared in a leaflet prepared and distributed by the CIO at the plants of the Murray Corporation of America during the organizational efforts of the Association However, the material read into the record is not self-identifying and the Company failed to have it identified or even to introduce it into evidence. We are thus unable to give it any proba- 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these incidents, the Company concludes that the Association is not independent of the CIO. We cannot agree. In an absolute sense, of course, the Association is not independent of the CIO,' or any labor organization. Both are labor organizations and both are organized for basically similar purposes-the improvement of the wages, hours and working conditions of their membership through collective bar- gaining. Both have common problems and therefore a common "bond of sympathy." For these reasons, it is to be expected that they will express moral sympathy for the organizational efforts of one another and will, on occasion, even refuse to cross the picket line established by the other during a strike. But support of this nature does not prove the absence of independence. It shows only the existence of a general common purpose-a condition which inheres in the very nature of the labor movement and which therefore cannot be of controlling significance'in our determination of whether or not a proposed unit is appropriate for the purposes of collective bargaining. The es- sence of independence of which this Board may take cognizance is freedom of action, freedom from control. The Company does not al- lege that the Association is not a free agent, or that its policies and decisions are controlled by the CIO. Indeed, the Company impliedly admits in its brief that the Association is not controlled by the CIO. There is not a scintilla of evidence in the record to suggest that the CIO or any other labor organization has any voice in the policies or control over the actions of the Association. The Company contends further, however, that even if the Association is now independent, it cannot long remain so because it exists principally in an area where the UAW-CIO is the dominant and most powerful labor group. The Company points to the fact that several labor organizations which were organized as independent groups in Detroit have since been absorbed by the UAW-CIO. A similar fate is inevitable for the Association, the Company contends. Of course, this is a matter of speculation. The Company's prediction may or may not prove to be accurate. It is sufficient to say that on the basis of the facts now before us it is tive value . It might be noted , however , that the material in question contains statements of sympathy and support by an unnamed and unidentified union for the Association , similar to the statements discussed in the text of the decision , supra. The Trial Examiner rejected certain exhibits offered in evidence by the Company to prove that rank and file employees in a certain plant in Detroit participated in the foremen's strike of May 1944 The exhibits were photostatic copies of findings of a Claims Examiner of the Michigan Unemployment Compensation Commission in which he found that certain rank and file employees were disqualified for unemployment compensation because they had participated in the foremen's strike, within the meaning of Section 29 (c) of the Michigan Unemployment Compensation Act we affirm the ruling of the Trial Examiner, for it is clear that the proffered exhibits do not constitute competent evidence If the Company desired to prove that rank and file employees in Detroit participated in the foremen's strike, the competent way to have done so was by the introduction of direct evidence on that point before this Board. The Trial Examiner freely admitted abundant evidence offered to show a connection between the CIO and the Association, rejecting only the foregoing findings by a Michigan Claims Examiner. PACKARD MOTOR CAR COMPANY 17 clear that the Association is an unaffiliated and independent labor organization, organized for the ' exclusive purpose of representing supervisory employees.24 Thus, we are not confronted, as we were in Maryland Drydock, with the petition of a foremen's organization which is also the representative of the rank and file workers. However, the Company appears to take the position that a unit of its supervisory employees would be inappropriate even though the foreman's union were independent and unaffiliated. We do not agree. It is trtie that, following the Maryland Drydock decision, a majority of the Board also dismissed the petitions of unaffiliated and independ- ent foremen's union.25 But the majority did not do so because it felt that the dangers which it envisaged in the Maryland Drydock situa- tion were actually present in those cases. Indeed, as we pointed out in our unanimous decision in the Soss case, those potential dangers which concerned the majority of the Board in Maryland Drydock do not materialize in cases where the petitioning foremen's union is inde- pendent and remains so. Thus, for example, it could not be seriously contended that the Company had illegally dominated or assisted the union of its rank and file employees by recognizing the Association as the representative of its supervisors, or that the organizational free- dom of the rank and file employees had been impaired by virtue of the activities of the foremen in behalf of their own independent or- ganization. The Company itself has not claimed that any such dilemma is present in the instant case. The sole reason which im- pelled the majority of the Board to dismiss the petitions of unaf. filiated foremen's unions was that it felt it would be necessary to police our certification to guard against possible future affiliation. Such a procedure, it believed, would prove impracticable. However, since the decisions in those cases, we have been called upon in several in- stances to make inquiries and take certain action as a result of a change in circumstances following certification.26 Experience in these instances has demonstrated that post-certification proedures are not u It is interesting to note that the same arguments were made by the Company before the Foremen 's Panel which concluded that. "Whether the United Automobile Workers (UAW-CIO) will be able to take over the Foremen's Association, or to dominate it with- out taking it over, is a matter of conjecture . The result of any such attempt would neces- sarily depend partly upon whether the foremen wished to remain independent . . . ( Report of Foremen's Panel, ibid , at page 29). Officials of the Association stated at the hearing in the instant case that they did not desire or intend to affiliate with any other labor organization and that there was, in their opinion, no need for such affiliation. The Constitution of the Association provides that it shall not affiliate with any labor organiza- tion, and in its contract with Ford, the company has the right to terminate the agreement in the event of such affiliation. 25 Boeing Aircraft Company, Murray Corporation of America, and General Motors Cor- poration, supra. 20 Matter of Cramp Shipbuilding Company, 52 N. L. R. B. 309 ; Matter of Larus & Brothel Company, 54 N. L. R. B. 1345; Matter of Western Cartridge Company, 55 N. L. R. B. 1171; Matter of Shell Petroleum Corporation , 52 N. L R. B. 313. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD impraticable, for they do not require us to "police" the certifications in the usual sense of that word. The self-interest of the parties oper- ates to call to our attention material changes in circumstances without the necessity of our constant surveillance. Thus, if the present pro- ceeding should result in the certification of the Association and if, following that, there should ocur material changes in circumstance which result in difficulties that prove insoluble, we can, in a post- certification proceeding, apply an appropriate remedy. All this, of course, is a matter of speculation, and the field of labor relations being as fluid and complex as it is, no blueprint for the future can now be drawn. If difficulties do arise in a future case, we will, as we must, resolve them upon the facts as they appear in the record of that case.'? The Company argues, nevertheless, that apart from the alleged con- nection between the Association and the CIO and the possibility that the Association may become affiliated, the establishment of a bargain- ing unit of supervisors would undermine the accepted techniques of production and management which have made American industry what it is today. Foremen are a "part of management," the Com- pany contends, and owe a duty of undivided allegiance to their em- ployers; this allegiance would be divided, or even lost, if the Com- pany were obliged to bargain collectively with them through their Association. - First, it must be remembered that foremen have the right to form, and join labor organizations quite apart from and outside the Act. This is 'a fundamental right, the right of free association, which'was not created, but implemented, by the Act. The statute we administer was enacted to insure that this already existing right could be exer- cised in a peaceful and orderly manner so that the flow of goods and services in interstate commerce would not be interrupted. Thus, to deny the foremen in this case the protection of the Act is not to deny them the right to form and join their union or to demand collective bargaining rights from their employer. It would only be a denial of access to peaceful procedures to exercise that right. 27 While the question is not before us here, in an appropriate case, in which the record discloses the proper autonomy with respect to groups of supervisory employees , Chairman Millis, in accord with his position expressed in his dissent in the Maryland Drydock case, would find no obstacle to recognition in the affiliation of such groups with non -supervisory employee organizations. From an experience in labor relations covering approximately 30 years , it is also Chair- man Millis' considered judgment that the problems which inevitably arise from the recogni- tion of any class of employee, including supervisory employees, will find their best and most prompt solution in'a system of collective bargaining where both labor and management display sincerity and cooperation in day-to-day relationships and proceed to analyze and resolve their differences instead of holding fast to and debating unestablished assumptions In view of the developments since the decision in Maryland Drydock, which have been discussed above, Member Houston regards the question of representation of supervisory employees by unions affiliated with organizations admitting to membership employees other than supervisors as entirely open and one which ought to be fully reconsidered when the issue is raised in an appropriate proceeding. PACKARD MOTOR CAR COMPANY 1 19 . But more importantly, we cannot assume, as the Company does, that self-organization for collective bargaining would prove incompatible with the foreman's faithful performance of his duties. Such an as- sumption is not only repugnant to the basic democratic philosophy upon which this Act is founded, but it has never proved valid in our experience under the Act. In the early days, the same fears were expressed by employers with respect to the fidelity of rank and file employees, but experience has proved them groundless. And more recently, employers, including the present Company, predicted that the organization of plant guards would divide the allegiance of these employees and undermine plant discipline and security.28 But the Company conceded at the hearing that its plant guards who have been organized for several years have not performed their tasks any less faithfully or efficiently because of their organization in a collective bargaining unit. We perceive no reason for assuming that recog- nition of the bargaining rights of foremen will have a different result. The foremen in the present case have been organized, though not recognized, for 21/2 years and admittedly have not become inefficient or disloyal in the performance of their duties. If organization with- out recognition-an unstable situation at best-has not had this un- toward result, we believe there is even less reason to expect such a result when the employer accords full recognition to the bargaining rights of his foremen. In any event, there is nothing in the statute as designed or administered which protects disloyal or inefficient em- ployees and the Company may always resort to its normal disciplinary powers to insure faithful and efficient job performance by its em- ployees of all ranks. Moreover, it is to be noted that this kind of loy- alty is really not involved in the question raised by the present petition. The foremen here are seeking to establish their right to bargain col- lectively with their employer regarding matters relating to their wages, hours and conditions of work. With respect to these matters, the foreman owes no duty of loyalty to his employer, for in this aspect of his employment relationship, he deals with management at arms length and must rely ultimately upon his own bargaining power to gain concessions just as any rank and file employee. One of the fore- men witnesses at the hearing, while admitting that in the performance of his job he owed a duty of loyalty to his employer, stated that with respect to such matters as his own wages, hours and conditions of work his primary duty was to himself and his family. With this summa- tion we agree, and we fail to see why a foreman is likely to perform his duties less efficiently or with less fidelity merely because he is bargaining collectively with his employer on matters relating to his wages, hours and conditions of work. Certainly, we cannot now con- See, for example, Matter of Packard Motor Car Company, 47 N. L It. B. 932; Matter of Chrysler Corporation, 44 N. L. It. B. 881. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD elude that this is true solely on the basis of the Company's prediction. In such matters, we must rely upon experience as our guide. The Company argues further that the foremen do not need collective bargaining, since it has been found by the Foremen's Panel that their grievances are not substantial. Even if it be assumed, arguendo, that the foremen have no just cause to complain about their wages, hours, or conditions of work, and that the Company has been fair to them in these matters, nevertheless, there remains a grievance which, as we have pointed out above, is more basic, namely, the denial by their employer of their right to participate in the decisions which affect their welfare as employees. The fact that foremen have struck for recognition even though, as the Company asserts, they have no other just grievances, demonstrates the fundamental character of this griev- ance and its tendency to engender industrial strife. This fact was recognized by the Foremen's Panel, and it is this basic grievance of all employees which the Act was designed to remedy, for Congress found that the denial by employers of this democratic right of par- ticipation results in strikes. Thus, the jurisdiction of this Board does not depend upon such matters as, the fairness of wage rates. The test of our jurisdiction is to be found in the purposes of the legislation. Congress sought, in the Act, to reach as far as its powers could go to eliminate strikes and other industrial strife arising out of the denial by employers of the collective bargaining rights of their employees. We believe that Congress intended to, and did in fact, reach far enough to remedy the situation in the present case. We do not'say that the recognition of the collective bargaining rights of the foremen is a panacea for all the problems arising out of their peculiar intermediate position in industry. But we believe that it is the first essential step toward a solution. The alternative which the Company proposes-the denial of basic bargaining rights-is a policy of negation which contributes nothing to a constructive solu- tion. We have examined the issues in this case with extreme care not only because of the vital importance of the question to the Nation, but also because we fully appreciate the desirability of achieving a meas- ure of certainty as to the administrative rulings of this Board. We feel, however, that we would be remiss in our duty as public officials if we permitted our reluctance to alter the existing rule to blind us to- the effects of the powerful economic forces which have manifested themselves since that rule was laid down. The movement for the organization of foremen is no longer a future possibility , it is an existing fact; and the importance of their organizational development can hardly be exaggerated, for supervisory employees constitute a large and strategic segment of the working force in mass industry. The Nation has now' experienced the drastic consequences of extra- PACKARD MOTOR CAR COMPANY 21 statutory organization by supervisory employees, and the duty of this Board has become plain. To continue to deny to such employees as a class the bargaining rights guaranteed by_the Act would be to ignore the clear economic facts and invite further industrial strife-a state of affairs which the Nation can ill afford at this time and which the Act was designed to mitigate 29 We are now convinced that the na- tional interest will be better protected if the organizational activities of foremen are conducted within, rather than without, the framework of the collective bargaining statute.30 We turn now to a consideration of the sole remaining question : the appropriate grouping of the employees affected by the petition. At the hearing the Company took no position with respect to the proposed unit except to contend that no unit of supervisory employees would be appropriate. However, at the oral argument before the Board, the Company stated that, if the Board were to find that supervisors could constitute appropriate units, then its position was that it objected to the inclusion in a single unit of four classes of foremen. The Company conducts its principal manufacturing operations in 115 buildings located on an 84-acre tract in the city of Detroit. In addition, it has recently acquired two additional buildings in Detroit-the Bundy Tubing Plant and the old Hupp Plant-to which it is presently extending its operations. The four classes of super- visors in all of these buildings are covered by the petition. The pres- ent manufacturing operations are carried on in two principal divi- sions, the Aircraft Division and the Car and Marine Engine Division. (The use of the word "Car" is historical only.) For the purposes of differentiation the two main divisions are referred to as "Plants" and the subdivisions of the two main divisions as "divisions." These two principal Plants are broken down into approximately 20 divisions and these divisions in turn are broken down into approximately 300 departments. Substantially all of the employees in the proposed unit work in the manufacturing plants. The managerial and supervisory hierarchy of the Company is set out in the following chart. The number after each job title indicates 20 We are not unmindful of the fact that, as the Company points out, the Act has not eliminated all strikes. Employees still strike for better wages, hours, and working condi- tions, and for the redress of grievances , real or fancied . The operation of the Act, while it undoubtedly mitigates, cannot prevent all such strikes , for collective bargaining itself is not infallible. However, the Act does afford a direct and primary remedy for a major cause of strikes-the denial of recognition . As we pointed out above, the statistics show that since the Act was passed vast numbers of rank and,file employees have found it unnecessary to strike in order to gain recognition, for they have been able to secure that right by resort- ing to the peaceful and orderly procedures of the Board we believe it reasonable to pre- dict that the same results will flow from the recognition of those rights for supervisory employees. 80 We hereby overrule our decisions in Boeing Aircraft Company, Murray Corporation of America, and General Motors Corporation, supra, and, to the extent that it is inconsistent with the present decision , Maryland Drydock Company. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the number of persons employed in that category as of December 2, 1944. Title Number President ------------------------------------------------ 1 Executive Vice President------------------------------ -- 1 Vice President of Engineering----------------------------- 1 Manager of Aircraft Engine Plant-------------------------- 1 Assistant Manager of Aircraft Engine Plant---------------- 1 Night Superintendent Aircraft Engine Plant-------------'-- 1 Asst. Superintendent Aircraft Engine Plant---------------- 1 Manager of Car and Marine Engine Plant------------------ 1 Executive Assistant Car and Marine Engine Plant ----------- 1 Managers of Divisions (Includes Master Mechanic-Plant Engineer-Chief inspector) ----------------------------- 16 Assistant Managers of Divisions (Includes Assistant Master Mechanic-Assistant Plant Engineer-Assistant Inspec- -.tors) -------------------------------------------------- 32 Superintendents of Divisions (Some Superintendents as shown by the Charts have the same jurisdiction as Managers or Assistant Managers)------------------------------------ 20 General Foremen----------------------------------------- 125 Foremen ------------------------------------------------- 643 Assistant Foremen --------------------------------------- 273 Special Assignment Men----------------------------------- 65 As of November 30, 1944, the total number of employees at the plants involved in this proceeding was 32,533. The general foremen at Packard are in charge of one or more departments, the record indicating that the maximum number under any one general foreman is four departments. The status of fore- men and assistant foremen varies. In some departments there are no foremen; in others there are no assistant foremen. Where there are no foremen, the duties of the assistant foremen correspond to those of foremen in other departments, and where there is no assistant foreman, the foreman does the work corresponding to the job of an assistant foreman in another department. In general, foremen and assistant foremen have charge of a segment of the work of an entire department; they may, for example, be in charge of a subassembly line, or some other branch of work of the entire department. In other instances, they appear to be the direct assistants to the general foremen in con- nection with the work of the whole department. In some cases, their work is a combination of both. And where a general foreman is in charge of more than one department, it is common for the foreman to be the direct head of one of the departments. The special assign- ment men have the qualifications of general foremen and foremen and are sometimes used in that capacity if general foremen or foremen are absent. Principally their duties, which will be discussed below, are described as "trouble-shooting." 4d PACKARD MOTOR CAR COMPANY 23 General foremen receive a base monthly pay of $304 .50; this, with overtime pay, adds up to approximately $500 a month . Foremen are paid a base rate of $278 per month; with overtime, this amounts to $450 or $460. Assistant foremen who are paid by the month, receive a base rate of $242; a total of $410 or $420, with overtime. Some assistant foremen are paid by the hour; in this case, their total pay amounts to about the same as the other assistant foremen. The special assignment men are paid about the same as general foremen or fore- men, depending upon their qualifications . These figures are approxi- mate averages . There are some who receive less, while others who are connected with work calling for a higher degree of skill receive more. In general, the status and duties of all classes of foremen at Packard is the same as that of foremen in other mass production industry which we have described earlier. At Packard, each foreman is responsible for the quality and quantity of production of the workers under his supervision . None of the four classes of foremen performs any manual work. The general foreman checks the hourly production report to see that the production in his department has been maintained. If a breakdown occurs, he must take action to see that it is remedied by the appropriate departments . It, is his duty to instruct the foremen and assistant foremen under him and see that they are properly executing their duties . He is responsible for the safety and cleanliness of his department or departments . He makes out numerous reports and signs various types of employee passes. In all these matters he is under the supervision of and is responsible to his superintendent. The foremen and assistant foremen, on their level, have similar responsi- bilities and duties with respect to the men and women over whom they exercise supervision . The assistant foreman is under the supervision of the foreman , or in those departments where there are no foremen, the general foreman. The foreman is directly responsible to the general foreman. This chain of responsibility proceeds vertically up through the various supervisory and managerial levels set forth in the chart, supra. The special assignment men, in addition to serving as sub- stitutes for absent general foremen and foremen, act as "trouble- shooters." Thus, for example , if a department runs into difficulty re- garding the production of a certain part, the special assignment man is called upon to investigate. If the trouble involves a part that passes through three or four departments in the process of manufacture, he may be required to trace it back through all the operations. Or if a particular job is not running according to plan, he is called upon to observe and supervise until the deficiency has been corrected. When the special assignment man is called in to solve a production problem. he exercises the supervisory authority of a general foreman or fore- man, whichever is required. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A_ Foreman's School has been in operation at Packard for a number of years. The school is conducted on a conference basis, the subjects being, generally planned by the Industrial Relations Manager and the Manager of the School. All grades of foremen attend this school, with no distinction whatever between them. The subjects discussed cover a wide range and include such matters as discussion of the con- tract with the rank and file union, safety and accident prevention, waste, management in business, speech habits, morale, plant efficiency, labor relations, etc. All classes of foremen have certain privileges and advantages not enjoyed by the rank and file worker. Thus, while a rank and file em- ployee receives no pay when absent, -a foreman is paid for justifiable absences according to a schedule based upon length of service. The vacation with pay policy is more generous for foremen than for rank and file, and foremen, unlike their subordinates, receive separation pay in the event their service with the Company is severed. Salaried fore- men are paid for holidays since their salary is on a monthly basis, and they are permitted to report one half hour late for work without being docked in pay; neither of these privileges is enjoyed by the rank and file. The general foreman has supervision over the foremen and assistant foremen and he may and often does make recommendations to his superintendent regarding their rates of pay, transfer, rehire, lay-off, discharge and discipline. However, in no event may he take any action in these matters without the prior approval of his superiors. The same is true with regard to physical changes in the departments. All classes of foremen are expected to and do make suggestions for the improve- ment of production in their department, but in no case are they per- mitted to put these suggestions into operation without the approval of higher management. Thus, if a certain production method is not working out well in practice, the foreman would report it, sometimes with recommendations for improvement, to the superintendent or the division manager who in turn would take the matter up with the plan- ning or layout departments. The relationship between the foremen and the rank and file employees over whom they exercise supervision has been described at an earlier point in this decision. On the basis of these facts, we believe that collective bargaining can best be conducted on the basis of a single unit. All four classes of employees are supervisors who perform no manual work, and while they usually function on different levels, their duties and responsibili- ties are substantially alike. Moreover, it is common for a foreman- like most general foremen-to be in charge of an entire department, and in cases where there are no foremen in a department, an assistant foreman will often serve in a position which corresponds to a fore- PACKARD MOTOR CAR COMPANY 25 man's job in another department. In many respects, the Company itself treats these employees as a single group. Thus, substantially all are paid a salary upon the basis of a 40-hour week, with time and one-half for overtime; all four classes attend the Company's Fore- man's School, with no distinction whatever between them; all four classes enjoy certain common privileges and advantages such as justifi- able absences with pay, vacation with pay, separation pay, the privi- lege of reporting one half hour late for work without being docked in pay, and all four wear ordinary street clothes at the plant. It is sig- nificant that, in their organizational efforts at the Company's plants and at plants of other employers, these classes of supervisors have acted as a unit. They consider themselves a middle group between the rank and file on the one hand and management on the other, and the facts of modern mass production industry which we have discussed earlier support this view. Their problems are fundamentally the same and it is therefore no accident that they have banded together in the same organization. The Company believes, however, that notwithstanding this strong community of economic interest, it would be improper to group the four classes of foremen together in one-unit since they exercise a degree of supervision over one another. We do not believe that this fact alone is of sufficient importance to outweigh the factors which favor the establishment of a single unit. Moreover, with respect to such important matters as selection, transfer, promotion, demotion, reclas- sification, discipline, and discharge, the facts show that the authority of the supervising foreman over the subordinate foreman is limited to the making of recommendations to higher management; he has no power to make decisions or take action on these matters without the prior approval of a higher authority. In addition, there are compel- ling practical reasons militating against the creation of four separate units. It would necessitate the negotiation of four separate con- tracts, probably with four separate negotiating committees; it might require the establishment of four separately chartered locals, each holding independent meetings and functioning through four separate sets of committees with great duplication of effort both by the union and the Company. Problems involving the allocation of supervisors to their proper unit and other related questions would be likely to arise. Moreover, although such units would be theoretically discrete, all four classes of foremen would be members of the same union. Such an unwieldy arrangement, we believe, would create more problems than it would solve. It is noteworthy that the Association's contract with the Ford Motor Company embraces in a single unit six classes of super- visory employees covering an apparently broader portion of the super- visory hierarchy than the proposed unit in the present case, and this 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arrangement does not appear to have created insoluble problems. If for certain purposes, such as the handling 'of grievances, it becomes necessary to establish different procedures for the different levels of supervision, this can be handled in the collective bargaining agreement. We believe that, upon the basis of the facts in the present case, a single unit is the most appropriate for the purposes of collective bargaining. This finding does not preclude a future reconsideration of the unit question, if the single unit arrangement does not prove feasible in practice." Accordingly, we find that all general foremen, foremen, assistant foremen, and special assignment men employed by the Company at its plants in Detroit, Michigan, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tion herein, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations, Act, and pursuant to Article III, Section 9, of National Labor Rela- tions Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Packard Motor Car Company, Detroit, Michigan, an election by secret ballot shall be conducted as early as possible, but not later than sixty (60) days from the date of this Direction, under the direction and supervision of the Regional Director for the Seventh Region, acting in this mat- ter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the at In several previous decisions , the Board has found that it would be inappropriate to group seveial levels of supervisors in a single bargaining unit See, for example , Matter of Mioray Corporation of America, 47 N L R B 1003, and Matter of Boeing Aircraft Com- pany, 45 N L R B 630 Upon reconsideration and for the reasons stated above, we now believe that a single bargaining unit is more feasible , and therefore appropriate , for the - puiposes of collective bargaining , in a case like the present one « here there is such an obvious community of interest, and no marked disparity in rank, among several levels of foremen PACKARD MOTOR CAR COMPANY 27 date of this Direction, including employees who did not work during the said pay-roll period because they were ill or on vacation or tem- porarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but ex- cluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be represented by Foreman's Association of America, for the purposes of collective bargaining. MR. GERARD D. REILLY, dissenting: In my opinion, the decision we are making today does irreparable damage to the delicate balance between the conflicting interests of management and worker which the National Labor Relations Act sought to bring about in American industry. From the very begin- ning of the administration of this Act, the Board has recognized that in the mass production industries the interests of foremen lay pre- dominantly with management groups. Consequently, in its decisions dealing with unfair labor practices, the Board deemed the actions of a foreman the actions of his employer.' Less than 2 years ago, a majority of the Board, recognizing that this historic principle was rapidly being fatally compromised by the effects of its then recent Union Collieries decision,2 decided in the Maryland Drydock case I that employers were not required to bargain collectively with labor organizations composed in whole or in part of supervisors. The doctrine of this case has become one of the guiding principles in industrial relations policy in our national wartime econ- i In the interest of protecting freedom of choice among the workers it has been the almost invariable practice of the Board not only to exclude foremen from collective bargaining units in those industries , but also to disestablish labor unions which were formed by super- visory and subordinate emplo'ees on the ground that such organizations were, ipso facto, company dominated N. L. R B. v. The Niles Fire Brick Company, 124 F ( 2d) 366 (C C A 6) , 11 J Heinz Company v N L R B , 311 U S 514, 518 , N L R B v Engineering Research Corporation, 145 F. (2d) 271 (C C A 4), cert denied 323 U S 801 'Matter of Union Collieries Coal Company , Oakmont, Pennsylvania and Mine Officials' Union of America (Ind.), 41 N L R B 961, 44 N L R B 165 The reasoning of the majority and its conclusion in the instant case , in the light of this Board 's experience, dur- ing a period of less than 8 months in which the Board 's policy as stated in the Union Col- lieries case was applied , invite for its appraisal a variety of incongruous situations Indeed, since the decision does not limit the application of the policy announced therein to cases where the union involved is unaffiliated and independent of other organizations which represent rank and file employees , these situations comprise a veritable Pandora's box of incongruities See Matter of Godchaux Sugars, Inc. 44 N L R B 874 ; Matter of Stanley Company of America, 45 N. L It . B 625, where the Board was presented with the problem of a unit of supervisory employees at a time when the ordinary eia,,Ao)ees nod not yet organized for collective bargaining As I noted in my dissent in that case, there can be little doubt in such a situation as to the form that organization of oidinary employees will take if the Board permits their supervisors to choose bargaining agents under the Act Matter of Boeing Aircraft Company, 45 N L R B 630 . Matter of South- western Bell Telephone Company, 45 N L R B 1078 3 Matter of The Maryland Drydock Company and Local No. 31 of the Industrial Union of Marine and Shipbuilding Workers of America, 19 N. L. R B. 733. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only. Although challenged on the date of its issuance in a dissenting opinion by Chairman Millis as "administrative legislation ," there has been no effort made by any member in Congress to overrule it by legislative amendment4 It has been widely accepted as a rule of decision by State courts , State boards and federal arbitrators dealing with cognate problems.5 Yet, for all practical purposes, and at a time when any fundamental change in well established rules cannot but have an unsettling effect upon essential war production , this decision is now being overruled. While I'would be the first to agree with my colleagues that we should not shut our eyes to recent developments and believe emphatically that, to the extent that we have discretion under the statute, any decision of this Board should be overruled if its impact has a disastrous effect upon sound industrial relations , I find wholly unconvincing the argu- ments now advanced for the view that the Maryland Drjdock rule has proved unworkable in practice . In fact, it seems to me that any com- plete appraisal of the industrial history of the last 2 years demonstrates its essential correctness . As the text of the majority opinion in that case clearly shows, the Board at that time was fully aware that the economic position of the foremen would be improved if the Act were extended to facilitate collective bargaining by them. It was concluded, however , that the benefits which might thus accrue to supervisory em- ployees were outweighed by the dangers inherent in the commingling of management and employee functions , and in the possible restrictive effect upon the freedom of rank and file employees. The dissenting opinion in that case , however, contending that these dangers were not supported by evidence ( although, of course the ma- jority observations were based upon the same premise implicit in the treatment by the entire Board of foremen in unfair labor practice cases) and, relying upon ex parte testimony given by a spokesman for the foremen's organizations in hearings before this Board and Con- * There is some attempt in the majority opinion to claim that the result reached con- forms to the intent of Congress. In view of the fact that supervisors were never men- tioned either in committee or on the floor at the time of the passage of the Wagner Act, I have never regarded such arguments as particularly fruitful, especially as the definition of "employee," unlike that contained in the Railway Labor Act, does not specifically include "subordinate officials " The real truth of the matter seems to be that Congress scarcely adverted to the question until the repercussions of the Union Collieries decision invited the attention of the House. Then a bill to amend the Act so as to exclude super- visors from its provisions, gathered considerable legislative momentum in the House Mili- tary Affairs Committee. Before the bill was reported out, however, the Maryland Drydock decision was issued. "Hathaway Bakeries, Inc. v. Massachusetts Labor Relations Comm., Mass . Sup. Jud. Ct. ; 55 N. E. (2d) 254; Division 1327 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America v. Pennsylvania Labor Relations Board (Pittsburgh Railways Company Employees' case), Pa. Ct. of Common Pleas, Allegheny County, No. 2053, July 27, 1944. See Opinion of the General Counsel, National War Labor Board, relative to the status of foremen before the War Labor Board, 14 L. R. R. 415 (May 1944). New York is an exception. See Allegheny Ludlum Steel Corporation v. Kelly, N. Y. Sup. Ct , Chautauqua County No. 185, July 27, 1944. PACKARD MOTOR CAR COMPANY 29 gressional committees, argues that the grievances of foremen were so real and numerous that their right to bargain collectively under the protection of the Act should not be denied if there was "proper provi- sion for organizational autonomy." In controversies of this sort, it has been aptly said that " a page of history is worth a volume of logic."'8 Fortunately, on both points the inexorable facts now leave no room for speculation. The experience of the last 2 years has made it clear (1) that the standard foreman grievances, so repeatedly cited in argument before this Board, have by reason of an exhaustive investigation 7 of a panel of the War Labor Board turned out to be largely fanciful; (2) but to the extent to which the organization of foremen has expanded, the danger of collaboration with rank and file unions to the detriment of individual freedom of choice and established management techniques has proved all too real. In enacting the National Labor Relations Act, Congress in the pre- amble of the statute stated as one of its reasons an "inequality of bargaining power between employees and . . . employers .. . [which] tends to aggravate recurrent business depressions by depress- ing wage rates and the purchasing power of wage earners in industry." Since one of the crucial questions in this controversy is the intent of Congress, it would seem extremely far-fetched to believe that the Con- gress had in mind the kind of employees involved in the case before us. While there are undoubtedly some industries in which foremen are underpaid and neglected, the financial plight of the foremen in the Packard Motor Company can hardly be advanced as the reason for giving such supervisors legal encouragement -to organize. As the ma- jority opinion reveals, the employees in the bargaining unit which this decision finds appropriate receive salaries ranging from $5,000 to $6,000, including overtime compensation. The findings of the War Labor Board Panel, to which reference has already been made, fill out this picture. The foremen in the industries in which the Foreman's Association of America is active do not fall into the category of that "one-third of the Nation-ill-fed, ill-housed and ill-clothed," 8 for whose relief the social legislation of the New Deal was enacted. In- stead, these men, according to the Panel, fall into the upper third of the Nation's income bracket. The Panel also found that in the very com- pany in the instant case, as well as in the other companies where strikes have been conducted by the Foreman's Association of America, the rec- ord did not support the conclusion that these corporations allowed the Per Holmes, J ; in New York Trust Company v. Eisner, 256 U. S. 329. ° Report and Findings of a Panel of the National War Labor Board in Certain Disputes Involving Supervisors, W. L. B. A-3397. This phrase was originally used by the President in a message to Congress advocating passage of the Fair Labor Standards Act. In subsequent speeches, however, he described all the social legislation sponsored by the Administration as having this general objective, 639678-45-vol. 61-4 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foremen to be by-passed in handling grievances, or failed to back them up wherr they attempted to impose discipline. Moreover, with respect to promotions, demotions and discharges, it was found that there were no serious grievances at Packard.' Recent developments have made it equally clear that in the strongly organized industries, foremen's associations possess no real autonomy so far as effectuating their bargaining objectives unless they ally them- selves in their policies and tactics with representatives of the employ- ees whom they are hired to supervise. When this happens, of course, the proper line of demarcation between supervisor and supervised becomes hopelessly confused. It will be recalled that when the Union Collieries case was heard, the organization of mine officials whose pe- tition for an election was entertained was an independent union. Shortly thereafter, it was given a charter by the United Mine Workers. Failing to achieve recognition by the operators, this new affiliate called a number of strikes last fall in various coal mines. Pursuant to Section 8 of the Smith-Connally Act, this Board conducted strike referenda in these mines. Although in several instances a majority of the foremen voted against striking, in every case reported to us the strike call brought about a complete stoppage as the miners re- fused to cross the picket lines of this supposedly autonomous union. In other words, in order to'make these strikes effective, the foremen's group found it necessary to achieve the same degree of collaboration with the production workers that exists among constituent unions of the Building Trades Department of the A. F. L. on a construction project. It is common knowledge that under normal industrial conditions, strikes of factory foremen have little chance of succeeding, for the places of the strikers can readily be filled by promotion from the Typical of the findings of the Panel are the following "The supervisors in the cases before it are in general well paid . are . . in the upper third of income receivers in the nation as a whole . . are among the highly paid employees of American industry." (p 142) ,The general level of compensation does not appear to be a serious complaint" (p. 142) "Except in the Baldwin case, the Panel does not find that failure to pay for overtime work is an unresolved grievance ." ( p 150) "The record does not support the conclusion that companies involved intend to allow the foremen to be by-passed in handling grievances Nor does it support the contention that these companies fail to back up their foremen when the foremen attempt to impose dis- cipline " (p. 153) "The greatest fear of foremen today is that they will be laid off or demoted when cut- backs and cancellations of war orders occur This fear seems to be a principal reason why the interest of foremen in organizing is out of proportion to the nature and gravity of their grievances In all of the companies before the Panel except one the war has caused enormous expansion of the rank and file workers and a corresponding increase in the number of supervisors ." ( p. 155) "The Panel does not believe that it would be in the public interest for the National War Labor Board or any other government agency to prescribe a rule to govern managements in deciding which foremen they shall lay off , demote , or transfer " (p 158) "The panel does not recommend that the Board approve the foremen's request that grievance procedure terminate in an appeal to a referee or arbitrator." (p. 165) PACKARD MOTOR CAR COMPANY 31 ranks from which the foremen themselves were originally selected. The record of this case reveals that in order to prevent its strikes from being broken, the Foreman's Association of America, the petitioner in the instant case, though nominally independent, has also been driven to resort to treaties of mutual aid and assistance with rank and file unions. In response to a question from the bench, counsel for the petitioner admitted in oral argument that "when the foremen struck there was a direct and express agreement between us ,and the responsible C. I. O. leaders that members of the C. I. O. Maintenance and Production Workers Union would not be permitted to take the place of foremen." 10 And in answering a question as to whether there was any agreement with the C. I. O. against crossing picket lines of the foremen, he stated that there had been in Republic Steel and that this matter was "adjusted in each plant in each instance.", - Can anyone doubt that if such an "agreement" or "adjustment" was being negotiated on the eve of a foremen's strike, that supervisors would be inclined to think twice before overruling any union steward on griev- ances, no matter how unfounded, or disciplining, for infractions of the plant rules, employees influential in the rank, and file union whose consent was necessary to the strike agreement? Is it theoretical to assume that the average worker, whose susceptibility to his foreman's influence we have so often noted in unfair labor practice cases, would hesitate to advocate adoption by his union of policies evincing lack of sympathy with the objectives of the organization to which his fore- man belongs? Under these circumstances, "proper provision for or- ganizational autonomy" is as unrealistic as the former notion-now discredited by the majority opinion-that the mere placing of differ- ent levels of supervisors in separate bargaining units somehow achieved the effect of segregating conflicting interests into watertight compartments. It is difficult'to find any logical distinction between supervisors' unions which have such alliances with the rank and file groups, and the labor organizations which we have hitherto proscribed because of the presence of supervisors in their councils. I turn now to the arguments advanced by the majority for. the theory that the Maryland Drydock rule has been found wanting in the light of recent developments. Briefly summarized these arguments seem to boil down to this : (1) Foremen in mass production industries have lost much of the authority and policy making functions they possessed in the 1900's, 10 Transcript of Oral Argument , Packard Motor Car Company, at p. 71. u Id , p 73, Counsel also added that • I am bound to say I hope l will never hear of a foreman crossing a picket line by anything but agreement . . and I hope that we won't be faithless to our obligation to our fellow worker, and we hope he won't be to us, but as an equal give and take. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and have viewed with some envy and resentment the superior collec- tive bargaining strength of the organized workers they supervise. (2) Consequently, the membership of the Foreman's Association has greatly increased'12 and, being denied access to the certification pro- cedures of the Wagner Act, it has conducted strikes for recognition which have interrupted war production in several key plants. There- fore, it is urged that, since one of the purposes of the Wagner Act is to promote industrial peace, our rules of decision should be changed so as to compel employers to recognize the Foreman's Association as collective bargaining agent whenever it represents the majority of any supervisory group. Other than the fact that there have been strikes, I do not find any "recent developments" to justify this conclusion. There is nothing. startling in the finding that foremen in the mass production industries differ from foremen in the small shops of the 1900's. This was a de- velopment which occurred long before the passage of the National Labor Relations Act, and the expansion of heavy industry in recent years has simply accentuated the trend. We have adverted to it in prior cases. Moreover, it must be remembered that it is in these very mass production industries that company unionism developed in the 1920's and 1930's, and it is this very class of foremen, whom the -Board now depicts as shorn of their management prerogatives, that, we have always regarded as employer representatives when we find them en- gaged in any union activity which runs counter to the organizational efforts of a competing union 13 As for the strikes,-hardly an unforeseen phenomenon in the light of the prediction contained in the dissenting opinion in the Maryland Drydock case 14-I readily concede the importance of uninterrupted war production and concede that the particular strikes which occurred in the Detroit plants last spring would probably not have occurred if employers had been compelled to recognize the Foreman's Associa- 32 while the majority opinion notes that the Foreman's Association grew from approxi- mately 10 ,392 in 1942 to 32,142 in 1944, it does not make clear whether most of this growth occurred before or after the Maryland Drydock decision . It appears, from a radio address of Robert Keys , the President of the Association , that the total membership stood at 15,000 in May 1943 so that it approximately doubled between the date of the Maryland Drydock decision and the date the hearing in the case was closed In view of the fact, however, that the organization has a potential membership of more than a million in the industries which it is seeking to organize , it is difficult to agree with the conclusion that its expansion was not retarded by this Board's policy of dismissing petitions filed by it. 12 In the printing industry where we have permitted foremen to , be included in the bargaining unit, we have not imputed the actions and utterances of foremen to their employer , except where they are specifically authorized to act as management 's spokes- men. See Matter of it. it. Donnelley & Sons Co , 60 N. L. R. B 635. 14 Maryland Drydock, supra, p. 749. . Of course, foremen, as employees, have the right to organize and to seek recog- nition. Perhaps many employers will regard it as wise to grant this recognition . Insofar as such voluntary recognition is withheld , foremen must `grin and bear it' or resort to the use of their economic power , an alternative which the Act was meant to discourage." PACKARD MOTOR CAR COMPANY 33 tion. Unfortunately, however, while a certification may take one issue out of the arena, it may merely be substituting the possibility of others. Our own files show that in most of the strikes which have occurred in wartime, the organizations involved were unions to which the orderly procedures of this Act were available. As we recently noted in our Annual Report,'-' the bulk of the strike notices seem to arise from dissatisfaction with the decisions of some government agencies. It is.unfortunately no novelty to have disgruntled unions strike and interfere with production because this Board had refused to recognize units which they proposed as appropriate. Such de- fiance, however, can scarcely be deemed a justification for retreating from well-established legal principles. If strikes of this sort are suf- ficiently numerous to bring about substantial impairment of the flow of materials to the theatres of war, a wiser remedy would be legisla- tion conferring upon this Board the same power to invoke judicial process against recalcitrant labor organizations which it now possesses with regard to disobedient employers. And since the foremen's strikes described by the majority were already known to the Board last fall, such recommendation might properly have been included in our last Annual Report to Congress. The adoption of the alternative course proposed by the majority smacks of a "peace-at-any-price" policy. In any event, it would seem that any possible immediate gain in the way of eliminating some of the causes of strife is more than out- weighed by the general long range impact of this decision upon in- dustrial relations. A most disturbing feature of the majority opinion is the plain implication that all the bars are down which have hitherto been invoked to confine management and labor within their proper ,spheres of influence. It is true that the text does give some recogni- tion to the dangers of divided allegiance if the foreman's organization is affiliated with the same union which represents the rank and file, since stress is laid upon the fact that the petitioning labor organiza- tion admits only supervisors to membership and is not affiliated with any other group. It also goes on to suggest that the certification could be revoked if any material change in the petitioner's present status should develop. This is rather a curious doctrine coming from this quarter. The authors of the present opinion also comprise the Board majority which has consistently adhered to the proposition enunciated in the plant-protection cases 16 that once the Board had 15 Ninth Annual Report, p. 73, 74. '° This issue first arose in Matter of Packard Motor Company , 47 N L R B . 932, where a labor organization, already representing the production and maintenance workers, peti- tioned for a unit of plant-protection employees . The petition was opposed by the Company on the ground that in the collective agreement for the production workers the union had agreed not to accept or admit to membership plant guards . A majority of the Board consisting of Messrs . Millis and Leiserson rejected the Company 's contention holding : "No provision in the Act permits the Board, the employer , or a labor organization not acting as the statutory representative of the employees whose rights are in issue, to prevent 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fixed the boundaries of an appropriate bargaining unit, it was power- less under the statute to reject as unqualified any representative selected by the majority. It therefore appears that the Board is now claiming a power over foremen's units which it disclaimed in the plant guard situation. If it lies within our discretion to overcome the un- desirable aspects of divided allegiance in the foremen's cases by insisting that supervisors must have a different bargaining agent from the workers they supervise, it would seem incumbent upon us to exer- cise the same discretion with respect to monitorial employees,17 where the factor of divided allegiance is present, although in a lesser degree. It should be noted, however, that the bargaining unit which this decision defines includes persons in different levels of supervision, viz., general foremen, foremen, assistant foremen and special assignment men, although the higher officials have the power to make recommen- dations concerning rates of pay, transfer; rehire, lay-off, discharge and discipline of the supervisors in the next lower bracket, a factor 'which certainly infringes upon freedom of choice under all the ac- cepted criteria in the company domination cases. A large portion of the opinion is devoted to minimizing the resultant danger of dig- loyaltyby pointing out that the company may always resort to its normal disciplinary powers against disloyal or inefficient supervisors. Such an argument, of course, ignores the administrative difficulties of supervising the supervisor. It is particularly strange to find such a theory advanced in a tribunal created within the framework of Anglo- American jurisprudence which from earliest times had laid down the principle 18 that a fiduciary may not serve conflicting interests, and that the mere possibility of temptation renders voidable any transac- tions made in a dual capacity, irrespective of their honesty. Even more significant is the apparent indifference of the Board to the close relationship of the petitioner with unions of production workers affiliated with the C. I. 0. which the record revealed. Al- though the alleged independence of the Foreman's Association, in such employees from exercising their right to bargain collectively in an appropriate unit through any bargaining agent whom they may desire to act as their exclusive representa- tive " [Emphasis supplied I dissented on the ground that the provision of the contract acted as an estoppel. In subsequent cases where this same precise issue was present Mr Houston concurred with the original majority view See Matter of Ford Motor Company, 47 N L. R. B 946 ; Matter of Ford Motor Company, 47 N. L R B 939 ; Matter of Federal Motor Truck Com- pany, 54 N L. R B. 984; Matter of Packard Motor Car Company, 60 N L R B 324 17N L R B v Jones & Laughlin Steel Corp , 146 F (2d) 718 (C. C A. 6), setting aside 53 N. L R B 1046 N. L. R B v Federal Motor Truck Company, 146 F ( 2d) 718 (C. C A 6), setting aside 54 N. L. R B. 984 18 Michaud, et at v. Girod, et al, 45 U. S 503, 555 where an agent owes fidelity to his principal , the law does not make the principal wait until the agent has been unfaithful and then punish him. " it provides against the probability in many cases, and the dan- ger in all cases, that the dictates of self interest will exercise a predominant influence, and supersede that of duty " Pepper v. Litton, 308 U. S 295 ; Meinhard v. Salmon, 249 N. Y. 458. 164 N. E . 545 (1929). PACKARD MOTOR CAR COMPANY 35 view of the holding in the Soss case,19 was one of the pertinent issues in this proceeding, the majority of the Board in advance of the hearing refused to instruct its trial examiner to obtain evidence on this point 20 Such facts as do bear on the question therefore were either introduced by the Company or elicited from petitioner's counsel at the argument before the full Board. Included in this former category were the resolutions of support on the part of the Michigan C. I. 0. Council, the refusal of the organized steel workers at Republic to cross the foremen's picket line, and the interference of production workers at Briggs with the plant officials who tried to maintain continuous op- eration during the strike. A tendency to view these facts as imma- terial is also illustrated by the majority's holding certain related evi- dence to be inc6mpetent,21 although in other respects the majority opinion makes the widest use of secondary material and even personal experience. It would therefore seem that despite the footnote ex- pressing the view of one member that the applicability of the present decision to affiliated organizations is still an open one, there is little doubt as to the form such a decision will take when a case presenting this issue arises. In making these observations, I am fully aware that there is a school of thought which will regard them as unduly pessimistic, in view of the fact that foremen for many years have been organized in the printing, maritime, railroad and building construction indus- tries. This state of affairs has frequently been cited as disproving the theory that industrial efficiency is impaired or union democracy frus- trated by the presence of foremen and workers in the same bargaining organization. These examples have little relevance to the controversy. For one thing, only two of these industries-the printing and maritime trades-even fall within the scope of the National Labor Relations Act, and the pattern of collective bargaining established in them grew up quite independently of this statute and in some respects is quite 19 Matter of Soss Manufacturing Company, 56 N. L R B 348. In this case , protection under the Act for supervisors with respect to holding union membership was limited to mere passive membership in a craft organization or membership and activity in organiza- tions composed entirely of foremen and completely unaffiliated with groups representing production workers. 20 Minute of Executive Meeting of the Board, December 16, 1944 : "Packard Motor Car Company, 7-R-1884 • The Board , with Board Member Reilly 'dis- senting, rejected Board Member Reilly 's recommendation that the Trial Examiner in this case be instructed to elicit evidence concerning the source of the petitioner's funds and the nature of its expenditures , its connection , if any, with the UAW-CIO or other unions which admit production workers to membership , and the extent , if any, to which it has sought or received support from the UAW-CIO or other affiliated unions in organizing or in making its strikes effective 21 The evidence found to be incompetent consisted of a pamphlet distributed at the Murray Corporation , asking for the support of the rank and file, and a report of a hear- ings officer of the Michigan Unemployment Compensation Commission, rejecting certain production workers' applications for unemployment insurance on the ground that the claimants had participated as sympathetic strikers in a stoppage called by the Foreman's Association of America 36 DECISIONS OF (NATIONAL LABOR RELATIONS BOARD contrary to its basic concepts. Because of the traditions of the sea, implemented by the admiralty laws, there is little danger of the officers and crew merging their respective labor organizations. , In the news- paper field, where the foreman is traditionally a member of the Print- ers' Union, the composing room staff operates almost as independ- ently of the publisher as would be the case if the work was done by a job printing establishment.22, Then again, in none of the enumerated industries is this country particularly unique, and the technological developments in these fields in recent years have been relatively minor. An entirely different spectacle is presented by the mass production industries, where the constant development of technological science, with the resultant subdivision of labor operations, requires constant attention in the coordination of production with 'supervisory and engineering techniques. It is these industries which have made this country the foremost industrial nation of the world and contributed so heavily to war production, and it is in these industries that the basic principles of the National Labor Relations Act have been most fre- quently applied. It therefore seems to me that we may well be forcing these industries and their employees into a Procrustean bed when we project upon them practices which have grown up in entirely unrelated, fields. 22 In many newspapers there is a rule that the only "representative of management" who is permitted to go into the composing room and give any directions is the make-up man from the news room, and his duties are confined to see that the make-up conforms with the "dummy" prepared at the copy desk.