The Colson Corp.

In the Matter of THE COLSON CORPORATION and FEDERAL LABOR UNION No. 23859,{ AFL ) Case No. 8-R-1960.-Decided April 4, 1946 Messrs. Glen O. Smith and Reese Dill, of Cleveland, Ohio, for the Company. Mr. Jesse Gallagher, of Cleveland, Ohio, and Mr. Alva Kemp, of Elyria, Ohio, for the Union. Mr. Arnold Ordman, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Federal Labor Union No. 23859 (AFL), herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of The Colson Corporation, Elyria, Ohio, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Thomas E. Shroyer, Trial Examiner. The hearing was held at Cleveland, Ohio, on September 27, 1945, and on October 5, 1945. The Company and the Union appeared and participated., All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the hearing, and in its brief, the Company moved to dismiss the petition. For reasons stated below, this motion is hereby denied. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded full opportunity to file briefs with the Board. Inas- much as the Company's brief adequately discusses the issues, which we carefully considered in the recent Jones d Laughlin case,' the Company's request for oral argument is denied. ' Foreman's Association of America was duly served with Notice of Hearing, but failed to appear 2 Matter of Jones 1 Laughlin Steel Corporation , Vesta-Shannopin Coal Division, 66 N. L. R. B. 386. 67 N. L. R. B., No. 5. 72 THE COLSON CORPORATION 73 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Colson Corporation is an Ohio corporation which operates a plant at Elyria. Ohio, where it produces children's vehicles and hos- pital equipment. Its annual volume of business is in excess of $1,000,000. A substantial proportion of its finished products passes in interstate commerce, and a substantial proportion of its raw mate- rials comes to it from points outside the State of Ohio. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. IT. THE ORGANIZATION INVOLVED Federal Labor Union No. 23859 is a labor organization affiliated with the American Federation of Labor, admitting to membership supervisory employees of the Company .3 III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to recognize the Union as the collective bargaining representative of certain of its supervisory employees. The contentions of the Company, upon which it bases its motion to dismiss the petition in this proceeding, are strikingly similar to those of the employer in the Jones eb Laughlin case .4 Here, as in that case, the argument was made that foremen are not employees within the meaning of the Act, and that therefore the Board lacks jurisdiction to proceed with a determination of repre- sentatives. This contention had been repeatedly rejected by the Board 5 and by the courts,6 and was again found to be without merit in the Jones d Laughlin case. Foremen and other supervisory employees, when acting in their own interest to better the terms and conditions of their employment, are quite clearly employees. We find that the foremen involved in this proceeding are employees within the meaning of Section 2 (3) of the Act. Noting that the Union is affiliated with the parent body of the labor organization which represents the rank and file employees of !'Although the Union' s charter is not clear and does not have any bylaws as yet, the evidence reveals that it has ]united its membership to supervisory employees of manufac- tntiug plants in Elviia Ohio At the time of the hearing, all of its members were super- visorv emplovees of the Company ' See footnote 2, supra. 'Matter of Soss Manufacturing Company, et at., 56 N L R B 348 ; Matter of Packard Motor Car Company, 61 N L R . B 4, and 64 N . L R. B 1212 , Matter of The Midland Steel Products Company . Parish& Bingham Dtvistion, 65 N. L R B 997. °Jones & Laughlin Steel Corporation V N L R B, 146 F (2d) 833 (C C A 5) N L N B t Skinner ^t Kennedy Stationey Company, 113 F (2d) 667 (C C A 8) 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company 7-a matter which we will discuss in Section IV, infra- the Company points out that the rank and file organization has for several years past had a contract with the Company in which super- visors were expressly excluded from the bargaining units This con- tract, the Company argues, estops the Union, a sister organization, from seeking to represent the Company's supervisory employees. But most collective bargaining agreements contain a coverage clause which enumerates certain classifications of employees as being out- side the scope of the contract unit. And, as the Jones ct; Laughlin case indicates, no undertaking can be implied from such exclusion that the contracting union has agreed not to enroll the exempted, employees in its ranks, or thereafter not to seek to represent them in some other appropriate collective bargaining unit. We find that the agreement between the Company and the rank and file union is not a bar to this proceeding. A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the Union represents a substantial number of em- ployees in the unit hereinafter found appropriate.9 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. IT. THE APPROPRIATE UNIT The Union requests a unit of all production foremen 10 employed by the Company at its Elyria plant. The Company does not dispute the composition of the unit sought, but opposes the request merely on the broad ground that no unit of supervisory employees is appropriate. In support of its position, it argues (1) that it is not in a mass produc- tion industry, and that its foremen are more than mere "traffic cops," being vested with broad supervisory powers; (2) that the contractual exclusion of supervisory employees from the rank and file unit 11 con- stitute an admission of the inappropriateness of a supervisor's bar- gaining unit; and (3) that inasmuch as the Union is affiliated with the parent body of the labor organization which represents the rank 7 The union which represents the Company's rank and file employees is Federal Labor Union No. 19343 (AFL). 8 The pertinent provision reads as follows : "The Company recognizes the Union as the exclusive collective bargaining agent upon all matters . . . affecting all employees In The Colson Corporation , Elyria plant, with the exception of Metal Polishers and Foremen and Supervisors and Clerical help." ° The Field Examiner reported that the Union submitted 17 application cards bearing the names of 15 employees listed on the Company's pay roll of August 8, 1945. There are 16 employees In the appropriate unit. 10 This would exclude non-production foremen such as those in the production control department, methods department, personnel department, etc. 11 See Section III, supra. THE COLSON CORPORATION 75 and file employees of the Company, the Union is disqualified as a collective bargaining agent herein. The "tra'ff'ic cop" argument The Company at the time of the hearing employed about 500 rank and file workers. There are about 16 production foremen exclusive of those foremen who are not strictly in production. Supervision above the rank of foreman consists of an assistant superintendent, a superintendent, and a factory manager. The Company's plant, cov- ering an area of from 1 to 2 acres with connected buildings, makes little use of conveyors and is in no sense a maps production industry. Fore- men have undisputed authority to hire, promote, discharge, and disci- pline their subordinates. They are largely responsible for time-study work, job evaluation, departmental layout, quality of work produced, and maintenance of their own departments. In all respects they have broad powers of supervision. However, in the Young and Goodrich cases,12 the Board held that foremen, as "employees," are entitled under the Act, like non-supervisory employees, to be placed in some appro- priate bargaining unit; that the particular kind or type of industry in which foremen are employed is immaterial; and that the scope of the foremen's authority and responsibility is relevant only insofar as it might affect the grouping of such employees for purposes of collec- tive bargaining. Consequently, we find this argument of the Company to be without merit. The "admission" argument As hereinbefore indicated, the Company contends that the con- tractual exclusion of supervisory employees from the rank and file unit constitutes an admission of the inappropriateness of a supervisor's bargaining unit. Although the views of parties regarding the appro- priateness of a unit are entitled to some consideration, they are not controlling. We fail to perceive, moreover, why the mere exclusion of supervisors from the coverage of an agreement is tantamount to an admission by the contracting parties that such employees may not comprise an appropriate unit. The "offaliation" argument The sole remaining argument of the Company 13 is that the Union is not an independent unaffiliated organization, but is in fact affiliated with the same labor organization as the union which is presently 2 Matter of L. A. Young Spring & Wire Corporation, 65 N. L. R. B. 298 ; Matter of The B. F. Goodrich Company, 65 N. L. R. B. 294. 1° Aside from other general contentions which we have carefully considered and find to be without merit. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOAPD bargaining for the rank and file employees of the Company,' and therefore is disqualified as a collective bargaining agent herein. In Section III, supra, we found that foremen are employees within the meaning of the Act. The Act guarantees to all employees the right to bargain collectively through representatives of their own choosing. In the absence of specific language in the Act, we may not disqualify a freely-chosen, legitimate labor organization, not com- pany-dominated, as the collective bargaining agent of employees. Nor have we the discretion, frequently ascribed to us under Section 9 (b) of the Act, to limit the employees' choice of a legitimate bargain- ing representative. That section merely concerns the question of how employees are to be grouped, not who is to represent them 15 In the Jones d Laughlin case. careful consideration led us to the conclusion that the Act, as written today, requires that we protect the right of employees to bargain collectively through representatives of their own choosing, not of our choosing. For these reasons, and for other reasons indicated in the Jones cf Laughlin decision, we find no merit in the Company's contention that the Union may not represent the supervisory employees of the Company. We find that all the production foremen of the Company at its Elyria, Ohio, plant, excluding the assistant superintendent, the super- intendent, and the factory manager, 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 employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election 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 Re- lations Act, and pursuant to Article 111, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby 14 Both organizations have the same business agent, and they meet in the same union hall, but not together The rank and file group is a completely separate body, having separate meetings. sepaiate officers, and a sepaiate treasury Both unions owe ultimate allegiance to the A F of L 15 See Matter of L A. Young Spring it Aire Corporation, supra THE COLSON CORPORATION 77 DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with The Colson Cor- poration, Elyria, Ohio, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Eighth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sec- tions 10 and 11, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, who were em- ployed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding 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 Federal Labor Union No. 23859 (AFL), for the purposes of collective bar- gaining. MR. GERARD D. REILLl. dissenting : For the reasons stated in my dissenting opinions in Matter of Pack- ard Motor Car Corporation , 61 N. L. R. B. 4, and Matter of Jones d Laughlin Steel Corporation , Vesta-Shannopin Coal Division, 66 N. L. R. B. 386, I am constrained to dissent from the majority opinion in this case.