I-T-E Circuitbreaker Co.

In the Matter of I-T-E CIRCUITBREAKER COMPANY and FOREMAN'S ASSOCIATION OF AMERICA, CHAPTER #156 Case No. 4-R-1764.-Decided April 17, 1946 Adams, Childs, McKaig t Lukens, by Mr. Randolph W. Childs, of Philadelphia, Pa., for the Company. Mr. Peter Willig, of Newark, N. J., for the Union. Mr. Charles B. Slaughter, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon a petition duly filed by Foreman's Association of America, Chapter #156, herein called the Union, alleging that a question affect- ing commerce had arisen concerning the representation of employees of I-T-E Circuitbreaker Company, Philadelphia, Pennsylvania, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Herman Lazarus, Trial Examiner. The hearing was held at Philadelphia, Pennsyl- vania, on August 30 and 31, 1945. The Company and the Union ap- peared 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. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing the Company moved to dismiss the petition on the following grounds that : (1) supervisory employees are not employees within the meaning of the Act; (2) an organization purporting to represent supervisory employees is not a labor organization within the meaning of the Act; (3) no unit of supervisory employees is an appro- priate unit within the meaning of the Act; (4) the proposed unit will be appropriate only if it includes all supervisory employees below the rank of assistant superintendent; and (5) if all supervisory employees below the rank of assistant superintendent are not included in the unit, then general foremen should be excluded. The Trial Examiner referred this motion to the Board. For reasons stated hereinafter, the motion is hereby denied. All parties were afforded opportunity to file briefs with the Board. 67 N. L R. B, No 61. 692145-46-vol 67-31 465 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY I-T-E Circuitbreaker Company is a Pennsylvania corporation with its offices and place of business in Philadelphia, Pennsylvania. It is engaged in the manufacture, sale and delivery of electrical switch- gear, radar components, resistors, and parts of jet propulsion engines for aircraft. In the year 1944, the Company purchased approximately $2,381,900 worth of raw materials of which $1,191,300 was shipped to the Company in Philadelphia from points outside the Common- wealth of Pennsylvania. During the same period the Company sold approximately $15,400,120 of its products, of which approximately $13,000,000 was shipped to points outside the Commonwealth of Pennsylvania. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED Foreman's Association of America, Chapter #156, is an unaffili- ated labor organization admitting to membership supervisory employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to recognize the Union as collective bar- gaining representative of any of its supervisory employees. In sup- port of its motion to dismiss the petition, the Company's initial argument is that the supervisors involved in this proceeding are not employees within the meaning of the Act. Both the Board I and the courts 2 have negated this argument. We find that the super- visory employees considered herein are "employees" within the meaning of Section 2 (3) of the Act. A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the Union represents a substantial number of employees in the unit claimed to be appropriate.' ' Matter of Soss Manu/aetureng Company, et al , 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 L A. Young Spring & Wire Corporation , 65 N. L. R B 298 2N. L. R. B . v. Armour and Company, 154 F. (2d) 570 (C. C. A. 10 ) ; Jones & Laughlin Steel Corporation v N L It . B 146 F. (2d) 833 ( C C A 5 ) ; N. L. It. B v Skinner & Kennedy Stationery Company, 113 F (2d) 667 (C C. A 8) 3A Field Examiner reported that the Union submitted 103 designation cards and that 59 were dated January 1945, 10 were dated February 1945, 9 were dated March 1945, 17 were dated April 1945 , 7 were dated May 1945, and I was dated June 1945. There are approximately 124 employees in the unit which the Union claims as appro- priate I-T-E CIRCUITBREAKER COMPANY 467 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 DETERMINATION OF REPRESENTATIVE& The Union seeks a unit of all the Company's production and main- tenance supervisors, i. e., general foremen, foremen, and assistant foremen. The Company contends that no unit of supervisory em- ployees is appropriate within the meaning of the Act. The Board has considered in detail the arguments in support of this contention, and has concluded that foremen are employees within the meaning of the Act,4 and that as employees they are entitled to be placed in some appropriate bargaining unit under Section 9 (b) of the Act.5 Accordingly, we so hold in this case. The Union would exclude from the appropriate unit supervisory employees in the following departments: engineering, personnel, cost accounting, purchasing, sales, medical, plant-protection, pay roll and office. The Company contends that in the event an election is directed the unit would be inappropriate unless it includes all employees who exercise supervision over other employees, as well as certain employees of equivalent rank who are not supervisors. In support of this con- tention, the Company argues that for several years it has had a contract with the Electrical Switchgear Union 6 which has represented in a single unit not only production and maintenance employees, but also approximately 300 salaried clerical and technical employees in the above-mentioned departments, and it urges, therefore, that the organi- zation of the supervisory employees should follow a similar pattern. The Company furthermore argues that, since it pays a production bonus to all supervisory employees and those of comparable statua, computed on the basis of these employees' salaries, if only those super- visors petitioned for were placed in the unit, any raises or increases paid to members of the unit would have an adverse effect on the incomes of those outside the unit. In addition the Company urges in support of this contention the fact that the Union's constitution provides for eligibility of employees in the departments which the Union wishes to exclude. There exists no history of collective bargaining for supervisors in this industry including the Company., In the absence of such history 4 See footnote 1, supra. 6 Matter of L. A. Young Spring & Wire Corporation , supra ; Matter of The B. F. Goodrich Company, 65 N. L R. B. 294. 6 The Company has had a contract with the Electrical Switchgear Union, unaffiliated, since 1940 The current agreement , as amended , was executed May 18, 1942 Cf. Matter of I-T-E Cireuitbreaker Company, 51 N L. R. B. 1087. ' The record discloses that for approximately 5 years prior to the spring of 1945 there existed an I-T-E Foreman 's Club All of the Company's supervisory forces except officers were eligible for membership . A Club Committee usually met each month with 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and accepted unit pattern, we are of the opinion that supervisors should be organized in separate units apart from employees who do not exer- cise supervisory functions over other employees and that the patterns of organization for supervisors should conform generally to those approved by the Board for rank and file employees.8 Therefore, one appropriate unit would be comprised of supervisors of production and maintenance employees apart from supervisors of clerical and technical employees. At the hearing the parties stipulated that the employees listed in Schedule "A" attached hereto, whom the Company would include in the unit, do not supervise other employees. In view, therefore, of their non-supervisory functions, we shall exclude these employees from the unit. The managerial and supervisory hierarchy in the Company is as follows : 9 President -------------------------------------------------- 1 General Manager------------------------------------------- 1 Superintendents -------------------------------------------- 8 Assistant Superintendents ---------------------------------- 5 General Foremen------------------------------------------- 19 Foremen--------------------------------------------------- 77 Assistant Foremen ----------------------------------------- 5 As stated above, the Union desires a unit of production and mainte- nance general foremen, foremen, and assistant foremen. The general foremen are under the supervision of a superintendent or assistant superintendent. They supervise sections or departments including from 2 to 7 foremen, which necessarily places under their control a large number of people in different departments doing unrelated work. The general foremen have complete supervision of all activities per- taining to coordination of effort and output in their several depart- ments. They are responsible for the interpretation and application of the Company's policies to those under them. With respect to the griev- ance procedure as provided by the contract covering rank and file employees and the Foremen's Policy Manual, general foremen would usually participate on the second level. The general foremen train foremen and periodically they are required to assist in the merit rat- ings of the employees under their supervision, including foremen. company representatives to discuss various problems involving supervisory employees. The Club, however, had no formal contract with the Company and it appears that it acted primarily in an advisory capacity. Although the Club has been consulted on such matters as compensation, we are of the opinion that it cannot be classified as a collective bar- gaining representative 8 See Matter of Westinghouse Electric Corporation (East Springfield Works), 66 V L R. B. 1297. The figures given for the numbers in the various categories are based on the information as of the date of the hearing. However, the Company stated that these figures would be altered in view of its reconversion processes. I-T-E CIRCUITBREAKER COMPANY 469 They are responsible for the enforcement of plant regulations and can effectively recommend hire, discharge, promotions, and discipli- nary action, including such action affecting foremen and assistant foremen under their jurisdiction. Some general foremen are author- ized to change the production processes in their section, their range of discretion being dependent upon the degree of exactness required by the type of work performed in the department. They are paid on a monthly basis, plus a share in the production bonus, but receive no overtime, because, as the Company stated at the hearing, they control materially the overtime in their departments. Foremen are under the supervision of general foremen and super- vise the employees of one department. They determine the procedure of work, assign duties and inspect the quantity and quality of the work before it goes to the production department. They train the assistant foremen and employees under their control, and periodically recommend merit ratings. The foremen are responsible for the en- forcement of safety rules. They assist the general foremen in inter- views of prospective employees who have been screened by the per- sonnel department and recommend changes in the status of their sub- ordinates. Under the grievance procedure established for the rank and file employees foremen may settle grievances limited to their de- partments, but cases of a general nature would be carried higher up in the supervisory hierarchy, as would those where the employee in- volved so desired. Likewise, under the grievance procedure, if an issue of fact has arisen, the foremen would generally submit an oral recommendation to the general foremen who, in turn, would usually send to their superiors a written report embodying the foremen's rec- ommendations. There have, however, been instances where foremen have imposed disciplinary action without the prior approval of the general foremen'or higher authority. With respect to pay the foremen receive a weekly salary, plus overtime, plus a share in the production bonus. Occasionally in an emergency they assist their subordinates. The assistant foremen are under the general supervision of foremen. They assist the foremen in the discharge of their duties and take over in the foremen's absence. Thus, with respect to hiring, promoting, discharging, and other changes in status of their subordinate em- ployees, they make recommendations. In matters of discipline, when a foreman receives a report from an assistant foreman, he would usually observe the workman involved, after which they would jointly recommend the action they believed justifiable. On the other hand, the assistant foremen have the authority to execute progress reports and merit rating forms on those employees subordinate to them. The assistant foremen receive a weekly salary plus overtime, plus a share in the production bonus. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing the Company took the position that in the event the appropriate unit does not include all supervisory employees except superintendents, assistant superintendents and others of equal super- visory rank, then general foremen should be excluded from the unit because of their disciplinary authority and their supervision over fore- men and assistant foremen. The duties, responsibilities, and authority of foremen and assistant foremen do not appear to be so diverse as to warrant their being treated in separate categories. We find, therefore, that the foremen and assistant foremen may properly constitute a single group10 The difference between general foremen on the one hand, and fore- men and assistant foremen on the other, are greater than those existing between the latter groups. However, we do not altogether agree with the Company's position, stated above. The degree of supervisory authority the general foremen exercise over other subordinate fore- men and assistant foremen suggests some advantages in establishing them in a separate unit. Nevertheless, we are of the opinion, that the common background, interests, and problems, among these levels of supervisors establish a community of interest sufficient to warrant the general foremen being given an opportunity to determine by separate voting whether or not they desire to be in the same unit with foremen and assistant foremen. Accordingly, we shall make no final unit determination at this time, but will be guided by the desires of the employees involved as expressed in the elections directed herein- after. In the event that the employees in the voting groups described below, voting separately, select the Union, they shall together consti- tute a single appropriate unit." There remains for consideration the disposition of the supervisory employees listed in Schedule B, attached hereto. The Union seeks a unit of production and maintenance supervisory employees. The Company, without waiving its position that no unit of supervisory employees is appropriate, contends that any unit of supervisors should include the employees listed in Schedule B. However, pursuant to our policy stated above, we shall exclude supervisors listed in Schedule B because they supervise clerical and/or technical employees. We shall direct that separate elections be held among the employees in the voting groups described below who were employed during the pay-roll period immediately preceding the date of the Direction of Elections herein, subject to the limitations and additions set forth in the Direction, and excluding those supervisors of the rank of superin- 10 See Matter of The Midland Steel Products Company, Parish & Bingham Division, 65 N L It B 997. u See footnote 10, supra. I-T-E CIRCUITBREAKER COMPANY 471 tendent, assistant superintendent, and employees of equal or superior rank, and the employees listed in Schedules A and B, attached hereto : (a) All production and maintenance general foremen; (b) All production and maintenance foremen and assistant fore- men. As stated above, there will be no final determination of the appro- priate unit pending the results of the elections. DIRECTION OF ELECTIONS 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 I-T-E Circuit- breaker Company, Philadelphia, Pennsylvania, separate elections 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 Fourth Region, acting in this matter 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 voting groups described in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees utiho 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 in each of the voting groups whether or not they desire to be represented by Foreman's Association of America, Chapter $k 156, for the purposes of collective bargaining. MR. GERARD D. REILLY, concurring separately : For the reasons stated in my dissenting opinion in the Packard 12 case, I am constrained to disagree with the principal holding in this case. I do, however, concur in the conclusion that general foremen should indicate by separate balloting whether or not they desire to be in the same bargaining unit which includes foremen and assistant foremen.13 "Matter of Packard Motor Car Company, 61 N. L . It. B. 4, and 64 N L. It. B 1212. " Matter of Midland Steel Products Company, Parish & Bingham Division, 65 N. L. R. B. 997 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MR. J'oxN M. HOUSTON, concurring separately : Consistently with my position in the Midland 14 case, I concur in the foregoing decision, except insofar as it establishes separate voting groups for general foremen on the one hand, and foremen and assistant foremen on the other. I would provide for only one voting group of these classifications. SCHEDULE A Special Representative Technical Assistant A Manager Small Circuit Breaker Sales Sales Assistant Designer B Buyer Safety Engineer Outside Expediter, Senior Project Expediter Requisition Engineer Sales Engineer Switchgear Estimator Technical Assistant B Designer D Outside Expediter, Junior Technical Assistant C Designer E Requisition Engineer C Schedule Supervisor SCHEDULE B Squad Leaders A, B, C, D, E Squad Leader A and Director of Draftsman Assistant Squad Leader C Assistant Projects Engineer Assistant Purchasing Agent Manager Order Contract Chief Scheduler-Department 60 Chief Standards Engineer-De- partment 60 Cost Accounting Head Chief Photographer Process Engineer Leader Chief Bookkeeper Traffic Manager Captain of the Guards Lieutenant of the Guards Chief Timekeeper Foreman Blueprint Office Manager Supervisor of Accounting Supervisor of Cost Accounting Foreman-Mail Room Tool Designer 14 Matter of The Midland Steel Products Company, Pariah & Bbngham Diws+on, 65 N L. R. B. 997