United States Rubber Co.

In the Matter of UNITED STATES RUBBER COMPANY and FOREMAN'S ASSOCIATION OF AMERSOA, CHAPTER No. 8 Case No. 7-R-,0075.-Decided April 95,1946 Buckingham, Doolittle and Burroughs, by Messrs. L. M. Bucking- ham and James Olds, of Akron , Ohio; and Monaghan, Clark, Kellogg and McGuirk, by Mr. Peter J. Monaghan, Jr., of Detroit, Mich., for the Company. MT. Walter M. Nelson, General Counsel , by Mr. Bernard E. Ko- nopka, of Detroit, Mich., for the Union Miss Helen Hart, 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 No. 8, herein called the Union , alleging that a question affect- ing commerce had arisen concerning the representation of employees of United States Rubber Company, Detroit, Michigan, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Max Rotenberg, Trial Examiner. The hearing was held at Detroit, Michigan, on September 6 and 10, 1945. The Company and the Union appeared, participated, and were afforded full opportunity to be heard , to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. The Company filed a written motion with the Board to dismiss the petition on the following grounds : (1) The Board has no jurisdiction in this matter because the Union seeks to represent supervisors who are "employers," and/or act in the interest of an employer, and are not "employees" within the meaning of the Act, and (2) the Act is not intended to provide such persons with the means of organizing. The motion is hereby denied for reasons stated in Section III and IV, infra. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed except as indicated 67 N. L R. B., No. 104. 797 s 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD below.' All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case,' the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY United States Rubber Company, a New Jersey corporation, is engaged in the manufacture, sale, and distribution of tires and auto- motive equipment in various parts of the country. In Detroit, Michi- gan, it owns and operates two plants known as the Detroit Plant and the Milwaukee or Hupp Plant, respectively, both of which are involved in this proceeding. During 1944, the Company purchased raw materials for processing at the two plants valued at approximately $5,000,000, of which 92 percent came from points outside the State of Michigan. During the same period, the Company manufactured and distributed finished products valued in excess of $5,000,000, of which 50 percent was transported to points outside the State of Michigan. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. 'At the hearing, on objection by the Union's counsel, the Trial Examiner refused to permit the Company's factory manager to read in evidence written answers previously prepared by him to two questions; these two questions had been submitted by the Com- pany's counsel to the witness prior to the hearing and, at the hearing, were asked on direct examination. A foundation had been laid to qualify the factory manager as an expert on factory personnel problems, and the answers were in the nature of opinion testimony on questions dealing with the effect on the Company's operations of unionization of super- visory personnel. The answers were actually read into the record by the Company's counsel who made proffer of proof at the hearing ; the Company also filed a motion that the Board accept these answers as part of the record The Union filed objections to the motion. The factory manager swore that the written answers were his own opinions, and the record shows that he was, of course, not only available for cross-examination, but was, in fact, cross-examined by the Union's counsel with respect to opinions expressed in the written answers. In view of our decisions in Matter of Packard Motor Car Company, 61 N. L It. B. 4, and Matters of L. A. Young Spring & Wire Corporation, 65 N. L. It. B. 298, and related cases, holding that supervisory employees are in fact "employees" under the Act, and cannot be denied bargaining rights, our discretion being limited to the problem of "grouping" them in appropriate units, general testimony in Board cases with respect to the evils alleged to flow from the unionization of supervisory personnel is not material to any issue before the Board for adjudication. It appears, however, that the two written answers in question contain evidence with respect to the problem of "grouping" different layers of supervisory personnel, an issue on which the Board has power to adjudicate, which, albeit somewhat obliquely, the Company did raise. Under all the circumstances, we shall reverse the Trial Examiner's rulings with respect to the receipt of these answers. The two written answers are accepted as part of the record and have been considered by us in deciding the case. 2 Subsequent to the hearing, the Company filed with the Board a motion to correct the record in nine specific instances. The Union, in its reply to the Company's motion, stated that it had no objection to seven of the nine corrections proposed by the Company, but that it objected to the second and third corrections, the Union also proposed three addi- tional corrections of the record. The record is hereby corrected in accordance with the seven uncontested corrections offered by the Company and the three offered by the Union. We shall let the record stand in its present form with respect to the two corrections pro- posed by the Company on which there is no agreement. We note that in the Company's own motion it Is admitted that the record subsequently clarifies the parts allegedly Incorrectly reported earlier. UNITED STATES RUBBER COMPANY 799 II. THE ORGANIZATION INVOLVED Foreman's Association of America, Chapter No. 8, is an unaffiliated labor organization admitting to membership employees of the Com- pany. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the exclusive bargaining representative of certain of its supervisory per- sonnel until the Union has been certified by the Board in an appro- priate unit. The Company contends that the supervisory personnel, who the Union alleges constitute an appropriate unit, are not "em- ployees" within the meaning of the Act. In several previous decisions, the Board has found foremen and comparable supervisors to be "em- ployees" within the Act's definition 3 The courts have concurred with the Board in this holding 4 and have found that foremen have a dual aspect under the definitions of "employer" and "employee" established in the Act. When a foreman acts in his own interest, he is an "em- ployee" for the purposes of the Act; but when he acts in the interest of the employer he assumes the position of an "employer." Accord- ingly, we find that, for the purpose of this proceeding, the supervisors herein considered 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 em- ployees in the unit it alleges to be appropriates We find that a question affecting commerce has arisen concerning the 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 REPRESENTATIVES The Union alleges that a unit of all supervisory employees below the level of general foreman in each of the six divisions of the Com- pany's Detroit plants is appropriate. Specifically, it seeks to represent sectional supervisors, shift supervisors, and department foremen in those six divisions;" the supervisors and assistant supervisors in the 3 Matter of Sass Manufacturing Company, et at, 56 N . L. R B. 348 ; Matter of Packard Motor Car Company, 31 N. L. R. B 4; and Matter of L. A. Young Spring ,i Were Corpora- tion, 65 N. L R B 298, 4N L R B. v Armour & Company, 154 F. (2d) 570 (C. C. A. 10) ; and Jones t Laughlin Steel Corporation v. N. L. R. B., 146 F. (2d) 833 (C C. A. 5). ' The Field Examiner reported that the Union submitted 296 membership application cards and dues receipts which contained the names of persons appearing upon a company list of employees dated June 23, 1945, and that there were approximately 337 employees in the alleged appropriate unit. " Apparently, the maintenance and power division of the Company has no sectional or shift sunervisors in any of its departments ; the lowest level of supervision is that of department foreman. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD products control division; and the two assistant general foremen in the motor products division. The Company takes no position regard- ing the inclusion or exclusion of any specific category, but opposes, in to to, the establishment of any supervisory unit; it contends, in support of its motion to dismiss, that the Act is not intended to provide such personnel with the means of organizing and that such organization would defeat the purpose of the Act. In addition to this contention, the Company stated, at the hearing and in its brief, that there is "an additional complication arising from the effort to include foremen in the bargaining unit with supervisors." In a recent decisionj we pointed out that the Act was intended to encourage collective bargaining as a means of settling labor disputes, whether such disputes involved foremen or other employees, and that our power extends only to "grouping" supervisory employees in ap- propriate units. Therefore we find no merit in the Company's position that any unit of supervisors is inappropriate. The Company operates its two plants in Detroit under the direction of a factory manager. The plants are organized into six factory divi- sions, each headed by a division manager; each division, in turn, is departmentalized. In general, the levels of supervision in each divi- sion in descending order are general foreman, department foreman, shift supervisor, and sectional supervisor. The sectional supervisor personally directs a small group of men within one department of a division. The shift supervisor has charge of a whole department on an 8-hour shift and the sectional supervisor reports to him. The de- partment foreman, although present on only one shift, is responsible for the entire operation of his department at all times; he reports to the general foreman. Supervisors and assistant supervisors in the products control division apparently have duties and responsibilities corresponding to those of department foreman." The two assistant foremen in the motor products division are, "responsible for coordi- nating the efforts of all of the departments." The department fore- men report to the assistant general foremen.s None of the supervisory personnel perform any manual work. They are paid on a salary basis and the Company usually does not hire super- visory personnel from outside the factory but promotes old employees to such positions. Sectional supervisors apparently are promoted by the department foremen on recommendation of the shift supervisors. Transfers of sectional supervisors within the department are also made 7Matter of L. A Young Spring & Wire Corporation, 65 N. L. R. B. 298. 8 The manager of the tire production division testified that the supervisors and assistant supervisors in products control "have charge of all 8 shifts" or "24-hour control" of the men in their departments The factory manager testified to these facts UNITED STATES RUBBER COMPANY 801 according to this procedure; transfers of sectional supervisors to other departments are carried out by the general foreman of the division, providing the department foreman will release the man. There is some disagreement as to whether shift supervisors may discipline or "lay off" a sectional supervisor; 10 it is evident that shift supervisors may at least recommend disciplinary action to the department fore- man, but the discharge of sectional supervisors would probably be carried out by the department foreman." The department foremen may remove a shift or sectional supervisor from a job; he may dis- cipline his supervisors in minor offenses without the approval of his general foreman. However, he may not discharge supervisors without the, consent of the general foreman of the division. Department fore- men are members of the foreman's club which holds regular weekly meetings with general foremen and other higher levels of supervisory personnel12 . This club is not open to sectional or shift supervisors. No other regular meetings of supervisory personnel have been held apparently, although occasional conferences of foremen and super- visors may occur within the division, between two or more divisions, or throughout the plant. As pointed out by the Board in another proceeding,13 similar interest, background, and problems exist among the several levels of supervision so that all might conceivably be grouped in a single bargaining unit. On the other hand, the supervisors here involved greatly outnumber the department foremen.14 In addition, department foremen may ef- fectively recommend a change in and even alter the status of both sec- tional and shift supervisor; shift supervisors may only recommend a change in the status of a sectional supervisor occasionally and the effectiveness of such a recommendation is not clear from the record. It is apparent, therefore, that the differences between the depart- ment foremen and the supervisors are greater than those existing between shift and sectional supervisors. A majority of the Board 15 be- lieves that before department foremen are included in an over-all super- visory unit, the department foremen should be given an opportunity by separate voting to determine whether or not they desire to be in the same unit with shift and sectional supervisors. Accordingly, we 11 It would seem that "lay off" was used by th witness as equivalent to "suspension." 11 The department foreman in the tire products division, testified that the shift super- visor could discipline sectional supervisors , although he stated that he had never witnessed such action 12 This group is known as the "6600 Club," a voluntary organization of foremen which meets to discuss mutual problems . Sixty-six hundred is the number of the Company' s plant. 1' Matter of The Midland Steel Products Company, Parish & Bingham Division, 65 N. L. R 13 997. 1; There are 149 shift and sectional supervisors ; in contrast, there are 57 department foremen , 5 supervisors and 2 assistant general foremen , totalling 64 in all. 15 Chairman Herzog and Member Reilly. 692148-46-vol 67-52 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 ordered hereinafter. There remains for consideration the disposition to be made of assist- ant general foremen whom the Union seeks to include in any unit or units established by the Board. The testimony introduced at the hearing is contradictory in regard to the duties of this category of employees. It is evident, however, that assistant general foremen are responsible for all the operations of their division.16 They have the task of coordinating the efforts of all the departments within the divi- sion, and act in these matters for the general foreman. In addition, the authority of the assistant general foreman in regard to the depart- ment foreman is apparently substantially the same as the authority of the department foreman in regard to the shift supervisors. The Union does not seek to represent general foremen whose duties appar- ently closely parallel the duties of the assistant general foremen. We shall, therefore, exclude assistant general foremen from the units here- inafter established. We shall direct that the question concerning representation which has arisen be resolved by separate elections by secret ballot among the Company's employees at its Detroit plants in the voting groups described below who were employed during the pay-roll period imme- diately preceding the date of the Direction of Elections herein, subject to the limitations and additions set forth in the Direction : (1) All department foremen in the Company's six divisions and supervisors and assistant supervisors in the products control division; (2) All shift and sectional supervisors in the Company's six divi- sions. As stated above, there will be no final determination of the appropri- ate unit pending the results of the election. In the event the employ- ees in the voting groups described above, voting separately, select the Union, they shall together constitute a single appropriate unit. 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 I'll, 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 United States Rubber Company, Detroit, Michigan, separate elections by secret bal- lot shall be conducted as early as possible, but not later than thirty 19 As stated before, the two assistant general foremen are located in the motor products division UNITED STATES RUBBER COMPANY 803 (30) days from the date of this Direction, under the direction and su- pervision of the Regional Director for the Seventh Region, acting in this matter as agent for the National Labor Relations Board, and sub- ject to Article III, Sections 10 and 11, of said Rules and Regulations, among 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 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 in each of the voting groups whether or not they desire to be represented by Foreman 's Association of America, Chapter No. 8, for the purposes of collective bargaining. MR. GERARD D. REiLLY, concurring separately : My position in this case is the same as that expressed in my concur- ring opinion in Matter of The Midland Steel Products Company.,' As in that case, I would direct no election in this matter since all the persons who are the subject of this petition are supervisors and the business involved here does not differ in any relevant respect from the kind of business carried on by the Packard Company.18 Since the majority of the Board entertains a contrary view, however, I wish to concur in the conclusion that department foremen in all divisions of the Company's Detroit plants and supervisors and assistant su- pervisors in the products control division should be balloted separately so as to ascertain whether or not they desire to be in the same bargain- ing unit which includes the shift and sectional supervisors. There is sufficient evidence in the record to indicate that the duties and respon- sibilities of the former group are distinguishable from those of the shift and sectional supervisors. MR. JOHN M. HOUSTON, concurring separately : For the reasons stated in my concurring opinion in The Midland Steel case cited above , which I find equally applicable here, I would provide for only one voting group of department foremen, supervisors, and assistant supervisors in the products control division , and regular supervisors in the other divisions of the Company. 14 65 N. L. R . B., 997. ie My views on this basic question are contained in the dissenting opinion in the Matter of Packard Motor Car Company, 61 N. L. R. B. 4.