Kaiser Cargo, Inc.

In the Matter Of KAISER CARGO, INC., FLEETwINGs DIVISION and FOREMAN'S ASSOCIATION OF AMERICA , CHAPTER # 183 (INDEPENDENT) Case No. 4-R-1817.-Decided April 30,1946 Messrs. Joseph S. Kleinbard and Robert A. Graney, of Philadelphia, Pa., for the Company. Mr. William Valiance, of Detroit, Mich., for the Union. Mr. Jack Mantel, 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 # 183 (Independent), herein called the Union, alleging that a question affecting commerce had arisen concerning the representa- tion of employees of Kaiser Cargo, Inc., Fleetwings Division, Bristol, Pennsylvania, herein called the Company, the National Labor Rela- tions Board provided for an appropriate hearing upon due notice be- fore John H. Garver, Trial Examiner. The hearing was held at Philadelphia, Pennsylvania, on February 7, and 21, 1916. The Com- pany 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. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. In its brief the Company moved to dismiss the petition. For reasons hereinafter stated, the motion is denied. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Kaiser Cargo, Inc., Fleetwings Division, is a California corpora- tion having its principal place of business in Bristol, Pennsylvania, the only plant involved in this proceeding, where it is engaged in the manufacture of aircraft, automobile bodies, and related products. 67 N. L. R. B., No. 127. 1027 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the year ending on or about August 4, 1945, the Company re- ceived 80 percent of its raw materials, valued in excess of $2,700,000, from points outside the Commonwealth of Pennsylvania. During the same period, the Company shipped all of its finished products, valued in excess of $20,000,000, to points outside the Commonwealth. The Company admits that, with respect to the operation of its plant at Bristol, Pennsylvania, it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED Foreman's Association of America, Chapter #183 (Independent), is a labor organization, admitting to membership supervisory em- ployees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the exclusive bargaining representative of certain supervisory employees until the Union has been certified by the Board in an appropriate unit. 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 claimed by it to be appropriate.' 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 REPRESENTATIVES The Union seeks a unit of supervisory employees classified as general foremen, foremen, assistant foremen, chief dispatcher, and supervisory leaders 2 employed in the Company's plant engineering, production, planning, tooling, inspection, stores, shipping, and receiving depart- ments, excluding all other supervisory employees above the rank of general foremen. The Company contends that the proposed unit is inappropriate on the grounds that (1) the supervisors sought to be represented by the Union are not "employees" within the meaning of the Act, (2) the unit includes several levels of supervisors, and (3) the general foremen should not be included in any supervisory unit because their duties make them part of "top" management. Without waiving its argument ' The Field Examiner reported that the Union submitted 322 application -for-membership cards and that as of August 4, 1945, there were approximately 295 employees in the alleged appropriate unit. 2 The classification of supervisory leaders has been eliminated and the Company does not contemplate reinstating this classification . Their duties have been absorbed by the assistant toremen. The Company stated that it had no objection to their inclusion in any bargaining unit if it here found necessary to reemploy them. KAISER CARGO, INC. 1029 that no unit of supervisors is appropriate, the Company further con- tends that the supervisory employees of the stores, shipping, and receiv- ing departments should be excluded from the unit requested by the Union. The Company's Bristol operations are carried on in two plants, known as Plant 1 and Plant 2, located approximately three-quarters of a mile apart. A general manager is in charge of both plants, aided by an assistant general manager. Directly below the latter is the fac- tory manager who has direct supervision over all production and main- tenance employees who work in the plant engineering, production, tooling, and planning departments. The employees in the inspection department are under the supervision of the quality control manager, who is responsible to the assistant general manager. The comptroller, who is on the same supervisory level as the factory manager, is in charge of the employees in the stores, shipping, and receiving depart- ments, and has supervision over the "white collar workers." Below the factory manager are superintendents and assistant superintendents ; the Union does not seek to represent any of the aforementioned supervisory employees. In their order, the levels of supervision below the assistant superin- tendents, including their number 8 and maximum weekly salary range for a 40-hour work week, are as follows : 15 General Foremen_________________________________ $146.15 32 Foremen: 1 Chief Dispatcher______________________ 115. 38 10 Assistant Foremen____________________________ Hourly paid The general foreman is in charge of a division or divisions of a project and is supervised by a superintendent who might have one or several projects under his control. The foreman, at times assisted by an as- sistant foreman, works under the direction of a general foreman. The chief dispatcher, whose pay is comparable to that of the foreman, directs the flow of materials through the assembly process. With respect to the Company's first contention, the status of f ore- men under the Act has been considered in a number of Board and court decisions. Both the Board 4 and the courts 5 have held that, in rela- tion to their employer, foremen are "employees" within the meaning ' Although there were a total of 295 supervisors, including 62 supervisory leaders, below the grade of assistant superintendents in August 1945, the Company is now engaged in experimental work and is uncertain as to when it will resume mass production. There was no objection made by any of the parties, however, with respect to the holding of an election at this time. 4 Matter of Packard Motor Car Company, 61 N. L. it. B. 4, and 64 N. L. R. B. T212; Matter of L. A. Young Spring & Wire Corporation, 68 N. L. It. B. 298 ; Matter of Simmons Company, 65 N. L. it. B. 984; Matter of The Midland Steel Products Company, 65 N. L. it. B. 997; Matter of Kelsey-Hayes Wheel Company, 6d N. L. It. B. 570. 'N. L. R. B. v. Armour and Co., 154 F. (2d) 570 (C. C. A. 10, Nov. 5, 1945) ; Jones & Laughlin Steel Corporation v. N. L. R. B., 146 F. (2d) 833 (C. C. A. 5); N. L. R. B. V. Skinner & Kennedy Stationery Company, 113 F. ( 2d) 667 (C. C. A. 8). 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act. Accordingly, we find that the foremen who are the subject of this proceeding are employees within the meaning of Section 2 (3) of the Act. The second objection advanced by the Company, that the proposed unit is inappropriate because it includes several levels of supervisors, is untenable. Despite the fact that some of the foremen in the pro- posed unit have supervisory powers over others in the same unit, the general foremen, chief dispatcher, and foremen enjoy similar work- ing conditions, such as, weekly salary, vacation, sick leave, separation pay, and year end bonus, indicating a community of interest to justify their establishment as a single bargaining unit. On the other hand, the general foreman represents the Company in the second stage of the grievance procedure prescribed in the Company's bargaining contract with the UAW-CIO which covers the production and main- tenance employees, whereas the foreman acts for the Company in the initial stage. Only the general foreman has authority to requisition labor; neither the foreman nor assistant foreman may do so. On occa- sion, the general foreman is called upon by the superintendent to at- tend meetings dealing with schedule and manpower problems .6 Although the foregoing differences suggest some advantages to the establishment of general foremen in a separate bargaining unit, we shall, as in the Midland Steel case,? give these few general foremen the opportunity, by separate voting, to determine whether or not they desire to be in the same unit with subordinate supervisors. Accord- ingly, 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 ordered hereinafter. In the event that the employees in the voting groups described below, voting separately, select the Union, they shall together constitute a single appropriate unit. The Company's objection to the inclusion in the proposed unit of foremen in the stores, shipping, and receiving departments, is based on the ground that these employees are under the supervision of the comptroller, who is in charge of the Company's "white collar workers." The record is clear, however, that the rank and file employees in these departments perform production or maintenance duties and are cov- ered by -the Company's contract with the UAW-CIO. Accordingly, we shall include the comparable supervisors of the stores, shipping, and receiving departments, inasmuch as it is desirable that the pattern 8 Because of the above and other similar functions performed by the general foremen, the Company would exclude such employees from a supervisory unit, contending that they are part of "top" management We find no merit in this contention . Although general foremen are occasionally consulted concerning matters within their especial knowledge, the record indicates that the actual formulation of company policies is done by supervisors above the level of general foremen. 7 Matter of The Midland Steel Products Company, supra . See also Matter of Hudson Motor Car Company, 67 N L R. B 368 KAISER CARGO, INC. 1031 of organization for foremen follows the pattern of rank and file or- ganization,8 where not contrary to customary Board policy. 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 : (1) All general foremen of the Company employed in the plant engineering, production, planning, tooling, inspection, stores, ship- ping, and receiving departments. (2) All foremen, assistant foremen, and chief dispatcher of the Company employed in the plant engineering, production, planning, tooling, inspection, stores, shipping, and receiving departments. 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 Relations board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain represent- atives for the purposes of collective bargaining with Kaiser Cargo, Inc., Fleetwings Division, Bristol, 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 direc- tion 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 Regu- lations, 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 vaca- tion 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 dis- charged for cause and have not been rehired or reinstated prior to the date of the election, to determine in each of the voting groups v hether or not they desire to be represented by Foreman's Association of America, Chapter #183 (Independent), for the purposes of col- lective bargaining. 8 See Matter of Westinghouse Electric Corporation (East Springfield Works) 66 N. I. R. B., 1297. 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MR. JOHN M. HOUSTON, concurring specially : For the reasons stated in my special concurrence in Matter of The Midland Steel Products Company,9 I concur in the foregoing decision, except insofar as it establishes separate voting groups for general fore- men on the one hand and other supervisors on the other. I would establish only one voting group. MR. GERARD D. REILLY, concurring separately : It would be my position, if this were a case of first impression, that no election should be directed in this matter, since all the persons who are the subject of this petition are supervisors and the business in- volved here does not differ in any relevant respect from the kind of business carried on by the Packard Company.10 Since the majority of the Board entertain a contrary view, however, I wish to concur in the conclusion that the general foremen should be balloted separately so as to ascertain whether or not they desire to be in the same bargaining unit which includes the other supervisors. There is sufficient evi- dence in the record to indicate that the duties and responsibilities of the general foremen are distinguishable from the lower levels of super- vision. 9 65 N. L. R. B. 997. 10 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.