American Maize-Products Co.

In the Matter of AMERICAN MAIZE-PRODUCTS COMPANY and FOREMAN'S ASSOCIATION OF AMERICA, CHAPTER #192 Case No. 13-R-3097.-Decided June 26, 19416 Mr. Richard P. Tinkham, of Hammond, Ind., for the Company. Messrs. W. Allen Nelson, of Detroit, Mich., Fred L. Williams, of Gary, Ind., and Charles M. Roranovich, of Whiting, Ind., for the F. A. A. Messrs. George H. Hoffman, of Hammond, Ind., and Russell Brandon, of Chicago, Ill., for the C. I. 0. Mr. Samuel M. Kaynard, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF TILE CASE Upon a petition duly filed by Foreman's Association of America, Chapter #192, herein called the F. A. A., alleging that a question affecting commerce had arisen concerning the representation of em- ployees of American Maize-Products Company, Roby, Indiana, here- in called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before William 0. Mur- dock, Trial Examiner. The hearing was held at Chicago, Illinois, on March 12, 13, 14, 15, 18, 1946. The Company, the F. A. A., and Oil Workers International Union, Local 210, C. I. 0., herein called the C. I. 0.,' 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 the Company moved to dismiss the petition on the ground that the National Labor Relations Act and its administration by the Board are in violation of the Constitution of the United States. We find this contention without Inerit. The validity of the Act as an entirety has been sustained by the Supreme Court of the United States and the arguments raised by the Company have been often passed upon and 1 A motion to intervene by the C . I 0 to protect its interest among certain non-super- visory employees of the Company whom it represents as bargaining representative, was granted at the hearing 69 N, L. R B., No. 6. 66 AMERICAN MAIZE-PRODUCTS COMPANY 67 found untenable.2 The motion to dismiss on the ground mentioned is accordingly denied. At the hearing and in its brief, the Company also moved to dismiss the petition on other grounds. For reasons stated hereinafter, the motion to dismiss on these grounds 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 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 American Maize-Products Company, a Maine corporation having its place of business and sole plant in Roby, Indiana, is engaged in the processing and production of corn products such as syrup, starch, sugar, oil, protein, cattle feeds, dextrin and lactic acid. The principal raw material used by the Company is corn, the value of purchases of which exceeds $1,000,000 annually. More than 50 percent of the raw materials used by the Company is shipped into the State of Indiana from sources outside the State. The annual value of the Company's sales exceeds $1,000,000, of which in excess of 50 percent represents sales outside the State of Indiana. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Oil Workers International Union, Local 210, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. Foreman's Association of America, Chapter #192, is an unaffiliated labor organization , admitting supervisory employees of the Company to membefiship.3 2 See N. L. R. B V. Jones & Laughlin Steel Corporation, 301 U. S . 1 ; American Federation of Labor v N L. R. B ., 308 U S 401 ; Pittsburgh Plate & Glass Company v. N. L. R B., 313 U. S. 146 ; Inland Empire District Council, Lumber and Sawmill Workers Union, at al v Millis, 325 U. S. 697 ; N. L R. B . v Hearst Publications, Incorporated, et at., 322 U. S. 111 ; Reilly, at at. v Millis, at al, 144 F. ( 2d) 259 ( App. D. C ) , N L. R B v. In- ternational Brotherhood of Electrical Workers, 308 U S. 413; N. L. R. B. v. Falk Corpora- tion, 308 U S 453 ; Marshall Field and Company v Harry A Millis , at at , unreported (D. C., D C.) 5 Labor Cases 60, 891; Northrup Corporation v. Madden, 30 F. Supp. 993 (D C Calit ) 8 The Company contends that the F A. A. is not a labor organization under the Act. Section 2 ( 5) of the Act states: "The term `labor organization' means any organization of any kind, or any agency or employee representation committee or plan, in which em- ployees participate and which exists for the purpose , in whole or in part, of dealing with employees concerning grievances , labor disputes , wages , rates of pay, hours of employment, or conditions of work." The F A A is clearly a "labor organization" within this defini- tion and the Board has so held in many cases involving the parent organization and other locals of the parent organization 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE QUESTION CONCERNING REPRESENTATION On May 2,1945, the F. A. A. notified the Company that a majority of its supervisory employees had designated the F. A. A. as their collec- tive bargaining agent and requested a conference to discuss an agree- ment. The Company did not accede to this request. The Company contends that the Board lacks jurisdiction to certify the F. A. A. as collective bargaining representative of the supervisory personnel involved in this proceeding on the ground that the foremen and assistant foremen are "employers" rather than "employees" under the definitions contained in the Act. Furthermore, the Company points out that the Board has in the past held companies liable for the acts and words of such supervisors. The status of foremen under the Act has been considered in a number of Board 4 and court 5 deci- sions. Both the Board and the courts have concurred in holding that foremen have a dual aspect under the definitions of "employer" and "employee" contained in the Act. When he acts in the interest of his employer, a foreman is an "employer," but when he acts in his own interest, as when he seeks to better the terms and conditions of his employment, he is an "employee." Accordingly, we find that for the purposes of this proceeding the supervisors here involved are em- ployees 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 F. A. A. represents a substantial number of employees in the unit hereinafter found appropriate.6 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 Position o l the Parties The F. A. A. seeks a unit of production and maintenance foremen, assistant foremen and those employees whose supervisory duties a Matter of Soso Manufacturing Company, et at., 56 N. L R B 348 , Matter of Packard Motor 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; Matter of The B . F. Goodrich Company, 65 N. L It. B. 294; Matter of The Midland Steel Products Company , 65 N. L. R B. 997 ; Matter of Simmons Company, 65 N. L. R. B . 984, Matter of Westinghouse Electric Corporation (East Springfield Works ), 66 N. L. R. B 1297. IN. L. R B v Armour and Company , 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). 6 The Field Examiner reported that the F. A. A submitted 41 cards bearing the names of 40 employees listed on the Company's pay roll of October 1, 1945, and that the cards were dated March 1945 ( 22), April 1945 (17), and May 1945 (1). There are approximately 75 employees in the unit which the F A. A. asserts is appropriate. - AMERICAN MAIZE-PRODUCTS COMPANY 69 qualify them as production and maintenance foremen and assistant foremen, excluding supervisory employees above the classification of foremen, and all other employees. The Company, in opposition to the unit sought by the F. A. A., raises, inter alia, the following objections: (a) the foremen employed by the Company are a part of management inasmuch as they. confer with top management and make and assist in making company policy, and that by virtue of their broad authority over the operations of their departments and their wide powers and responsibilities, they are more than "traffic cops"; (b) the F. A. A. is "not an independent organiza- tion of supervisors, but instead an organization sympathetic if not in actual alliance with rank and file labor unions"; (c) a unit of super- visory employees, if found appropriate, should include three named foremen whom the F. A. A. would exclude, and, in addition, should exclude certain named keymen 7 whom the F. A. A. seeks to include in the unit; (d) in the event of an election, the Company urges that the Board conduct three separate elections among the three groups of employees (the foremen, the assistant foremen, and the keymen who are in dispute), and on that basis determine the final composition of the unit. The C. I. O. does not seek to represent any unit of supervisory em- ployees. The C. I. O. has been the bargaining representative for the production and maintenance employees of the Company since 194:1.11 Included in this bargaining unit are certain named keymen whose status as supervisory employees is in dispute. The F. A. A. does not seek to represent or include in its unit the category of keymen as such ; it seeks to include the disputed individuals on the ground that they are exercising supervisory authority and are, therefore, properly within a unit of supervisory employees. Organizational Structure The Company's plant is comprised of more than 100 buildings lo- cated on an 80-acre tract of land. It employs approximately 860 em- ployees and the non-supervisory maintenance and production em- ployees, of whom there are approximately 660, are represented by the ° These disputed employees are variously designated by the Company as keymen, chief operators, special operators , shipping room man, first class laborer , etc. Hereinafter, we shall refer to them as "keymen." 9 In 1941 the Oil Workers International Union, C I. 0 , filed a petition for investigation and certification of representatives of the Company 's production and maintenance employees at its Roby, Indiana, plant. On October 28, 1941, the parties entered into an agreement for a consent election. On November 6, 1941, the consent election was held with the Oil Workers International Union, C. I 0, and the Independent Employees Association of the American Maize-Products Co., on the ballot . The C. I. 0 won the election and has been the bargaining representative for the Company 's production and maintenance employees since 1941. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. I. O. The supervisory unit sought by the F. A. A. consists of a group of supervisors of the Production Section whose rank and file members constitute the bargaining unit of the C. I. O. At the top of the Company's managerial hierarchy in its Production Section is the plant manager, who is also vice president of the Com- pany. The Production Section is divided into numerous divisions, such as the Operations Division (which is further divided into the power division and the mill house division), the refinery and chemical division, the starch division, the mechanical division (consisting of the subdivisions of maintenance, maintenance engineer and engineer- ing), the industrial relations division, production planning and ship- ping division. These divisions and 'subdivisions are supervised by supervisors variously designated as superintendents, division mana- gers, or engineers. The parties agree that these higher categories of supervisors should not be included in the unit sought by the F. A. A. Each division or subdivision consists of numerous departments. Each department is an individual operating unit usually contained in a separate building and is under the direction of a foreman. Directly under the foreman in most departments are assistant foremen. Some departments have no assistant foremen, others have one assistant fore- man, and there are departments which operate on a 24-hour schedule and have three or four assistant foremen to supervise the various' shifts. Beneath the assistant foremen are the production and maintenance employees. This group consists of the rank and file employees and keymen. The keymen are, apparently, the senior and more skilled employees. As has been stated heretofore, the F. A. A. does not claim that keymen, as such, are supervisory employees, but contends that certain of these employees have assumed, with company acquiescence, or have been delegated, supervisory authority and duties which justify their inclusion in a bargaining unit of supervisory employees. The keymen and the remaining rank and file workers are for the most part, in the unit presently represented by the C. I. O. The foremen and assistant foremen are salaried employees and enjoy certain privileges. Employees below these categories are mainly hourly paid members of the C. I. 0., and do not enjoy the special privileges of the foremen and assistant foremen. It is clear that the foremen and the assistant foremen of the Company have the power to change or effectively recommend changes in the status of employees and are thus supervisory employees within the meaning of the Board's customary definition. There are approximately 31 foremen and 30 assistant foremen. In addition, there are 30 keymen, of whom ap- proximately 16 are claimed by the F. A. A. to be supervisors. AMERICAN MAIZE-PRODUCTS COMPANY 71 The Company's Contentions We do not agree with the Company that its foremen are policy making individuals,9 nor do we find persuasive its attempt to dis- tinguish its foremen from foremen employed elsewhere on the ground that the foremen have duties, powers, and responsibilities far beyond those of "traffic cops." 10 Admittedly, the Company's foremen have broad discretionary powers and authority in affecting the status of employees. They are largely responsible for the quality and quantity of work produced and the operations of their departments. In all respects they have extensive powers of supervision. However, in the Young and Goodrich cases, the Board held that foremen, as "em- ployees," are entitled under the Act, like non-supervisory employees, to be placed in some appropriate 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 the purpose of collective bargaining. The Company's argument with respect to the F. A. A.'s possible lack of independence is no longer material since our decision in the Jones cC Laughlin case 11 wherein we held that this Board had no power to limit the choice of a collective bargaining representative for a unit of foremen to an independent, unaffiliated foremen's union. The Act guarantees to all employees the right to collective bargaining. In the absence of specific language in the Act, we may not disqualify a freely chosen, legitimate labor organization, not company-dominated, from acting as the collective bargaining agent for employees. In the Jones & Laughlin case, careful consideration led us to the conclusion that the Act, as written today, requires that we protect the right of v The Company conducts a Foremen Training Program and a Foremen Conference Program The purpose of the program is the periodic discussion among supervisory em- ployees of various topics relating to labor-management, plant production, operations and administration . Confeiences are conducted by group leaders, and at the end of each conference the consensus of opinion of the participants is recorded The final results of the conferences are embodied in a mimeographed pamphlet which is distributed among the supervisors of the Company. The Company introduced evidence of this program for the purpose of showing that the foremen are policy making individuals However, it appears that not all foremen participate in these conferences and that higher level of supervisory employees also attend Moreover, higher management reserves some veto power over the translation of the results of the conferences into final company policy The Company also points to foremen participation in budget making for their depart- ments, the minor advisory part they play in contract negotiations with rank and file unions and their role in acting as company representative in the first step in the grievance procedure provided by such agreements we are unable to conclude that because of such a piogram of conferences and powers vested in the foremen of the Company, that the foremen are in reality policy making individuals 10 The Company is evidently alluding to the phrase "traffic cops" used by a majority of the Board in the Packard case. "Matter of Jones & Laughlin Steel Corporation, Vesta -Slaannopin Coal Division, 66 N L R. B , 386. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees to bargain collectively, through representatives of their own choosing, not of our choosing.12 Another contention of the Company raises the issue of the pro- priety of a single unit of supervisory employees consisting of fore- men, assistant foremen, and the disputed category of keymen. The Company urges that each group be permitted to vote independently and decide for itself whether it wishes to be included in the same unit with the other supervisory employees. As noted above, the parties agree that the division managers and superintendents are not to be included in the present unit. Moreover, the F. A. A. does not seek to include in the supervisory unit, as a class, the disputed category of keymen. On the contrary, the F. A. A., in urging the inclusion of certain keymen in the supervisory unit, contended and sought to prove that these employees actually were supervisors, that their powers and duties and responsibilities were commensurate with those of the assistant foremen, and that they should therefore be included in any unit which included assistant foremen. As will be shown hereafter, some keymen have, in our opinion, attained the stature of foremen or assistant foremen in the performance of their duties, and their duties are closely akin to those of classified foremen or assist- ant foremen. The record reveals that the duties and authority of the foremen and assistant foremen are substantially similar. Fore- men exercise control over their departments and assistant foremen aid them in that duty. Assistant foremen and foremen participate in the Company's training program and conference program. At times, a foreman is in charge of more than one department and the assistant foreman performs the foreman's duties in one of these departments. In departments where operations are on a 24-hour schedule with three shifts, assistant foremen perform some of the functions of the fore- man when the foreman is not present. The assistant foreman often replaces the foreman, in his absence. All the foremen and assistant foremen and those keymen hereinafter found to be supervisors are either production or maintenance supervisors and fall within the two lowest levels of supervisors in the employ of the Company. It is 12 At the hearing and in its brief, the Company contended that the F. A A was "sym- pathetic if not in actual alliance with rank and file labor unions " The Company pointed to the conduct of the Foremen 's Association of America , the parent organization of the petitioning union , in connection with the C I 0. United Steelworkers ' strike in the Carnegie Illinois Steel Corporation plant at Gary , Indiana, on January , 1946, and the strike at the Great Lakes Steel Corporation , and further alleged that an "understanding" for mutual support and cooperation was reached on May 15, 1943, between the president of the Foremen's Association of America and the president of the C I 0 United Auto- mobile Workers. In our opinion , such evidence does not establish that the F. A A. is not independent of rank and file unions In the Packard case , a similar charge was made and the majority of the Board found that the Foremen 's Association of America is an unaffiliated and independent labor organization . In succeeding cases, the Board has made the same determination with respect to that organization 's locals. Accordingly, we are satisfied that the F . A. A is an independent , unaffiliated labor organization, organized for the exclusive purpose of representing supervisory employees. AMERICAN MAIZE-PRODUCTS COMPANY 73 clear that the foremen, assistant foremen and such of the keymen who have supervisory powers akin to those of the foremen and assistant foremen have a community of interest which would best be served by the establishment of a single unit. Composition of the Unit There remains for consideration the disposition of certain named individuals over whom the F. A. A. and the Company are in disagreement. The F. A. A. contends that three foremen, Ernest Scott, A. Bartlett and W. Reed perform certain duties which associate them more closely with management than other foremen, and should consequently be excluded from the unit, whereas the Company takes the position that these employees have the same status and authority as any other f ore- men in the plant and have no duties or authority which places them in a category different from that of the other foremen. Ernest Scott is classified by the Company as foreman of the Dry Starch Department. It appears that Scott, in addition to his duties as foreman in that department, participates in the direction of the Company's foremen training program. He outlines the program, schedules the classes, and arranges for outside specialists to conduct such classes. The actual paper work and administration of the pro- gram is performed by the Industrial Relations Department, which is under the supervision of T. G. Higgins. Although Scott has these additional duties in regard to the training program, he is a foreman of a production department on the same level of supervision as other foremen in the Production Section. It does not appear that Scott, by virtue of his added duties, exercises any degree of authority over other foremen. Accordingly, we shall include him in the unit. A. Bartlett is the foreman of the Company's Service Department and Utility Department. In that capacity, he is in charge of the Company's janitors and oversees the sanitation of the various depart- ments, lunchrooms, lockers, and washrooms. The janitors are in- cluded in the production and maintenance unit represented by the C. I. 0. In the course of discharging his responsibility for keeping in repair the Company's sanitary facilities and maintaining sanitary conditions, he may cause a department in the plant to be shut down. Nevertheless, it does not appear that he has any higher supervisory authority than the other foremen. Accordingly, we shall include him in the unit. W. Reed is the foreman of the Plant Police or Protection Depart- ment. He supervises eight guards and clockmen ; the clockmen are included in the rank and file unit, whereas the guards are excluded. His section is charged with the duty of inspecting the plant for safety 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and fire hazards and checking the passage of employees in and out of the plant. Inasmuch as Reed is the sole supervisory employee in his department, we shall include him in the unit of production and main- tenance foremen and assistant foremen.13 The F. A. A. seeks to include in its unit approximately 16 named keymen who, it contends, are performing the duties of the production and maintenance foremen and assistant foremen and have the same power and authority as foremen and assistant foremen, notwith- standing their classification. The Company contends that these em- ployees are presently in the rank and file unit and are not exercising any supervisory authority. We shall, therefore, examine the powers and duties of the employees in each of the disputed cases. Ambrose Wine;-C. Scheidt; A. Gerlach; J. Dominic: Wine is des- ignated by the Company as oil expeller operator in the Feed House Department; Gerlach is designated as special operator in the Dextrine Department; Scheidt is designated as special operator in the Dry Starch Department; Dominic is designated as water tender in the Boiler House Department. For the past several years, these employees have regularly substituted for their assistant foremen. The regular weekly substitution of these men for their assistant foremen is due to the "swing" shift arrangement whereby each assistant foreman has 1 day off each week. There being an assistant foreman on each of the three shifts, the keymen take the place of an assistant foreman 3 days each week. In addition, the keymen substitute for the assistant fore- men whenever such assistant foremen have been on vacation or absent because of sickness. When the keyman is substituting for the assistant foreman he apparently exercises all the authority customarily exer- cised by the assistant foreman. Accordingly, these employees exercise supervisory authority within the meaning of the Board's customary definition.14 We shall include them in the unit. S. Gjesteland: The Company lists him as Class "A" tinner in the Tin Shop of the Company. He is the most highly skilled man in the Tin Shop and when acting solely as a first class tinner, he lays out the work and the different jobs and directs the work of the persons on such jobs. As the keyman in his department, he regularly rep] aces the fore- man of the Tin Shop and is next in authority under the foreman. He receives a higher rate of pay than the other employees and is regarded by other employees as a supervisor. Moreover, the Company admits " See Matter of The Midland Steel Products Companry, supra 14 At the hearing, the Company stated that in the near future it contemplated a curtail- ment of production and the institution of a 40-hour week schedule In that event, the Company argued, wine, Gerlach and Scheidt would be relieved of any supervisory duties which they may now possess. Our finding that wine, Gerlach and Scheidt are supervisory employees is premised on facts existing at the time of the hearing If, thereafter, wine, Gerlach and Scheidt became or will become non-supervisory employees on a permanent basis, they shall be deemed to be excluded from the unit herein found appropriate. AMERICAN MAIZE-PRODUCTS COMPANY 75 that he will soon be promoted to the position of foreman in the Tin Shop. Accordingly, we find that he is a supervisor and we shall include him in the unit. R. Schultz: He is designated as first class painter. There is no officially designated Painting Department according to the Company's organization chart, and no officially designated foreman. The Com- pany's chart places Schultz under the joint supervision of the Mainte- nance Manager, J. McGeorge, and the Maintenance Engineer, W. Lar- mouth. Although Schultz does actual painting workregularly, he has under him from 4 to 30 employees for whose work he is responsible. The number of employees he supervises varies according to the particu- lar job. He does all the record and detail work and apparently has the duties and authority comparable to those of foremen and assistant foremen in other recognized departments. It is apparent that, because of his peculiar position in regard to other painters, his recommenda- tions concerning his subordinates must be relied upon by the Company. Accordingly, we shall include him in the unit. J. Domagalski: Domagalski is designated as keyman of the lubrica- tors. As in the case of Schultz, there is no foreman between him and the division managers, McGeorge and Larmouth. There are six lubri- cators who are charged with the duty of keeping the machinery oiled. He assigns and directs the work of the other lubricators, does all the record work and detail work and apparently has the power to make effective recommendations. We are of the opinion that he is a super- visory employee. Accordingly, we shall include him in the unit. J. Early: Under the Mill House Division, the Company operates a department known as the Canning and Packaging Department. This department is under the supervision of Foreman Radermacher and is charged with a dual function which is carried on by (1) the Syrup Canning Department and (2) the Starch Packaging Department. These 2 departments are located at opposite ends of the plant and there is no official assistant foreman designated by the Company. Before he entered the Army, Early directed the work of from 4 to 12 employees in the Starch Packaging Department. It is clear that, because of Early's outstanding ability, he was in complete charge of that section and only required and received nominal supervision by Foreman Radermacher. As a result, he exercised supervisory authority and was recognized by the employees as the head of that section. At the pres- ent time Early's duties are being performed by Rockway who is new at that position. In view of Rockway's inexperience, Foreman Rader- • macher now spends more time in the Starch Packaging Department than was his wont when Early was employed by the Company and, consequently, Rockway does not have the same duties, powers, and authority as Early. Accordingly, we shall not include Rockway in 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the unit of supervisory employees sought by the F. A. A.; but we shall include Early.15 L. Gobek: Gobek is designated by the Company as a set-up man in the Canning and Packaging Department, referred to above, under the supervision of Foreman Radermacher. He devotes his time in the Syrup Canning Department. His status is different from that of Early who was in charge of the Starch Packaging Department; it appears that Radermacher, until Rockway's advent into the department, main- tained close supervision over the syrup canning end of the department. There is no evidence that Gobek exercises supervisory authority and the F. A. A. is in doubt as to his status. Accordingly, we shall exclude Gobek from the unit. W. Mills: He is designated as desiccator operator in the Fro-dex Department. The department operates on a 24-hour schedule and Mills works on the 4 p. in. to 12 p. m. shift. There is conflicting evi- dence as to whether Mills replaces the foreman during his absence. Mills substituted for the foreman only during two vacation periods, and otherwise performs the regular work of a machine operator. There are approximately but three employees on his shift. Although it appears that on Mills' shift there is no immediate supervisor in charge, we are not of the opinion that Mills acts as an assistant fore- man. We find that Mills is not a supervisor within the meaning of the Board's customary definition. Accordingly, we shall exclude him from the unit. - V. Dostatni: He is designated by the Company as a first class la- borer or first class helper in the New Construction Department. The New Construction Department is under the supervision of Foreman E. 0. Blade and Assistant Foreman C. Romanovich. The F. A. A. contends that Dostatni exercises supervisory authority over a group of eight laborers. However, from the record, it appears that he is at most a "gang leader" who is in charge of a laboring crew for a particular task. Moreover, he is not on the same level as the top ranking individuals of the non-supervisory employees in the depart- ment; there are "A" and "B" mechanics in the department who receive more pay, and it appears that at times Dostatni is designated as a "B" mechanic and given an additional rate of pay when he performs certain duties and handles certain tools. Any disciplinary power which he may have would be limited by the fact that there is a fore- man and assistant foreman in the department. And it is unlikely that he has authority effectively to recommend or effect changes in the status of employees. Accordingly, we find that he does not possess. 15 If , however, upon his return to actual work, Early does not resume the exercise of such supervisory duties and authority he possessed before he entered the Army, he shall be deemed to be excluded from the unit. AMERICAN MAIZE-PRODUCTS COMPANY 77 supervisory authority within the meaning of the Board's usual defini- tion. We shall, therefore, exclude him from the unit. Frank Romanovich: Romanovich is known as a yardmaster, but is classified by the Company as an administrative employee in the Shipping Department. This department is considered by the Com- pany as being clerical and administrative. The F. A. A. would in- clude him in the unit as the foreman of the Shipping Department, which it includes under a production division-the Production Plan- ning and Shipping Division. Romanovich is in charge of the place- ment of freight cars which are used for bringing new material into the plant, the carrying of materials from one part of the plant to another, and the transporting of finished products out of the plant. He supervises no employees of the Company, but directs the activities of an outside train crew which reports for work each morning; the train crew has a boss or conductor. Although he is eligible for mem- bership in the F. A. A. because he "supervises material," it is clear that he is not a supervisor within the meaning of the Board's cus- tomary definition. Accordingly, we shall exclude him from the unit. V. Dvorscak: Dvorscak is designated by the Company as a keyman. He performs the duties of an auto mechanic in the Company's garage. The truck drivers of eight or nine trucks are assigned to the garage. However, the drivers take their orders directly from the Shipping Department, and Dvorscak has no supervisory authority over any company employees. Accordingly, we shall exclude him from the unit. P. Pearson: Pearson is classified by the Company as a shipping room man in the Starch Loading Department. Johnson is foreman of this department, and there appear to be two distinct operations performed therein, the packing and loading of dry starch. Johnson devotes his time to the packing end, and Pearson directs the loading. Although it appears that Pearson exercises and performs some func- tions and duties commonly performed by a foreman, such as making time reports and labor transfer tickets, there is no evidence that he has the power to effectively recommend the change of status of other employees. Since both the foreman and Pearson work the morning shift, Pearson receives orders every night covering the work to be performed the following day, and there is evidence that Johnson over- sees and checks the orders, we find that Pearson is not a supervisor within the meaning of the Board's usual definition. Accordingly, we shall exclude him from the unit. W. Breitske: Breitske is classified by the Company as a chief opera- tor in the Lactic Acid Department. There are three or four men in this department, which performs a highly technical phase of the Com- pany's work. The department operates 24 hours in three shifts ; 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Breitske works the day shift at all times. In view of the fact that there are so few employees in the department , and considering the further fact that the foreman is present at the same time Breitske works, it would appear that Breitske is not vested with sufficient indicia of supervisory authority to warrant his inclusion , Accord- ingly, we shall exclude him from the unit. E. Kocklin : IIa is listed by the Company as chief operator in the Maco Department . Kocklin's position is similar to that of Breitske in the Lactic Acid Department. Although the Maco Department works 24 hours a day, Kocklin works the day shift when the foreman is present . There are approximately six employees on the day shift and it appears that Kocklin does not exercise supervisory authority over them. For some time during the war, Kocklin apparently was in charge of the department ; but with the return of Heller, who was appointed foreman of the department , Kocklin was relegated to his former position of chief keyman . Inasmuch as Kocklin does not fall within the meaning of the Board's customary definition of super- visory employees, we shall exclude him from the unit. H. Cummings : He is designated by the Company as shipping checker in the C. S. U. Loading Department , which is under the super- vision of Foreman Cruse . Cummings is in charge of the loading of box cars and performs all the duties pertaining thereto. There is evi- dence that he performs manual labor along with his gang. There is conflicting evidence as to whether he takes the place of the foreman during the latter's absence. However, it is clear that Cummings' so- called disciplinary powers are more in the nature of complaints to the foreman who independently handles the matter. There are ap- proximately eight employees on the day shift, when Cummings is on duty, and it appears that his status is like that of a gang leader with no power effectively to recommend a change in the status of employees. Accordingly, we shall exclude Cummings from the unit. We find that all production and maintenance foremen,"' assistant foremen, and employees whose duties qualify them as production and maintenance foremen and assistant foremen 17 of the Company 's Roby, Indiana, plant, excluding supervisory employees above the classifica- tion of foreman , and all other employees , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act. 1B Including Ernest Scott, W. Reed, and A Bartlett Including Ambrose Wine, C Scheidt, A. Gerlach, J. Dominic, S Gjesteland, R. Schultz, J Domagalski, and J Early. As noted above, if, upon his return from the Army, Early does not resume his former duties and does not occupy the same supervisory status he en- joyed previously, he is to be considered as excluded from the unit. AMERICAN MAIZE-PRODUCTS COMPANY V. TIIE DETERMINATION OF REPRESENTATIVES 79 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 Rela- tions 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 representa- tives for the purposes of collective bargaining with American Maize- Products Company, Roby, Indiana, 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 Thirteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Ar- ticle 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 date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or tempo- rarily 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 , Chapter #192, for the purposes of collective bargaining. MR. GERARD D. REILLY, dissenting : For the reasons stated in my dissenting opinions in Matter of Pack- ard Motor Car Company, 61 N. L. R. B. 4, and Matter of Jones c6 Laughlin Steel Corporation, 66 N. L. R. B. 386, I am constrained to dissent from the majority opinion in this case.