Clark Equipment Co.

In the Matter of CLARK EQUIPMENT COMPANY, FROST GEAR AND FORGE DIVISION, EMPLOYER and FOREMAN 'S ASSOCIATION OF AMERICA, CHAPTER 29, UNAFFILIATED, PETITIONER Case No. 7-R-°259.-Decided August ,,°L0, 19.46 Beaumont, Smith and Harris, by Mr. Albert E. Meder, of Detroit, Mich., and Mr. Walter E. Schirmer, of Buchanan, Mich., for the Employer. Mr. William Vallanzce, of Detroit, Mich., for the Petitioner. Mr. Bert Baakinger, of Battle Creek, Mich., for the U. A. W. Mr. Angelo-J. Fiumara,.of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed, hearing in this case was held at Jackson, Michigan, on July 11, 1946, before Harry N. Casselman, Trial Exami- ner. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing, the Em- ployer moved to dismiss the petition on various grounds. The Trial Examiner referred this motion to the Board. For reasons stated here- inafter, the motion is hereby denied. Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Clark Equipment Company is a Michigan corporation,' operating several plants in the State of Michigan. We are here concerned solely with its Frost Gear and Forge Division plant at Jackson, Michigan, where the Employer manufactures forgings and gears. During its fiscal year of 1945, the Employer received at the plant from points outside the State more than $1,000,000 worth of steel, coal, and other supplies. During the same period, the Employer shipped forgings and gears, valued in excess of $1,000,000, to consumers outside the State of Michigan. 70 N. L. R, B., No. 18. 168 CLARK EQUIPMENT COMPANY 163' The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED- The Petitioner is a labor organization, unaffiliated, claiming-tor represent certain supervisory employees of the Employer. United Automobile Workers of America, Local No. 623, herein called the U. A. W., is a labor organization, affiliated with the Amer- ican Federation of Labor, claiming to represent certain employees of the Employer." III. THE QUESTION CONCERNING REPRESENTATION The Employer has refused to grant recognition to the Petitioner- as ,the',exclusive bargaining.representative_ of any of its supervisory employees. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT; TIIE DETERMINATION OF REPRESENTATIVES The Petitioner urges as appropriate a unit of supervisory em- ployees consisting of all general foremen, foremen, assistant fore- men, assistant to the production manager,2 the master mechanic, special assignment men, and comparable supervisors by whatever title designated, in all departments of the Employer, excluding the manager of manufacturing, superintendents, assistant superintend- ents, supervisory time clerks, timestudy men, production clerks, watchmen, and tool design personnel, and supervisory employees in the laboratory, engineering, sales, purchasing, planning, industrial relations, and_employment and accounting departments. The Employer objects to the appropriateness of the foregoing unit upon the grounds that : (1) the supervisors herein are a part of management, not comparable to industrial "traffic cops" discussed in prior Board decisions involving supervisory employees, and there- fore cannot be classified as "employees" within the meaning of Sec- tion 2 (3) of the Act; (2) each of the three levels of foremen sought herein should be established as separate bargaining units; and (3) the establishment of either the Petitioner's proposed unit or three separate units would not effectuate the policies of the Act. Without ' The U. A. W. participated at the hearing for the limited purpose of protecting the interests of the production and maintenance employees of the . employer whom it allegedly represents 2 James Milley. 170 '- DECISIONS OF NATIONAL LABOR RELATIONS BOARD waiving its position that no unit of supervisors is appropriate, the Employer further contends that, in any event, the assistant to the production, manager, the master mechanic, and the special assign- ment men should be excluded from the requested unit. , The status of foremen under the Act has been considered in a number of Board 'and court decisions. Both the Board a and the -courts' have held that, in relation to their employer, foremen are "employees" within the meaning of the Act. Accordingly, we find that the Employer's first objection as a reason for dismissing the instant petition is without merit, and that the foremen are employees within the meaning of Section 2 (3) of the Act. Moreover, upon con- sideration of the entire record, we are satisfied that the employees herein are readily distinguishable from the higher level policy-mak- ing officials of the-Employer 5 and are not such an integral part of management that they may not constitute a separate group for the purposes of'collective bargaining.' With regard to the Employer's claim that a separate unit should be established for each level of foremen if any supervisors' unit is found appropriate, the record shows that the levels of supervision below the assistant superintendents consist of, in descending order, 13'general foremen, 44 foremen, and 19 assistant foremen. The gen- eral foreman, who is responsible to the assistant superintendent or superintendent for the operation of his department, directs the ac- tivities of the foreman or assistant foreman in more than one de- partment on one shift or in one or more departments on all shifts. The foreman, who is- responsible to the general foreman, assistant -superintendent, or, superintendent for the operation of his _ depart- ment, directs operations in a department, and is responsible for the personnel, product, equipment, and care of property on one or more shifts. The assistant foreman, who is supervised by his foreman or I 3 Matter of Packard Motor Car Company, 61 N. L. It. 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 Simmons Company, 65 N. L. It. B. 984; Matter of The Midland Steel Products Company, Parish d Bingham Division, 65 N. L. It. B.' 997; Matter of Kelsey-Hayes Wheel Company, 66 N. L. R. B. 570. N. L. R B v Armour and Co., 154 F (2d) 570 (C C. A 10) ; 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). 5 Although the general foremen, foremen, and assistant foremen maybe consulted on matters concerning company policy, it is undisputed that the Employer's policy-making officials comprise the manager of manufacturing, superintendents, and assistant superintendents e With respect to the Employer's third objection, which was also made in support of its motion to dismiss the petition, it'cannot be claimed that a unit or units of supervisory employees would not effectuate the policies of the Act. As we stated in the L. A. Young Spring d Wire Corporation case (65 N. L. R B. 298), in considering a similar objection. the Act was intended to encourage the practice of collective bargaining as a means of settling labor disputes by peaceful means rather than by strife, and that this policy was as applicable to labor disputes involving supervisory employees as to those involving rank ahd file employees. CLARK EQUIPMENT COMPANY 17 T_ general foreman, sets up jobs, trains workers, and is in charge of a, specific group of operations. The record discloses, however, that these three classes of fore- men fall-naturally into two groups separated by general differences= in their positions and functions. Thus, the' general foremen have- supervisory duties over the foremen and assistant foremen, with normally no direct supervision over the rank and file production. and maintenance employees. Practically all such supervision is un- dertaken by the foremen and assistant foremen. It is clear that the- different levels of foremen involved here generally enjoy similar working conditions, and that there exists a sufficient community of interest among them to justify the finding of a single appropriate- unit. The fact,'however, that the general foremen constitute a small minority of the entire foremen's group and that they have authority- more closely aligned to higher levels of supervision, makes this -situ- ation analogous to recent cases 7 wherein the Board permitted such: higher supervisors to vote separately as to whether or not they de- sired to be included in the same unit as 'the lower ranks of super- visors. We shall, therefore, permit the general foremen the oppor- tunity by separate voting to express their desire in this matter. Accordingly, we shall make no final -unit determination at this time pending the elections hereinafter ordered. In the event the em- ployees in the voting groups described below, voting separately,. select the Petitioner, they shall together constitute a single appro- priate unit. - - In its final-objection, the Employer specifically objects to the fol- lowing employees sought to be included by the Petitioner : Assistant to the production manager: This employee works ex- clusively on experimental jobs. Inasmuch as he has no employees under him, we shall exclude him. Master mechanic: The record reveals that the supervisory authority of this'employee is analogous to that of an assistant superintendent, whom the Petitioner would exclude. We shall therefore exclude him. Special assignment men: There are two special assignment men who are, in effect, manufacturing consultants. Inasmuch as they do not have any employees under their supervision, we shall exclude them. We shall direct that separate elections be held among the employees of the Employer 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. 4 Matter of Midland Steel Products Company, supra; and Matter of Kelsey-Hayes Wheel Company, supra. ' 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) All foremen, assistant foremen, and comparable supervisors by whatever title designated in all departments, excluding the assistant to the production manager, the master mechanic, special assignment men, the manager of manufacturing, superintendents, assistant super- intendents, supervisory .time clerks, timestudy men, production clerks, watchmen, and tool design personnel, and supervisory employees in the laboratory and accounting departments. As stated above, there will be no final determination-of the appro- piiate unit pending the results of the elections. DIRECTION OF ELECTIONS As part of the investigation to ascertain representatives for the purposes of collective bargaining with Clark Equipment Company, Frost Gear and Forge Division, Jackson, Michigan, 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 Seventh Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of National Labor Relations Board Rules and Regulations-Series 3, as amended, 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 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 elections, to determine in each of the voting.groups whether or not they desire to be represented by Foreman's Association of America, Chapter 29, Unaffiliated, for the purposes of collective bargaining. 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 including general foremen. MR. GERARD D. REILLY, concurring separately : My position in this case is the' salve as that expressed in my con- curring opinions in The Midland Steel Products Company and West- inghouse Electric Corporation cases .8 As in those cases, I would direct no election in this matter since all the persons who are the subject of 8Matter of The Midland Steel Products Company ( supra ) ; Matter of Westinghouse Electric Corporation (East Springfield Works ), 66 N. L. R. B 1297. CLARK EQUIPMENT COMPANY 173 this petition are supervisors. My views on this question, as expressed in the dissenting opinions in the Packard Motor case 9 and the Jones d Laughlin case,10 are equally applicable to the facts in the instant case. 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 foremen. There is sufficient evidence in the record to indicate that the duties and re- sponsibilities of the general foremen are distinguishable from those of the foremen. 0-Matter of Packard Motor Car Company, 61 N. L. R. B. 4. "Matter of Jones & Laughlin Steel Corporation, Vesta-Shannoptin Coal Division, 66 N L R. B, 386.