Firestone Tire & Rubber Co. of Tennessee

In the Matter of FIRESTONE TIRE & RUBBER COMPANY OF TENNESSEE, EMPLOYER and FOREMAN'S ASSOCIATION OF AMERICA (INDEPENDENT), CHAPTER #255, PETITIONER Case No. 16-R-1640.-Decided August 26,1946 Mr. Hamilton E. Little, of Memphis, Tenn., and Mr. Harold Hull, of Akron, Ohio, for the Employer. Mr. Carl Brown, of Detroit, Mich., for the Petitioner. Mr. F. G. Dunn, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed, hearing in this case was held at Memphis, Tennessee, on June 26, 1946, before Gerald A. Brown, Trial Examiner. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Employer moved to dismiss the petition. For reasons hereinafter stated, this motion is hereby denied. Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Firestone Tire & Rubber Company of Tennessee is a Tennessee cor- poration with its home office in Memphis, Tennessee, where it is en- gaged in the manufacture of tires and tubes. During the past 12 months the Employer purchased fabrics, rubber, pigments, and other materials in the value of approximately $40,000,000, approximately 99 percent of which was procured from sources outside the State of Ten- nessee. During the same period, the Employer's sales of manufac- tured products were approximately $65,000,000, of which approxi- mately 90 percent was sold and shipped to customers outside the State of Tennessee. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. 70 N. L R. B, No. 50. 677 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization claiming to represent em- ployees of the Employer. 1Ii. , TIIE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, 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 Petitioner is seeking a unit composed of all department man- agers, general foreman, foreman (shift), assistant foremen, and super- visors, including working supervisors, and schedulers, but excluding the department manager and the assistant department manager in the production and scheduling department. The Employer contends that any unit of supervisory employees is inappropriate because (1) Section 9 (c) of the Act is unconstitutional in that it delegates legislative authority to the Board and sets no standard for the Board to apply in a given case,' (2) supervisory employees are not "employees" within the meaning of the Act, and (3) the supervisory employees are such an integral part of management that any collective bargaining unit including such employees would be an unreasonable interference with the prerogatives of management. -In the event the Board overrules these contentions, the employer takes the position that separate units should be set up for the different levels of supervision in the plant. The Employer would also exclude the schedulers from any supervisory unit found appropriate by the Board. The status of foremen and other comparable supervisory categories has been determined in several recent decisions by both the Board and the Courts, wherein the language of Section 2 (3) of the Act defining the term "employee" has been construed to include supervisory em- ployees.2 Accordingly, we find that the employees sought herein come within the scope of the Act. The Employer operates its plant in Memphis, Tennessee, under the direction of a plant manager, assisted by a production superintendent and two assistant production superintendents. The plant is organized ' The validity of the Act as an entirety has been sustained by the Supreme Court of the United States Inland Empire District Council, Loinb'er and Saarnedl IVoiAers Union, et at. v Millis, 325 U S 697 2 Matter of Jones & Laughlin Steel Corporation, Vesta-Shannopin Coal Division, 66 N. L. R. B. 386; Matter of United States Rubber Company, 67 N. L. R. B. 797; Jones d Laughlin Steel Corporation v. N. L. R B., 146 F. (2d) 833 (C. C A. 5). FIRESTONE TIRE & RUBBER COMPANY OF TENNESSEE 679 into seven divisions, each headed by a division manager; each division, in turn, is broken down into departments headed by department man- agers. In general, the levels of supervision in each division in de- scending order are division manager, department managers, general foremen, shift foremen, assistant foremen and supervisors. The cate- gories of general foremen and assistant foremen are utilized only in some of the large departments; it appears however that in such de- partments their duties and responsibilities are similar to the shift foremen in smaller departments. The supervisors personally direct a small group of men within one department of a division. The shift foreman has charge of a whole department on an 8-hour shift and the supervisors report to him. The department manager, although present on only one shift, is responsible for the entire operation of his department at all times. The department managers have the au- thority to discharge both supervisory and rank and file employees under their supervision. The foremen and supervisors can only recom- mend discharge on rank and file employees. Although the supervisors and foremen handle verbal complaints of the rank and file employees, all written grievances go directly to the department manager. All of the supervisory employees are paid on a- salary basis and have the same vacation and sick leave privileges. After due consideration of the record, we are of the opinion that the department managers, foremen, and supervisors have common interests, are sufficiently distinguishable from the division managers and the other higher level policy-making officials of the Employer, and do not constitute such an integral part of management that they may not be segregated as a separate group for the purposes of collec- tive bargaining. Therefore, we find no merit in the Employer's third contention. In regard to the Employer's contention that the different levels of supervision should be represented in separate units, we are of the opinion that similar interests, background, and problems exist among the several levels of supervision sought by the Petitioner so that all conceivably might be grouped in a single bargaining unit. On the other hand, as indicated above, they duties and responsibilities of the relatively few department managers are sufficiently different from those of the other supervisory employees to permit a separate group- ing, and we shall, therefore, give the department managers the oppor- tunity by separate voting, to determine whether they wish to be included in the same unit with the foremen and supervisors.s. Accord- ingly, we shall make no final determination at this time, but will be guided by the desires of the employees involved as expressed in the 'Matter of The Midland Steel Products Company, Parish & Bingham Division, 65 N L. R B. 997. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD elections ordered hereinafter. In the event that the employees in the voting groups described below, voting separately, select the Petitioner they shall together constitute a single appropriate unit. The Petitioner would include the scheduling clerks, whereas the Employer contends that they should be excluded. Inasmuch as the record reveals that the schedulers have no employees tinder their supervision, and thus do not fall within the Board's definition of a supervisory employee, we shall exclude them from the unit. 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 Election herein, subject to the limitations and additions set forth in the Direction : (1) All department managers, excluding the department manager and the assistant department manager in the production and sched- uling department. (2) All general foremen, foremen (shift), assistant foremen and supervisors, including working supervisors, but excluding scheduling clerks in the production and scheduling department. As stated above, there will be no final determination of the appro- priate unit pending the results of the elections. DIRECTION OF ELECTIONS As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with Firestone Tire & Rubber Company of Tennessee,.Memphis, Tennessee, 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 Fifteenth Region, acting in this mat- ter 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 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 of 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 whether or not they desire to be represented by Fore- man's Association of America, Chapter #255, for the purposes of collective bargaining. FIRESTONE TIRE & RUBBER COMPANY OF TENNESSEE 681 MR. GERARD D. REILLY, concurring separately : My position in this case is the same as that expressed in my concur- ring opinions in The Midland Steel Products Company and Westing- house Electric Corporation cases.' As in those cases, I would direct no election in this matter since all of the persons who are the subject of this petition are supervisors. My views on this question, as ex- pressed in the dissenting opinions in the Packard Motor case,5 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 department managers should be balloted separately so as to ascertain whether or not they desire to be in the same bargain- ing unit which includes the foremen and supervisors. There is suffi- cient evidence in the record to indicate that the duties and respon- sibilities of the department managers are distinguishable from those of the foremen and 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 including the department managers. 4 Matter of The Midland Steel Products Company, Parish d Bingham Division , supra; Matter of Westinghouse Electric Corporation (East Springfield Works ), 66 N. L R B. 1297. 5 Matter of Packard Motor Car Company, 61 N. L. R. B 4.