Fairchild Engine and Airplane Corp.

In the Matter of FAIRC H ILD E NGINE AND AIRPLANE CORPORATION, FAIRCHILD AIRCRAFT DI\ISION. EMPLOYER and FEDERAL LABOR UNION, LOCAL 24015 , AFFILIATED WITH THE AMERICAN FEDERA- TION OF LABOR, PETITIONER Case No. 5-R-093.-Decided April 3, 191^'y Cravath, Swains cC Moore, by Mr. E. E. Buchanan, of New York City, and Mr. Paul S. Cleavelamd, of Hagerstown, Md., for the Em- ployer. Mr. Joseph A. Padway, by Mr. James A. Glenn, of Washington, D. C., for the Petitioner. Mr. Robert J. Brylke, of Baltimore, lid., for the Intervenor. Mr. Jack J. Mantel, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed, hearing in this case was held at Hag- erstown, Maryland, on August 14 and 15, 1946, before Earle K. Shawe, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing, the Employer moved to dismiss the petition on various grounds. The hearing officer referred the motion to the Board. For reasons stated hereinafter, the motion is hereby denied. Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS OF FACT 1. TILE BUSINESS OF THE EMPLOYER Fairchild Engine and Airplane Corporation is a Maryland corpo- ration engaged in the manufacture and sale of aircraft and aircraft engines and bonded plywood products at Hagerstown, Maryland; Farmingdale, Long Island, New York; Jamestown, New York; and Dallas, Texas. This proceeding concerns only the Fairchild Air- craft Division located m and about Hagerstown, Maryland. Dur- ing the year 1945, the Fairchild Aircraft Division purchased raw 73 N. L R. B, No 26. 154 FAIRCHILD ENGINE AND AIRPLANE CORPORATION 155 materials, consisting chiefly of aluminum, steel, and other metals, valued in excess of $1,000,000, of which more than 50 percent of such purchases originated from points outside the State of Maryland. During the same period, the Employer made sales in excess of $2,- 000,000, of which more than 50 percent consisted of shipments to points outside the State. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. 11. Til l-] OR(;ANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent certain employees of the Employer. Congress of Industrial Organizations, herein called the Intervenor, is a labor organization, claming to represent certain employees of the Employer. ILI. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of any of its supervisory employees. 'The Employer moved to dismiss the petition on the ground that the Board is without jurisdiction ),i this matter because the supervisors herein sought to be represeute^, are not "employees" within the mean- ing of the Act. The status of supervisory personnel has been con- sidered in a number of cases, and both the Board' and the courts have held that in relation to their employer supervisors are employees within the meaning of the Act. Accordingly, we find that the super- visors involved in this proceeding are employees under the Act. 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. Tun. APPIiOPRLA'i'E U- IT ; 'r l l i. DETIEROI1NA'rLON OF REI'RESENT_ATIVES The Petitioner and the Intervenor seek a unit of supervisory enm- ployees classified as foremen and general foremen who are employed in the production department, quality control department, plant operations department, and materials department. The Employer contends that the proposed unit is inappropriate on the grounds that 13lotter of Jones <C Laughlvc Steel Corpo,ation, Peata-Skannoprn Coal D,o,s,on. 66 N L It B '186, and caves cited therein 2 Packard Motor Ca) Company, v Al 1, It B . decided naicli 10, 1047, 67 S Ct 780, eul'g 157 F (2d) 80 (C C A 6) AN 1, It B v Armour and Co , 154 F (2d) 570 (C C A 10) , Jones S Lan/Alin Steel Corpoiat,on v N I, R B , 146 L` (2(l) 832 ((_' i' A 5) N L It B v Skinne 1C Kennedy Stnlioneiif Company, 112 F (2d) 667 (C C A 8) 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the foremen and the general foremen are an integral part of manage- ment, and therefore the establishment of such a unit would not effec- tuate the policies of the Act, and that neither the Petitioner nor the Intervenor is qualified to represent supervisory employees. With- out waiving its position that no unit of supervisors is appropriate, the Employer further contends that the general foremen should be excluded from a unit of foremen and that, in any event, the general foremen should be given an opportunity to determine whether or not they desire to be included in such unit. The Employer has 53 general foremen and 168 foremen whose principal duties consist of supervising work performed by the pro- duction and maintenance employees in the 4 departments involved herein. They are in the 2 lowest categories of the Employer's super- visory hierarchy and are preceded in rank of authority and responsi- bility by assistant superintendents, superintendents, and assistant de- partment heads, department heads, assistant general manager, and general manager. The general foreman, under the supervision of an assistant superintendent or a superintendent, plans, directs, and co- ordinates the production activities of from 50 to 300 employees; he has from 2 to 6 foremen under his supervision, each of whom directs the work of from 15 to 75 employees. The general foreman has the authority effectively to recommend changes in the status of foremen who work under his supervision and the foreman has similar au- thority over the production employees. The general foreman rep- resents the Employer in the second stage of the grievance procedure prescribed in the Employer's contract covering the production and maintenance employees, whereas the foreman acts for the Employer in the initial stage. The wage differential between the general fore- man and the foreman is approximately $75.00 per month. Both enjoy similar working conditions, such as vacation, sick leave, and insurance benefits. The record does not support the Employer's contention that its foremen and general foremen are such an integral part of management that their inclusion in a bargaining unit would not effectuate the policies of the Act. Although the employees herein are occasionally consulted concerning matters within their special knowledge, the rec- ord indicates that the actual formation of company policies is done by supervisors above the level of general foremen. The Employer's further argument that the establishment of a unit of supervisors would create a dual loyalty between it and the latter's chosen bargain- ing representative, has been considered by the Board in previous decisions. In the L. A. Young, General Mills, and Jones cC Laughlin cases,' this question was discussed at length, and the majority of the 8 Matter of L A Young Spring & Wire Corporation, 65 N. L R. B. 298 ; Matter of Jones & Laughlin Steel Corporation, Vesta-Shannopin Coal Division, supra; Matter of General Mills, Inc , 66 N. L. R. B. 1423. FAIRCHILD ENGINE AND AIRPLANE CORPORATION 157 Board there concluded that the function of deciding the appropriate unit is a positive one. Once the Board determines that certain indi- viduals are "employees" within the meaning of the Act, then it becomes its duty under Section 9 (b) to group these "employees" in an ap- propriate unit. The nature of the duties and responsibilities of-the supervisory employees herein is relevant only insofar as it bears on the determination of the proper grouping for collective bargaining purposes. The reasons advanced by the Employer, in its contention that neither the Petitioner nor the Intervenor is qualified to represent supervisory employees, are that an affiliate of the latter represents its rank and file employees ' and that there is a possibility that an affiliate of the Petitioner might represent such employees in the future. This issue has also been considered and disposed of in a number of decisions, wherein the Board has held that supervisory employees are entitled to an unrestricted choice of a collective bargaining representative.5 Although we do not agree with the principal contention of the Em- ployer that the comparatively smaller number of general foremen should be excluded from the proposed unit, a majority of the Board agrees with its alternate request, and finds that the duties and re- sponsibilities of the general foremen are sufficiently different from those of the foremen to warrant separate grouping. 'We shall there- fore give the general foremen the opportunity, by separate voting, to determine whether or not they desire to be included in the same unit with the foremen.e This is especially desirable in view of the small number of general foremen as compared to foremen. Accordingly, we 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. 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 Election herein, subject to the limitations and additions set forth in the Direction. (1) All general foremen of the Employer employed in the produc- tion quality control, plant operations, and materials departments. (2) All foremen of the Employer employed in the production, quality control, plant operations, and materials departments. 4 The Employer has a contract with the United Automobile, Aircraft, and Agricultural Implement Workers of America, Local 842, CIO, covering all production and maintenance emplo\ ees s -latter of Waterfront Employers Association of the Pacific Coast, et at, 71 N L R B, 80, Matter of Virginia Electric and Power Company, 68 N. L. R B 504; Matter of Jones it Laughlin Steel Corporation, Vesta-Shannopen Coal Division , supra ; Matter of The Curtis Bally Towing Company of Pennsylvania, et al., 66 N. L. R . B. 1152; Matter of United Steel and Wire Co , 67 N L R B. 240 0 Matter of The Midland Steel Products Company , 65 N. L R B 997. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 representat Ives for the pur- poses of collective bargaining with Fairchild Engine and Airplane Corporation, Fairchild Aircraft Division, Hagerstown, Maryland, separate elections by secret ballot shall be conducted as early as pos- sible, but not later than thirty (30) days front the (late of this Direc- tion, under the direction and supervision of the Regional Director for the Fifth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.50, of Na- tional Labor Relations Board Rules and Regulations-Series 4, among the employees in the voting; groups found appropriate in Section IV, above, who were employed during the pay-roll period immediately pre- ceding 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 of, and nic]nduig 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 whether they desire to be represented by Fed- eral Labor Union, Local 24015, affiliated with the American Federation of Labor, or by Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither. Mx. Joiix M. HOUSTON, concurring specially For the reasons stated in my concurring opinion in The Midialud Steel case, cited above, which I find equally applicable here, I would provide for only one voting group comprised of foremen and general foremen. MR. JAMES J. REYNOLDS, JR., dissenting and concurring, in part: For the reasons stated in nay dissenting opinion in the Jones cC Laughlin case,7 I do not believe that supervisory employees should be represented by the same parent union whaclh represents the rank and file employees. However, iuasnntcli as the record adequately indicates that the duties and responsibilities of the general foremen differ sub- stantially from the subordinate foremen, f concur na the conclusion of Chairman Herzog that the general foremen should be afforded an op- portunity by separate ballot to express them desires as to their inclu- sion in the sane bargaining unit wluch includes the foremen. 13fallei of Jones cC Laughlin Steel Coipotation, ye S ta-S/i (iii no)) in Cool Dibision, 71 N L It B. 1261.