Chicago Pneumatic Tool Co.

In the Matter of CnICAGO PNEUMATIC TOOL COMPANY, EMPLOYER and FOREMAN'S ASSOCIATION OF AMERICA (INDEPENDENT), CHAPTER 19, PETITIONER Case No. 7-R-0384--Decided January 9, 1947 White and Case, by Mr. Thomas Keenan, of New York City, for the. Employer. Mr. Carl Brown, of Detroit, Mich., for the Petitioner. Mr. A. Sumner Lawrence, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Detroit, Michigan, on September 9, 1946, before Meyer D. Stein, hearing officer. The hearing officer's rulings made at the hearing are free from. prejudicial error and are hereby affirmed. The Employer's motion, to dismiss is denied for reasons hereinafter stated. Upon the entire record in the case, the National Labor Relations. Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Chicago Pneumatic Tool Company, a New Jersey corporation with its principal office in New York City, is engaged in the manufacture of pneumatic and electric tools at plants located in various sections of the United States. The only plant involved in this proceeding is that located at Detroit, Michigan. During the year 1946, the Employer- purchased for use at its Detroit plant materials and equipment valued in excess of $100,000, of which approximately 75 percent was shipped to it from points outside the State of Michigan. During the same period, the Employer manufactured at this plant finished products of' a value in excess of $100,000, of which approximately 80 percent was. shipped to points outside the State of Michigan. The Employer admits and we find that, it is engaged in commerce within the meaning of the National Labor Relations Act. 72 N. L. R B., No. 3. 7 :8 DECISION S OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATION INVOLVED The Petitioner is an unaffiliated labor organization claiming to represent supervisory employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of any of its supervisory employees upon the ground that supervisors are not employees within the meaning of the Act. Both the Board 1 and the courts 2 have neglited this argu- ment. We find that the supervisory employees considered herein are employees within the meaning of Section 2 (3) of the Act. 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. TIIE APPROPRIATE UNIT The Petitioner seeks a unit of all supervisory employees by whatever title designated below the rank of assistant superintendent, including supervisors, foremen, and assistant foremen, in the production, serv- ice, maintenance, power, construction, inspection, stock, receiving and shipping departments, excluding supervisory employees in the general ,office, sales, employment, engineering, research and technical divisions ,of the Employer and all other employees. The Employer, aside from its contention that supervisors in general are not employees within the meaning of the Act, contends that the unit sought herein is inappropri- ate upon the ground that the foremen claimed by the Petitioner are an inseparable part of management and have such interests and responsi- bilities as to prevent their being recognized as employees for the pur- poses of collective bargaining. The Employer further contends that even if certain of the supervisors claimed herein may be considered as employees within the meaning of the Act, the unit is inappropriate by reason of the inclusion therein of certain higher level supervisory employees whose interests and duties conflict with those of supervisory employees upon a lower level of supervision 3 With respect to the contention of the Employer that all foremen claimed by the Petitioner are managerial employees and are not prop- I Matter of Packard Motor Car 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 It. B 298. 2N. L. R. B. v. Armour and Company, 154 F ( 2d) 570 (C C A 10) , Jones d Laughlin Steel Corporation v N. L R B, 146 F. (2d) 833 ( C C A. 5 ) : N L R B v Skinner & Kennedy Stationery Corporation, 113 F . ( 2d) 667 ( C C A 8 ) ; N. L R B v Packard Motor Car Company, 157 F. ( 2d) 80 ( C C A. 6) The Employer's position , as taken at the hearing, is to the effect that , if the foremen herein concerned are entitled to bargain collectively , the differences in authority on the several levels of supervision require that the foremen be divided into two units rather than combined in one unit as requested by the Petitioner. CHICAGO PNEUMATIC TOOL COMPANY 9 erly the subject of collective bargaining, the Employer relies (1) upon the authority of such foremen in regard to the hire, discharge, promo- tion, vacation scheduling, and transfer of available labor supply; and (2) upon the part played by such foremen in the formulation of Employer methods and policy and the handling of Employer labor relations. As regards the authority of the foremen herein concerned with respect to their personnel or supervisory functions, the record discloses, among other supervisory activities, that foremen make effective recom- mendations as to changes of status for employees under their super- vision; that they translate into action the functions and responsibilities of management pertaining to manufacturing; and that they are in effect the first line of contact between the Employer and the rank and file employees. We are, however, of the opinion that these and similar manifestations of authority are of the usual type exercised by foremen and do not establish on the part of the foremen herein concerned such attributes of management that they should be denied the privilege of bargaining collectively in a unit of supervisory employees. With respect to the formulation of Employer methods and policy and the handling of Employer Labor Relations, the Employer relies, among .other circumstances, upon the fact that foremen make sugges- tions for the improvement of plant efficiency, that they attend super- visory staff meetings, and act as representatives of the Employer in the handling of grievances at the first step of the grievance pro- cedure. On the other hand, it does not appear that foremen, as such, have any policy-making functions or that they customarily participate in meetings which result in the formulation of plant-wide manage- ment policy. Furthermore, it is undisputed that the foremen con - cerned do not represent the Employer in the negotiation or execution of agreements with the bargaining representative of the rank and file workers. Upon consideration of the evidence as a whole, we are of the opin- ion, that, although the foremen of the Employer are vested with cer- tain management responsibilities with respect to manufacturing and the maintenance of harmonious relations between the Employer and its rank and file employes, such foremen, as distinguished from policy- making managerial employees, do not have a determinative voice in the formulation of Employer policies, the planning of production, the handling of the Employer's labor relations, or the hire and discharge of employees, as to constitute these employees such an integral part of management that they may not be segregated therefrom and recog- nized as a separate group for the purposes of collective bargaining.4 4 See Matter of Packard Motor Car Company, 61 N. L It. B 4 and 64 N. L. It. B. 1212. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There remains for consideration the suggestion of the Employer that the foremen involved herein be divided into two groups rather than combined in a single bargaining unit. The record discloses that, while certain of the foremen have supervisory authority with respect to other foremen in the same group; the foremen represented by the classifications herein concerned 5 are on substantially the same super- visory level and perform similar duties and have similar authority, varying only as to area and number of employees under their juris- diction. Upon consideration of the evidence as a whole, we are of the opinion that the employees in the classifications of supervisor, assistant foreman, and foreman, have a sufficient community of inter- est derived from the comparable departmental scope of their authority and are sufficiently distinguishable from those of the higher manage- ment levels to constitute a separate homogeneous group appropriate for collective bargaining. We find that all supervisory employees, by whatever title designated below the rank of assistant superintendent, including supervisors, assistant foremen, and foremen in the production, service, mainte- nance, power, construction, inspection, stock, receiving and shipping departments of the Employer at its Detroit, Michigan, plant, exclud- ing supervisory employees in the general office, sales, employment, engineering, research and technical divisions, constitute a unit appro- priate for the purposes of collective bargaining within the meaning- of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the- purposes of collective bargaining with Chicago Pneumatic Tool Com- pany, Detroit, Michigan, 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 Seventh Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regula- tions-Series 4, 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 employ- ees 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 per-- son at the polls, but excluding those employees who have since quit 5 It appears from the record that employees in the classifications of supervisor and assist- ant foreman occupy positions corresponding to the usual positions of general foremen and: assistant general foremen, respectively. CHICAGO PNEUMATIC TOOL COMPANY 11 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 (Inde- pendent), Chapter 19, for the purposes of collective bargaining. MR. JAMES J. REYNOLDS, JR., Concurring : I. concur in this decision. On the record before us the Petitioner is a duly chartered chapter 6 of the Foreman's Association of America, an unaffiliated labo>: organization restricted in membership to in- dividuals whose duties embrace the direction of work or the super- vision of other employees.' So long as it refrains from admitting to membership employees other than bona fide supervisors and so long as it remains unaffiliated by agreement, charter, or in any other manner with labor organizations of rank and file employees, I am of the opinion that the ultimate certification of the Petitioner would be consistent with the effectuation of the purposes of the Act and com- patible with the framework of common law and the public interest. The problem of the unionization of supervisory employees and the degree to which the protection of the Act should be extended or denied their activities is one which has long occupied the, attention of those concerned with the field of industrial relations. Like so many questions which provoke the intense but sincere convictions of think- ing men it is in both a legal and moral sense a conflict of two rights ; the human rights of a substantial segment of industrial employees and the similarly valid property rights of the considerable number of those who own and manage our vast industrial facilities. The resolu- tion of this conflict can never be perfect but it is for the Members of this Board within the area of their authority to face the issue four- square and to find within the pattern of our industrial economy and the framework of reference provided by law and experience that formula which most nearly approaches an equitable balance of the conflicting interests. The time is long since past when a final decision un this question should be deternitned. As stated in my dissenting opinion in Jones ct' Laughlin (71 N. L. R. B. 1261), issued December 31, 1946, I am of the opinion that the Board has ample authority under the Act to exercise wide discretion in its consideration of petitions looking towards the certification of bargaining representatives for units of supervisory employees. Al- though the Board has long held, and revie«ing courts have sustained Petitioner' s Exhibit No. 2-Charter issued to Chapter No. 19-Chicago Pneumatic Tool on March 11, 1943 ' Constitution of Foreman's Association of America , Article IV, The Foreman 's Associa- tion of America shall not become a subordinate affiliate of any labor organization . . . Article VI, Sec. 2, "Membership in the organization may be obtained by any employee . . . whose duties require the supervision of other employees." 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its position, that foremen when acting in their own interests are "em- ployees" under t`he Act,8 I believe that a realistic appraisal of the Board's duties and responsibilities leads to the conclusion that the power of granting or denying representation petitions is ours to ex- ercise and is not to be limited by a rigid interpretation of Section 7 of the Act.°° I believe it is incumbent upon us to weigh with care in each par- ticular case the impact of certification upon the right-not only of the individuals immediately concerned but also upon the equally valid rights of other groups within our industrial society and indeed upon the public interest itself. No real and lasting effectuation of the basic aims of the Act in furthering the free flow of commerce can be realized if, in extending protection to the bargaining activities of supervisory employees, we do violence to well established concepts of industrial management under our free enterprise system. The practical implications of the extension of the Act's encour- agement and protection to the unionization of supervisory employees. are not unknown to those familiar with the management of indus- trial facilities. If foremen are organized within unions which also represent rank and file employees, a conflict of loyalty and the disin- tegration of managerial control is inescapable. The argument that successful unionization of both supervisors and rank and file em- ployees in the same union has long been in existence in a small minority of industries is not convincing, for in most such instances it is the old craft unions which are involved and the problem has become vastly more complex with the development of our great industrial labor organizations. No foreman, no matter how loyal, can long endure as an effective agent of management when called upon to supervise and discipline subordinates who are also his union brothers all equally bound by the same set of union rules of conduct. It is nothing short of industrial naivete to think otherwise. Nor is the organization of foremen in unions devoted exclusively to the interests of supervisory employees and unaffiliated in any manner with rank and file unions entirely without threat to the pre- rogatives of management. The position of top management in dis- cussing a demand for better conditions of supervisory employment is obviously less impregnable when dealing with an organization rep- resenting all supervisory employees than when dealing with a single disgruntled foreman. However, the very elimination of such inequali- ties of bargaining power between employees and employers is a fundamental purpose of the Act. To be sure, an intemperately led 8 Al L R B v Skinner <t Kennedy Stationery Corporation , 113 F. ( 2d) 667 ( C C. A. 8) ; Matter of Packard Motor Ca? Company, 61 N L. R B. 4, 64 N L. R. B. 1212 ; N L. R B: v Pockai d Motor Car Company, 157 F (2d) 80 (C. C A 6). 9 Sec 7, "Employees shall have the right . . . to bargain collectively through repre- sentatives of their own choosing . . . CHICAGO PNEUMATIC TOOL COMPANY 13; foremen's union of whatever character can undoubtedly present prob- len7s of grave import to top management. But in this regard it must be borne in mind that the American foreman is, by and large, one of the truly fine creations of our industrial age. Skilled in his chosen craft beyond his fellows, endowed with resourcefulness and industry, gifted in the ways of men and machines, he is not without loyalty to, his employer and to the system of free enterprise which has given him the opportunity to be what-lie is and what he may yet become. Such-men are not easily given to intemperate actions. They are not the enemies of American industry, they are among its greatest cham- pions, nor are they the least of its fabulous assets. The right of management to manage is fundamental in our indus- trial democracy. It requires for its successful realization the employ- ment of highly developed techniques demanding the undivided loyalty of all levels of supervisory personnel. When dealing with rank and] file employees as a representative of management there can be no room, for compromise in loyalty on the part of the supervisor. In his ca- pacity as managerial agent he must be resplendent in his devotion to, the successful operation of the industrial enterprise of which he is a part. Any collective bargaining relationship into which he may enter in his role of "employee" must give full weight to this funda- mental consideration. Any contrary view may well destroy the vital- ity of American industrial management. The continued assumption by the supervisory employees in this case of their unquestioned obligations to management in dealing with the rank and file does not in my opinion divest them of their right as "employees" within the meaning of the Act to bargain collectively over conditions of their otan employmmaent. It is apparently sometimes for- gotten that foremen too are confronted daily with the same complex. problems of living in a highly competitive industrial world as are their subordinates. If the resolution of these problems requires that they indulge in concerted activities with fellow employees of com- parable status, or the utilization of established collective bargaining techniques, they should not be denied the protection of the Act so, long as their bargaining activities are completely isolated from those of rank and file employees. There need be no inconsistency in a fore- man being an active member of a certified union devoted exclusively to the improved welfare of supervisory employees and at the same. time being a loyal and competent representative of management in- fulfilling the responsibilities of his position. Nor does the granting of this petition weaken the power of the Board in protecting the bargaining activities of the millions of rank and file employees whose interests under the Act must remain our primary concern. The doctrine of imputation remains unassailed as a shield against the unlawful conduct of a minority of employers seek- 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing to destroy their lawful union activities through the agency of supervisory employees. The foreman continues to be the unquestioned representative of management in his dealings with rank and file em- ployees and his strict adherence to the rule of fidelity is unthreatened by conflicting loyalties to subordinates who are his union brothers. As I have indicated, my concurrence in the direction of this election has been prompted by the conclusion, inescapable in the record, before us, that the petitioning union is in every sense an independent organi- zation committed to remain so by the provisions of its constitution. If in due course the supervisory employees in the proposed unit elect to choose the petitioning union as their bargaining representative and certification subsequently should issue from this Board, I am of the opinion that the continuance of such certification should be dependent upon strict adherence by the union to its present independent charac- ter and upon its assiduous avoidance of any action which could lead to the conclusion that it has joined itself with the interests and acti- vities of any union representing rank and file employees. Knowledge of any conduct to the contrary will result in my earnest recommenda- tion to my colleagues that certification be withdrawn forthwith.