L. A. Young Spring & Wire Corp.

In the Matter of L. A. YOUNG SPRING & WIRE CORPORATION and FORE- MAN'S ASSOCIATION OF AMERICA, CHAPTER No. 155 Case No. 21-B-2816.-Decided January 8, 1946 Cook, Smith, Jacobs ct Beake, by Mr. Grant L. Cook, of Detroit, Mich., and Mr. Abram Robert Simon, of Beverly Hills, Calif., for the Company. Mr. J. B. Tietz, of Los Angeles, Calif., and Mr. Warren B. Logan, of South Gate, Calif., for the Union. Mr. Bernard Goldberg, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Foreman's Association of America, Chapter No. 155, herein called the Union, alleging that a question af- fecting commerce had arisen concerning the representation of em- ployees of L. A. Young Spring & Wire Corporation, Los Angeles, California, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Charles M. Ryan, Trial Examiner. The hearing was held at Los Angeles, California, on May 7 and 8, 1945. The Company and the Union appeared and participated. All parties were afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rul- ings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board. Oral argument before the Board in Washing- ton, D. C., was heard on September 11, 1945. At the hearing, the Company moved to dismiss the petition for lack of jurisdiction. The Trial Examiner referred this motion to the Board. For reasons stated hereinafter, the motion is hereby denied. 65 N. L. R B., No 59. 298 L. A. YOUNG SPRING & WIRE CORPORATION 299 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY L. A. Young Spring & Wire Corporation, a Michigan corporation, operates in Los Angeles, California, a branch factory which is the subject of this proceeding. In normal times the Los Angeles plant manufactured automobile cushion springs; during the war years it fabricated and assembled war materials. For use in its manufacturing operations at the Los Angeles plant during the war period, the Com- pany purchased approximately 1,000 tons of steel per annum valued at about $450,000, of which in excess of 75 percent represented pur- chases outside the State of California. During the same period, the Company annually sold products from this plant valued at approxi- mately $2,351,000, of which more than 75 percent represented sales to local aircraft manufacturing companies engaged in interstate com- merce. We find that the Company is engaged in commerce within the mean- ing of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED Foreman's Association of America, Chapter No. 155, unaffiliated, is a labor organization admitting to membership supervisory em- ployees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has declined to accede to the Union's request for recognition as the collective bargaining representative of the Com- pany's foremen and assistant foremen on the ground that the bargain- ing rights of foremen under the Act have not been judicially deter- mined. In support of its motion to dismiss the petition, the Company con- tends that the foremen and assistant foremen are not "employees" within the meaning of Section 2 (3) of the Act. The Company has set forth no argument in justification of its contention which was not fully considered by us in the recent Packard 1 and Soss 2 cases wherein we held that foremen are "employees." We find, in accord with our determinations in those cases, that the Company's foremen and assist- ant foremen are "employees" within the meaning of Section 2 (3) of the Act.3 1 Matter of Packard Motor Car Company, 61 N. L. R B . 4, and 64 N. L . It. B. 1212. 2 Matter of doss Manufacturiny Company, 56 N. L. R B. 348 ' See N L R. B v. Armour and Co. (C. C. A. 10, Nov. 5, 1945), 17 L. R R 372; Jones JE Laughlin Steel Corporation v. N. L. R B, 146 F (2d) 833 (C C. A 5) , N L R B v Sklnnci ct Kennedy Stationery Company, 113 F (2d) 667 (C C. A. 8). 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A statement of a Board agent, introduced into evidence at the hearing, indicates that the Union represents all employees in the unit hereinafter found appropriate.4 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 APL'ROPRIATE UNIT The Union seeks a unit of foremen and assistant foremen in the production and maintenance division of the Company's Los Angeles plant. The Company asserts (1) that the proposed unit is inappropri- ate, and (2) that the Union is not independent of the labor organiza- tion which represents rank and file employees. The majority of the Board found in the Packard case that a unit of foremen represented by the Forelnan's Association of America was appropriate. The Company, however, contends in its initial objection that the Packard decision is not controlling in the present case. It argues that, in the cited case, the Board first reaffirmed the principle enunciated in the Maryland Drydock case,' to wit, that the duty to define the appropriate unit vests in the Board administrative discre- tion to determine whether any given group of "employees" shall have collective bargaining rights under the Act, and then, in the exercise of that discretion, decided that a unit of foremen in mass production in-' dustries was appropriate in view of the decline in the authority and responsibility of such foremen over the years to the point where they have become merely the "traffic cops" of industry. The Company further argues that, in tracing and emphasizing the alteration in the status of foremen in mass production industries since the early 1900's, the Board necessarily implied that, if the foremen in the Packard case had retained the duties, status, authority and responsibility of their predecessors of the early 1900's, it would have found a unit of such foremen inappropriate. In keeping with this analysis, the Company has undertaken to prove that the foremen here involved differ in their status, duties, responsibilities and privileges from those in the Packard case and that the former are more akin to the foremen of the early 1900's than to foremen "traffic cops." The plant involved herein is small, employing about 275 persons, of whom 26 comprise the supervisory staff. In descending order of im- portance the latter group includes the following: 1 general manager, 1 factory manager, 1 day superintendent, 1 night superintendent, 20 foremen, and 2 assistant foremen.° Five of the foremen and both ' The Field Examiner reported that the Union submitted 22 application for membership cards , that there are the same number of employees in the appropriate unit , and that the names on all the cards appeared on the Company 's pay roll of May 7, 1945 5 Matter of The Maryland Drydock Company, 49 N. L R. B. 733 6 The figures given are for the period of the hearing L. A. YOUNG SPRING & WIRE CORPORATION 301 assistant foremen are hourly paid, all the other supervisors are sal- aried. Insofar as powers and duties are concerned, the Company makes no distinction between its salaried and hourly paid foremen. Each foreman is in complete charge of the operations of a depart- ment; his duties are entirely supervisory in nature.' He has the power to discharge probationary employees in his department out- right, to discipline or discharge regular subordinates subject to the provision of the collective bargaining contract covering rank and file workers," and to promote employees to better jobs within his depart- ment. The foreman regularly rates his subordinates on forms which are sent to the personnel department, and represents the Company in the initial stages of the grievance procedure affecting these employees. In addition, he attends Weekly foremen's meetings at which production problems are discussed,° participates in monthly safety forums, is re- sponsible ' for safety procedures in his department, initiates time studies on new operations, and is consulted before production stand- ards are finally set. The foreman's authority, although extensive in these many respects, is circumscribed in others. Thus, he enforces but does not formulate company rules ; he has no power to sanction overtime by his subordi- nates without written permission from the superintendent; and he does no hiring. It is undoubtedly true, as the Company contends, and the composite picture of the evidence reveals, that the foremen here involved have greater discretion, authority, and responsibility than the foremen who were the subject of the proceeding in the Packard case. However, we do not believe that the api)lication of the Act to foremen can or arbi- trarily should be made to depend upon the- type of industry involved, whether mass production or non-mass production, or upon the varia- tion in the duties and responsibilities of foremen from company to company. The majority opinion in the first Packard case (decided March 26, 1945) did not decide otherwise; the question was neces- sarily reserved. In that case, the Board was confronted with the single question of whether foremen in mass production industries who function primarily as industrial "traffic cops" are employees and may constitute an appropriate bargaining unit. In giving an affirmative answer to this question, the majority did not decide or intend to imply that foremen in non-mass production industries or foremen whose ' Assistant foremen are aids to foremen ; like the foremen their duties are exclusively supervisory "International Union , United Automobile , Aircraft & Agricultural Implement Workers of America, CIO, represents the production and maintenance employees ; it is hereinafter referred to as the UAW. U These meetings were instituted after the Union had made its initial demand for recog- nition. As to the effectiveness of the meetings , a foreman testified that more production problems are solved on the plant floor as they arise than in these meetings. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duties and responsibilities make them more than industrial "traffic cops," are not "employees"' or may not comprise an appropriate unit. That issue is now before the Board for the first time since the Packard case and, in view of the importance of the problem and the apparent misunderstanding of the scope of the majority's decision therein, we have reexamined the reasoning of that decision against the broader legal and social background. We have already found that the fore- men employed by this Company are employees within the meaning of the Act. The right of employees to self-organization and to collective bar- gaining through representatives of their own choosing is a "funda- mental" one which antedates and exists apart from the statute; 10 its beneficiaries are supervisory as well as non-supervisory employees 11 Through the instrumentality of the National Labor Relations Act, Congress reaffirmed that right, erecting safeguards for employees in their self-organizational activities and encouraging the practice and procedure of collective bargaining as "fundamental to the friendly adjustment of industrial disputes." By way of safeguard, Congress has rendered illegal various acts of employer interference, coercion, and discrunination which place restraints upon employee self-organ- izatiou. Specifically to encourage the practice of collective bargaining, Congress has made it illegal for an employer "to refuse to bargain collectively with the representatives of his employees." Congress has also provided machinery for the peaceful adjudication of time often perplexing and controversial representation questions. Section 9 (c) of the Act provides: "Whenever a question affecting commerce arises concerning the representation of employees, the Board may investi- gate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected." Section 9 (b) entrusts to the Board the task of deciding in each case "whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this Act, the unit appropriate for the pur- poses of collective bargaining shall be the employer unit; craft unit, plant unit, or subdivision thereof." The entire Act, as well in its sub- stantive provisions as in its statement of policy, clearly evinces Con- iu N. L. R. B v. Jones d Laugblia Steel Corp, 301 U S 1; Amalgamated Utility Workers v Consolidated Edison Co . of New York, Inc, 309 U S 261 II Matter of Packard Motor Car Company, 61 N. L. R. B. 4 ; Matter of Soss Manufactui ing Company, 56 N L R. B 348. Supervisory personnel have been members of unions and have been covered by collective bargaining contracts in a number of industries For example , supervisory groups have long been organized in separate unions in the maritime industry , in parts of the railroad industry , and in the Postal Service Foremen have been included under collective bar- gaining contiacts covering production workers in the printing and building trades, in the metal trades insofar as they operate on a craft basis, in many of the iailroad trades, and to a greater or less extent, among teamsters , longshoremen, and others See Union Member- ship and Collective Bargaining by Foremen, U. S. Department of Labor, Bureau of Labor Statistics , Bulletin No. 745 ( 1943). L. A. YOUNG SPRING & WIRE CORPORATION 303 gress' conviction that labor disputes should be settled by peaceful means and that collective bargaining by equals is the best way of achieving this objective .12 Accordingly, any interpretation of the Act which would render it inapplicable to an important segment of the working population should be avoided unless specifically ordained. The Board has, in the Maryland Drydock and following cases, con- strued Section 9 (b) as conferring upon it administrative discretion, not only to determine which of several units is appropriate "in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this Act," but also to decide that some "employees" may not con- - stitute an appropriate unit in any circumstance. We are now per- suaded that this interpretation is unjustified and should not govern future Board rulings.13 Congress has specifically listed for exclusion from the operation of the Act only three classes of workers: agricultural, domestic, and family. It is urged, however, that under the authority to define the appropriate unit contained in Section 9 (b), the Board has, in effect, the power to add to this list of Congressional exclusions. Section 9 (b) does not, in our opinion, lend itself to such an interpretation. The language of this section is language not of exclusion but of classifica- tion. We are to choose between alternatives : whether the appropriate unit for collective bargaining purposes shall be the "employer unit, craft unit, plant unit dr subdivision thereof." The function of decid- ing the appropriate unit is a positive one. "It is not a negative con- cept to be used as a means of denying all bargaining rights under the Act to a given group of employees in all circumstances." 14 Once the Board determines that certain individuals are "employees" within the meaning of the Act, its sole remaining duty under Section 9 (b) is to group these "employees" in that unit which will insure to them "the full benefit of their right to self-organization and to collective bargaining," and otherwise effectuate the policies of the Act. Under the power to define the unit, the Board may properly insist that fore- men be organized in bargaining units apart from their subordinates, but it cannot ostracize them.15 In this view, the kind of industry ill , 12 In N L R B. v Armour and Co. (C C A. 10, Nov. 5, 1945), 17 L R R 372, the Court stated , "The purpose of the Act is to promote fair and dust settlement of disputes by peaceful processes and to prevent industrial warfare with its harmtul repercussions upon employer and employee and the general public " 18 See the concurring opinion of the Chairman in the second Packard case , 64 N L R B 1212. 14 Matter of Bee Line, Inc, 6 N . Y. S. L R B 686 , 695, construing similar language in the New York State Labor Relations Act. 10 The position here adopted as to the meaning of Section 9 (b) was substantially that accepted by the Boaid prior to the Maryland Dritdock case. See Matter of The Malytand Drydock Company, 49 N L R B 733 ; Matter of Godchau .i Sugars, Tic., 44 N L R 11 874 Matter of Union Collieries Goal Company, 41 N. L R B 961 , and 44 N . L R B. Matter of Harmony Shoi t Line Transportation, 42 N. L. R B 757. 165 679100-46-vol 65--21 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which foremen are employed is immaterial and the duties and respon- sibilities of foremen ar- relevant only insofar as they bear on the question of proper grouping for collective bargaining purposes." These factors may become important infixing the terms of any ulti- mate bargain, but they cannot be a criterion in determining whether this Board's facilities should be made available to foremen. The soundness of this construction of the Board's powers and re- sporfsibility is emphasized by considerations of public policy, which favor the settlement of labor disputes by peaceful means rather than by strife. It is patent that a considerable number of foremen are dis- satisfied with the terms and conditions of their employment and be- lieve that they can achieve more satisfactory standards by collective in preference to individual action. It is not the Board's function to decide whether the grievances of foremen are justified or whether unionization affords the proper remedy. It is sufficient that foremen have organized themselves into unions as they have a legal right to do and have petitioned this Board to make the regular procedures of the Act available to them. The Company, however, would have the Board deny their foremen access to these procedures allegedly because unionization of foremen would have a number of socially harmful re- sults, particularly as respects the ability of management to continue to operate effectively.17 Acknowledging the good faith with which the Company states its position, the fact remains that the argument in favor of dismissing the petition would have weight only if by so doing the Board could also forbid foremen to unionize. But foremen, being men, have a natural right to associate with one another. Dis- missal of the petition would therefore emphasize to these foremen that only by a mobilization of their economic strength and by resort to industrial war with its attendant ills may they secure recognition of that right. Any policy of dismissing foremen's petitions, as ad- vocated by the Company, would thus be a policy of negation, settling none of the problems created by foremen's unionization and further increasing labor strife. It seems wiser to conduct an election to de- termine the preliminary question of whether an employer's foremen have selected an independent union, as is customary under the peaceful and democratic procedures provided by the Act. Ultimately, only 16 To the extent that they are inconsistent with this paragraph , the Maryland Drydock decision and following cases are hereby overruled. 17 In this connection, the Company is seriously disturbed by the fear that If foremen are unionized , a new loyalty to the union will be created which will supersede and ulti- mately destroy the foremen's loyalty to their employer , making the continued successful operation of its business impossible A foreman's loyalty to his union, particularly to an independent supervisors ' union , need not cone into conflict, except in a very narrow compass, with the duty owed to his employer . Manifestly , the unionized , as well as the non-unionized foreman has at least a selfish interest in the success of the business from which he draws his livelihood and this interest is likely to have a powerful restraining influence upon any displays of union loyalty which might adversely affect his employer. Possible areas of conflict can be anticipated and provided for by collective bargaining. L. A. YOUNG SPRING & WIRE CORPORATION 305 the parties themselves can achieve a satisfactory accommodation of their differences."' The solution will be easier, however, and more firmly rooted, if it is reached in an atmosphere unpoisoned by the sus- picions and bitterness which are so often the aftermath of industrial strife caused by denial of mere recognition. The second contention made by the Company, in support of its mo- tion to dismiss the petition, is that the Union is not independent of the UAW, the labor organization which represents the rank and file employees. The Union is a local of the petitioner in the Packard case, concerning which the same charge of lack of independence of the UAW was made. The majority of the Board there held that the company had failed to prove its allegation and concluded that the Foreman's Association of America "is an unaffiliated and independ- ent labor organization, organized for the exclusive purpose of repre- senting supervisory employees." The evidence offered in the instant proceeding to prove the Union's alleged lack of independence is similar to and no more persuasive than that adduced in the Packard case. The Company relies on the following to establish the Union's lack of inde- pendence of the UAW: (a) an article in the local UAW newspaper welcoming the Union to the plant; (b) an admission by the Union's president that he had talked with some of the UAW leaders before filing the petition; (c) an admission by the Union's president on cross-examination, in reply to a hypothetical question, that he would not, as a foreman, attempt to fill the jobs of any UAW members who went out on strike. Unquestionably sympathy exists between the UAW and the Union. But this natural sympathy of one union for another is insufficient to establish a partnership relation between 38 Perhaps the experience of the printing industry, where collective bargaining for foremen, who are members of the same union as their subordinates, has been accepted practice for more than 50 years will serve to reassure the Company A recent survey notes : In early years, many publishers were strongly opposed to having their repre- sentatives owe allegiance to the union. As contracts became more inclusive, how- ever, and rights of both employers and unions more clearly defined, publishers in general ceased to object to the foreman law. They are now chiefly concerned lest foremen should be subject to union discipline for differing with the local union in the interpretation of the terms of a contract. The internationals generally recognize the justice of the publishers' position and a method is provided for the joint settle- ment of such disputes. The unions do not, however, forego their right to discipline foremen for disobeying laws relating to internal union mattert, or for deliberately disregarding union rules. Although there is still occasional complaint that some locals attempt, by disciplining foremen, to enforce conditions not provided for in contracts, the practice is not so common as to constitute a major issue The foreman represents the employer in dealing with grievances arising in his department. He settles many day-to-day grievances and complaints with the chapel chairman, without recourse to the joint standing committee or to arbitration." "In book and job printing the union membership of foremen is so thoroughly established that it does not become an issue except occasionally in a newly organ- ized plant. It is clearly recognized that the foreman's first responsibility is to management. His duty to the union is to administer the agreement fairly in the plant. .. How Collectsve Bargaining Works, New Yorok, Twentieth Century Fund, (1942 ) pp. 67, 68, 147. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them. The Union, like its parent, is organically a free and independ- ent labor organization which limits its membership to supervisory employees. There is not the slightest evidence to show that, despite this sympathy for the UAW, the local Union is not free to formulate its own policy, to decide its own course of action, and to make its own collective bargaining contracts, subject only to the constitution of the national foremen's union. No other labor organization, so far as appears from the record, can dictate, override, or limit the decisions of the Union. Accordingly, we find that the Union is an independent, unaffiliated labor organization, organized for the exclusive purpose of representing supervisory employees.'9 The Company does not object to the composition of the unit proposed by the Union. We find, therefore, that all foremen and assistant foremen in the production and maintenance division of the Com- pany's Los Angeles plant, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES 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 Relations Act, and pursuant to Article III, Section 9, of National Labor Rela- tions 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 L. A. Young Spring & Wire Corporation, Los Angeles, California. 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 Twenty-first Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period 11 We are concerned with an unaffiliated labor organization which admits only supervisory employees into membership The question of the effect of affiliation as such is not before the Board , and we need not and do not pass upon it in this case. L. A. YOUNG SPRING & WIRE CORPORATION 307 immediately preceding the date of this Direction, including em- ployees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including em- ployees in the armed forces of the United States who present them- selves 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 Foreman's Association of Amer- ica, Chapter No. 155, for the purposes of collective bargaining. MR. GERARD D. REILLY, dissenting : For the reasons stated in my dissenting opinions in Matter of Packard Motor Car Company'20 I am constrained to disagree with the majority opinion. The record here indicates that the foremen are vested with even greater management functions than was the case at the Packard plant. 20 Matter of Packard Motor Car Company, 61 N. L. R. B 4; 64 N L R B. 1212.