Libbey-Owens-Ford Glass Co.

In the Matter of LIBBEY-OWENS-FORD GLASS COMPANY and FEDERA- TION OF GLASS, CERAMIC, AND SILICA SAND WORKERS OF AMERICA, CIO Case No. 9-R-237 SUPPLEMENTAL DECISION CLARIFYING CERTIFICA- TION OF REPRESENTATIVES January 14,1946 On January 30, 1939, the National Labor Relations Board issued a Decision and Certification of Representatives in the above-entitled proceeding, certifying Federation of Flat Glass Workers of America, herein called the Union," as the representative of the production and maintenance employees of Libbey-Owens-Ford Glass Company, To- ledo, Ohio, herein called the Company, including watchmen, janitors, firemen, power employees, truck drivers, and subforemen, but exclud- ing window glass cutters, supervisory employees, timekeepers, and clerical employees not directly connected with production, at its plants situated in Shreveport, Louisana; Ottawa, Illinois; Charleston and Parkersburg, West Virginia; and Ros'sford and East Toledo, Ohio.2 Thereafter, in a subsequent proceeding," the Board, in effect, excluded from the unit employees of the Parkersburg, West Virginia, plant. On March 15, 1945, the Company filed-with the Board a motion seek- ing, inter alia, clarification of the unit found appropriate in the original proceeding insofar as it affected certain specific classifications of em- ployees engaged at the Company's Charleston, West Virginia, plant. On March 17, 1945, the Board issued 'a Notice to show cause why it should not exclude these classifications of employees from the unit. On April 9, 1945, the Union filed with the Board a Motion to Dismiss the Motion of the Company. On April 14, 1945, after due considera- tion, the Board issued an Order Reopening Record and Dismissing Motion, denying the Union's Motion to Dismiss, granting the Com- pany's Motion, and providing for a hearing to adduce evidence "for the purpose of clarifying the status of the employees described in [the Company's Motion] with respect to the appropriate unit." Pur- ' As indicated in the title of this proceeding , the Union has since become Federation of Glass, Ceramic, and Silica Sand Workers of America, CIO. 2 See Matter of Libbey- Owens-Ford Glass Company, 10 N. L. R. B 1470 at 1479-1480. Matter of Libbey-Owens-Ford Glass Company, 31 N. L R. B. 243. 65 N. L. R. B., No. 79. 434 LIBBEY-OWENS-FORD GLASS COMPANY 435 suant to this Order, a hearing was held at Charleston, West Virginia, at various dates between May 31 and September 27, 1945,4 before James A. Shaw, Trial Examiner. The Company and the Union ap- peared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings 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. , Upon the entire record in the case, the Board makes the following: SUPPLEMENTAL FINDINGS OF FACT As noted above, the Board included with the unit for which the Union was certified all employees classified by the Company as sub- foremen. The record indicates that the Company does not use this classification. It does, however, employ individuals at its Charleston, West Virginia, plant, engaged as assistant foreman, packing; assistant foremen, papering; construction labor foreman; brick storage fore- man; painter foreman; assistant foremen, loading; loader foreman, night; and working gang leaders, first and second class, whose super- visory status had not been determined at the original hearing. The Union asserts that all employees engaged in these classifications come within the term "subforeman" and are, consequently, part of the unit which it represents; the Company contends that these persons are supervisory employees and requests that they be specifically excluded from the unit. The record indicates that employees in these classifications have been the subject of dispute between the parties for a considerable period of time. The Union has continuously demanded, as of right, that the Com- pany recognize it as the representative of these employees and bargain collectively with it on their behalf. On the other hand, the Company, although it has negotiated with the Union with respect to employees in these classifications, has consistently refused to concede the Union's right to represent them. This has led to industrial strife between the two parties and, on several occasions, to work stoppages. The Union contends that its past bargaining history with the Com- pany with respect to these employees is controlling evidence of their non-supervisory status. We disagree. Even were the parties to have agreed previously upon their non-supervisory status, such agreement would not necessarily be controlling upon us,5 but where, as here, no 4 On June 1, 1945, the hearing was adjourned It was reopened oh July 24 and con- tinued through July 26, at which time the Company filed a motion with the Board to broaden the scope of the hearing and for an adjournment . On July 28, the Board denied the Company' s motion "without prejudice to the filing of a new motion for clarification defining in more particularity the specific employee categories whose status remains in dispute." The hearing was resumed and continued on September 27, 1945. - 5 See Matter of Libbey-Owens-Ford Glass Company, Case No. 13-R-2255, Supplemental Decision Clarifying Certification of Representatives , Issued February 19, 1945. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD igreement has existed with respect to them, little weight can be ac- corded such bargaining history. We shall, therefore , examine the powers and duties of the employees in each of the disputed classifica- tions and base our findings with respect to them solely upon such evidence. Assistant foreman, packing: The Company employes 1 individual in this classification . This employee is part of the packing department which is engaged in packing plate glass into boxes for storage or ship- ment. The packing department consists of 60 employees under the supervision of a superintendent, 2 foremen, and the assistant foreman. There is no dispute as to the supervisory status of the superintendent and the foremen. The assistant foreman hands out gloves to the packers and is responsible for having them supplied with the proper materials. He instructs new men in their duties and reports upon their ability to his superiors. In the event any of the employees vio- lates a company rule or requires disciplining, he reports the facts to his superiors who then take the appropriate action . The record indi- cates that the assistant foreman merely acts as a conduit for orders between the regular employees and the concededly supervisory person- nel. We are of the opinion, therefore, that the assistant foreman, packing, is not a supervisory employee within the meaning of our customary definition. Assistant foremen, papering: There are 3 employees in this classifi- cation. These employees are engaged in the papering department which consists of approximately SO workers divided into 2 shifts, a superintendent, a foreman, and the 3 assistant foremen. The superin- tendent, the foreman, and 2 of the assistant foremen work on the day shift together with approximately 60 of the regular workers, and the third assistant foreman works on the night shift with the balance of the employees in the department . The duties of all assistant foremen consist of instructing new employees in their work , supplying the em- ployees of the department with sufficient working materials , and over- seeing the work of the department . In addition to these duties, the night assistant foreman has the responsibility of making and keeping work reports. However, none of the assistant foremen has authority to hire and discharge, and all must take up matters involving discipline with their superiors ; they do not, according to the record , act upon their own initiative. We are of the opinion, therefore, that the assist- ant foremen, papering, are not supervisory employees within the mean- ing of our customary definition. Disputed categories of employees in the labor department: The Company's labor department consists of between 100 and 140 workers, the superintendent, 2 assistant superintendents , the construction labor LIBBEY-OWENS-FORD GLASS COMPANY 437 foreman, first and second class working gang leaders, and the brick storage foreman 6 The construction labor foreman is in charge of a crew ranging from 20 to 50 employees who perform various types of unskilled labor. He is responsible to the Superintendent and his assistants for the work of his crew, keeps records with respect to his subordinates, and has made effective recommendations with respect to their hiring and discharge. We find that the construction labor foreman is a super- visory employee within the meaning of our customary definition. The first class working gang leaders, of which there were 4 at the time of the hearing, are responsible to the superintendent and his as- sistants for the work of crews consisting of between 20 and 50 men. The superintendent assigns jobs to the working gang leader, leav- ing him the responsibility for having them completed. Occasionally, production departments requisition men from the labor department and the first class working gang leader has authority to select and assign members of his crew to this type of work. Since work in the production departments carries a higher rate of pay than the work of the labor department, the working gang leaders' authority to se- lect and assign gives them authority to affect directly the earnings of their crew members. In addition, the evidence indicates that these employees keep work records and have made effective recommenda- tions with respect to the discharge of subordinates. We find that the working gang leaders, first class, are supervisory employees within the meaning of our usual definition. The second class working gang leaders substitute for the first class working gang leaders in the Tatters' absence. The record indicates that other than at these times, the employees in this classification keep no records and do not exercise supervisory authority within the meaning of our customary definition. We are of the opinion, based upon the record, that the occasions upon which the second class working gang leader exercises supervisory authority are not suffi- ciently frequent to warrant the exclusion of these employees from the unit. The brick storage foreman is responsible to the superintendent for the work of his crew, consisting of between 6 and 12 employees. He keeps records and has authority to make recommendations affecting the status of his crew members. Before the Company began the practice of centralizing its hiring and discharging procedures, the brick storage foreman had authority to hire and discharge directly. However, other than the loss of this power, his duties have remained 6 As noted above, the construction labor foreman , the working gang leaders , and the brick storage foreman are the employees in dispute. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unchanged. We find that the brick storage foreman is a supervisory employee within the meaning of our customary definition. Painter foreman: This employee is responsible to the plant engineer for the activities of a crew of approximately 10 employees. He assigns work to his crew members , is responsible for the carrying out of these assignments, and keeps work records. He has authority to reject employees whom he finds to be unsuited to the work of his department and also has the power to recommend effectively the discharge of his subordinates . We find that the painter foreman is a supervisory employee within the meaning of our customary definition. Assistant foremen, loading: At the time of the hearing, there were three employees in this classification. The employees of the loading department load glass into boxcars pursuant to prepared orders. The assistant loading foremen supervise employees engaged in performing his work and make out work reports. However, there was no evidence adduced at the hearing to indicate that they have ever exercised the right to make effective recommendations concerning subordinates or to discipline them other than to tell them "snap out of it" and the like. Upon the entire record, we are of the opinion that the authority of assistant foremen, loading, over subordinates is comparable to that of assistant foreman, packing , and assistant foremen, papering. Consequently, we find them not to be supervisory employees within the meaning of our usual definition. Loader foreman, nights : At the commencement of the reopened hearing, the Company employed no one in this classification , although at its conclusion, this position was filled by one employee. However, the record contains no direct evidence based upon the actual per- formance of the duties of this employee. If the authority of this em- ployee is similar to that of the night assistant papering foreman, then he shall be deemed to be included within the unit. On the other hand, if he has authority to take effective action with respect to sub- ordinates upon his own responsibility, then he shall be deemed to be excluded as a supervisory employee. We find, therefore , that the following employees of the Company's Charleston, West Virginia , plant are supervisory employees who are excluded from the unit: construction labor foremen; working gang leaders, first class; brick storage foreman; and painter foreman. We further find that the following employees of the Charleston, West Virginia , plant are non-supervisory employees who are included within the unit: assistant 'foreman, packing ; assistant foreman, paper- ing; working gang leaders, second class ; and assistant foremen, loading.